Utah Makes High Stakes Gamble in Supreme Court Federal Land Case

Utah’s move to legally take over a South Carolina-sized region of mountains, canyons, oil and gas leases, and wildlife habitat from the federal government could upend federal land ownership across the West.

The state’s gambit to declare 18.5 million acres of federal land unconstitutional is unlikely to succeed, but if the US Supreme Court takes the case filed Tuesday and the state wins, it stands to set off an epic battle over a possible mass transfer or sale of federal land and minerals that could spread across 14 states and beyond.

The state is effectively asking the justices to declare unconstitutional the 1976 Federal Land Policy and Management Act, in which Congress declared that it intends for federal lands to remain in federal hands, said Andrew Mergen, an environmental law professor at Harvard Law School.

The act governs the 245 million acres of federal land overseen by the Bureau of Land Management that is spread across the 11 Western states, Alaska, the Dakotas, and a few Eastern states.

“If the court were to unwind FLPMA, it would truly be extraordinary,” Mergen said in an email, adding that all the BLM land nationwide would be tied up in litigation “for ages” as federal and local governments fight over who should own the BLM’s land and minerals.

“I think the Court will deny cert here because it will see through Utah’s cynical attempt at seeking a judicial override of an act of Congress,” he said.

Utah officials don’t believe it was ever Congress’ intent under Utah’s statehood act or FLPMA for the federal government to maintain control of nearly 70% of the state’s land area—land that would be better cared for under state control, Utah Gov. Spencer Cox (R) told Bloomberg Law in an interview.

“The federal government has been terrible—they’re underfunded in the management of their land, always behind,” Cox said. Ranchers grazing on public lands are “now being choked out by over-burdensome regulations and an extreme environmental movement that is trying to literally destroy their way of life.”

Bypassing Lower Courts

But Utah is taking a “very extraordinary” procedural step to bypass lower courts by filing the suit in the original jurisdiction of the Supreme Court, which rarely succeeds, said John Leshy, a professor of real property law at University of California College of the Law, San Francisco, and former Interior solicitor during the Clinton administration.

The state is taking advantage of a court that is seen as hostile to environmental regulation, but it faces long odds after the justices in January declined to hear Alaska’s original jurisdiction complaint against the Environmental Protection Agency’s veto of a proposed copper mine there.

“It scares me because while I think the suit has very little merit, the US Supreme Court last term concluded that a gun that can fire 700 rounds a minute is not machine gun, so anything can happen,” said John Ruple, the law and policy program director at the Wallace Stegner Center at the University of Utah. “What I think should be a clean simple legal question, if it gets to the Supreme Court, I’m not sure how they will approach it.”

The BLM’s new Public Lands Rule, which was finalized this year and declares that conservation can be a “use” of federal land, was the main impetus for the timing of the lawsuit, Cox said, even though the litigation had been in the works for a long time. Utah officials say on a website about the lawsuit that the new rule restricts public access to the land and hurts local economies.

The rule, in addition to the Biden administration’s restrictive management of national monuments and some road closures, were among the reasons Utah Attorney General Sean Reyes (R) decided to go directly to the Supreme Court to claim at least 18.5 million acres of “unappropriated” BLM land for the state.

The state is asking the Supreme Court to declare that the Constitution limits the federal government from holding land beyond the District of Columbia and other federal “enclaves” purchased with state approval, and prohibits the government from indefinitely retaining public lands that haven’t been appropriated in some way by Congress.

The federal government’s constitutional power to hold land for one of its enumerated functions doesn’t include keeping 18.5 million acres of land in Utah under federal ownership “for no designated federal purpose” and over Utah’s objections, the state’s lawsuit says. The Constitution didn’t grant Congress the power to claim that land for the federal government as it did in the FLPMA, the state claims.

Uphill Battle

That’s going to be a tough argument to make before the justices in part because it would set aside more than a century of precedent.

“There is zero evidence the nation’s founders wanted to prohibit the nation from owning and managing land to serve the national interest—all the evidence is to the contrary,” Leshy said, calling Utah’s legal theory “bogus.”

Utahns disclaimed all right and title to unappropriated federal lands under Utah’s statehood act, and Congress exercised its “ultimate power” over public lands when declaring in FLPMA that they remain in federal hands, said Randi Spivak, the public lands policy director for the Center for Biological Diversity.

Those lands are “no longer unappropriated” because Congress gave them purpose in FLPMA, she said.

The fundamental legal questions about US authority to retain federal lands seem to have been resolved in a series of Supreme Court cases more than a century ago upholding the federal government’s right to establish forest reserves and upholding federal grazing permitting authority, said Murray Feldman, partner at Holland & Hart LLP in Boise, Idaho.

“Perhaps the litigants are signaling that they think the current Supreme Court may be willing to revisit the precedent in this area and depart from it, as the court recently shown a willingness to do in other cases,” including dispatching Chevron deference in Loper Bright Enterprises v. Raimondo, and other cases, Feldman said.

The case is Utah v. US, U.S., Not Yet Docketed, motion to file complaint 8/20/24.