Utah, other Western states ask Supreme Court to return millions of acres of land back to the states

A map of the U.S. showing land under federal control paints large swaths of the West. In August, Utah filed a lawsuit against the federal government, arguing that it’s unconstitutional for the feds to retain unappropriated land in a state indefinitely. 

Since the lawsuit was filed, a dozen other states, including Idaho, Alaska and Wyoming, have filed briefs asking the court to hear the case. Additionally, a coalition of counties in Arizona and New Mexico, the Pacific Legal Foundation, the Utah Legislature and the Wyoming Legislature have also filed briefs in support of the lawsuit. 

“The federal burden in the West infringes on our sovereignty and undermines our equality with other States, all in direct violation of the Constitution,” Rep. Harriet Hagemen, R-Wyo., told Just the News. Hageman joined Utah’s congressional delegation in filing a brief in support of the Supreme Court’s review of Utah’s complaint. 

Unappropriated lands

According to a “Stand For Our Land” website set up by the State of Utah to explain the lawsuit, the Bureau of Land Management restricts public use of federal lands, and these restrictions don’t help Utah efficiently and effectively manage its lands. 

The lawsuit only applies to unappropriated lands, which are those the federal government holds without any clear congressional designation. As a result, the lawsuit won’t impact national parks, forest lands, monuments or tribal lands. 

It “is instead directed at the tens of millions of additional acreage that is owned by the federal government for no reason other than to dictate and control land use policy in the West,” Hageman said. 

In Utah, the federal government controls nearly 70% of the state’s total land area, which is second only to Nevada, which has nearly 85% of its land in federal control. Of the 22.8 million acres in Utah controlled by the BLM, 18.5 million acres are “unappropriated.” 

While the federal government disposed of much of the land it controlled in the East, the Homestead Act of 1862 allowed certain citizens to claim land in the U.S. territories of the West, so long as they lived and cultivated the land. Similar laws were passed in the years that followed in order to encourage more people to move out West. 

While the West was populated, it was much more sparse than the East, leaving millions of acres unsettled. These remained under the federal government’s control. In 1976, the Federal Land Policy and Management Act (FLPMA) reaffirmed federal authority over public lands, while requiring the feds to involve states and local governments in management decisions through coordination and cooperation. 

While debates about federal authority over public lands have been going on for decades, the State of Utah, according to the “Stand For Our Land” website, decided to take action as a result of more decisions being made in Washington, D.C., without any meaningful consideration of input from states and local governments. 

Restoration leases

The proverbial straw that broke the camel’s back was the BLM’s Public Lands Rule. The rule created “restoration leases” or “mitigation leases.” These work just like oil and gas or cattle grazing leases, except the “use” of the land would be to conserve it, which typically means erasing or eliminating human impact on the untouched landscape.

Critics of the rule say it effectively takes public lands off the table for any uses, including recreation, but supporters have said it would only allow for restoration and mitigation activities alongside other uses. The BLM’s final rule describes them as a means to put conservation work on “equal footing” with grazing and mineral development.

The State of Utah said it is “contrary to the BLM's legal obligation to promote multiple-use and sustained yield under the Federal Lands Policy and Management Act (FLPMA).” 

Another factor likely motivating Utah’s decision to file the lawsuit now is the Supreme Court decision in June that shot down the 1984 doctrine known as "Chevron deference," which allows federal agencies broad latitude in interpreting laws when Congress hasn’t provided specific guidelines. Under the doctrine, if Congress has granted an agency the general authority to make rules with the force of law, courts generally defer to the agency’s implementation of that general authority. This is no longer the law of the land.

John Ruple, University of Utah law professor, told High Country News that the high court’s ruling in the matter was “definitely a motivating factor” in filing the lawsuit. 

The Department of the Interior under the Biden administration had made a number of decisions limiting oil and gas production, as well as mining opportunities. Against Utah’s wishes, The BLM closed over 317 miles of popular roads and trails, an action the State of Utah says impacts recreational activities and local businesses that rely on tourism. The BLM is also considering future restrictions. 

The U.S. responded Thursday to Utah's complaint, arguing that the lawsuit doesn't satisfy the requirements for the complaint to go directly to the Supreme Court. This, the U.S. argues, gives the court discretion in whether or not to take up the case. 

"Utah’s complaint does not satisfy the Court’s usual criteria for entertaining an original case; it faces significant jurisdictional and procedural barriers; and it plainly lacks merit," the federal government said in its brief. 

Critical concern

Under the Biden administration, the BLM took similar actions in other states, including Wyoming, where the agency selected an alternative resource management plan that would, according to Cowboy State Daily, designate 1.8 million acres of Wyoming as “areas of critical concern.” The proposal drew statewide opposition, over concerns it would limit grazing, mining and oil and gas production in the “Cowboy State.” These industries, along with tourism, are the basis for almost all economic activity in the state. 

“Although this brief only relates to Utah, it is an argument that could have far reaching benefits for all western states, including Wyoming, where 48% of all surface lands are owned by the feds. The ability to generate revenue from these lands would be a huge benefit to state and local budgets and reduce the tax burden on the public,” Hageman said. 

Hageman said better outcomes would result if these decisions were made on the state level. 

“Transferring these lands to state and local control will result in the implementation of better management practices and policies, provide for more accountability, and prevent the federal government from blocking their productive use. It has been shown time and again that states are more qualified, effective, and better prepared to manage real property within their boundaries, while also limiting the problems associated with insect infestations, catastrophic forest fires, and invasive weed species,” Hageman said. 

Should the Supreme Court take up the case and ultimately rule in Utah’s favor, the ruling could potentially put 200 million acres of the West under state control.