The Utah lawsuit that could change the face of the West

After decades of preparation, Utah leaders declared that the Beehive State is ready to transform public lands in the West.

Utah filed a “historic” lawsuit on Tuesday, asking the U.S. Supreme Court to decide whether the federal government has constitutional authority to maintain unappropriated public lands in the state against the state’s wishes. The country’s highest court has yet to take up the case. But if it were to rule in Utah’s favor, the control of a significant portion of public lands would shift to state capitals like Phoenix, Boise and Salt Lake City, instead of the nation’s Capitol more than a thousand miles away.

Utah Gov. Spencer Cox, Utah Attorney General Sean Reyes, state Senate President J. Stuart Adams and House Speaker Mike Schultz announced the lawsuit in a packed state Capitol Gold Room, filled with state lawmakers, county officials and Republican Party leaders.

“This is the time we have been preparing for,” Cox said. “Today, after decades of legal analysis, Utah filed a landmark public lands lawsuit asking the United States Supreme Court to address whether the federal government can simply hold unappropriated lands within a state indefinitely.”

Proposals to transfer public lands from federal to state hands in Utah date back 50 years to the time of the “Sagebrush Rebellion” under Democratic Gov. Scott Matheson. But serious discussions about how to reclaim Utah’s sovereign control over public lands have found their way into the state Legislature more and more frequently over the last 10 to 15 years .

“Utah is absolutely committed to keeping public lands in public hands, and locally controlled,” Cox said. “With this lawsuit, we are asking the Supreme Court to weigh in on a critical question. This is a question we, and many Western states, have had for decades.”

What areas are affected by Utah’s public lands lawsuit?

The lawsuit filed Tuesday morning falls within the U.S. Supreme Court’s “original jurisdiction” because it involves a legal dispute directly between Utah and the federal government. The lawsuit challenges the federal government’s permanent control of 18.5 million acres of unappropriated public lands in Utah on constitutional grounds. These unappropriated lands, which the federal government controls without a congressionally defined purpose, serve no “enumerated power,” Reyes argued, and thus must fall under state authority, according to the 10th Amendment.

“Nothing in the text of the Constitution authorizes such an inequitable practice or relationship. In fact, the Framers of the Constitution carefully limited federal power to hold land within states,” Reyes said. “But current federal land policy violates state sovereignty and offends the most fundamental notions of federalism.”

The lawsuit will not impact the 18.8 million acres of federal and tribal lands that include national parks, national monuments, national forests and national wilderness areas. Nearly 70% of Utah is public land managed by federal agencies. Recent new rules by the Bureau of Land Management have heightened concern among some Utahns over the federal government’s tendency to restrict the “multiple-use” status of public lands traditionally used for livestock grazing, energy production, mining and outdoor recreation.

Cox listed a series of policies enacted under recent presidential administrations that have led to road closures, decreased access, preventable wildfires and worsening environmental care in public lands across the state. These examples of executive agency overreach and negligence show why Utah must act now to better preserve its natural resources under state control, Cox said, explaining the state had already exhausted all other means of reconciling their problems with the federal government.

“We’ve been asking for 50 years,” Cox said. “And not only are they not willing to negotiate or help on this at all, it’s the exact opposite. It’s not only ‘No,’ but, ‘Hell no, and we’re going to close more of your roads and make it harder.”

How much will Utah’s public lands lawsuit cost?

Utah is currently alone in its lawsuit against the federal government. Cox said he suspects there will be other states in the West “that are very interested in what we’re doing.” If the lawsuit is successful, the lands in question would remain public but would be managed by a new state land management department, which already exists in state code, according to Redge Johnson, the director of Utah’s Public Lands Policy and Coordinating Office. This department would take over leasing on public lands from federal agencies and would likely hire many of these agencies’ former employees, Johnson said.

Reyes, who said much of his work as attorney general has built up to this lawsuit, will complete his decade-long tenure in January. His likely successor, GOP nominee for attorney general Derek Brown, said the lawsuit “absolutely” has his “100%” support. Brown, a former state lawmaker and state GOP chairman, said he was in the Legislature in 2010 when lawmakers were first talking about drafting this kind of lawsuit. “And I will continue to work ferociously to make sure that this case moves in the direction that we hope it does,” Brown said.

Utah has hired former U.S. solicitor general Paul Clement and leading Supreme Court advocate Erin Murphy to argue the case. State lawmakers voted in 2015 to draft a a broader lawsuit against the federal government with the goal of eventually transferring public federal lands into state ownership. The estimated legal fees amounted to $14 million. While this final version of the lawsuit is narrower in scope — and more likely to be victorious, according to Cox — the cost to taxpayers will likely be roughly the same, he said.

But, Cox said, “No matter what side you’re on, it’s better for the state to finally get that answer.”

Utah’s long fight against the federal government

Environmental activist groups in the state quickly voiced their disapproval of the lawsuit. The Center for Western Priorities, a conservation advocacy organization, said the lawsuit complicated an already decided issue because public lands are under the exclusive purview of Congress.

”Gov. Cox and the state legislature need to make a U-turn before they waste millions of taxpayer dollars enriching out-of-state lawyers on this pointless lawsuit,” said the organization’s deputy director, Aaron Weiss. The Southern Utah Wilderness Alliance took a similar tone, with legal director Steve Bloch saying the lawsuit establishes Utah “as the most anti-public lands state in the country.” The Wilderness Society called it “a brazen and undemocratic attempt to force the handover of millions of acres of American’s public lands to the state — and ultimately to private companies planning to develop them.”

Cox and Reyes repeatedly stated that if successful, the lawsuit would not lead to public land being privatized.

Utah has had a long struggle with the federal government, frequently at odds over issues that include sage grouse management plans, wildfire fighting strategies in forested areas next to key waterways and monument designations that county, state and congressional leaders have long complained are too large and represent federal overreach.

Even something as simple as access to long established roadways in the backcountry have stoked the ire of state and local officials, sparking multiple lawsuits as the two entities fight for control.

Most recently, Washington County officials filed a notice of intent to sue over what they say is a much needed transportation corridor to meet the needs of their growing population. The project, however, has been fraught with federal delays over concerns stemming from the Mohave desert tortoise.

Contributing: Amy Joi O’Donoghue

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