Is There Something in Utah’s Water?

Is There Something in Utah’s Water?

In the latest and most extreme example of the long-standing animosity between states and the federal government over public land ownership, the state of Utah has filed a lawsuit against the federal government to gain control of vast swaths of the state’s public land.

This is largely about money and the smoldering embers of the Sagebrush Rebellion, with Utah politicians believing ​​their right to Bureau of Land Management (BLM) grazing, logging and mining revenue supersedes the general public’s historical ownership status, set forth in the terms and conditions for statehood in 1894:

“Utah claims that 18.5 million acres of ‘unappropriated’ Bureau of Land Management (BLM) lands must be turned over to the state because it has been deprived of the revenues BLM collects from grazing, logging and mining. History shows that as a condition of statehood, Utah agreed to not seek control of federal public lands. The Utah Enabling Act of 1894 established the terms and conditions for statehood and a constitution. The act was signed by President Cleveland on July 18, 1894.”

For the record, most hunters, anglers and the well-respected Backcountry Hunters & Anglers (BHA) vehemently oppose these largely self-motivated legal maneuvers. The land in question is public, by law, and should stay that way.

If concerned (you should be), reach out and make your voice heard: Patagonia highlights a roadmap for the sustainable conservation of all public lands with the co-management of Utah’s Bears Ears Monument.

Utah’s Quixotic Quest for Free Federal Land

When Utah became a state in 1896, it agreed with the United States Federal Government that Utah would forever renounce any claim to land owned by the United States within Utah. But that was a long time ago and Utah seems to have forgotten the terms under which it entered the Union. For the last several years, Utah has tried to get the Federal Government to give (not sell) certain federal lands back to the State. And there is a lot of it. Sixty-nine percent of the land in Utah (37 million acres) is federally owned land, meaning owned by each of the citizens of the United States. Some land has federal buildings on it. Some of the land is in national parks. Some of the land has military bases on it and some is national forest. But the largest chunk of federal land is administered by the Bureau of Land Management (BLM) and used for grazing, mineral exploration and recreation.

Utah politicians don’t like that and say that the federal lands are being mismanaged by the Feds, way off in Washington D.C. They say that Utah would do a better job managing the land and put it to better use. What they avoid acknowledging is the suspicion that the politicians want to sell big chunks of the land to private interests to raise money for the State. That would remove the right of all US Citizens to use those public lands in Utah.

The latest effort in Utah’s quixotic quest for free federal land is a lawsuit by the Utah Attorney General, on behalf of the state, against the United States, filed directly in the United States Supreme Court. Normally, lawsuits are filed at the trial court level and here it would be in the Federal District Court for the district of Utah. There, a judge would view the evidence and the law and issue a decision. That decision could be appealed to the Federal Court of Appeals for the Tenth Circuit. From a decision of that court, the loser could ask the United States Supreme Court to review the case. The United States Constitution does allow states to sue other states or states to sue the Federal Government directly in the Supreme Court, bypassing the lower courts, but such suits are rare and the High Court has discretion whether to take the case.

In the newest lawsuit, Utah has hired one of the best Supreme Court lawyers in the country, a former Solicitor General of the United States, whose office argued cases in the Supreme Court on behalf of the government. So, Utah is serious about this effort. Given the Supreme Court’s recent reversal of several long-standing precedents in other areas of the law, Utah is likely gambling that its arguments will find a favorable reception by the Court.

Utah’s argument is that under the federal scheme of government adopted by the drafters of the Constitution, the Federal Government has limited powers, meaning the Constitution sets forth the powers of the Federal Government, with the rest of the powers being reserved to the states. And, Utah says, nothing in the Constitution allows the Federal Government to own land within a state, unless that land is devoted to the exercise of powers granted by the Constitution. Utah says that it doesn’t want the federal public lands under federal buildings, in national parks, in national forests or on military bases. It invents a term, “unappropriated lands,” which it says are lands not used for the purposes of the powers given to the Federal Government in the Constitution. The BLM land, Utah argues, is just sitting there, without a purpose founded in the Constitution. Therefore, the Federal Government cannot own the land. Utah claims that a federal law, enacted in 1976, which dictates how federal lands are to be managed and in some limited cases sold, is unconstitutional, because it gives the Federal Government powers that are not found in the Constitution.

Many legal scholars who have initially weighed in on the lawsuit call it a “Hail Mary,” or an election year stunt, without a serious legal foundation. Utah simply ignores more than a hundred years of Supreme Court deference to the power of the United States Congress to legislate how federally owned property is administered. Back in 1872, the Supreme Court in Gibson v. Chouteau, stated:

“With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise; and to prevent the possibility of any attempted interference with it…”  

Utah also argues that it can ignore the specific language of the 1894 law admitting the former Utah Territory to the Union. That law stated that Utah “shall not be entitled to any further or other grants of land for any purpose.” Utah’s lawsuit does not explain how the State gets around the limitations imposed on its admission to the Union or why it should get the land for free.

It will be interesting to see how the Federal Government responds to the suit and if the Supreme Court agrees to hear the case. The early betting suggests that the Court will decline to hear the case, as it did last year with other suits by States attempting to avoid lower court litigation. In any event, there is a tremendous amount riding on the case, because if Utah is correct in its arguments, then all “unappropriated public lands” (again, a made-up term) across the country will revert to the states and all U.S. citizens will lose a priceless right.

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Jon Christiansen is a former Chair of the Board of Trustees of Trout Unlimited and a former General Counsel for TU. The views expressed are solely those of the author.