Western land lock

Around two-thirds of the land within the state of Utah is under federal ownership and control. That’s far too much, says Utah Gov. Spencer Cox.

In an Aug. 20 press conference, the Republican governor announced the state had filed a lawsuit against the Biden administration for unconstitutionally holding and not disposing of unappropriated federal lands.

“For many years—decades even—the question of how to best manage Utah’s lands has been at the forefront of our state’s critical issues,” Cox said. The governor argued that the state’s lack of control over its own land has negatively affected its citizens. He pointed to the federal government closing access roads and the need to protect hunting and grazing rights for ranching families.

The outcome of Utah’s case could have big implications for other states with large tracts of federal land, such as Nevada, New Mexico, and California.

The federal government owns about half of the land out west, compared with only 4 percent east of the Mississippi River. States that entered the union after 1848 agreed to give unappropriated lands to the government, which in turn agreed to sell land back to the state or private parties as land uses were decided.

But that changed with the passage of the Federal Land Policy and Management Act of 1976. The act obligated the federal government to prioritize the retention, not the transfer, of federal lands.

Utah’s lawsuit addresses additional concerns beyond rancher access: The federal government profits by renting out lands to private entities for livestock grazing, commercial filmmaking, or harvesting of natural resources like oil and timber—leases that represent lost revenue for state and local governments.

Despite its scope, the lawsuit seeks control of only a portion of federal lands in the state. “We’re not talking about national parks,” said Cox. “We’re only talking about unappropriated lands, which is about half of the federal lands in our state.”

Half of Utah’s federal land is still 18.5 million acres, about the size of South Carolina.

Utah filed its lawsuit directly with the U.S. Supreme Court under a constitutional provision that allows the court to sit as a trial court in a lawsuit brought by a state against the federal government. Should the court decline the case, the state could file it in federal district court.

That’s the likely outcome, University of Utah law professor John Ruple told WORLD. Ruple, an expert on public lands law, pointed to provisions in both the U.S. Constitution and the Utah Constitution he said give the federal government control over unappropriated public lands.

“Utah’s claims would require the Supreme Court to reinterpret both of those constitutional provisions in ways that ignore plain language, upset 150 years of settled Supreme Court law, and destabilize land ownership throughout the West,” said Ruple. “The state is making legal arguments that are more revolutionary than evolutionary and has a difficult path ahead.”

But attorneys pressing the state’s case argue these constitutional provisions authorize the federal government to hold public land for the purpose of “disposal,” or transfer of ownership—not, as the complaint alleges, as a “permanent federal fiefdom inside Utah.”

For Cox, the lawsuit is personal. “As somebody who grew up as a child recreating on this land with my family, hunting and fishing and herding sheep, … it’s been a tragedy to see what this administration and past administrations have done to our land—closing down roads that have been open for generations.”

The Biden administration has until Oct. 21 to respond to Utah’s motion.