BACKGROUND. Of Utah s 54.3 million acres, federal agencies manage 64.5 percent, or 35 million acres. Most of this

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1 1 BACKGROUND Utah is a state rich in land resources, most of which are owned and managed by federal agencies. Like many other western states, land ownership in Utah is characterized by a high level of federally controlled land intermingled with state and privately owned lands (Figure 1.1). The high level of federal land ownership, combined with concerns about federal management of Utah s lands, culminated in the passage of H.B. 148 calling for the transfer of 31.2 million acres of public land to the state. 21% 10% Figure 1.1 Land Ownership in Utah 5% 64% Federal State Private Tribal Of Utah s 54.3 million acres, federal agencies manage 64.5 percent, or 35 million acres. Most of this land is administered by two federal agencies: the Source: BEBR analysis of data from State of Utah, SGID. Bureau of Land Management and the U.S. Forest Service. Other federal agencies with much smaller shares include the National Park Service, the Department of Defense, the U.S. Fish and Wildlife Service, the Department of Energy and the Bureau of Reclamation. Twenty-one percent of lands are in private ownership (11.4 million acres), which includes county and municipal land. Tribal lands account for 4.5 percent of the total. Tribal trust lands are cooperatively managed by the Bureau of Indian Affairs and the Native American Indian tribes that own the land (Banner 2009). Utah state government agencies own and manage the remaining 10 percent of the land in the state (5.4 million acres) (Table 1.1 and Figure 1.2). Table 1.1 Utah Land Ownership, by Agency Entity Acres Share Federal 35,019, % Bureau of Land Management 22,803, % Forest Service 8,175, % National Park Service 2,096, % Department of Defense 1,812, % U.S. Fish and Wildlife Service 112, % All Other Federal 19, % State 5,419, % School and Institutional Trust Lands 3,400, % Department of Natural Resources 1 2,015, % Utah Department of Transportation 2, % Other State % Private, County and Municipal 11,428, % Tribal 2,448, % Grand Total 54,315, % 1. Includes acres managed by Forestry, Fire and State Lands, Division of Wildlife Resources, and Division of State Parks and Recreation. Source: BEBR analysis of data from State of Utah, SGID. Most of Utah s lands are trust lands managed by the State of Utah School and Institutional Trust Lands Administration (SITLA). Other state agencies managing Utah lands include the Utah Department of Natural Resources (Division of Forestry, Fire and State Lands, Division of Wildlife Resources and Division of State Parks and Recreation), and the Utah Department of Transportation (Figure 1.2). Utah s land ownership legacy is a result of federal land policies enacted shortly after the Revolutionary War, which continued as the government acquired, disposed of, and eventually retained its lands. An overview of federal lands history explains the evolution of Utah s current land ownership patterns and provides context for passage of H.B

2 A N A NALYSIS OF A T RANSFER OF F EDERAL L ANDS TO THE S TATE OF U TAH Figure 1.2 Land Ownership of Utah, by Agency 2

3 1 Background The federal government currently owns and manages more than 620 million acres of land in the United States, roughly one-third of the 1.8 billion acres it has acquired since the Revolutionary War. Most of these lands are heavily concentrated in the West (including Alaska), and most are managed by four federal agencies the Bureau of Land Management, U.S. Fish and Wildlife Service, the National Park Service and the U.S. Forest Service. The remaining acres are managed by other federal agencies, most notably, the Department of Defense. While the transfer of 1.3 billion acres to private and state ownership played an essential role in the settlement and development of the fledgling Republic, the present-day policy of federal land retention continues to be controversial. The history of land acquisitions, federal land disposal and land retention policies in the U.S. provides an important context for current affairs relating to the demands by some western states for transfer of federal lands to state ownership. 1.1 FEDERAL LAND A CQUISITION AND DISPOSAL For much of America s history, federal land policies have been contentious; however, they were crucial in establishing a strong, centralized federal government after the Revolutionary War and in the settlement of vast, new areas of largely unsettled lands. Federal land ownership began with the cession of western lands claimed by several of the original colonies to the federal government. From 1781 to 1802, ownership of 237 million acres between the Appalachian Mountains and the Mississippi River was transferred to the newly formed Republic. Under this cession, these lands became the property of the federal government (Gates 1968). The public domain grew with subsequent acquisitions via purchases and treaties, beginning with the Louisiana Purchase in 1803 and ending with the Alaska purchase in 1867 eventually culminating in a U.S. land base totaling roughly 2.27 billion acres (Gorte and Alexander 2007). 1 Table 1.2 shows the acquisition of the public domain. The states cession of their lands was an important resource for the federal government, providing a mechanism to resolve the country s massive Revolutionary War debts, address the ongoing financial needs of the government, and encourage settlement in the new lands. 2 Table 1.2 Acquisition of the Public Domain Acquisition Date Area 1 Share of Total U.S. Land 2 State Cessions ,825, % Louisiana Purchase ,911, % Red River Basin ,601, % Cession from Spain ,144, % Oregon Compromise ,386, % Mexican Cession ,680, % Purchase from Texas ,9269, % Gadsen Purchase ,988,800.8% Alaska Purchase ,242, % Total Public Domain 1,840,709, % 1. Includes land and water acres. 2. Represents the percentage of current total U.S. land acreage, which is 2,271,343,360. This excludes U.S. territories and possessions. 3. Treaties with Great Britain. Source: U.S. Department of the Interior, Bureau of Land Management, Public Land Statistics, 2012, pls12/pls12.pdf. The mechanism under which this land distribution would occur was defined in the Land nance of Questions about governance of the lands, including the requirements for statehood, were laid out in the Northwest Ordinance of 1787 (Culp, et al. 2005). 1 Cessions of land from the original states and other lands acquired via treaty or purchase after 1781 totaled 1.8 billion acres. The remaining million acres belonged to, or were retained by, the original states (BLM 2013). 2 According to the Bureau of Public Debt, by 1791 debts incurred during the American Revolutionary War totaled $75,463,476, roughly equivalent to $2.25 billion in

4 A N A NALYSIS OF A T RANSFER OF F EDERAL L ANDS TO THE S TATE OF U TAH The Land Ordinance of 1785 authorized the public land rectangular survey system that became the foundation by which land was surveyed and sold by the federal government. The General Land Office, predecessor to the modern-day Bureau of Land Management, was created to facilitate the surveying and disposal of the federal lands. The Northwest Ordinance of 1787 created a system of territorial governments and established the process for transitioning territories into new states. In contrast to many other sovereign governments, the U.S. generally disposed of lands at nominal prices and encouraged private ownership, enacting numerous laws to sell, grant, or otherwise transfer federal lands to encourage and accelerate settlement of the West. Examples include the Pre-Emption Act of 1841, the Homestead Acts of 1862 and the Desert Lands Entry Act of These acts offered settlers large tracts of land (ranging from 160- to 640-acre parcels) at reasonable prices (ranging from $1.25 to $2.00 minimum per acre). To facilitate land disposal, Congress established the General Land Office in 1812, whose primary purpose was transferring lands into private ownership. Apart from the mass sale of land, Congress also granted lands to the railroads in the 1870s, providing incentives to establish a national transportation system (Gates 1968). Through these acts, and other federal land policies encouraging settlement and development of the public domain, 816 million acres have been transferred to private ownership (homesteaders, railroads, veterans, etc.) since Most of the land transfers occurred prior to Apart from grants and sales, 471 million acres have been conveyed to the states, primarily in the form of trust land grants. Providing educational opportunities for its citizenry was an important objective of the federal government. Lacking financial resources, Congress turned to its land resources. When new states entered the Union, they received one section in each township for public education as well as lands (to be selected by the state) for other public institutions. These land grants were known as trust lands and were to be used for the benefit of the beneficiary for which they were granted. Provisions for the lands were included in the enabling acts of the new states. As land was surveyed, these reserved sections were granted to the new state without further action (Walker 2006). As development moved westward, the size of the grants increased significantly, first to two sections and ultimately to four sections of every township. The reasoning behind the increasingly large grants of land was a practical one. Land in the west was steeper, more arid and less likely to support agriculture. Congress recognized that western states would require a larger amount of land to produce the necessary resources to support public schools. In addition, the original reservation grants for common schools were accompanied by increasingly generous block grants for the support of other public institutions. Beyond these additional grants, Congress allowed states to select in lieu lands from elsewhere in the public domain when their reserved lands in a given township were already occupied by homesteaders or dedicated to other purposes (Culp, et al. 2005). 4

5 1 Background 1.2 FEDERAL LAND WITHDRAWALS AND R ETENTION Coincident with federal policies during the mid- to late 1800s encouraging the settlement of the West through land disposal, were policies that provided for land withdrawals the removal of lands from the disposal process to be retained for particular public purposes. For example, the Land Ordinance of 1785 mentioned above reserved sections of each township for the benefit of public schools in newly formed states. Other withdrawals were for specific public purposes such as military fortifications and mineral reservations. By the end of the 19th century, however, lands were withdrawn for much different reasons. By the late 1800s there were growing concerns in Congress that rapid development in the West threatened some of the nation s scenic treasures and depleted resources that may be needed in the future. These concerns culminated in new laws focused on land preservation and conservation rather than land disposal. The establishment of Yellowstone National Park in 1872 was a first step this process, eventually leading to the establishment of the National Park System. In 1891 Congress passed the General Land Reform Act, which created the forest preserves, removing those lands from private entry. This act ultimately led to the creation of the National Forest System (Gorte and Alexander 2007). By the end of 1909, a total of million acres were in forest reserves. In 1903, President Theodore Roosevelt began withdrawing lands to protect wildlife habitats, which led to the National Wildlife Refuge System. 3 From 1891 onward, emphasis subtly shifted from land disposal to retention and management of the remaining federal lands. Greater emphasis was also placed on implementing policies focused on scientific approaches to resource conservation and preservation. By the 1930s, it was generally accepted that the federal government would reserve and manage millions of acres in the public domain. Under the auspices of the newly formed U.S. Department of the Interior s Grazing Service, the 1934 Taylor Grazing Act strengthened the move in this direction. This act, intended to remedy the deterioration of federal lands due to overgrazing and drought, established grazing districts on public rangelands, and provided direct authority for federal management of lands which previously were freely available for transient grazing, and reflected the significant decline in homestead entries (Gorte and Alexander 2007). 4 The shift toward an explicit policy of retention was solidified in 1964 with the establishment of the bipartisan Public Land Law Review Commission (PLLRC) and enactment of the Classification and Multiple Use Act of PLLRC was tasked with reviewing existing public land laws and regulations and the policies and practices of federal land management agencies. The first recommendation from the PLLRC in its 1970 report to the President and U.S. Congress was that the remaining federal lands, in general, should be retained in federal ownership. Specifically it recommended that the policy of large-scale disposal of public lands reflected by the majority of statutes in force today be revised and that future disposal be of only those lands that will achieve maximum benefit for the general public in non-federal ownership, while retaining in Federal ownership those whose values must be preserved so that they may be used and enjoyed by all Americans (PLLRC 1970). 3 Although the first wildlife refuge was established by executive order in 1903, it was not until 1966 that all the refuges in the U.S. were collected into the National Wildlife Refuge System. 4 The U.S. Grazing Service was formally merged with the General Land Office in 1946 to form the Bureau of Land Management. 5

6 A N A NALYSIS OF A T RANSFER OF F EDERAL L ANDS TO THE S TATE OF U TAH Coincident to the research efforts of the PLLRC, the Bureau of Land Management (BLM) began classifying lands under its control for retention, disposal, and multiple-use values as directed under the Multiple Use Act. By the time PLLRC released its report, BLM had classified more than 90 percent of the remaining public lands under its jurisdiction for retention Era of Expanding Regulation The 1960s and 1970s marked a transition into the modern era of federal land management with the enactment of federal statutes protecting air, water, habitat and wildlife resources and establishing administrative protocols for managing federal lands. These changes in land management were driven by federal laws centered on three broad topics: (1) environmental protection (amendments to existing laws), (2) federal land management administrative procedures, and (3) land, habitat and wildlife resource protection. By the middle of the 20th century some ardent conservationists were demanding that parts of the public domain be permanently maintained as wilderness. They argued for prohibiting timber cutting, oil and gas drilling and other economic activities in these areas. In response to these demands, Congress passed the Wilderness Act of 1964, which set aside millions of acres of wilderness with very restrictive rules on their use. Many in the western states bitterly criticized this law, insisting that resource development was integral to their economic prosperity. Other resource protections were provided for in the Clean Air Act of 1970, the National Environmental Protection Act of 1970, the Clean Water Act of 1972 and the Endangered Species Act of Many of these laws continue to fuel contentious debates involving land users and federal land managers. The enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) codified the policy of federal land retention over disposal (except in specific cases), essentially ending the era of federal land disposal in the United States. With FLPMA, Congress expressly declared that the federal government would retain ownership of the public lands unless the Secretary of the Interior determines that the disposal of particular parcels serves the national interest. In addition to formalizing the policy of land retention, FLPMA also declared that public lands managed by the BLM were to be managed for multiple uses and values, and repealed almost 2,000 statutes addressing land disposal policies enacted in earlier decades (Skillen 2009). The end of the land disposal era left most of the western United States under federal ownership. In 2010, 555 million acres or roughly 88 percent of remaining federal land was contained in the 11 western states plus Alaska. This high concentration of federal lands in the West, combined with policies outlined in FLPMA, were significant factors in the Sagebrush Rebellion, a campaign by many westerners beginning in 1978 to assert title to federal lands or force their divestiture. With the passage of FLPMA, these states faced a future with a substantial and permanent federal presence with little influence as to how those lands would be used. The Sagebrush Rebellion was a reaction to this environment, taking the form of state and local legislation, court challenges, federal administrative changes and efforts at federal legislation. While some of these efforts gained traction in Congress and with the Reagan administration, eventually they all proved unsuccessful. Since 1978, numerous bills have been introduced in Congress aimed at reducing federal land ownership through either land transfers or by capping federal land acquisitions. To date, none have been successful. 6

7 1 Background 1.3 LAND OWNERSHIP IN U TAH The formal transfer of federal lands to private ownership in Utah began in 1869 with the establishment of the first General Land Office in Salt Lake City. 5 By the time the office opened, the Utah Territory was well established by members of the Church of Jesus Christ of Latter-day Saints (the Church) who settled in the area in 1847 after fleeing religious persecution in Illinois. The territorial government established by the Church governed land ownership in the Utah Territory (May 1987). The early citizens of Utah were not permitted the benefits of land disposal laws due to disagreements between Church doctrine, laws of the United States, and the territorial legislature, which generated church-state conflicts. These conflicts delayed the process of land transfer to private citizens. For example, the Preemption Act of 1830 (which allowed settlers to purchase up to 160 acres of land for $1.25 per acre) and the Homestead Act of 1862 (which granted 260 acres to those willing to settle the American Frontier ) did not become applicable in the Utah Territory until January 1869, when the Land Office opened (Banner, et al. 2009). With the opening of the General Land Office, Utah lands were integrated into the national land system by extending the rights of preemption, homestead and purchase to Utah inhabitants (State of Utah 2014). 6 Figure 1.3 Township Grid Utah s trust lands were granted under its Enabling Act of By the time Utah was admitted to the Union, Congress had increased the grant allocation to Source: State of Utah, SGID. four township sections 2, 16, 32 and 36 (Figure 1.3). While the rationale for scattering land grants was a practical one, it created a disjointed checkerboard pattern of 640-acre, noncontiguous, isolated parcels bordered by federally owned lands. Utah trust land grants for the support of public schools totaled 5.9 million acres. In addition, Utah received quantity or floating grants totaling 1.6 million acres. In total, Utah s original trust land grant was about 7.5 million acres, or roughly 14 percent of the state s surface lands. 8 5 All land in the Utah Territory became part of the public domain when the United States signed the Treaty of Guadalupe Hildalgo in February This land came into the possession of the United States government with an undisputed title. At that time no private rights had been established. 6 The Preemption Act of 1842 gave settlers the first right to purchase 160 acres of land they had already homesteaded, and 21 months to make payments. The Homestead Act of 1862 evolved from preemption. This act provided free grants of public lands to any person who was a citizen of the United States and over 21 or the head of a household. 7 After several unsuccessful attempts at statehood, Utah was admitted to the Union in 1896 under an 1894 Enabling Act (Matheson and Becker 1988). 8 Because of its early settlement, many of the township sections had already been sold or transferred to private ownership. The Utah Enabling Act made provisions for this by specifying that if any of the township sections had already been disposed of by Congress, the state would be entitled to other equivalent lands. These lands have become known as in-lieu lands. Utah did not complete its in-lieu selections until after 1985 (Harmer 1990). 7

8 A N A NALYSIS OF A T RANSFER OF F EDERAL L ANDS TO THE S TATE OF U TAH At the point government policy shifted to land retention, Utah was still a very young state and its lands, outside of the urban areas, were largely unclaimed. 9 Consequently, a large share of Utah s lands were retained by federal agencies primarily the Bureau of Land Management, National Park Service and the U.S. Forest Service. The present-day policy of federal land retention has been, and continues to be, controversial. It is within this context that Utah passed legislation in 2012 calling for the transfer of 31.2 million acres of federal lands to the state of Utah. H.B. 148, which enacted the Transfer of Public Lands Act (Utah Code Ann. 63L to 104), requires the United States to extinguish title to public lands and transfer title to those public lands to the state on or before December 31, Public lands are defined in the legislation as all federally owned lands in the state except the following: the national parks; all of the national monuments except Grand Staircase Escalante, which is included in the transfer; the Golden Spike National Historic Site; designated Wilderness Areas; military lands; real property or tangible personal property owned by the United States if the property is within the boundaries of a municipality ; and Indian tribal lands held in trust by the United States. 10 Figure 1.4 shows the extent of the lands to be transferred. 9 When federal lands were allocated as school trust lands, the urban areas of Utah were largely settled and the relatively few acres of urban trust land were quickly sold. The result is that very few acres in the urban counties are trust land acres (Hedden and Bigler 2002). 10 See Appendix H for the complete text of H.B

9 1 Background Figure 1.4 Federal Lands Called for in the Transfer of Public Lands Act 9

10 A N A NALYSIS OF A T RANSFER OF F EDERAL L ANDS TO THE S TATE OF U TAH R EFERENCES Banner, Roger E., Ben D. Baldwin, and Ellie I. Leydsman McGinty Rangeland Resources of Utah. Utah State University Cooperative Extension and the Utah Public Lands Policy Coordination Office. Culp, Peter W., Diane B. Conradi and Cynthia C. Tuell Trust Lands in the American West: A Legal Overview and Policy Assessment. The Lincoln Institute and the Sonoran Institute. Gates, Paul W. History of Public Land Law Development. Public Land Law Review Commission. Washington D.C., November Gorte, Ross W. and Christina Alexander. Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention. Congressional Research Service, December 3, digital.library.unt.edu/ark:/67531/metacrs1009/. Harmer, Matthew J Utah s School Trust Lands: A Century of Unrealized Expectation. BYU. Pub L. 453 (1990). digitalcommons.law.byu/edu/jpl/vol4/iss2/8. Hedden, Bill and Craig Bigler School Trust Lands in Utah. documents/ut_schooltrustlands.pdf. Matheson, Scott and Ralph E. Becker Improving Public Land Management Through Land Exchange: Opportunities and Pitfalls of the Utah Experience. Rocky Mountain Mineral Law Institute 4.02[1] May, Dean L Utah: A People s History. University of Utah Press. Public Land Law Review Commission (PLLRC) One-Third of the Nation s Land: A Report to the President and to the Congress. Washington D.C. Walker, Christopher The History of School Trust Lands in Nevada: The No Child Left Behind Act of scholars.law.unlv.edu/nlj/vol7/iss1/5/. Skillen, James R The Nation s Largest Landlord: The Bureau of Land Management in the American West. University Press of Kansas. State of Utah, Division of Archives and Records Original Land Titles in Utah Territory. archives.utah.gov/research/guides/land-original-title.htm. U.S. Department of the Interior, Bureau of Land Management. Public Land Statistics,