Governor Gary Herbert signed House HB 148 (Transfer of Public Lands Act and Related Study) Friday, March 23^rd.  This bill is almost certainly unconstitutional, is bad public policy and won’t help fund Utah’s schools.

HB 148 requires, among other things, the federal government to transfer title of federal public lands in Utah to the state before January 1, 2015.  These public lands include lands managed by the Bureau of Land Management, Forest Service, U.S. Fish and Wildlife Service, and National Park Service.

• They include, among others, sensitive sites such as Grand Staircase-Escalante National Monument, Glen Canyon National Recreation Area, and all national wildlife refuges in the state.

• This would also include the overwhelming majority of remarkable red rock lands surrounding Moab, the San Rafael Swell, and Grand Gulch.

• The Legislature has indicated that some of these lands would be sold outright to the highest bidder while others would be kept in state ownership but opened to oil and gas drilling, off-road vehicle use and extractive industries.

• The bill does not require the transfer of national parks, wilderness areas, or certain national monuments and national historic sites.

The bill also instructs the Constitutional Defense Council to prepare proposed legislation for how the state should manage these lands.

Unconstitutional

• The Legislature’s own legal counsel declared that the required land disposal of this bill has a “high probability of being declared unconstitutional.”

• Art. III, Section 2 of the Utah Constitution says in no uncertain terms that the people of Utah “forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof.”  Likewise, Section 3 of Utah’s Enabling Act, the legislation which led to Utah’s birth as a state, contains this same disclaimer.

• Rep. Ivory and other members of the Utah legislature and Utah’s congressional delegation acknowledge that the bill is almost certainly unconstitutional but are prepared to waste millions of taxpayer dollars in their quixotic quest to send the federal government “a message.”  That message appears to be that as a state we are prepared to squander millions, close access to millions of acres of public lands, and break our promise to the federal government not to take this course of action.

Bad Public Policy

• The public lands that the Legislature demands be given to the state of Utah are places that Utahns and all Americans have loved and enjoyed for decades.  They include the Wasatch National Forest, our national wildlife refuges, Grand Staircase-Escalante National Monument, Glen Canyon National Recreation Area, and thousands of other beloved locations throughout the state.

• The legislature has chronically underfunded state parks.  There is no plan and no money for how the state would or could manage these millions of acres.

Won’t Help Utah’s Schools

• HB 148’s supporters claim that Utah’s schools cannot be funded at the same levels as other states because we have so much public land.  This is plainly not the case. These arguments ignore the fact that on a per capita basis, Utah has a large amount of non-federal land (i.e. tax base and revenue-generating lands compared to population).  In fact, more than half of the states have less non-federal land, on a per capita basis, than Utah but manage to provide more funds for education.  For example, Connecticut, Massachusetts, Rhode Island, and New Jersey all have less than one acre of non-federal land available per capita yet manage to more than double Utah’s level of per pupil funding for elementary and secondary public education.  Utah has roughly 6.5 acres of non-federal land per capita.  There is no correlation in the United States between per pupil public education funding and acres of non-federal lands (either per capita or absolute).

• The Legislature has consciously decided time and again NOT to fund Utah schools at a higher level.  One simple choice the Utah legislature has made which limits public education funding is to give natural resource extraction companies favorable tax treatment.  Headwaters Economics recently released a report which found that in fiscal year 2011, Utah had the lowest effective tax rate on oil and natural gas activity of any western energy producing state.  Likewise, Utah has no severance tax on coal; Wyoming has a coal severance tax rate between 3.75% and 7%.