Legal ramifications of transferring public lands considered by legislature

Casper – The legal considerations in transferring public lands to state ownership were addressed by Utah Assistant Attorney General Tony Rampton during the Oct. 31 Task Force on the Transfer of Public Lands Meeting.

“This is a very complex issue,” commented Rampton, “but it is one that I think has merit.”

Rampton continued that the issue is also emotionally charged for both sides. 

“The media answer is that this is clearly unconstitutional and will not fly,” he said. “The claim we will make is based on the enabling acts.”

Enabling acts

Each state, he explained, was formed when the U.S. Congress passed enabling acts setting forth the terms under which a territory could become a state and pass a constitution.

“In other words, these enabling acts were like contracts,” he said. “Once the state has passed a constitution conforming to the enabling act, the Congress would allow the state into the union, with the final sign-off being by the president of the United States.” 

The provisions in the enabling act of Wyoming read, “The people inhabiting said proposed state do agree and declare that they forever disclaim all right entitled to the un-appropriated public lands lying within the boundaries thereof until entitled thereto…”

Rampton noted, “That provision can be read two ways. It can be read that the state is forever giving up any claims to the lands, the federal government gets the lands, and they can do with it what they please.”

However, the other interpretation of the clause dealing with title suggests the federal government would do something other than retain that title.

Debt 

In the original union, Rampton added that the federal government utilized the federal lands to pay back their debt, primarily debt to European countries.

“The only asset that was owned by the federal government was land,” he said, referencing the time when the U.S. was first settled. “The original union decided that the only way to pay off the public debt was by the sale of this land.”

The same language, Rampton noted, carried over to enabling acts. 

“It was a mechanism to do what the federal government wanted, which was to dispose of the public lands to raise money,” he explained. 

While each state’s enabling act differs slightly in language, Rampton noted that many are largely similar. 

One of the key provisions of the acts states that, in disposing of the lands, a percentage was to be given to the state for the purpose of public schools.

Controversy

“We have two provisions in the enabling acts that infer the federal government was somehow obligated to dispose of the public land,” Rampton continued, “but there is another argument that could be made, as well, regarding the same language.”

The resulting ambiguity has the potential to create legal confusion.

“As we moved through the 1800s, we see, at various times, this question is raised at the federal level and state level,” Rampton added. “Each and every time it was raised, the federal government conveyed that it was their policy to dispose of these public lands.”

Additionally, Congress drafted mechanisms to dispose of the lands, including cash sales, credit sales, homestead acts, mining acts and other avenues.

Circumstances

Rampton further explained that the ambiguity in the enabling acts can be cleared up by looking at history and the circumstances of the situation.

“The U.S. Supreme Court has, in the case Andrews versus the state of Utah, likened that state enabling acts to a contract,” Rampton said. “When we have an ambiguous contract, we can go outside the scope of the document and look at the circumstances.”

Circumstances, he noted, include the history and events surrounding the intent of the contracting parties.

“I’ve alluded to the fact that the United States initially intended to sell these public lands and retire them,” Rampton said.

History, however, is not so cut and dry.

Debate in the Continental Congress, which established the U.S. Constitution, held two opinions. One group at the time believed public lands should be sold to pay off debt, while their rivals argued that public lands should be settled.

Rampton commented, “Either way, we are talking about the disposal of public lands.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.