For nearly seven hours Friday, the Federal Lands Interim Committee, comprised of members of both the Idaho Senate and the Idaho House of Representatives, heard presentations about the legal, practical and economic implications of the state of Idaho taking control of otherwise federally controlled land within the state.
According to Sen. Chuck Winder, R-Boise, committee chairman, the Friday meeting was for background information for the legislators.
On April 2, the Idaho Senate approved two legislative resolutions concerning Idaho taking control of more than 60 percent of land within the state, land that is currently under federal government control.
House Concurrent Resolution (HCR) 21, which passed 26-6 with one abstention, calls for a study to be conducted on how Idaho would best approach the federal government with a demand for the land. HCR 22 was approved by a narrower margin, 21-13. It requests the state issue a “demand for title” to the federal government.
Both measures passed in the House on March 21.
Jay O’Laughlin, professor from the University of Idaho, gave the committee an overview of federal land policy in Idaho. His view is that the U. S. Forest Service is not capable of fulfilling its management responsibilities in an efficient manner. His recommendation is that the federal lands be managed similar to the way in which Idaho endowment lands are handled, which he described as a trust management system.
Steve Strack, Idaho deputy attorney general, presented details to the committee from the Idaho Constitution and the early Idaho founders’ view of state and federal land authority, as well as details of previous efforts undertaken by Idaho and other states to get the federal government to relinquish control of land.
Of the early Idahoans involved in the founding of the state, Strack noted that they "plainly anticipated that the U.S. would continue to dispose of public lands.” That is, sell federally controlled land back to the state government or to private purchasers. However, Strack also said that the state’s founders believed that when the federal government and state government were at odds, federal authority should take precedence.
During debate over HCR 21 and HCR 22 earlier this year, legislators who were in favor of the measures often cited the state of Utah as an example of how Idaho should proceed. A year prior, in the spring of 2012, the Utah Legislature passed measures similar to those in Idaho pertaining to federally controlled lands.
To this end, Friday’s committee meeting included a presentation from Donald Kochan, professor of law at California’s Chapman University, who analyzed the legal foundations and ramifications of Utah’s legislative effort.
Kochan said that “there has been a long history of conflict over control of lands in the western states,” and that there "is no precedent against the demand made by Utah.” He also noted that the debate over whether the federal government should retain control over large portions of land within the states is “an open legal question.”
In presenting some of the history that led to Utah’s land demand last year, Kochan stated that the government of Utah originally wanted the federal government to secure vast portions of the state’s land. According to him, the intent was that the federal government would sell Utah’s public lands to private investors and the Utah government would obtain a percentage of the sales revenues. Yet that land sale has never occurred, and that’s what has led that state’s Legislature to demand that the federal lands be deeded back to Utah.
Kochan also noted language that appears in what is known as the property clause of the United States Constitution that states, “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.”
During questioning, Sen. Bart Davis, R-Idaho Falls, asked Kochan, "Is there a duty of the federal government to sell the land?”
Kochan replied that “it can be regarded as a requirement that the federal government will sell the land, and it could be interpreted as an expectation of the states. The best interpretation is that it is further evidence of an expectation among the states."