On August 20, in the US Supreme Court, Utah filed suit against the US government over management, resources, and other rights to “unappropriated” public lands controlled federally within the Beehive State. The suit asserts that, under its enumerated powers of the US Constitution, the national government has not identified any designated purpose that would claim rights to some 18.5 million acres (34% of all Utah lands) and supersede those of the state and its citizens. A win for Utah could implicate large tracts of “unappropriated” public lands in many other states.
Utah Brouhaha
Similar disputes in various states over grazing, mining, and other claims to vast, valuable expanses of land has strained tensions for decades. Utah’s effort may appear pomp and pipedream, but state leadership has devised this plea to the Supreme Court after long and serious consideration. The complaint’s essential theory is that the federal government never had authority under the US Constitution to govern states’ landholdings except for limited specified purposes that do not apply to land, which is, by definition, “unappropriated.”
The complaint avers:
“Those 18.5 million acres are administered by the federal Bureau of Land Management (‘BLM’), which earns significant revenue by leasing those lands to private parties for activities such as oil and gas production, grazing, and commercial filmmaking, and by selling timber and other valuable natural resources that the federal government retains for its own exploitation.
“Utah is deprived of basic and fundamental sovereign powers as to more than a third of its territory. It cannot tax the federal government’s land holdings. It cannot exercise eminent domain over them as needed for critical infrastructure like public roads and transportation and communications systems. It cannot even exercise legislative authority over the purposes for which they may be used. In short, throughout much of Utah, the federal government, not Utah, wields the general police power.
“Nothing in the Constitution authorizes the United States to hold vast unreserved swathes of Utah’s territory in perpetuity, over Utah’s express objection, without even so much as a pretense of using those lands in the service of any enumerated power.”
Utah is a sympathetic plaintiff in this cause: The federal government oversees nearly 70% of its lands. The state is not seeking to reclaim national monuments, National Parks, or other areas properly appropriated for federal use pursuant to enumerated constitutional authority. Were the Beehive State to prevail in the nation’s highest court, the control of substantial areas of land would transfer from Washington, DC, to Salt Lake City – and likely eventually to Phoenix, Boise, etc.
“Public Lands in Public Hands”
Utah Governor Spencer J. Cox took to X to protest on behalf of his citizenry:
“The U.S. Constitution never intended a federal agency to hold onto so much land in any state. . . . This lawsuit will NOT impact the millions of ‘appropriated’ acres already designated as national parks, national monuments, wilderness areas, national forests, Tribal lands, or military properties. . . .
“This lawsuit is a critical first step to ensure the best management of Utah public lands far into the future. Utah is committed to keeping public lands in public hands and locally controlled.”
The complaint argues that Congress lacked constitutional authority to arrogate control of Utah’s lands in 43 USC § 1701(a)(1), which “declares that it is the policy of the United States . . . that the public lands be retained in Federal ownership . . .” According to Utah and its people, such a “policy” cannot abrogate states’ plain rights under the federal Constitution.
Texas installed razor wire fencing along the southern border in protest against lax federal immigration enforcement. The Biden Administration promptly sued (successfully) in that same Court to remove said fencing. Asserting federal authority over border security is a very different jurisdictional animal than seizing millions of acres of valuable land: The federal government cannot legally ground land rights claims in Utah and Idaho in immigration powers enumerated in the US Constitution. Pointing to 43 USC § 1701(a) as authority raises the question at issue in the complaint: By what path did Congress so brazenly wrest states’ landholdings from local jurisdiction and stewardship?
States’ Rights and Utah’s Fight
Notably, 43 USC § 1701(a)(13) acknowledges – without stating why – states’ rights to compensation for lost taxes attributable to their lands:
“(13)the Federal Government should, on a basis equitable to both the Federal and local taxpayer, provide for payments to compensate States and local governments for burdens created as a result of the immunity of Federal lands from State and local taxation.”
If states are due taxes for lands used by the federal government, by what constitutionally enumerated power are they deprived of rents and royalties, or grazing and recreation rights to local citizens, and how does that further the government’s stated goal of creating a “basis equitable to both the Federal and local taxpayer”?
