Posted: Wednesday, December 31, 2014 12:00 am By Judd Wilson When Congress passed the Idaho Admissions Act in 1890, and thus made Idaho the 43rd state in the Union, it specified certain lands to be put under the state’s management for public education, mental health, and other purposes. But in the 124 years since then, many millions of acres of Idaho lands have remained under the federal government’s control. Over 60 percent of Idaho’s land is owned and managed by the federal government. In 2013, the Idaho Legislature created an interim committee tasked with looking into this issue, and issuing recommendations at the first session of the 2015 legislature - which will begin in less than a month. The question that citizens and legislators across Idaho have been debating is whether the status quo should continue - and why. Should the federal government retain control over these lands? Or should they pass to the state’s management? The reason supporters of federal control support the status quo boils down to two things: the law and money. Supporters of federal management insist that the plain language of the Idaho Admissions Act, the Idaho State Constitution, and subsequent case law since 1890, make it clear that the United States federal government owns the land in question. As Idaho Attorney General Lawrence Wasden put it in a September interview with the Coeur d’Alene Press, Our own constitution says, ‘The people of the state of Idaho forever disclaim the unappropriated public lands that lie within the borders of our state,’ Mr. Wasden said. That means we forever gave up any claim we would have had to those unappropriated public lands, forever. That paraphrase of part of Article 21, Section 19 of the Idaho State Constitution goes hand in hand with Section 12 of the Idaho Admissions Act, which says That the state of Idaho shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act. In other words, of all the countless millions of acres of Idaho territory that existed in 1890, only whatever the federal government specifically gave to the state would pass from federal to state control. Everything else would remain under the federal government’s ownership, forever. That prospect is a good thing when you consider the cost of managing all those millions of acres, say supporters of federal control. A December 2013 report by former state budget director Mike Ferguson, which was contracted by the Idaho Conservation League, found that taking control of 28 million acres of federally managed land would cost the state $250 million the first year, $1.5 billion over 10 years, and more than $2 billion over 20 years. This economic analysis clearly demonstrates that the State of Idaho would have little choice but to sell off our treasured public lands, said ICL senior conservation analyst Jonathan Oppenheimer. Is the federal lands issue an open-and-shut case then? Not so, say supporters of state control. In the words of House Concurrent Resolution 22, introduced into the state legislature in 2013 by co-sponsors Rep. Lawerence Denney and Sen. Sheryl Nuxoll, and subsequently passed by large majorities in both houses, ...at the time of the Idaho Admissions Act, the course and practice of the United States Congress with all prior states admitted to the union had been to fully extinguish title, within a reasonable time, to all lands within the boundaries of such states, except for those Indian lands, or lands otherwise expressly reserved to the exclusive jurisdiction of the United States. In other words, the forever Attorney General Wasden was referring to was just lawyer-speak for until the other party to this contract gets around to doing what they have done with every other state in the Union. Title was extinguished - or in plain English, the feds handed over the land to the locals - nearly everywhere in the United States except in the West. No state east of the Rocky Mountains has given up nearly as much of its land to federal ownership as have the states west of them. Between 30 and 87 percent of every state west of the Rockies - such as Nevada, Alaska, California, and Idaho - is owned by the federal government. By way of contrast, less than 16 percent -- usually less than 10 percent -- of any state in the East is owned by the feds. Supporters of state management argue that this is fundamentally at odds with the equal footing doctrine, which promises that each state in the Union will have the same legal standing with the others, no matter the size of its population, its geographic location, or the length of time it has been in the Union. And they point to how states in the East won back their lands from the federal government: by simply demanding their property back. As then-candidate for attorney general Chris Troupis wrote in a letter to the editor in the Idaho Statesman earlier this year, In 1890, the federal government owned vast tracts of land in states east of the Mississippi and owned almost 50 percent of lands in North Dakota. Today, it owns less than 5 percent of lands east of the Mississippi, and less than 4 percent in North Dakota. When those states stood up to the federal government, it backed down without a court battle. In a state that consistently ranks at the bottom for gross domestic product and at the top for number of minimum wage jobs, the connection between untapped economic growth and untapped federal lands is powerful, Mr. Troupis said. Like North Dakota was decades ago, Idaho has similar natural resources locked away in federal control. If those resources were opened up to the people of the state, might there be an economic boom in Idaho? As for the cost of managing those millions of acres of Idaho land, the University of Idaho recently published a 20-page report estimating that it would cost the state many millions of dollars to do so. But as Fred Birnbaum, vice president of the Idaho Freedom Foundation contends, the report was flawed and incomplete, especially when compared to the 800-page analysis that the state of Utah commissioned on the same subject. The report leans heavily on timber income, noting the worst to best case scenario is $35 million to $170 million, but the report intentionally avoided any discussion of grazing, minerals, including rare earths, and energy that might be realized on a combination of US Forest Service and BLM lands, which might also generate significant income for Idahoans. Because of this, the report very likely underestimates the job creation that might occur in conjunction with opening public lands to additional activity. Perhaps most significantly to state ownership advocates, the U.S. Bill of Rights limits the powers of the federal government to those that were expressly granted to it in the U.S. Constitution. The Tenth Amendment to the U.S. Constitution says, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In Article One, Section Eight, Clause 17 of that U.S. Constitution, the Congress is specifically authorized to exercise exclusive Legislation over two types of land: the first is the 10 square miles we now call Washington, D.C. The second is any military installation such as the Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings specified in the clause. The same clause notes that before the federal government can exercise jurisdiction over those lands, they have to first be ceded by the states to the federal government, putting to naught the contention that the federal government can grab lands from the states at its leisure. A draft outline of the federal lands interim committee’s report, posted on the state legislature’s website earlier this month, shows that the committee’s two-year long look into the issue of federal lands may not have resulted in a unanimous opinion among the committee’s 10 members. The draft outline does, however, indicate that a majority will recommend certain actions be taken. And given the constitutional, environmental, and economic stakes in this debate, all of Idaho will certainly be affected by whether or not the legislature and state executive commits the state to the committee’s suggested course.
Posted on: Thu, 01 Jan 2015 02:34:27 +0000
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