At statehood, the federal government promised all states (including Colorado) that it would transfer title for all public lands within each state.  The U.S. Supreme Court has called these promises “solemn compacts,” “bilateral (two-way) agreements,” and “solemn trusts” that must be honored “in a timely fashion.”

The federal government did transfer title for the public lands in all states east of Colorado (as well as Hawaii).  In North Dakota, for example, where the federal government kept its promise, North Dakota can responsibly manage its resources for the well-being of North Dakotans resulting in virtually no unemployment and more than enough money to appropriately educate their children.

We’re still waiting for the federal government to keep its promise to Colorado, and to Colorado’s children.

Our children and teachers are still waiting for the federal government to keep its promise so that Colorado will no longer be dead last in the nation in per-pupil funding.

Our wage earners are still waiting for the federal government to keep its promise so that there are more higher paying jobs in the state.

Our businesses are still waiting for the federal government to keep its promise, unleashing greater economic opportunity that expands the economic pie in Colorado and throughout the nation.

Our people are still waiting for the federal government to keep its promise so that Colorado can secure a sustainable future for everyone in our state.

If the federal government’s promise that it would timely transfer title of the public lands was the same for all states, why did it fulfill this promise for most states and yet retain control over nearly 22 million acres of the land in Colorado and other western states?

In 1976, the U.S. Congress decided to exercise the property law of two-year olds: “If it’s mine, it’s mine. If it’s yours, it’s mine. If I can see it, it’s mine. If it’s pretty, it’s mine.”  In this legislation, known as the Federal Lands Policy Management Act (or FLiPMA), the federal government unilaterally abandoned nearly 200 years of “solemn compact” promises stating “it is [now] the policy of the United States that the public lands be retained in federal ownership.”

However, very recently, the U.S. Supreme Court unanimously rejected the idea that Congress can on its own change its promises and the vested rights of states upon their admission to the union, stating “[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event … to suggest that subsequent events [meaning acts of Congress] somehow can diminish what has already been bestowed.  And that proposition applies a fortiori [with even greater force] where virtually all of the State’s public lands .  .  . are at stake.“

Think about what the U.S. Supreme Court unanimously said: subsequent acts of Congress, like FLiPMA, can’t change the “uniquely sovereign” rights of a state upon its admission to the union.  Like all other states, Colorado’s “uniquely sovereign” rights at admission were for the federal government to transfer title to the public lands, in a timely fashion.

Like other states, Colorado agreed at statehood to suspend its sovereign right to tax these lands only so long as the federal government acted in a timely manner to transfer title to the lands.  Colorado never agreed that the federal government would never transfer title over the public lands, such that, Colorado would never have the benefit of taxing the lands and resources to fund education and public services.  Nor would Colorado have ever done such a thing!

. . . Our children and teachers can’t wait . . . Our wage earners can’t wait . . . Our businesses can’t wait . . . Our people can’t wait . . . for a federal government in which it is apparent that bipartisanship too often means increasing debts, increasing delay, increasing government by gimmick, and increasing consolidation of power and control to Washington.

So, the Colorado Legislature, together with four other western states (AZ, NM, UT, and ID), is acting upon the recent advice of a unanimous U.S. Supreme Court that Congress had no right to even “suggest” that it can alter or “diminish” the “uniquely sovereign character” and rights associated with our admission to the union.

HB 1322 does a number of things.  First, it sets a firm deadline of December 31, 2014, for Congress to transfer title to the public lands directly to Colorado (just like it did with Hawaii and Tennessee).  Second, it allows the State Land Board to manage these public lands, protecting and administering the various rights and expectations that have developed over the 136 years that the federal government failed to keep its promise (rights such as access, open space, grazing, and responsible development of our abundant natural resources, etc.).  Third, we preserve and secure the national parks as national parks and these lands will remain as lands of the federal government.

Once the deadline is set, Colorado’s congressional delegation, along with the delegations from the other western states, will have a powerful tool to compel a meaningful, national debate over how the federal government can work with the states as governing partners to coordinate the timely transfer of these lands.  However, should congress fail to take meaningful action by the imposed deadline, Colorado (and the other western states) will begin to exercise their “uniquely sovereign” right to tax the lands.  If the federal government fails or refuses to pay the tax, the State will impose tax liens.  If the federal government fails or refuses to satisfy the liens, the State will execute them (i.e. claim title in satisfaction of the liens or conduct a tax sale of the land).

Senator Scott Renfroe stated recently, “State and local government officials have a crucial responsibility to manage our abundant lands and resources strategically and prudently.  Our state’s education system and economy are on the line; now is the time for bold action.”

Well said, Senator.  We, in the Colorado Legislature, also believe “We Can’t Wait” and are doing our part.