(1) On or before December 31, 2014, the United States shall:
(a) extinguish title to public lands; and
(b) transfer title to public lands to the state.[iv]
But in this case, he’s a child with claims in contract, and the parent’s apparently supreme authority is necessarily tempered by its respect for constitutional sovereignty. And, like any demand carrying the poignancy of a bona fide “you promised,” the demands are not lightly to be ignored.
Critics have called the legislation “an embarrassment,”[v] and most have dismissed the possibility of the states ultimately succeeding in court,[vi] should the federal government fail to comply with the demand and the states subsequently seek relief from the judiciary. Even the Legislative Review Note appended to the statute itself concludes, “[the requirement] that the United States extinguish title to public lands and transfer title to those public lands to Utah by a date certain… and any attempt by Utah in the future to enforce the requirement, have a high probability of being declared unconstitutional.”[vii]
The skepticism derives from authorities no less than the U.S. Constitution, the U.S. Supreme Court, and the Utah Enabling Act. The Constitution, via the Property Clause, grants the federal government full discretion in the disposition of its lands: “The 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.”[viii] Furthermore, the U.S. Supreme Court has said, inter alia, “Congress has the same power over [territory] as over any other property belonging to the United States; and this power is vested in Congress without limitation,”[ix] and, “[w]ith respect to the public domain, the Constitution vests in Congress the power of disposition … That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property… No State legislation can interfere with this right.”[x] Finally, the Utah Enabling Act provides, “That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.”[xi]
Nevertheless, the constitutionality of TPLA remains plausible. To appreciate this requires an understanding of the precise claims at issue. Considerations of the principles of federalism and equal standing are important but supplemental to what is perhaps the state’s strongest argument: contractual obligation.[xii]
Utah’s claim in contract is that the federal government, in granting Utah statehood via the Utah Enabling Act[xiii] (hereinafter “UEA”), gave Utah certain promises in exchange for its cession of public land, foremost among them that federal title to the lands would eventually be extinguished, that the public lands would be sold, and that 5% of the proceeds of the sales would be paid to the state of Utah.[xiv] Section 3 of the UEA, Utah having “forever disclaim[ed] all right and title,” nevertheless concludes, “until the title thereto shall have been extinguished by the United States.”[xv] More compellingly, Section 9 provides, “That five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union . . . shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State.”[xvi]
The use of “shall” in these provisions is significant. Given the plenary power of the federal government with respect to its property, “shall” might simply be construed in favor the federal government (i.e. not necessarily as a command). But precedent, taken with an analysis of the use of “shall” throughout the Enabling Act, suggests otherwise. “Shall” occurs 83 times throughout the Act, is used as a command almost without exception,[xvii] and is readily used in contradistinction to “may,” which occurs 20 times and exclusively as an expression of permissiveness. Furthermore, extensive precedent dictates that “shall” is used to imply something that will or must occur, while “may” merely grants the possibility of its occurrence.[xviii]
Moreover, in conjunction with this “promise” there is controlling precedent equating the Enabling Acts with bilateral contracts, and the promises made in such Acts by the United States have been held to be “obligatory on the United States.”[xix]
If Utah’s claim represents an actual contractual obligation of the United States, then there are at least two ways in which a court might interpret the obligation in light of the Property Clause of the Constitution (and corresponding precedent). First, the court might interpret the Property Clause of the Constitution as referring to governmentally owned property with no encumbrances. The plain meaning of the clause seems to suggest this, although it does not state it explicitly. In any case, if the government did rescind, it might simply choose to pay Utah its damages. Or it might embrace the obligation, but contend that even under the statute’s terms, it’s clearly within the discretion of the federal government when to extinguish its own title (and here the court may or may not impose a duty to extinguish within a “reasonable time”). On the other hand, in either instance, the government might make a powerful statement of executive discretion and refuse to fulfill the obligation or pay damages; and the judiciary might well grant the executive extreme deference in view of the broad power conferred by the Property Clause.
Ultimately, there is little precedent speaking to the precise issue at hand. The leading authorities cited in the Legislative Note and by critics, for example, have been distinguished by Donald J. Kochan as “miss[ing] their target and… almost entirely inapposite.”[xx] In general, the broad precedential statements cited by critics of TPLA are much broader than the holdings themselves require, and none of the precedent addresses the specific question of whether the federal government is obligated in contract to extinguish title to land received from the state in consideration for admission to the Union.[xxi]
Regardless of any future decision, the enforceability of the claims is unclear. It remains to be seen whether the executive would enforce a judgment favorable to the states and whether the states could effectively resort to the political process.
– Austin Anderson is a General Member of MJEAL. He can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] H.B. 148, 59th Leg., Gen. Sess. (Utah 2012), available at
[ii] S.B. 1332, 50th Leg., 2nd Sess. (Ariz. 2012), available at http://votesmart.org/static/billtext/39895.pdf. The bill was ultimately vetoed by the Governor.
[iii] See Associated Press, Idaho Looks at Fighting Feds for Control of Public Lands, The Oregonian, January 23, 2013, available at http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/01/idaho_looks_at_fighting_feds_f.html.
[iv] H.B. 148, supra note i.
[v] Associated Press, Ariz. Governor Vetoes Federal Land-Seizure Measure, greenwire, May 15, 2012.
[vi] See, e.g., Verlyn Klinkenborg, The Gradual Selling of America the Beautiful, N.Y. Times, available at http://www.nytimes.com/2013/02/10/opinion/ sunday/the-gradual-selling-of-america-the-beautiful.html?_r=0, (“[the] laws would almost certainly be struck down as unconstitutional.
[vii] H.B. 148, supra note i.
[viii] U.S. Const. art. IV, § 3.
[ix] U.S. v. Gratiot, 39 U.S. 526 (1840).
[x] Gibson v. Chouteau, 80 U.S. 92 (1872).
[xi] Utah Code Ann., Enabling Act, available at http://archives.utah.gov/research/ exhibits/Statehood/1894text.htm.
[xii] Donald J. Kochan, A Legal Overview of Utah’s H.B. 148 – The Transfer of Public Lands Act, The Federalist Society for Law & Public Policy Studies White Paper, Jan. 2013, at 10, available at http://ssrn.com/abstract=2200471.
[xiii] Enabling Act, supra note xi.
[xv] Id. at §3 (emphasis added).
[xvi] Id. at §9 (emphasis added).
[xvii] The possible exception being, “in case the Constitution of said State shall be ratified by the people… the Legislature thereof may assemble…” Id. at §19.
[xviii] See, e.g., U.S. v. Thoman, 156 U.S. 353, 359(1895) (“In the law to be construed here it is evident that the word ‘may’ is used in special contradistinction to the word ‘shall,’ and hence there can be no reason for ‘taking such a liberty.’ The legislature first imposes an imperative duty”); Anderson v. Yungkau. 329 U.S. 482, 485 (1947) (“The word ‘shall’ is ordinarily ‘The language of command’ And when the same Rule uses both ‘may’ and ‘shall’, the normal inference is that each is used in its usual sense-the one act being permissive, the other mandatory”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permissive “may” in § 3621(e)(2)(B) contrasts with the legislators’ use of a mandatory “shall” in the very same section. Elsewhere in § 3621, Congress used “shall” to impose discretionless obligations, including the obligation to provide drug treatment when funds are available”).
[xix] See, e.g., Andrus v. Utah, 446 U.S. 500, 507 (1980) (“As Utah correctly emphasizes, the school land grant was a “solemn agreement” which in some ways may be analogized to a contract between private parties. The United States agreed to cede some of its land to the State in exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry”); U.S. v. Morrison, 240 U.S. 192, 196 (1916) (quoting the Act of February 14, 1859, chap. 33, admitting Oregon into the Union: “the following propositions be, and the same are hereby, offered to the said people of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said state of Oregon”).
[xx] Donald J. Kochan, supra note xii, at 19.