Utah seeks SCOTUS review of unappropriated federal lands
Ryan Knappenberger
WASHINGTON (CN) — Utah asked the Supreme Court on Tuesday to decide whether the federal government can hold unappropriated land within a state indefinitely.
The GOP-led state targeted approximately 18.5 million acres under the Bureau of Land Management's control that have not been designated as either a national park, national monument, wilderness area, national forest, military property or tribal land.
The state argued in the suit that the federal government’s “indefinite retention” of the land deprives the state of its “basic and fundamental sovereign powers” to more than a third of its territory.
In a statement announcing the suit, Republican Governor Spencer Cox said the BLM had failed to keep the public lands accessible and seemed to pursue “a court of closure and restriction."
“It is not a secret that we live in the most beautiful state in the nation,” Cox said. “But, when the government controls two-thirds of Utah, we are extremely limited in what we can do to actively manage and protect our natural resources.”
Utah is primarily represented in the suit by Paul Clement, of Washington firm Clement Murphy, who recently argued the landmark Loper Bright v. Raimondo before the high court. The Supreme Court sided with Clement and his clients and overturned the long-standing Chevron deference, a legal doctrine that required federal judges to defer to a federal agency’s expertise in a relevant topic.
Utah claims that because of the federal government’s control of unappropriated land, the state cannot tax the land, use eminent domain to build infrastructure or exercise legislative authority over the land.
“In short, throughout much of Utah, it is the federal government, not Utah, that wields the general police power,” the state says in the complaint.
The justices’ decision in the case could have a huge impact on the Western United States, particularly Nevada and Arizona, where the federal government manages approximately 80% and 50% of the land, respectively. The government manages 70% of the land in Utah.
Utah has been a battleground for the fight over federal lands in recent years, after former President Donald Trump slashed the size of the Bear Ears and Grand Staircase-Escalante national monuments by 85% and 46%, respectively.
The decision came at the behest of Republicans in the state, such as then-Governor Gary Herbert and then-Utah House Speaker Gregory Hughes, who both applauded Trump’s decision at a 2017 rally held in the state.
President Joe Biden quickly reversed Trump’s move after taking office, leading a new swath of Republicans in the state to file a federal lawsuit in which Governor Cox and current Attorney General Sean Reyes argued Biden violated the Antiquities Act.
A federal judge denied their claims against Biden, finding that his decision to restore the national monuments was within his purview as president and not reviewable by a federal court. To move forward with the suit, the state would have had to get a waiver from Congress to sue the president and federal government, which it did not do.
Cox and Reyes are also named as petitioners in Tuesday’s suit.
Experts said Tuesday’s suit may face similar constitutional hurdles, warning that any legal victory would require a major overhaul of precedent.
John Ruple, a law professor at the University of Utah S.J. Quinney College of Law said in an interview that both the U.S. Constitution and Utah Constitution could stop the suit in its tracks.
The Constitution grants Congress, not the states, the authority to make decisions about federal public lands, Ruple said. Further, the state’s constitution explicitly disclaims all rights and title to the unappropriated lands.
“Utah’s claims would require the Supreme Court to reinterpret both of those constitutional provisions in ways that are not intuitive, upsetting 150 years of settled Supreme Court law and destabilizing land ownership throughout the West,” Ruple said. “That’s a big lift.”
He warned that in the short term, the lawsuit will likely make collaboration between the state and the federal government on those unappropriated lands more difficult, particularly regarding wildfire prevention, wildlife protection and other shared interests between the parties.
The tension between Western states and the federal government predates the back-and-forth over the Bear Ears and Grand Staircase-Escalante national monuments, as Westerners in the 1970s and 80s pushed against perceived federal overreach in a movement known as the Sagebrush Rebellion.
The movement was primarily spurred by cattle ranchers who were upset by the wide swaths of Western land falling under federal control and policies limiting the number of animals permitted on a range.
While the movement subsided with the election of Ronald Reagan in 1981, the ire against the federal government remains as developers and mining companies seek access to federal land for resource extraction, particularly minerals like lithium, uranium and copper.
Randi Spivak, the public lands policy director at the Center for Biological Diversity, decried the lawsuit as a “frivolous publicity stunt.”
“Like other Western states, Utah agreed to relinquish public lands within its borders as a condition of becoming a state,” Spivak said in an email. “Rewriting history and spending taxpayer dollars on a hopeless, expensive court battle is the antithesis of good governing and environmental stewardship.”