States “taking back” federal public lands is unconstitutional, and the courts have spoken many times on this issue.
First, the Property Clause of the U.S. Constitution gives Congress authority over federal property. On multiple occasions the U.S. Supreme Court has described that authority over public lands as “without limitation.” And nearly every Western state that entered the Union agreed to “Enabling Acts” that allowed them to enter the Union, and did so under the condition that the right and title to federal lands would remain with all Americans (read the Enabling Acts below).
Utah’s own Office of Legislative Research and General Counsel said that Utah’s legislation had “a high probability of being declared unconstitutional.” Idaho’s Attorney General determined that the idea of public land transfers had little merit.
Here are additional legal resources:
- The American Constitution Society analyzed the constitutionality of land transfers, and determined that ” states have no constitutional power to force federal land transfers.”
- A January 2015 legal analysis from the University of Utah’s Wallace Stegner Center determined that “If states take over land management, fiscal realities will force more development.” The paper also addresses the potential negative impacts of “transferring” public lands to many users, including ranchers, skiers and snowboarders, and oil and gas drillers.
- An October 2014 legal analysis from the University of Utah’s law school found that “the transfer movement’s legal strategy is not viable.”
- This report from the Congressional Research Service outlines the history of Western land ownership. It includes a useful overview of litigation on this issue that has previously been brought.
- Another comprehensive legal overview of efforts to “take back” public lands — and a takedown of the “sagebrush rebels’” arguments — can be seen in this law review article by John Leshy entitled “Unraveling the Sagebrush Rebellion: Law, Politics and Federal Lands” (1980).
- Pages 1-6 of this report from the Bureau of Land Management trace the history of the public domain, including land acquisitions over time.
The state Enabling Acts read:
Click on your sate to read the full enabling act: