Are the lands occupied by Idaho's old state penitentiary 'public lands' subject to the constitutional rules requiring the State Board of Land Commissioners to sell or lease them at public auction for the maximum long-term financial return?

Subject

Whether the approximately 550 acres known as the "old state penitentiary site" in Boise are "public lands" subject to the public-auction and maximum-long-term-financial-return rules of article IX, sections 7 and 8 of the Idaho Constitution, or whether they may be leased or sold under the more flexible legislative directive in Idaho Code § 58-337.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

When Idaho became a state in 1890, the federal government handed over several different categories of land. Most categories came with strings: the lands had to be used for, or their proceeds had to support, specific purposes (schools, the agricultural college, public buildings, the penitentiary's operations). Article IX, sections 7 and 8 of the Idaho Constitution put the State Board of Land Commissioners in charge of those "public lands" and required public auctions and management for the maximum long-term financial return.

The territorial penitentiary was built starting in 1869 on land the Territory had acquired earlier from the United States. By the time of statehood in 1890, the prison and its surrounding 550 acres were a working facility. Section 9 of the Idaho Admission Act granted the penitentiary and "all lands connected therewith and set apart and reserved therefor" to Idaho. Notably, that grant was unconditional. There was no requirement that proceeds support a particular institution, and no provision tying the land to the rules in Sections 4, 6, 8, 10, or 11 (which addressed school, university, and institution-support lands).

The 2015 question was practical: when the State leases or sells the old penitentiary site, does it have to use a public auction and pursue maximum financial return, like school endowment lands? AG Wasden answered no.

The reasoning had three layers:

First, the Admission Act itself put the penitentiary lands in a different category. Section 14 of the Act limited the constitutional "public lands" concept to lands "selected, under the direction of the secretary of the interior, from the surveyed, unreserved, and unappropriated public lands of the United States." The penitentiary site was none of those things. It had been "set apart and reserved" before statehood, and was conveyed unconditionally under Section 9. Section 12's restriction that "all lands granted in quantity or as indemnity" be used "exclusively for the purpose herein mentioned" did not, by its terms, reach the unconditional Section 9 grant.

Second, the Idaho Constitution itself created a separate management body. Article X, section 5 originally placed "the penitentiaries of the states" under a board of state prison commissioners (governor, secretary of state, attorney general). That board was reorganized by 1941 amendment as the Board of Correction, which "shall have the control, direction and management of the penitentiaries of the state, their employees and properties." The Constitution thus distinguished penitentiary "properties" (Board of Correction) from "public lands" granted for institutional support (Land Board). They were separate categories.

Third, even if you stretched the term "public lands" to cover the old penitentiary site, the more specific Article X, section 5 grant to the Board of Correction would prevail. Both boards are constitutional and of equal stature; the more specific provision controls over the more general (citing Mulder v. Liberty Nw. Ins. Co., 135 Idaho 52 (2000)).

Reading those layers together, the AG concluded that Idaho Code § 58-337, the 1974 statute permitting leases of up to 50 years and authorizing the Land Board (or another agency with jurisdiction) to dispose of the site for "cultural, educational, recreational and scenic" purposes, controlled. The constitutional rules requiring public auction and maximum return did not apply.

Common questions

Q: Why does this matter?

The old penitentiary site is one of Boise's signature historic and cultural assets, with the original prison structures, the Idaho State Historical Museum, the Idaho Botanical Garden, and other public-use buildings. If those leases had to be auctioned for maximum financial return, the State could not maintain non-commercial cultural and recreational uses on favorable terms. The opinion confirmed that the Legislature retained discretion to manage the property for cultural and historical purposes.

Q: Is the "penitentiary endowment land" the same as the "penitentiary reserve land"?

No. The opinion drew a sharp line between two parcels. The "penitentiary reserve lands" (about 550 acres) were the land actually occupied by the territorial prison and granted unconditionally under Section 9. The "penitentiary endowment lands" (the 187.27 acres still remaining after a 1949 sale) were granted under Section 11 specifically "for the support and maintenance of the penitentiary, located at Boise City." Endowment lands are public lands subject to the article IX, section 7 and 8 rules. Reserve lands are not.

Q: What was Idaho Code § 58-337?

A 1974 statute that replaced an earlier 1969 provision declaring the old prison site surplus once the new prison opened. Section 58-337 authorized the Land Board (or any agency with jurisdiction) to lease parts of the site to private parties for up to 50 years to preserve and enhance cultural, educational, recreational, and scenic values, and to relinquish portions to other state agencies for use as building or office space. Lease proceeds beyond maintenance and historic-interpretation costs went to the permanent building fund.

Q: Does this opinion mean the Land Board has unlimited discretion?

The opinion focused on whether the constitutional public-lands disposition rules apply. It did not catalogue every other limit on the Board's discretion (statutes governing competitive bidding for public contracts, environmental review, historic preservation requirements, and similar limits could still apply depending on the specific transaction). Anyone working with the site should verify which other statutory frameworks may also bear on a given lease or sale.

Background and statutory framework

The Idaho Admission Act, 26 Stat. L. 215, ch. 656 (1890), created several categories of land grants: school sections (§ 4), public-buildings lands (§ 6), university lands (§ 8), the penitentiary itself (§ 9), agricultural-college lands (§ 10), institutional-support lands including 50,000 acres for the penitentiary (§ 11), and the umbrella restriction that granted lands be "held, appropriated, and disposed of exclusively for the purpose herein mentioned" (§ 12). Section 14 set up the selection mechanism, requiring lands be drawn from the "surveyed, unreserved, and unappropriated public lands of the United States."

Article IX, section 7 of the Idaho Constitution gave the Land Board "direction, control and disposition of the public lands of the state." Section 8 required the Land Board to manage public lands to "secure the maximum long term financial return to the institution to which granted." Article X, section 5 originally vested control of "the penitentiaries of the states" in a separate board, reorganized in 1941 as the Board of Correction.

The 1869 territorial penitentiary land acquisition is documented in House Concurrent Resolution No. 8, Laws and Resolutions of the 5th Legislative Assembly of the Territory of Idaho 176-77 (1869). The 1949 sale and 1974 enactment of § 58-337 are the modern key dates.

The opinion noted earlier transfers of portions of the reserve lands to the Land Board by agreement dated April 3, 1964, and amended March 8, 1971, for use by the Department of Agriculture and the State Board of Health. Those parcels are now occupied by the State Health Laboratory.

Citations

Idaho Constitution:
- Art. IX, § 7
- Art. IX, § 8
- Art. X, § 5

Idaho Code:
- § 58-337

Session Laws:
- 1941 Idaho Sess. Laws 486
- 1969 Idaho Sess. Laws 772

Idaho Cases:
- Lewis v. Woodall, 72 Idaho 16, 236 P.2d 91 (1951)
- Mulder v. Liberty Nw. Ins. Co., 135 Idaho 52, 14 P.3d 372 (2000)
- State v. State Bd. of Education, 33 Idaho 415, 196 P. 201 (1921)

Other Authorities:
- House Concurrent Resolution No. 8, Laws and Resolutions of the 5th Legislative Assembly of the Territory of Idaho 176-77 (1869)
- Idaho Admission Act, 26 Stat. L. 215, ch. 656 (1890), §§ 4, 6, 8, 9, 10, 11, 12, 14

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion15-2.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION 15-2

To:

Director Thomas Schultz
Idaho Department of Lands
300 N. 6th St. #103
Boise, ID 83702
Via Statehouse Mail

Per Request for Attorney General's Opinion

You requested this office provide an opinion concerning the following question.

QUESTION PRESENTED

Are the lands occupied by the old state penitentiary subject to Article IX, §§ 7 and
8, which require the State Board of Land Commissioners to conduct a public auction to
sell or lease lands granted to the State by the general government?

CONCLUSION

There are no constitutional restraints on the sale or disposition of penitentiary
reserve lands. Such lands are not subject to the Idaho Constitution art. IX, sections 7 and
8, and may be sold or leased in accordance with the legislative directive in Idaho Code
§ 58-337.

FACTUAL BACKGROUND

In 1869, the Territory of Idaho began construction of a penitentiary on 280 acres
of land east of Boise that is now the site of the old penitentiary and a complex of other
state buildings. House Concurrent Resolution No. 8, Laws and Resolutions of the 5th
Legislative Assembly of the Terr. of Idaho 176-77 (1869). Prior to Statehood, with the
purchase of adjoining property, land occupied by the penitentiary grew to approximately
550 acres.

When Idaho was admitted to the Union in 1890, the United States made a number
of land grants to Idaho for various purposes. Pursuant to Section 4 of the Idaho
Admission Act, sections 16 and 36 in every township were granted to Idaho "for the
support of common schools." 26 Stat. L. 215, ch. 656 (1890). Pursuant to Section 6 of
the Admission Act, 50 sections of land were granted for "the purpose of erecting public
buildings." Id. at 216. Pursuant to Section 8, 72 sections of land were granted with the
income from the lands to be deposited in a permanent fund to be used for "university
purposes." Id. Pursuant to Section 10, 90,000 acres of land were donated for the support
of an agricultural college. Id. Pursuant to Section 11, 500,000 acres were granted for the
support and maintenance of various state institutions, including 50,000 acres of land "for
the support and maintenance of the penitentiary, located at Boise City...." Id. at 216-17.

Finally, pursuant to Section 9 of the Idaho Admission Bill, the United States
granted the territorial penitentiary and its associated 550 acres of land to the State:

That the penitentiary at Boise City, Idaho, and all lands connected
therewith and set apart and reserved therefor, and unexpended
appropriations of money therefor, and the personal property of the United
States now being in the Territory of Idaho which has been in use in the
said Territory in the administration of the Territorial government,
including books and records and the property used at the constitutional
convention which convened at Boise City in the month of July, eighteen
hundred and eighty-nine, are hereby granted and donated to the State of
Idaho.

26 Stat. L. at 216. For convenience in this Opinion, the 550 acres of lands originally
occupied by the territorial penitentiary, and granted to the State in Section 9 of the
Admission Act, are referred to as the "penitentiary reserve lands."

In 1902, Idaho selected lands for support of the penitentiary pursuant to Section
11 of the Idaho Admission Bill. The selected lands included 267.27 acres adjoining the
penitentiary reserve lands on the east boundary. After a land sale in 1949, there remains
80 acres in Section 13, T3N, R2E and 107.21 acres in Section 18, T3N, R3E, a total of
187.27 acres, adjoining the penitentiary reserve lands. Those 187.27 acres are referred to
herein as "penitentiary endowment lands."

ANALYSIS

The "penitentiary ... and all lands connected therewith" were granted to the State
in Section 9 of the Admission Act. While the grants of endowment land in Sections 4, 6,
8, 10, and 11 of the Admission Act required the granted lands to be used for the support
and maintenance of the endowed institutions, the grant in Section 9 does not specify a
purpose for the penitentiary reserve lands. Rather, it is an unconditional grant and
donation of the penitentiary and connected lands to the State of Idaho. Unlike the other
land grants, there is no requirement that earnings from the sale or lease of penitentiary
reserve lands be used for the support of state prisons or other institutions. Thus, the
general provision in Section 12 of the Admission Act that lands granted to the state "shall
be held, appropriated, and disposed of exclusively for the purpose herein mentioned"
does not, by its terms, apply to the penitentiary reserve lands.

Because the Admission Act does not restrict the disposition of the penitentiary
reserve lands, the remaining question is whether the drafters of the Idaho Constitution
nonetheless intended for the penitentiary reserve lands to be subject to the same
restrictions on disposition as were placed on endowment lands.

Art. IX, sec. 7 of the Idaho Constitution provides:

State board of land commissioners. — The governor, superintendent of
public instruction, secretary of state, attorney general and state controller
shall constitute the state board of land commissioners, who shall have the
direction, control and disposition of the public lands of the state, under
such regulations as may be prescribed by law.

This general provision gave the Board of Land Commissioners (Land Board),
authority over all "public lands of the state." The term "public lands" also appears in art.
IX, sec. 8 of the Idaho Constitution, which provides that the Land Board shall "provide
for the location, protection, sale or rental of all the lands heretofore, or which may
hereafter be granted to or acquired by the state by or from the general government."
These references to "public lands" must be read in conjunction with Section 14 of the
Admission Act, which provided that "[a]ll lands granted in quantity or as indemnity by
this act shall be selected, under the direction of the secretary of interior, from the
surveyed, unreserved, and unappropriated public lands of the United States." 26 Stat. L.
at 217. Upon conveyance, the selected federal public lands became "public lands of the
state" and were placed under the authority of the Land Board pursuant to art. IX, sec. 7 of
the Idaho Constitution. The Admission Act provisions addressing the selection and
conveyance of "public lands," along with the constitutional provisions in art. IX vesting
the Land Board with control and disposition of "public lands," establish that the drafters
of the Idaho Constitution used the term "public lands" to refer to those lands granted to
the state by the general government for the support of specific state institutions, including
the penitentiary endowment lands granted to the State under Section 11 of the Admission
Bill.

The lands constituting the territorial penitentiary, however, were not
unappropriated public lands available for selection to support public schools or other
endowed institutions. The lands for the territorial penitentiary were acquired from the
United States by the Territory of Idaho in 1869, and thereafter were not public lands, as
such term is used in the Admission Act and the Constitution. Rather, as noted in Section
9 of the Admission Act, the penitentiary lands had been "set apart and reserved." 26 Stat.
L. at 216. Recognizing that the penitentiary was not public land to be managed by the
Land Board, the drafters of the Idaho Constitution created another constitutional board to
manage the penitentiary. Art. X, sec. 5 of the Idaho Constitution originally provided, in
part:

The governor, secretary of state and attorney general shall constitute a
board to be known as the state prison commissioners, and shall have the
control, direction and management of the penitentiaries of the states.

This more specific provision established a distinct category of property known as
the "penitentiaries of the state," and placed management of such property in the board of
state prison commissioners. When Art. X, sec. 5 was amended in 1941, the management
of "penitentiaries ... [and] their ... properties" was transferred to the Board of
Correction:

State prisons — Control over. — The state legislature shall establish a
nonpartisan board to be known as the state board of correction, and to
consist of three (3) members appointed by the governor, .... This board
shall have the control, direction and management of the penitentiaries of
the state, their employees and properties ....

Idaho Const. art. X, § 5 (emphasis added).

The Board of Correction's authority over "penitentiaries ... [and] their ...
properties" included, by its terms, the land occupied by, and immediately surrounding,
the state penitentiaries, but does not include lands granted to the State for the financial
support of the state penitentiaries. Such lands retain their unique constitutional
characterization as "public lands" under the management of the Land Board, and such
characterization distinguishes them from penitentiary "properties" under the authority of
the Board of Correction. Because the categories of land remain distinct, the Board of
Correction's authority over penitentiary "properties" does not conflict with the Land
Board's general authority over "public lands" set aside for the support and maintenance
of state penitentiaries.

Moreover, even if the term "public lands" in art. IX, sec. 7 were interpreted to
include "properties" occupied by the old state penitentiary, the Constitution's vesting of
land management authority in the Board of Correction over such a subset of "public
lands" would not create an unconstitutional interference with the Land Board's general
authority over "public lands," because the two boards are constitutionally created and of
equal stature. See State v. State Bd. of Education, 33 Idaho 415, 429, 196 P. 201, 205
(1921) (a constitutional board "while functioning within the scope of its authority, is not
subject to the control or supervision of any other branch, board or department of the state
government"); see also id. at 434, 196 P. at 207 (Dunn, J., dissenting) (the powers of two
boards created by the constitution "are certainly equal in rank ... though not so in
extent").

Given the equal stature of the Land Board and the Board of Correction, the
specific provision granting the Board of Correction authority over management of
penitentiary properties takes precedence over the more general provision granting the
Land Board authority over all "public lands." "A basic tenet of statutory construction is
that the more specific statute or section addressing the issue controls over the statute that
is more general." Mulder v. Liberty Nw. Ins. Co., 135 Idaho 52, 57, 14 P.3d 372, 377
(2000); Lewis v. Woodall, 72 Idaho 16, 18, 236 P.2d 91, 93 (1951) (affirming "general
principle that statutory rules of construction apply to the interpretation of constitutional
provisions").

Thus, under the plain terms of the Idaho Constitution, the penitentiary reserve
lands are not subject to the requirement in art. IX, sec. 8 of the Idaho Constitution that the
Land Board manage "public lands" to "secure the maximum long term financial return to
the institution to which granted." Penitentiary reserve lands are not "public lands" but
are a separate category of property, placed originally under the control of the Board of
Correction.

In the absence of constitutional directives restricting the disposition of the
penitentiary reserve lands, the Legislature directed their disposition by enacting Idaho
Code § 58-337:

Lease of old penitentiary site. — To preserve and enhance the cultural,
educational, recreational and scenic values of the old penitentiary site at
Boise, the state board of land commissioners or any other state agency
having jurisdiction and control over the site is authorized to lease any part
of the site to private persons, firms, or corporations for a term not to
exceed fifty (50) years. The board is also authorized to relinquish control
and custody over any part of the old penitentiary site to other state
agencies for use as building or office space. Unless otherwise prohibited
by law, proceeds from the rental of the old penitentiary site beyond cost of
maintenance and historic interpretation shall be credited to the permanent
building fund. For purposes of this act [section], the old penitentiary site
at Boise includes all penitentiary reserve and acquired lands owned by the
state of Idaho in:

Sections 12 and 13, Township 3 North, Range 2 East, Boise Meridian, and
the west half of Section 18, Township 3 North, Range 3 East, Boise
Meridian.

Idaho Code § 58-337. Section 58-337 was enacted in 1974, shortly after closure
of the old penitentiary in December 1973. It replaced an earlier provision enacted in
1969 declaring that the old prison site "shall be declared surplus as the new facilities
become available at the new prison site south of Gowen Field." 1969 Sess. Laws 772.
The 1969 statute also authorized the Department of Lands to "dispose of the described
property by sale or lease according to their prescribed procedures under the direction of
the state land board." The 1974 legislation, by substituting specific disposition terms for
the general reference in the 1969 legislation to land board disposition procedures, is
further evidence of legislative intent to not subject penitentiary reserved lands to the
disposition requirements of art. IX, sec. 8.

Because the penitentiary reserve lands are not "public lands" subject to the
requirements of art. IX, sec. 8 of the Idaho Constitution, the disposition of the
penitentiary reserve lands pursuant to Idaho Code § 58-337 does not conflict with the
constitutional restrictions on disposition of "public lands" by the Land Board.

AUTHORITIES CONSIDERED

1.

Idaho Constitution

Art. IX, § 7.
Art. IX, § 8.
Art. X, § 5.

2.

Idaho Code

§ 58-337.

3.

Session Laws

1941 Idaho Sess. Laws 486.
1969 Idaho Sess. Laws 772.

4.

Idaho Cases

Lewis v. Woodall, 72 Idaho 16, 236 P.2d 91 (1951).
Mulder v. Liberty Nw. Ins. Co., 135 Idaho 52, 14 P.3d 372 (2000).
State v. State Bd. of Education, 33 Idaho 415, 196 P. 201 (1921).

5.

Other Authorities

House Concurrent Resolution No. 8, Laws and Resolutions of the 5th Legislative
Assembly of the Terr. of Idaho 176-77 (1869).
Idaho Admission Act, 26 Stat. L. 215, ch. 656 (1890).
Idaho Admission Act, § 4.
Idaho Admission Act, § 6.
Idaho Admission Act, § 8.
Idaho Admission Act, § 9.
Idaho Admission Act, § 10.
Idaho Admission Act, § 11.
Idaho Admission Act, § 12.
Idaho Admission Act, § 14.

Dated this 13th day of November, 2015.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
Steven W. Strack
Deputy Attorney General