For more than a decade, elected officials in Utah have pushed an argument that federally-administered public lands in their state lacked any constitutional basis. Now they’ve taken it to the next level, by filing a complaint in the U.S. Supreme Court.
The argument has its basis in the Sagebrush Rebellion that flared up in the late 1970s and seeks to dismantle the system of public lands across the West.
The reasoning found favor in the Utah statehouse, when a 2012 resolution passed overwhelmingly. It demanded the transfer of public lands from federal to state control by Dec. 31, 2014. Idaho followed Utah’s lead and passed their own version of the resolution in 2013.
To the shock of no one, the federal government did not comply.
In 2015, Idaho legislators sought to establish an interstate compact to coordinate legal efforts with Utah and other states seeking to seize public lands, but it failed in a Senate Committee vote. Two years later, 2,000 Idahoans gathered on the steps of the Idaho Capitol to send a clear message to legislative leaders: Keep Public Lands in Public Hands.
Despite this public sentiment, it’s possible that Idaho could join Utah’s lawsuit, seek to support it through friend of the court (known as amicus) filings, or bring a suit of its own.
Among the central arguments of Utah’s lawsuit is that the federal government had a “duty to dispose” of any unappropriated lands. That is, even if the federal government possessed title to the lands at the time of statehood in 1896, that they were obligated to sell or transfer those lands if they were not reserved for another purpose (i.e. a National Park, National Forest, National Monument, National Wildlife Refuge, or other designation).
The argument and success of the complaint will hinge on how and whether the Supreme Court interprets the outer bounds of the Property Clause of the Constitution:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”
The central question that Utah asks is whether this “power to dispose” somehow compels the federal government to transfer title to the lands. And whether that “power to dispose” should instead be considered a “duty to dispose?” Pursuant to the Federal Lands Policy and Management Act of 1976, the policy of the U.S. is to retain title to unappropriated public lands, unless there is a compelling public interest in transferring title, so it would seem that Congress has already answered this question. After all, doesn’t the “power to regulate” incorporate the power to retain public ownership of public lands?
Utah’s argument is also undermined by established Supreme Court precedent that has affirmed the federal government’s authority to maintain public lands for the benefit of all Americans. But past decisions may not carry as much weight in the Supreme Court these days, as evidenced by their willingness to overturn long-standing precedent related to wetlands, administrative deference, and other issues.
Still, language contained in the Utah, Idaho, and other western states’ constitutions and statehood acts “forever disclaim[ed] all right and title to the unappropriated public lands lying within…” It’s possible that the Supreme Court will not look kindly on Utah’s claims since they expressly disavowed any future attempts to seize title to these same unappropriated lands 128 years ago.
The outcome of this lawsuit is far from certain, and the implications could alter the very fabric of the West, upending a rich public land heritage, and resulting in the sell-off of hundreds of millions of acres across the West.
Public lands provide habitat for countless species of fish, wildlife, and plants as well as outstanding opportunities for recreation. If the title to lands managed by the Bureau of Land Management is transferred to Utah, they will likely auction them off or lease them to the highest bidders. This could result in a significant loss for future generations of Utahns, Idahoans, and Americans alike.
As ICL, and many others have said for years, Keep Public Lands in Public Hands!