The recent partial shutdown of the federal government sent a strong warning to states that fiscal pressures in Washington D.C. can have major ripple effects at lower levels of government, given the significant levels of intergovernmental transfers of funds. One state that is increasingly recognizing this relationship is Utah, where over a quarter of total state revenues are derived from federal funding sources. A growing awareness of this heavy reliance on federal funds prompted the Utah state legislature to pass a package of bills in 2011 and 2012—known collectively as the “Financial Ready Utah” initiative—aimed at quantifying the amount of federal funding used by state agencies and making contingency plans in the event of a major cutback in the flow of federal funds.
Utah is also among those western states that, unlike their peers in the East, see an extensive degree of ongoing federal land ownership—well over 50 percent of the total land area in several states—primarily through national forests, Bureau of Land Management properties, national parks and monuments, and other types of lands. Such vast federal land holdings reduce the amount of land available in the western states for commerce, taking it off the tax rolls and presenting a challenge for these states to generate funds for education and other priorities, relative to their eastern peers.
Utah State Representative Ken Ivory has been a leader in the pursuit of fiscal self-reliance in Utah, with regard to both issues—federal fund transfers and land ownership. Ivory was a primary sponsor of the Financial Ready Utah bills, as well as the 2012 Transfer of Public Lands Act, which establishes a framework for the transfer of certain federal lands to the state of Utah in the coming years. Ivory also serves as president of the American Lands Council (www.AmericanLandsCouncil.org), a nonprofit composed of state officials, local governments, businesses, organizations and individuals interested in advancing the cause of local control of land access, land use and land ownership.
Earlier this month, Reason Foundation Director of Government Reform Leonard Gilroy interviewed Rep. Ivory on the rationale behind the Financial Ready Utah bills and the Transfer of Public Lands Act, the history of federal control of western lands, and much more.
Leonard Gilroy, Reason Foundation: Can you describe the thinking behind the Financial Ready Utah initiative?
Utah State Representative Ken Ivory: In my first session in the Utah House in 2011, I was concerned we didn’t seem to know exactly how much federal funding came into Utah. I heard a variety of guesses, but as we really started to look the numbers, we discovered that as much as 45% of our total revenue in the state of Utah comes from a federal government that is broke. The federal consolidated financial statement from the Government Accountability Office reports annually that federal finances are unsustainable. The GAO will not issue an unqualified financial statement on the United States. So, nearly 45% of Utah’s revenue comes from a federal governing partner that is fiscally reckless, as repeatedly demonstrated with each new debt ceiling or continuing resolution debacle.
So, we began looking at how to attain a level of economic self-reliance, and given increasing federal uncertainty, how do we assess the immediacy, severity and probability of the risk of a reduction in the amount or value of federal funds—what do we do at the state level? Also, how can we foster community preparation for the fiscal earthquake that is, in all likelihood, more probable than the physical disasters that we spend millions of dollars preparing for?
Gilroy: Once you had a sense of the scale of federal funds as a percentage of state revenues, what legislative actions did that prompt?
Ivory: The legislation started in 2011 with a fairly simple bill—it was called the “Federal Receipts Reporting Requirements” (2011 House Bill 138). This bill required all state agencies to disclose total federal receipts, what percentage of their budget that represented, and then what their contingency plan would be if there was a reduction in federal funds of 5% or 25%. What this did was get our state agencies to begin the exercise of thinking about what would happen in the event that federal funds go away. This was in 2011—pre-downgrade, before the first debt ceiling meltdown, before the Budget Control Act. Some looked at our efforts and felt that we were a bit crazy in trying to prepare for federal funds going away. Well, fast-forward seven months from the passage of that bill, there was the looming shutdown, the downgrade of the credit rating of the United States, the debt ceiling meltdown, and sequestration—which materialized into serious cuts of the federal funds flowing to states, counties, cities, schools, etc.
Following the 2011 U.S. credit downgrade, credit rating agencies began revisiting the credit ratings of the various states because of their dependency on federal funds. When our Utah finance folks met with the ratings agencies they were asked what Utah was doing to deal with this risk. They referenced the bill we just passed and that Utah was already starting to engage on this issue. The ratings agencies responded that Utah was the only state in the nation taking such a proactive approach, so they weren’t even going to review Utah for downgrade.
HB138 started the ball rolling. Under this bill, we are receiving reporting from all of our agencies regarding what their percentage of federal funds is and what they would do in the event of a reduction of federal funds. This is a good starting point for information. But we realized that we needed to stitch this information together into a more comprehensive plan.
During the 2012 legislative session, Senator Deidre Henderson and I, working together with our Utah Association of CPAs (UACPA) and local chambers of commerce, put together a package of about seven different bills that came to be known as “Financial Ready Utah.” In addition to the UACPA and chambers of commerce, business groups, school districts, cities, etc. began passing resolutions of support encouraging state and national leaders to take action to control our own destiny because of the very definite sense that this flow of federal funds comprising the single largest revenue line item in Utah’s budget is unsustainable.
The package of bills passed with overwhelming support. The first was a resolution that outlined the gravity of the problem. For example, former Clinton White House Chief of Staff Erskine Bowles said that we face “the most predictable economic crisis in history.” Admiral Mike Mullen, former Chairman of Joint Chiefs of Staff under President Obama, said that the greatest threat to our national security is the national debt. David Walker, the former head of the Government Accountability Office under both Clinton and Bush, warns that we’re facing a meltdown—we have a crisis of leadership, a fiscal crisis, a monetary crisis. When you look at knowledgeable people like this issuing such stark warnings, it would seem irresponsible to not take serious action to prepare. So a resolution sponsored by Sen. Aaron Osmond laid out these facts.
The second bill sponsored by Sen. Henderson formed the Federal Funds Review Commission. The Commission is made up of legislators, governor’s staff and private members. We have a couple of members from UACPA, as well as some city managers, county representatives and others on the commission. We are starting to look at—number one—how do we assess the immediacy, severity and probability of a reduction in the amount or value of federal funds and what that impact would be? And then how do we at the state level undertake this fiscal disaster preparedness, if you will? Our UACPA, business groups and cities are looking at how we take this Financial Ready Utah message out to the communities and make the case for fiscal earthquake preparedness to homes, businesses and municipalities.
A couple of the other bills in the package this past session require the governor in his annual budget to account for the risk of a reduction in the amount or value of federal funds, and for the legislature to do the same thing and to have our legislative fiscal analyst to advise us on the probability and risk of a reduction in federal funds.
Gilroy: Now that agencies are actively accounting for federal funds in the context of contingency planning and the like, what sort of reaction have you seen from them? Have they been resistant or are they surprised?
Ivory: I think in 2011 when the serious likelihood of a reduction in federal funds was probably not as apparent, there might have been some reticence. But as we’ve seen things unfold—we now have three years of reporting from agencies—and now they’re seeing that this is an exercise that we really needed to go through. This is the result of the first bill from 2011, HB138.
With our federal funds commission, now we’re looking at how we take all of that information and stitch it together into a comprehensive plan. We’ve got working groups for local government, education, health and human services, public safety and risk assessment. Now, we’re taking this information and assessing comprehensive action steps, possibly including getting some professional assistance on large-scale enterprise risk management planning. But we’re moving forward in looking at the problem. You can’t solve a problem unless you’re willing to examine it.
So that’s step one, and now we’re figuring out how to take on this huge exercise of enterprise risk management at a state government level.
Gilroy: Do you see more Financial Ready Utah initiatives coming in the future?
Ivory: There’s a lot more to come. This is a big exercise. The name “Financial Ready Utah,” comes from a natural disaster preparedness initiative in Utah called “Be Ready Utah.” We look at this as the financial disaster preparedness, so it is called “Financial Ready Utah.” Our Utah Association of CPAs formed a 501c(3) entity called Financial Ready Utah to educate and work with their members throughout the state and work with our disaster preparedness teams to tackle these issues.
When you look at how do you broaden your tax base, how do you look at emergency reductions in spending, how do you look at delivering services in a different manner when you’re talking about a potential hole on the order of $5 to 6 billion in a state budget of $13 billion—it’s a huge undertaking for part-time legislators and executive staff. So we’ve been outlining the pieces that need to happen and the future legislation that needs to go forward, and then looking at the professional help and other advisors that we can bring in to really hone a cohesive plan.
This is a great example of a bottom-up effort to drive policy, because people, businesses and organizations on the ground understand that we can’t pretend to print and borrow our way to prosperity. They understand that at some point this ends badly, as it has throughout all history.
Gilroy: Have you gotten inquiries or interest from other states in what you’re doing?
Ivory: We’ve gotten inquiries from all over the nation. I think that states and cities are realizing that we’re in a very serious time. To think that as a nation, we’re perpetually pretending that we can print prosperity–it simply defies reality. We’ve got to prepare, because no matter what happens at the federal level, we still have to educate children, we still have to take care of sick and poor people, we have to take care of roads and public safety. Only in Washington D.C. can they pretend to live in such a bubble.
Take the recent shutdown of the national parks. There was no communication from our governing partner at the federal level, no coordination as to how we could mitigate the pain and the damage a shutdown would cause—meanwhile, tourism is an $8 billion per year industry in Utah. From vindictive and arbitrary actions by our federal governing partner, we had families completely out of work, businesses shut down, entire industries threatened. We’ve offended travelers from all over the world; many of them were turned away at national parks. The ramifications of that are likely to go on for years and even decades, when you think of how fickle tourism dollars are.
We hadn’t even considered such vindictive political risk, but now that’s a reality that we are going to have to plan for as well. It was a very serious, very tangible wake-up call that Financial Ready Utah isn’t just some future planning exercise—this is happening right now.
Gilroy: You’ve also been engaged on issues related to western lands—specifically the large amount of federal ownership of land in western states—which plays into this state self-reliance concept as well. How did you get involved in that?
Ivory: They evolved simultaneously. In the 2011 session—when we realized that over $5 billion of our state revenue comes from a federal government that’s broke—that’s when we started to flesh out how serious those numbers were. Something on the order of 40% of our state revenue comes from an unsustainable source in our federal governing partner. We looked at the magnitude of this risk and started to think about how we could broaden our revenue base and get to a point of economic self-reliance.
You’re not going to close a revenue gap in the billions of dollars by tweaking the tax code with minor adjustments; you’d have to more than double the income tax and kill the economy. You’d have to increase corporate taxes by more than 1000%, again, killing the economy in an attempt to close that gap. On top of the general fiscal gap, in Utah we are $2.6 billion below average in annual per-pupil funding. There’s no amount of nipping, tucking and tweaking in the tax code that even closes decimals on that gap. The magnitude is tremendous.
Yet, what we know from the U.S. Government Accountability Office is that there’s more recoverable oil in Utah, Colorado and Wyoming than the rest of the world combined. There’s a study from earlier this year by the Institute for Energy Research that there’s $150 trillion in mineral value locked up in the federally controlled lands throughout the West. Right now the forests—which were a renewable resource, with the revenue funding schools, roads and public safety—have been shut down to timber harvesting, and now they’re basically tinder boxes. We’ve got so much dead wood standing in the forests that, in fact, the FBI is even warning our state foresters that terrorists are encouraging wildfires as a form of jihad. The forests are so dense now that the trees can’t defend themselves and fend off natural diseases and pests, so forests throughout the West are largely dead or dying just waiting for any spark to ignite the next catastrophic wildfire.
So we looked at these conditions. And as you pointed out, more than 50% of all land in the western United States is owned and controlled by the federal government. This is in a nation that was founded on the principles of inherent, inalienable rights to life, liberty and property. World-renowned economist John Kenneth Galbraith made a statement in the mid-1980s that “where the socialized ownership of land is concerned, only the U.S.S.R. and China can claim company with the United States.”
So we started asking, why is the federal government in control of all of this land? Immediately after the 2011 session, I met with Roger Barrus, then chairman of our House Natural Resources Committee, and Kevin Carter, the director of the School and Institutional Trust Lands Administration, and we discovered a very recent, unanimous Supreme Court case from 2009—Hawaii vs. Office of Hawaiian Affairs. This case declares that Congress does not have the authority to change our rights of statehood in our statehood enabling act—the promises made at statehood between sovereign entities—particularly where all of the state’s public lands are at stake.
We looked at that case and went back to have a fresh look at our statehood promises. It’s fascinating—when you ask people the very simple question, why the difference? Why is it that the federal government controls less than 5% of land in the states east of Colorado but more than 50% of the land between Colorado and California, plus Alaska, and yet not Hawaii? In Utah it’s almost 70%, and in Nevada the federal government controls almost 90% of the land.
If you think about Nebraska and Nevada, which one would you think was made a state first? You’d likely think Nebraska, but you’d be wrong. In 1864, their enabling acts—their statehood contracts—were written at the same time, less than 30 days apart. Nevada became a state in 1864, and Nebraska didn’t become a state until three years later. And yet, the terms of their statehood enabling acts—which the Supreme Court has called a “solemn compact”—the terms for disposing of the public land are virtually word-for-word the same. And yet Nebraska goes from roughly 25% public land down to 1% today, while Nevada goes from 86% down to just 81% during the same time.
If you look at North and South Dakota, the boom that’s going on in North Dakota right now is because they control access to their lands and resources, and they’re the ones regulating what happens on their land. They get 100% of the mineral royalty, and they’re putting billions of dollars directly into classrooms and billions more into school and road infrastructure. They’ve got thousands of jobs open just looking for people, and yet the statehood enabling act for North and South Dakota is the same document that created Washington State and Montana. Not just the same language, but the same document created those four states. However, Montana and Washington State have nearly 40% federally controlled land. North and South Dakota are 3% and 5% federally controlled, respectively.
Utah has the exact same language for the transfer of public lands—not the same document—but the same language as North and South Dakota, yet Utah has 70% federally controlled land, with trillions in mineral value locked up that could be used to close that $2.6 billion gap in our education funding, to create tens or hundreds of thousands of jobs throughout the West. Unlocking these lands could actually provide forest management where we actively tend the forest garden again rather than burn up millions of animals and destroy the watershed for generations…and where we use our abundant renewable resources again to educate children and provide for roads and public safety in our communities.
So we look at this as the only solution big enough to solve these pressing issues. All we seek is for the federal government to honor the same statehood enabling act promise to transfer title to the public lands that it already kept with all states east of Colorado.
Gilroy: If you were trying to explain this to people in Cleveland, Chicago or Charleston that aren’t familiar with the issue, how would you explain what happened? If the enabling language is basically the same, why does the federal government still own so much of the West?
Ivory: That’s a great question. There actually came a time when the western states got fed up with this. They couldn’t educate their kids or grow their economies. So they got together and mobilized on Washington, mobilized their courage and knowledge and refused to take no for an answer. One man of courage stood up and led the fight. Those “western” states were Illinois, Missouri, Arkansas, Louisiana, Indiana, Alabama and Mississippi—and of course that great “western” state of Florida. In fact, in its resolutions to Congress, Florida said it was the worst off of all of the western states in terms of the federal government controlling all of their land. That one man of courage who stood up was Thomas Hart Benton, a Democratic U.S. senator from Missouri.
He said that his election to the Senate found him doing battle for changing this system of disposing of the public lands. He said, “I went to battle … and ran a bill every single year, but more so in educating the general public.” He said that no one was raising their voices against this hard policy when he was elected in the 1840s/50s. Illinois had been as much as 90% federally controlled for decades; it was the same in Missouri. They have less than 5% federally controlled lands today.
Back in 1915, Utah’s state legislature passed a resolution telling the federal government that it needed to keep its promise and dispose of this land. In the 1920s, the western states started coming together to push the federal government to finally honor the promise to transfer the public lands. The federal government’s response was basically that western land was more arid and rugged, so it was going to take longer to sell. Right in our enabling act it says that, “5% of the proceeds of the sale of public lands … which shall be sold … shall be paid to the states … for the support of the common schools.” So the idea was that the federal government would sell the land and keep 95% of the proceeds, and states would keep the other 5% to educate their children. This happened with all newly created states east of Colorado.
The duty of the federal government was to relinquish title, not set up a system of socialized land ownership on a par with the Soviet Union and China. The original idea, stemming from 1780 through the creation of all new states and beyond, was that the federal government was nothing more than a trustee over the lands for the purpose of disposing of them. As the federal government disposed of the public lands, if it was able to sell them, then 5% of the proceeds were to be paid to the states for the purpose of educating their children.
President Hoover convened a commission on the subject of disposing of the public lands. That led to congressional hearings in 1932 that were titled, “Granting Remaining Unreserved Public Lands to the States.” Not if, just how. The Administration and the agencies came up with a proposal that would have transferred all the surface lands to the states, but proposed in their draft bill to keep all of the mineral rights. The states banded together in the midst of the Great Depression and told Washington that this was not going to work—the federal government had to keep the whole promise just like it did with the other states, disposing of both the surface and sub-surface, because it’s the mineral estate where all the value is in the western lands. The states banded together to defeat this inequitable treatment of disposing of the public lands.
Two years later in 1934, Congress passed what’s known as the Taylor Grazing Act as a stopgap for managing the public lands. The very first line of the Act said that this was just to promote the highest use of the public lands “pending its final disposal.”
Let’s go back to why the federal government held these lands in the first place. At the start, when the original states declared independence, there was no national government. Then came the Articles of Confederation, but the states, not the national government, held the lands. Going back to 1763 in the colonial charters of the original colonies, the king granted to seven of the 13 colonies claims to what then were known as the “western wastelands.” Six of the colonies had no claims at all. Later, during the Revolutionary War, the states were broke and fighting the best-funded, most well-equipped army in the world. Well, they weren’t going to go and raise taxes on the original Tea Party crowd—good luck with that. So the seven states said that they would just sell some of the claims they had to the western lands, and the other six were going to be left having to try and tax their citizens to raise their share.
The six states balked at this —if they raised taxes then people were just going to leave and go to the other seven states. This became a huge impasse during the revolution; they called it the “Great Embarrassment.” The Continental Congress stepped up and proposed that the collective group of states hold these lands in trust for two purposes only—(1) to create new states “with the same rights of sovereignty, freedom, and independence as the other states,” and (2) to use the proceeds of any sales of the lands to pay off the debt of the war. On that basis, states began ceding their land claims to the Continental Congress.
After they won the war, Thomas Jefferson drafted a land ordinance reiterating this trust obligation. The idea is incorporated in Article Four, Sector Three of our Constitution, which says that, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Remember, the claims were to only use the western lands to create “distinct republican states” and to use the proceeds of any sales of these lands to pay the war debt. Congresses, presidents and supreme courts, all the way up to the statehood agreements of the western states reiterated this trust responsibility.
Fast forward to 1976, when Congress passed a federal lands policy where they say for the first time—after nearly 200 years—that it’s now their intention to just retain these lands in federal ownership. They said the federal government would still let states manage the lands locally—they said they would protect the multiple use, sustained yield, local planning of the public lands…so don’t worry. But since 1976, local planning has gone out the window. Public access and roads have been shut off all over the West. The forests, that were a renewable resource, are burning to the ground, killing millions of animals, destroying critical habitat and decimating watersheds. Trillions of dollars in resources are locked up in these federally controlled lands. Economies are stagnating in the states and the nation. So that’s how we got to where we are.
So why would a person in Cleveland or South Carolina care? Right now, they’re spending about $13 billion per year to pay western states and communities to not use our own land and resources to care for our own kids and communities. That’s in addition to about $15 billion in deferred maintenance on the national parks. The other thing they should care about is that, according to the Institute for Energy Research, there is $150 trillion in mineral value locked up in the federally controlled lands. Where does the heavy equipment come from? Where does the information technology, financing, legal and accounting come from when those resources are responsibly unleashed to sustain a productive economy? Where is the revenue going to be spent and generated, because that’s the kind of thing that benefits the entire nation.
Gilroy: Utah passed legislation you sponsored called the Transfer of Public Lands Act (2012 House Bill 148) that takes a stand on this issue. Can you describe the Act?
Ivory: Knowing that the only solution big enough to close the severe education and general state government funding gaps is to have access to our land and resources, we passed the Transfer of Public Lands Act. What this did was first, and most importantly, set a deadline to work with our federal governing partner on a orderly transfer of the public lands whereby they honor to us and our children the same promise they kept with all states east of Colorado. We set a deadline of December 31, 2014 to work in an orderly fashion on this, but so far we’ve seen little action from the federal government.
Some of the things that are critical in the bill include taking national parks off the table; we’re not talking about those. However, in light of the recent shutdown—where the federal government is demonstrating that it can’t or won’t manage the national parks—I think that in the next legislative session we’re going to have very serious discussions about this issue. But in the bill, national parks are off the table.
Similarly, Indian reservations, military bases, congressionally-designated wilderness and national monuments in Utah are also off the table—with the exception of the Grand Staircase-Escalante National Monument created by President Clinton without talking to a single Utahan, locking up as much as $2 trillion in estimated coal resources.
The bill also sets up a process to determine the economic viability of—and establish guidelines for—multiple-use/sustained-yield with local planning, where federal public lands become state public lands. This never has and never will be just some effort to sell off all of the public lands. The reason being is that after 117 years of statehood, various rights and expectations have built up—and our very livelihood in the West has developed—around this system of public lands. To simply come in and say we’re going to sell all of that off would upset rights, expectations, cultures and ways of life in the West that legally, practically and politically would be a non-starter. So federal public lands would become state public lands, managed by the state just as we manage millions of acres already much more effectively than the federal government.
We passed the bill, and we’re now in the process of doing the in-depth economic feasibility analysis and transition analysis on how to effectuate the transfer. It’s such a huge undertaking that we’re taking a very measured approach to lay the foundation and groundwork on this.
Since we passed our bill last year, four other states—Nevada, Idaho, Montana and Wyoming—have passed various versions of public land transfer or analysis legislation. Arizona passed a bill that got vetoed by the governor, but their bill went more to a straight privatization, so I think they’ll have a bill coming back that’s more in line with the other states. New Mexico is working on legislation, as are folks in Colorado, Washington and other western states. The idea is to analyze and study the transition, understanding that we developed rights and expectations over more than a hundred years of this being public land and to honor those rights as federal public lands become state public lands.
It’s also really fascinating that the South Carolina legislature passed a resolution supporting a transfer of public lands to the western states. Why would they do that? Number one, it’s the right thing to do to keep the same promise with all states. But it’s also the $13 billion dollars a year that other states are spending to keep us from using our own land and resources to educate our own kids and care for our own communities, as well as the $150 trillion locked up in our lands that could create jobs and expand local, state and national economies.
Gilroy: So then your efforts are not seeking to purchase the land back from the federal government, since these lands were held in trust for the states to begin with? And on the other hand, this would then not present the federal government with an opportunity to generate revenue from the sale of these lands, right?
Ivory: Yes and no. It’s not about buying the land, because as you said, the federal government is only holding the land as a trustee just like it did for all other states east of Colorado. That obligation goes back to 1780. Think about what happened with Hawaii. If you look at the Hawaii state enabling act from 1959, it says that the federal government grants directly to the state of Hawaii all of the federal lands that are held by the federal government. Why? Because the native Hawaiians understood that that was their right and the duty of the federal government, and they mobilized politically to demand and compel the federal government to do the same thing compelled by Illinois, Missouri and others in the 1850s—honor their statehood promise to transfer title to their public lands. In Michigan, the federal government granted 13 million acres to the state. So there are all sorts of precedents for disposing of the land in that fashion, because the duty of the federal government is to dispose of the land. If the federal government can sell it, great, then sell it. But if it can’t sell it within a reasonable amount of time, then it was bound to grant title to the states. So we’re just simply asking to be treated like all of the other newly created states east of Colorado.
Now as to the federal government generating revenue, think about the homestead law. That was just one of many ways that it disposed of land. The homestead law said that if you go on the land—if you’ll make it productive—we’ll give it to you. Why would they do that? Because they understand that if people are productive on the land, then you build a strong and vibrant economy that grows local, state and national economies. It’s not about selling the land, but rather about the revenue that’s generated from it—the tax revenue, the productive revenue, the multiplier effects of people being productive in a thriving economy.
Today, many of these federal lands in the West are just sitting unproductive, costing tens of billions of dollars in revenue to mismanage the forest and manage other lands in ways that aren’t productive. So the federal government would be saving tens of billions by transferring those responsibilities to the state.
There’s a study from the Nevada Public Lands Management Task Force that found that an acre of public land under state management yields a positive $6.29 an acre while an acre of public land under federal management loses $1.86 per acre. There are all kinds of studies that reach similar conclusions on how the state governments outperform the federal government on land management from grazing, to timber production, from recreation to mining, etc. In terms of environmental quality, on state lands you’ve got forests that are being actively tended—they’re not disease ridden or burned—and thus animals and watersheds are being protected as well.
Gilroy: Since the overarching goal here is to transfer federal lands to state control, how would you respond to those that say that states are having fiscal difficulties of their own and may not be in a good position to take on the responsibility for managing more land?
Ivory: I posed that question to Dino Falaschetti, an expert at the Property and Environment Research Center, and without missing a beat, he responded, “we can’t afford not to.” In state hands, research and on-the-ground practical experience shows over and over again that the public lands are a very productive asset that is kept in a better state of environmental quality in state hands. In the federal hands, it becomes a liability. In a state’s hands, it puts money right into schools, right into communities for public safety—we really can’t afford not to.
Gilroy: In addition to your legislative work, you’ve also taken a leadership role in an organization called the American Lands Council (www.AmericanLandsCouncil.org). Can you describe the Council and what its goals are?
Ivory: After I passed the Transfer of Public Lands bill, I had a number of county commissioners come to me from, at the time, three western states. And they said, “you’ve gone on offense. We’ve been playing defense for decades and have been losing ground.” We talked about what to do and where to go, and these counties in Utah, Nevada and New Mexico decided to form the American Lands Council and asked me if I would set aside my law practice and livelihood and go on the road messaging these issues. The opportunity is so tremendous right now—we’ve got counties all over the West, with businesses and individuals joining and supporting this effort to secure local control of land access, land use and land ownership.
Education is the foundation. When people realize that the statehood promises are the same for states both east and west of Colorado, that other states have compelled the federal government to dispose of the public lands in their states, and that it’s the only solution big enough to fund education, better care for the environment and grow economies locally and nationally, that changes things. That gets us to the point where our leaders start to have the knowledge and the courage—just like Sen. Thomas Hart Benton—to compel Congress to honor the same promise for our kids and our future.
Next year with the 2014 elections, we see an exciting opportunity. As people are considering who to hire to represent them at the local, state and national levels, we submit that the questions to ask those seeking to be hired for these positions are if they know why the difference in the federal government’s control over more than 50% of the land in the western states, and why these lands have $150 trillion in economic potential locked up instead of being put to responsible use to fund education, create jobs and grow local and national economies. And if they don’t understand these critical issues, we shouldn’t hire them.
You want somebody who really knows what’s at stake. You ask them what specifically they’ll do and what they’ll bring to the table to help make this happen. So we see that job interview process next year as being absolutely critical, and at a critical time for our nation. It’s a solution that’s not Republican or Democrat. We’ve got people across the spectrum endorsing the transfer of public lands bills, sponsoring the bills, supporting the bills.
It’s something we can battle for—we’re not battling against anyone or anything on this. We’re battling for a solution for funding education, and better caring for the lands, and growing jobs and economies.
The opportunity is for people to get engaged, go to our website, and get informed, and take action to build the knowledge and courage among those you hire at the local, state and national levels to represent you. The wonder of our system of government is that the power still resides in the people to hire representatives that have the courage to battle for this only solution big enough to fund education, protect the environment and grow our local and national economies. For those already in office, it’s a matter of the people who hired them previously demanding that they get the knowledge and the courage to move this forward.
Once a general knowledge has been established, then there are two tracks. There’s a litigation track and a legislation track. Our attorney general’s office has been building the case on this, and it’s a matter of first impression—this has never been heard before at the Supreme Court level. There are a lot of cases from the Supreme Court saying that these statehood enabling acts are “solemn compacts,” with enforceable rights and obligations on both sides. But the Supreme Court has never considered this direct question on the duty of the federal government to transfer the lands, so it’s a matter of first impression.
The Federalist Society, an organization of 40,000 constitutionally focused lawyers, scholars and professors, did a full legal analysis of this question that is available on our website and their website—a full analysis of the Transfer of Public Lands Act. They conclude that it’s legally, historically and constitutionally based that the federal government has a duty to honor its promise to transfer the public lands just as it did with all the other states.
So you’ve got the legal avenue, but you’ve also got the pure political avenue. There’s nothing illegal or unconstitutional about Congress changing this failed lands policy that it adopted in 1976. That’s just a matter of mustering the political courage to compel Congress to change that failed policy and honor the very same statehood promise to transfer the public lands that it kept with all states east of Colorado.
Ken Ivory (R-UT, District 47) was elected to the Utah House of Representatives in November of 2010. Ken campaigned as a candidate of the “Dad Party.” Ken and his wife, Becky are the parents of four children. Given the daunting challenges that face the state and the nation, Ken took time from his business, mediation, and estate planning law practice to “secure the blessings of liberty” to his posterity.
As the current president of the American Lands Council (www.AmericanLandsCouncil.org), Ken dedicates his time to educating legislators and community leaders throughout the states about their jurisdictional rights and duties to manage, protect, and care for the lands within our borders. Ken is the author of Where's the Line? How States Protect the Constitution.
Other articles in Reason Foundation's Innovators in Action 2013 series are available online here.