Who Owns The Land In Arizona? Part III Making The Legal Case

I believe, as does the American Land Council, that now would be a good time to transfer thousands or even millions of acres of federally claimed land back to Arizona.  Here are two near certain predictions about doing so: It will be a tough legal battle and it will cost a lot of money.  Part III discusses legal  issues and informed guesses about the costs, risks, and rewards. The legal analysis was commissioned by the Utah state legislature but the issues are essentially the same for Arizona citizens.  http://www.americanlandscouncil.org/ut_tpl_legal_analysis

The Legal Analysis includes analysis of the oft-mentioned promise by the Feds to return the lands to the states.  The promise is alleged to have been made in the Enabling documents for western states.  I’ve read the enabling documents for AZ—long passages of legalese having to do with a gazillion things, including the words in the section containing the promise.  What those words mean isn’t clear to this layperson so I hoped the Legal Analysis would clear it up.  It did. (Short version: there are arguments on both sides and a court has never decided that exact issue.  Longer version: there is a plausible legal argument that the promise was implicit in the Enabling Act.)

The Legal Analysis considers four different legal theories relevant to transfer of Federal lands to Utah: the Sovereignty Theory, the Equal Footing Doctrine, the Compact Theory, and the Property Clause of the US Constitution.  The analysis is in146 pages of clear and concise writing. What’s it say?

Briefly, the Sovereignty Theory is that States, sovereign each and all, must be treated equally under the law.  Since the eastern states got the land back, the western states should too.

The Equal Footing Doctrine is based on the Sovereignty principle and says that since a bunch of states already had control of the land within their borders when the union was formed, the rest should also have control of the land within their borders.  New states are supposed to be admitted on an equal footing with states already in the USA.

The Compact Theory says that the tricky language in the enabling acts would reasonably be interpreted to mean that the western states would get the land from the Feds because the eastern states had gotten the land from the Feds.  Given that many eastern state enabling acts had exactly the same language as that in the enabling acts for the western states it is reasonable to conclude that the murky language supported land disposition because land disposition actually occurred. Ergo, there was an implicit promise to transfer ownership to the states.  (An analysis by a Federalist Society attorney reaches the same conclusion, addressing the tricky language in a way that helps me understand its meaning: http://www.fed-soc.org/publications/detail/a-legal-overview-of-utahs-hb-148 )

The Legal Analysis takes up the Property Clause argument because the authors suspect that the Feds would bring it up in court and they wouldn’t be doing their job to allow Utah to get blindsided.  The Property Clause of the Constitution deals with how much power land ownership gives the Feds when the Feds own land in territories or in Washington, D.C.  The Feds have a lot of power right there along the Potomac.  Maybe the Feds have a lot of power over a territory, too, but do they have that power once the territory becomes a sovereign state?  That’s the question.

Case law is murky, as it often is.  But making the argument that the Constitution gives the Feds control over, say 50% to 88% of the land in a state is a very long stretch; the Constitution for sure did NOT give the Feds over half of Virginia or Maryland or New York or any of the 13 original states.  There is no record that the Framers even talked about such a silly idea.  How would a state be sovereign if the Feds owned and controlled most of it? The 13 original states would never have ratified a Constitution that turned over half their land to the Feds.  Would territorial officials in every territory have been stupid enough to sign away forever the rights to huge amounts of state land?  All politician jokes aside, I’d hate to try to defend such a position.

The Legal Analysts conclude that each of the 3 legal theories, Sovereignty, Equal Footing, and Compact/Promise have merit.  All 3 could be well-argued and well-supported.  Naturally, opposing attorneys could come up with arguments for the other side; they would be paid big bucks out of the Feds’ deep pockets to do just that.

Suppose opposing attorneys might make such strong arguments that winning a law suit against the Feds wouldn’t be a slam dunk.  So, what’s the risk of trying?

The analysts say that their best guesstimate is that bringing the suit competently would require about 13-14 million dollars. Gotta pay attorney fees and expert witnesses and incidentals.  They suggested Utah might want to get help from other states to bring the suit.

One can make sane but not certain estimates of the potential economic value to a western state of winning the lawsuit.  Would Arizona get a positive return for investing a portion of the 13-14 million cost if the suit were won?

I suspect someone with good information could do an estimate showing it would be a bargain.  A reputable report shows that western states do a much better job than the feds when it comes to spending less than they earn.  A lot better: $14.51 for states, $00.73 for the Forest Service and BLM.

http://www.perc.org/articles/divided-lands-state-vs-federal-management-west

State management is preferable, economically.  What about stewardship?  I’ll dig into that question more in Part IV but, for now, I’ll just say that the feds are way behind in budgeting money for “upkeep” of the Park and Forest Service land.

What if Arizona decided to sell some of the land transferred from the feds?  I have no idea whether selling land, even former BLM land, would be a good idea.  But what would we gain if we did?  As a simple silly-math example, suppose AZ joined with Utah and put up $5,000,000.  If AZ got a wee portion, say 10,000 acres of the 53,000,000 acres that are now Federal land would selling 10,000 acres get a good return on the investment?  If AZ sold all 10,000 acres for $1000 per acre, that would be $10,000,000, a very good return. Selling at $100 per acre would get back a million dollars which is not shabby but maybe not worth the risk.  I have no faith in my silly-math; I just did the computations because a $13-14 million outlay seems like a lot to a retired professor.  It probably isn’t a lot compared to the potential return.

But what if we lost?  Could we withstand it?  Probably without crying all night but I’d want more states to have skin in the game, sharing the risk. Having more states involved might give AZ more bargaining power since it would increase the risk to the Feds if they lost.  I’m glad there are elected officials in AZ working behind the scenes to explore possibilities.

In my view, the time has come to take back Arizona land for the betterment of Arizona citizens.  It is not a zero sum game in which we must wrest benefits from citizens of other states.  It is a matter of wise and productive management of land within Arizona borders.  It is a matter of having governing decisions made by Arizona officials that we can keep an eye on rather than by officials, elected and unelected, living in Washington, D.C. and surrounded by lobbyists who do not care a rip about the citizens of Arizona.  It is a matter of regaining a modest amount of control over the Arizona economy and, not incidentally, over Arizona’s southern border.

I’ll report on border issues in Part IV

About Dale Brethower 12 Articles
Dale Brethower is a Professor of Psychology Emeritus at Western Michigan University. He currently resides in Tucson, Arizona.