Top Line: Utah’s lawsuit against the United States is an existential threat to more than 200 million acres of federal public lands.
Figure 1. Behind the Rocks Wilderness Study Area near Moab, Utah. The State of Utah wants the US Supreme Court to order Congress to “dispose” of this area and 18.5 million acres of BLM holdings in Utah. Source: Bureau of Land Management.
The State of Utah is queuing up a case before the US Supreme Court that could be an existential threat to 208 million acres (325,000 square miles or an area almost as large as Texas and Oklahoma combined) of federal public lands in twenty-eight states. If the Supreme Court of the United States were rational, reasonable, and respectful, Utah would lose. Alas, these days SCOTUS is not.
(See Public Lands Blog post: “The Constitutionality of Federal Public Lands”.)
The Lands in Jeopardy
Utah is surgically going after a large subset of lands administered by the Bureau of Land Management (BLM): in general, lands not in conservation units within the National Landscape Conservation System (NLCS). Conservation units are such things as wilderness and wilderness study areas, national monuments and conservation areas, wild and scenic rivers, national scenic and historic trails, and similar designations. Created in 2000 by President Clinton’s secretary of the interior, Bruce Babbitt, the NLCS was codified into law by Congress in 2009. Presently, the NLCS consists of 905 conservation units totaling 37 million acres of BLM lands.
However, 85 percent of BLM lands are not in the NLCS and are mostly plain old “public domain” (PD) lands. These are “lands that have never left federal ownership; lands in federal ownership that were obtained in exchange for public domain lands or for timber on public domain lands.” The remainder of BLM lands are mostly “acquired lands,” which were “obtained through purchase, condemnation, gift, or exchange” (Public Land Statistics 2023).
Map 1. Red alert. Utah’s view of “unappropriated” federal public lands in Utah. Notably, on this map “Unappropriated BLM Land” includes BLM wilderness study areas, although by Utah’s own reasoning it should not. Source: State of Utah.
Utah
In immediate jeopardy are 18.5 million acres of BLM PD lands in Utah that the state characterizes as “unappropriated.” In Utah’s view, expressed in State of Utah v. United States of America (August 20, 2024), “appropriated” lands are “specific parcels of land that have been reserved by Congress or the President (under authority granted by Congress) for designated purposes, e.g., as National Parks, National Conservation Areas, and the like.” It also includes “federal military installations, lands held in trust for Indian tribes, federal courthouses and office buildings, and the like.”
(See Public Lands Blog posts: “The Bipolar State of Utah and National Monument Designation” and “Clinton and Obama Giveth, Trump Taketh, and Biden Restoreth: Two National Monuments in the State of Utah”.)
Figure 2. The caption page of State of Utah v. United States of America. Source: State of Utah.
The Other Twenty-Seven “Public Lands” States
In eventual jeopardy are vast amounts of BLM PD lands in a majority of US states. Varying amounts of BLM public lands—most of which are PD lands—are found in twenty-eight states: Alaska (71.1 million acres), Arizona (12.1), California (15.0), Colorado (8.3), Eastern States (>0; Florida, Illinois, Indiana, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Missouri, and Ohio), Idaho (8.0), Kansas (>0), Montana (8.0), Nebraska (>0), Nevada (47.2), New Mexico (13.5), North Dakota (0.1), Oklahoma (>0), Oregon (15.7), South Dakota (0.3), Texas (>0), Utah (22.8), Washington (0.4), and Wyoming (18.0).
If the Supreme Court screws those BLM PD lands in Utah, it will be screwing all the other PD lands as well.
Map 2. Federal land ownership in the United States. If Utah wins, most of the yellow would go away. Source: State of Utah.
Utah’s “Case” Against Public Lands
After a rollicking romp through public land history that touches upon Samuel Johnson’s Dictionary of the English Language (1755), the Articles of Confederation of 1781, the Continental Congress, the Northwest Ordinance of 1787, the Tenth Amendment, the Enclave Clause, the equal-footing doctrine, the Necessary and Proper Clause, the Treaty of Guadalupe Hildalgo, and many other cherry pickings, anachronisms, dead letters, irrelevancies, distortions, and/or mischaracterizations, the State of Utah asks the Supreme Court to declare the Federal Land Policy and Management Act of 1976 (FLPMA) unconstitutional, most particularly its opening paragraph. Here is that paragraph:
The Congress declares that it is the policy of the United States that . . . the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest. [emphasis added]
To Utah, retaining public lands “in Federal ownership” is in violation of the US Constitution’s Property Clause (Article 4, Section 3, Clause 2):
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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Utah takes the position that “dispose of” has a very narrow, precise, and limited definition, and that Congress has kept certain federal public lands in Utah “unappropriated” for too long—128 years too long, to be specific.
Figure 3. Utah Capitol Building, Salt Lake City, Utah. Source: Wikipedia (Andrew Smith).
Five paragraphs later in FLPMA, Congress says it is also the policy of the United States that
in administering public land statutes and exercising discretionary authority granted by them, the Secretary be required to establish comprehensive rules and regulations after considering the views of the general public [emphasis added]
While Utah’s legal filing mentions “needful Rules and Regulations” four times, all are when quoting the Property Clause. In no way does Utah even try to explain away the “needful Rules and Regulations” language. Perhaps it is because Utah cannot. In addition, the state’s reading of “dispose of” does not comport with history, a long and thick string of court cases, or reality (see below).
Obviously, I’m skeptical (pronounced “snarky”) about the State of Utah’s claims strewn throughout the ninety-four pages of its filing to the Supreme Court. Here is Utah’s summation of the case it believes it has made:
In sum, Utah has suffered and is suffering serious and ongoing injuries on account of the federal government’s unconstitutional retention of millions of acres of unappropriated land within Utah’s borders, over Utah’s express objection and Utah’s express request to transfer those lands to State control, see Utah Code §63L-6-103. The federal government cannot be allowed to continue its unlawful policy of retaining those vast expanses of unappropriated public land in perpetuity, thereby usurping the State’s otherwise plenary authority to care for the health, safety, and welfare of its people, and to manage wildlife, watersheds, and land usage across these millions of acres. The United States must instead dispose of these unappropriated lands, as the Constitution requires. [emphasis added]
Merriam-Webster defines “perpetuity” as “being perpetual.” M-W further defines “perpetual” as “continuing forever: EVERLASTING.” Utah claims the Property Clause doesn’t allow Congress to hold public domain lands forever, yet the Utah Enabling Act of July 16, 1894 asserts that “the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.” Is the state now defining “forever” as 128 years (that is, as ending today)? Might we soon be seeing a similar attack on the no-polygamy-forever clause in that same solemn covenant between Utah and the United States of America? (See more on all this below.) After all, 128 years is, like, forever, man, to legally not have multiple wives.
With its case, Utah seeks to overturn centuries of legal precedent that has established, among other things, that the constitutional power Congress has over public lands is—as a unanimous Supreme Court said in 1840—“without limitation.”
The Case for Public Lands
Anticipating this very assault on the federal public land was John Leshy, emeritus professor at the University of California College of the Law, San Francisco (formerly Hastings). Leshy was solicitor (general counsel) for the Department of the Interior during the Clinton administrations and also advised the chair of the Committee on Natural Resources of the US House of Representatives, served in the Interior Department under the Carter administration, and taught at the University of Arizona College of Law. He is the lead coauthor of Coggins and Wilkinson’s Federal Public Land and Resources Law, which is the textbook in the area of public land law. He also wrote Our Common Ground: A History of America’s Public Lands. There is no greater legal advocate for our nation’s public lands.
(See Public Lands Blog post: “Book Review: Our Common Ground: A History of America’s Public Lands”.)
Figure 4. Public lands advocate John Leshy. Source: UC College of the Law, San Francisco.
In a scholarly paper published in 2018 entitled “Are U.S. Public Lands Unconstitutional?” Leshy convincingly makes the case that the public lands are indeed constitutional and that Utah is full of shit (okay, the last clause is my considered opinion; Leshy didn’t use those words). Here is the abstract of Leshy’s more considered legal opinion:
Arguments are sometimes made—most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016—that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend. [emphasis added]
As a lover and worshiper of public lands, I freely admit to bias, but I found Leshy’s eight-five-page treatise (with 559 footnotes!) to be comprehensive and compelling.
Figure 5. The first page of an eighty-five-page takedown of Utah’s perverted theory of the Constitution’s Property Clause. Source: University of California Hastings College of the Law.
Leshy cites a nearly unbroken string of judicial cases that took an expansive interpretation of the Property Clause. There is a sole exception worth noting: the infamous 1857 Dred Scott v. Sandford Supreme Court opinion, penned by reprobate Chief Justice Roger B. Taney, that held that even free blacks had no rights under the Constitution or any place socially or politically in the United States. Unable to leave bad enough alone, in the same case Taney also opined that the Property Clause (1) applied only to lands held or claimed by the United States in 1787; and (2) was in the scope of the treaty with Great Britain that ended the American War for Independence. Leshy notes that “the [Supreme] Court had never before, and has never after, viewed the Property Clause as applying only to property the U.S. owned in 1787.”
About That Utah Statehood Act of 1894
In offering statehood to the citizens of the Territory of Utah, the Congress of the United States listed four major conditions that had to be accepted by the people of Utah if it was to become a state. The first provision: “That polygamous or plural marriages are forever prohibited.” The second provision:
That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof. [emphasis added]
Third and fourth were that the new state would assume the debts and liabilities of the Territory and that there be established and maintained a system of public schools open to all children of Utah and “free of sectarian control.”
The people of Utah were free to reject the major conditions, but they accepted them. A year and a half later, on January 4, 1986, Utah became the forty-fifth united state.
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In its “Motion for Leave to File Bill of Complaint, Bill of Complaint, and Brief in Support,” Utah does not ask the Supreme Court to turn over the unappropriated lands to the state but rather to require their prompt “disposal.” While not seeking “title” to the “unappropriated public lands” (though noting that it has by Act of the Utah Legislature demanded said lands be turned over to the state), Utah asserts a “right . . . to the unappropriated public lands.”
It seems that the claim by some Utah elected officials that the state has a “right” to said lands is in violation of both the letter and the spirit of the Utah Enabling Act of 1894. Perhaps one or more citizens Utah could bring suit to enjoin these elected officials from breaking the solemn and “forever” covenant between the United States of America and the now State of Utah.
Figure 6. The beginning of the Utah Enabling Act of 1894. Source: State of Utah.
How Would the Supreme Court Dispose of the Word “Dispose”?
If legal precedent were any guide, the Supremes would promptly dispose of the Utah gambit. However, this is not your parents’ Supreme Court. While Leshy’s legal reasoning is reality based, as we have increasingly seen the United States Supreme Court creates its own reality. Utah is mimicking Mississippi, which cooked up a lawsuit to afford the Supreme Court the opportunity to overturn the long-established federal protection of abortion as a right. (Do you know the official state motto of Alabama? “Thank God for Mississippi.”)
In a recent Second Amendment case, a majority of the court concocted a reason to overturn some reasonable gun regulations in New York because the founders hadn’t conceived of a subway system, so banning guns in such a system is unconstitutional. And one cannot forget the recent Supreme Court decision holding that the president is in some ways always above the law and in other ways can often be above the law—a radical departure from long-held norms.
Figure 8. The United States Supreme Court, Washington, DC. Source: The Supreme Court.
Whatever we thought we knew or could rely on in re: precedence, process, fairness, rationality, and the rest cannot not be relied upon with this Supreme Court.
According the Supreme Court, Congress and the White House are the “political branches” of government, while the courts are not. The courts interpret the laws that Congress makes and the president executes. I used to believe this, that judges and justices, with their lifetime appointments in which their salaries could never decrease, had an impartiality not found in the other two branches of government. They were nonpartisan.
Not anymore. This unprecedentedly activist US Supreme Court is handing down politicized decisions and is playing politics as much as does the Senate, the House of Representatives, and the White House. All three branches of the federal government are now political, but with their lifetime appointments, the justices are not held accountable at the ballot box.
I fear for our republic as much as I fear for our democracy.
I fear that this Supreme Court will take this case and that a large portion of our federal public lands will be screwed.
I also fear that the public lands conservation community is woefully unprepared for such a result, but that’s another Public Lands Blog post.
(See Public Lands Blog posts: “The Public Lands Conservation Movement: Mis-organized for Job #1,” “As Courts Change, So Must Public Lands Conservation Look More to Congress (Part 1),” and “As Courts Change, So Must Public Lands Conservation Look More to Congress (Part 2)”.)
The Obvious Solution
It boils down to this for Utah: if Congress has “disposed” of public domain lands, including them in either the National Park System, the National Wildlife Refuge System, the National Forest System, the National Landscape Conservation System, the National Wilderness Preservation System, or the National Wild and Scenic Rivers System, the public domain land has been “appropriated.” To satisfy Utah, all Congress would have to do would be to transfer 208 million acres of “unappropriated” lands nationwide to one or more of its existing conservation systems.
(See Public Lands Blog posts: “National Forests in the Western United States: A Magnificent Start and More to Accomplish,” “The National Wildlife Refuge System, Part 1: An Overview, ” “The National Wildlife Refuge System, Part 2: Historical Evolution and Current Challenges,” “The National Wildlife Refuge System, Part 3: Time to Double Down,” “The National Landscape Conservation System: In Need of Rounding Out,” and “The National Park System.”)
Congress could expand the National Landscape Conservation System, which now includes only 15 percent of BLM lands, to include all BLM lands. But such would be a bit of a stretch. An alternative is for Congress to transfer generally forested BLM lands to the National Forest System, those with extraordinarily high wildlife values to the National Wildlife Refuge System, and those with parklike qualities to the National Park System. The remaining BLM lands could be made part of a new National Desert and Grassland System, analogous to the National Forest System. While Congress is at it, it could abolish the BLM and replace it with a new Desert and Grassland Service.
(See Public Lands Blog post: “A National Desert and Grassland System”.)
Bottom Line: Congress should dispose of all “unappropriated” BLM lands by elevating their conservation status to be equal to those lands administered by the Forest Service, the Fish and Wildlife Service, and the National Park Service.
For More Disinformation
State of Utah. Stand for Our Land (web page).