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Eye On Boise

Western attorneys general legal analysis faults public lands transfer arguments

A detailed analysis by 11 western attorneys general finds fault in many of the arguments that Utah is making in its push to get millions of acres of federal lands transferred to the states, the AP reports. The analysis, two years in the making, was obtained by the Associated Press through a public records request; the Conference of Western Attorneys General approved the report in a meeting in Idaho over the summer. Here's the AP's full report:

Attorneys general cast doubt on Utah land push 
MICHELLE L. PRICE, Associated Press

SALT LAKE CITY (AP) — A new legal analysis from a group of Western attorneys general casts doubt on many of the arguments Utah has put forward in its push to gain control of millions of acres of federal land.

The report, based on two years of work , doesn't address every argument Utah has floated, but it points out decisions by the Supreme Court and other federal courts that could put Utah on shaky ground if it sues the U.S. government for control. The analysis was drafted by lawyers from seven Republican attorneys general, three Democrats and one independent.

It was obtained by The Associated Press through a public records request.

The Conference of Western Attorneys General, made up of the top law officers in 15 western states and three U.S. territories, voted 11-1 to approve the report at their annual meeting in Idaho this summer.

Critics say it's one more sign that a lawsuit, which could cost up to $14 million, has little chance of succeeding.

The findings align with legal experts but contrast with the opinion of a team of outside lawyers hired by Utah who concluded last year that the state has some legitimate arguments to make and recommended Utah sue. Utah lawmakers have so far agreed to pay the team up to $2 million for their work.

Politicians can try to make a case before the public and Congress that their state has been treated unfairly, but the attorneys general group seems to be signaling that a court battle isn't the way to go, said John Leshy, a professor at University of California Hastings College of Law who was the Interior Department's top lawyer during the Clinton administration.

The group is "basically saying this is a loser," Leshy said. "I think you read this thing if you're a practicing lawyer and go, 'God, do they have a case?'"

Messages left with defenders of Utah's lands push were not returned Friday.

Supporters of the largely Republican lands push say Western states where the federal government owns large portions of land have less power and earning potential from their land compared with states in the East. They also argue the federal government is a poor manager, citing overgrown forests ripe for catastrophic wildfires as an example.

Officials in many Western states are pushing for greater control but Utah has gone further than any other state, passing a law demanding more than 30 million acres and hiring a team of lawyers to help prepare a case.

Utah's GOP-controlled Legislature is in favor of a lawsuit, but the decision rests with Utah Attorney General Sean Reyes.

Dan Burton, a spokesman for Reyes, said Friday that the office is still reviewing the matter and did not have a comment on the report and what it might mean for Utah.

Reyes is a member of the Conference of Western Attorneys General, but Burton said Friday evening that while Reyes and another lawyer from his office were at the group's meeting in Idaho, neither of them were present for the vote on the report. Burton said they were attending other meetings happening at the conference at that time but didn't have details about them.

Chris Coppin, the attorneys general group's legal director, declined to say which state voted against the report.

The lawyers that worked on the report came from attorneys general offices in Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.

Any attorney who worked on the group had the option of writing a dissent, but Coppin said no one took that option.

Coppin declined to characterize the report's findings and their implications for Utah's case.

Wyoming Attorney General Peter Michael, a Republican who oversaw the report, also declined to characterize the report's findings or the viability of any lawsuit.

Michael said the language in the report was very detailed and precise and couldn't be summarized in a few sentences. "The report speaks for itself, just like a legal brief does," he said.

He declined to respond to critics who say it shows that any lawsuit would be unlikely to succeed and wouldn't say if his own office is considering a lawsuit similar to Utah's.

Overall, the report found that the U.S. Supreme Court has repeatedly ruled that the Property Clause of the Constitution gives the U.S. government the right to own public lands and keep them public and the exclusive power to decide whether to dispose of them or sell them off.

While the court hasn't directly ruled on whether the U.S. government can keep the public lands forever, the court has made past statements indicating that the government can and has also found the government's authority under the Property Clause of the Constitution "has no limitations."

The report also says that while newer, Western states may be at an economic disadvantage with large portions of their land under federal control, legal arguments that federal land ownership unconstitutionally keeps them from having Equal Footing and Equal Sovereignty with older, Eastern states are weak.

One argument Utah has raised that attorneys general did not explore is whether any state's founding document gives it a claim to the land. The organization said the circumstances of each's state joining the union were unique and they'll leave that analysis to each state.

Messages seeking comment were not returned Friday by Rep. Ken Ivory, a state lawmaker who has spearheaded Utah's lands push, and Rep. Keven Stratton, a lawyer and Republican who chairs the Utah committee working on the lands transfer push.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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