Are some Land Board transactions unconstitutional? A quick look at a complex issue

As with any issue involving the Idaho Land Board and endowment land, nothing is ever easy to understand or explain.

A public records request by the Idaho Conservation League revealed hundreds of state land transactions dating back to the 1890s that appear to violate an obscure provision of Idaho constitution relating to how much state land can be sold off to one individual or business. Though the Idaho Department of Lands is ordering an audit of the records, director Tom Schultz says the land transactions are more complicated than the ICL’s database indicates.

Here’s the jist: The state of Idaho regularly auctions off and sells endowment land. The Idaho constitution limits individuals and corporations to purchasing 320 acres of public school land and 160 acres of University of Idaho land.

Since statehood, the Land Board — composed of the governor, attorney general, secretary of state, state superintendent, and controller — may have allowed individuals or corporation to purchase far more than the 320 acres. In total, more than 200,000 acres of land sold by the state were sold to people or entities that had surpassed the 320 cap, said Jonathan Oppenheimer, government affairs director for the ICL. What’s more, the primary beneficiaries were some of Idaho’s most politically connected families and corporations.

Two important notes: Some of these violations occurred more than one hundred years ago, meaning the current land board, chaired by Gov. Butch Otter, isn’t responsible for the vast majority of those issues. (The most recent questionable transaction, which was initiated in 1975, was finalized in 2015. Today’s board hasn’t initiated any questionable transactions, according to the documents.)

Also, though many prominent ranching families, like the Littles, the Newcombs, the Bracketts, the Ricks, and the Bedkes, appear in the database, no current state elected officials or lawmakers appear to be listed in the transactions. (And, as Lt. Gov. Brad Little quipped to Idaho Reports, the statute of limitations on his grandfather’s land purchases passed long ago.)

But the database doesn’t tell the whole story.

“The Supreme Court said the state’s obligation to track this issue is to the person they had the initial contract with,” Schultz said. “Who that person may have sold that contract to or what was done subsequent to them getting the deed, was not the obligation of the state to track that in perpetuity.”

How might someone’s name legitimately appear on multiple records exceeding 320 acres? Some transactions took place over 30 or more years. If a David Smith bought 320 acres, then bought an additional 320 acres from John Doe in the middle of his contract with the state, David Smith’s name would show up on the final deed. That would be a legal transaction.

In other cases, multiple family members may all buy separate parcels of land. That was the case with Little’s parents, he said. His mother bought 320 acres and his father bought 320 acres.

There are other possibilities, including human error. Many of these records have been transcribed multiple times, decades before we could look at this on Excel spreadsheets.

But Oppenheimer said he’s concerned that there’s nothing stopping the Land Board from violating the constitution in the future. Because some in state government are asking for transfer of federal lands to state control, the discussion has a new urgency, Oppenheimer said.

“Even if something is written in the constitution, if no one is watching, it might not matter,” Oppenheimer said.

Idaho Reports will have much more on this on our Feb. 24, 2017 episode. In the meantime, here’s a clip of Schultz explaining how complex some of these Land Board issues are:

 

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