Utah gets ready to waste millions of taxpayer dollars on a doomed land seizure lawsuit

Dec 11, 2015

By Center for Western Priorities

State lawmakers in Utah took a big step this week in their quixotic effort to seize national lands from the American people. The state’s Commission for the Stewardship of Public Lands approved a plan to sue the federal government, which their own lawyers say will cost taxpayers an estimated $14 million.

This decision came after the state’s legal consultants released a report claiming there could be a legal path forward. In July, the state legislature hired legal and public relations firms to advocate for turning our lands over to the states, paying them up $2 million in taxpayer funds.

What’s particularly egregious about this decision is that Utah State Representative Ken Ivory—who remains under a cloud of ethics complaints—pushed this proposal through the legislature. Ivory sits on the state Commission for the Stewardship of Public Lands, which approved his proposal to award these contracts. In other words, Ivory has rigged the system so that Utah taxpayers will pay for public relations and legal help to advocate for the same issue as the American Lands Council, the non-profit from which Ivory receives a six-figure salary.

The final decision on whether to file a lawsuit now rests in the hands of Utah Attorney General Sean Reyes. Here are three reasons why Reyes, if he’s a good steward of Utah taxpayers’ money, will decide not to file the lawsuit:

1. Utah will lose

Constitutional law experts have been clear: This case has no precedent, and no chance of success. Even the lawyers who got paid $500,000 to tell Ivory and his fellow land seizure proponents what they want to hear admitted as much this week:

We are not saying that we believe that there is a high probability that the Supreme Court of the United States would issue an order transferring the public lands from the federal government to the state. We don’t believe the court will do that.

—George Wentz, Davillier Law Group

The people of Utah (and every other Western state) agreed that national public lands belonged to the American people as a condition of statehood:

The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof…

—Utah State Constitution, Article III

For a more detailed explanation of why the lawsuit is legally meritless, Yale University’s Ralph Graybill broke down all the arguments in this post for the American Constitution Society back in March. It’s worth a read.

2. Even if Utah somehow wins in court, taxpayers still lose

Believe it or not, that’s the good news for Utah taxpayers: even if the land seizure lawsuits move forward, they’ll only be out tens of millions of dollars. Because if Utah somehow prevailed, the financial future would get far worse for Utahns.

In a show of what’s either remarkable ignorance or hubris, the Commission voted to move ahead with the lawsuit the exact same week they were also warned that even after a land transfer, Utah wouldn’t have mineral rights (i.e. oil, natural gas, and coal) on the new land. So Utahns would be stuck with all the costs of managing millions of acres, including wildfire and abandoned mine cleanup, but with no way to bring in revenue from it.

To be clear, mineral rights are the only financial reason land seizure advocates have for taking national land from the American people. In 2013, 93 percent of the revenues from national public lands in Utah came from mineral leases.

So Utahns would have almost no extra money to pay for the management of its new state lands—and that management is very expensive. The state’s own best-case scenario for life after a land seizure found taxpayers would still be on the hook for $35 million in extra management costs—and that’s only if oil production increased and energy prices rose, neither of which appear likely today. Take away the oil and gas royalties, as the University of Utah warns is likely, and the management costs to Utahns skyrocket toward $300 million a year.

Those rosy estimates get even worse when you consider the costs of fighting wildfires and cleaning up abandoned mines. Our recent analyses looked at both issues. Utah has an estimated 10,700 abandoned mines on BLM and Forest Service land. Today, those federal agencies have primary responsibility for cleaning up the mines on its land when they leak toxic chemicals into lakes and rivers. If Utah seized all the national land in the state, the state would take responsibility for up to $2.25 billion in cleanup costs. Add in the costs of fighting wildfires, which vary greatly from year to year, and you’re looking at another $20 to $60 million a year based on recent Forest Service spending in Utah. To put that in perspective, all of Utah only spends $140 million on law enforcement every year.

Taking all this as a whole, Utahns can breathe a sigh of relief that land seizure lawsuits are going to fail: They’re only on the hook for $14 million at this point.

3. Only the lawyers win

So who wins in all this? An out-of-state law firm that’s poised to cash in big. Taxpayers already paid New Orleans lawyer George Wentz and his firm $500,000 to prepare a report telling them that they’d likely lose a lawsuit moving forward, but if they want to go ahead anyway, they need to be prepared to spend another $14 million.

Where did the first half million dollars go? It’s a mystery.

Wentz’s firm, the Davillier Law Group, billed taxpayers $500 an hour, but the descriptions of the work it did have been redacted from public records. Despite the fact that the firm is theoretically working on behalf of Utah taxpayers, Rep. Keven Stratton, R-Orem, insists the bills are ‚Äúprotected under client-attorney privilege,‚Äù according to the Salt Lake Tribune.

Faced with all this, Utah Attorney General Sean Reyes now has a choice: He can keep throwing millions in taxpayer dollars toward secret legal bills, fighting for a legal theory that’s destined to fail and would cost taxpayers billions if it succeeded; or he can speak the truth to land seizure advocates, and tell them he won’t be a party to meritless lawsuits that aim to bankrupt the state of Utah.


Photo: Utah State Capitol, Wikimedia Commons