Legal Docket: Utah sues the federal government

MYRNA BROWN, HOST: It’s Monday the 2nd of September.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

Today, legal reporter Steve West joins us to talk about a land dispute between Utah and the federal government. At stake are issues of state sovereignty versus federal power. And of course, at the end of the day how resources are divvied up.

So that’s coming in a few minutes.

BROWN: It is, but first, some updates from the Supreme Court. Morning, Steve!

STEVE WEST: Happy Labor Day, Nick and Myrna.

BROWN: Well, Steve, the justices return to session next month on the traditional First Monday of October. But I’ve seen several news stories about decisions of the court over the summer even though they’re in, what I understand is, a summer recess?

WEST: You’re partly right, Myrna. Every year, around the end of June, the Supreme Court issues its last—and sometimes most controversial—opinions. And then it goes on recess.

The justices do get some down time, but they’re also getting ready for the next term of court that begins, as you say, the first Monday in October. They read petitions for review and deal with motions that need quick action—their emergency docket, or what’s sometimes called the “shadow docket.”

BROWN: So what happened?

WEST: Yes, a decision last week, last Wednesday. The justices issued an order denying a request by the Biden-Harris administration to allow it to put into effect a student debt relief plan for low-income borrowers. The plan ties monthly payments to income and household size. There were no dissenters from the unsigned order.

BROWN: The student loan saga continues.

WEST: Yes, you’re recalling that the administration had proposed a much larger plan that the court struck down last year. The White House was shooting to cancel up to $400 billion dollars in student debt. The court said that exceeded the administration’s authority.

So, with this new program, the administration’s scaling back its ambition, and using a different provision of the law. It’s using authority under the The Higher Education Act of 1965. That law requires the Department of Education to offer student-loan borrowers repayment plans tailored to their incomes.

But like the other plan, this one has also been challenged.

BROWN: So, you said the Supreme Court denied the Biden-Harris administration from moving ahead with that less-ambitious plan. So, does that mean it’s over?

WEST: No, not yet. It means the plan can’t go forward while the legal issues get sorted out.

The state of play is that one federal appeals court in Denver allowed the government to put the plan into action, while a different appeals court in St. Louis blocked major provisions of the plan. These are not final rulings. Those have to be finished up, and when they are it’s almost certain that both will likely be back before the high court—because I’m assuming the different circuits will again rule differently. That’s a classic high court appeal resolving conflicting decisions of the appeals court system.

So, we’ll no doubt have more to report on.

EICHER: Well, Steve, let’s get to that land dispute case. I know it’s unusual for a lawsuit to be filed directly in the Supreme Court. But the state of Utah did it, and it’s suing the federal government. They want control of their land. But start with the background.

WEST: Many don’t know this, but the federal government actually owns over two-thirds of the land in Utah. National parks, forests, and monuments make up about half of the Feds’ holdings. But the other half of federal land is unappropriated—that means it’s without a designated use.

And Utah isn’t happy about that, because even though unappropriated land isn’t being used, it’s still off limits to the state. And local leaders have no say in how it’s used. That's up to the Washington bureaucrats, not locally-elected leaders.

I’ve got some audio from Utah Governor Spencer Cox. Here’s what he had to say last Wednesday as his state officials filed suit.

SPENCER COX: For the entire time we have existed as a state, Utah’s public lands have been a treasured heritage for all of us. 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. We’ve collaborated. We’ve argued. We’ve negotiated. We’ve even fought about how different parcels of land should be used. The crazy thing is that all this time we have not had control of nearly 70 percent of our land.

So you can see that this has been a continual frustration for some leaders in the state. Local governments can’t tax federal holdings, meaning Utah doesn’t collect taxes on about 70 percent of its own land.

And the federal government actually makes money off the state’s resources and rents out the unused lands to private entities for livestock grazing, commercial filmmaking, and harvesting natural resources like oil and timber.

EICHER: Follow the money, but I noticed the governor harkening back to Utah’s existence as a state. Does it go back that far?

WEST: It does, yes. This case goes all the way back to the very beginning.

The federal government gained title to the land that makes up Utah and a large part of the West in an 1848 treaty that ended the Mexican-American War.

Two years later it formed the Utah Territory. When Utah gained statehood in 1896, it agreed, like many other western states, to cede title to all unappropriated lands in the state to the federal government.

And that’s where the issue comes.

Utah argues that that turnover of land was temporary, only until the lands could be disposed of by the federal government, selling it to the state or private parties.

On the other hand, the federal government believes it holds title in perpetuity—as long as it wants.

BROWN: So is this a matter of Uncle Sam not keeping his promise?

WEST: Well, Uncle Sam actually did keep his promise, that is until something called the Federal Land Policy and Management Act of 1976.

This legislation essentially re-wrote the government’s intentions with unused land, changing its goal from disposing of unused land to retaining it. This meant states that hadn’t bought back unused lands by 1976 were now in an uphill battle.

So that’s what Utah is asking the Supreme Court to decide: Is the government allowed to indefinitely hold millions of acres of the state’s land for no designated purpose.

BROWN: Is this fundamentally about the national parks?

WEST: No, actually. Governor Cox made that part very clear. Let’s hear a little more of what he said:

COX: We’re not talking about national parks. We’re not talking about national monuments. We’re not talking about national forests. We’re only talking about unappropriated lands, which is about half of the federal lands in our state.

EICHER: But still getting control of half of anything the federal government claims control of seems like an uphill climb. How do you see this lawsuit going?

WEST: Well the first part of the climb is to persuade the Supreme Court to agree to hear the case. You mentioned a few minutes ago this was filed directly with the Supremes without first going through a trial court and lower court of appeal.

The Constitution allows that when a state sues the federal government or another state, but it’s rarely exercised.

I spoke with John Ruple, a law professor at the University of Utah, and he’s not convinced the court will hear the case.

EICHER: And why does he not think so?

WEST: Well, for starters, he says that both the U.S. Constitution and Utah Constitution clearly give the federal government control over unappropriated lands. But the state isn't disputing the government’s claim, only how long the government can wield that claim and for what purpose it can hold the property. The state argues that the federal government held the land only until it could dispose of it—not retain it indefinitely.

Still, the law professor said the court would have to reinterpret both state and federal constitutions, and upset 150 years of previously established land law which would destabilize land ownership throughout the West.

EICHER: So, there’s still the option of starting in a federal trial court if SCOTUS says no?

WEST: Absolutely. The case will likely end up in a federal district court. I agree with Ruple that the arguments Utah is making here will likely not be viewed as evolutionary but revolutionary by the justices. On occasion the court has upended the law, overruling a longstanding precedent, for example, but it’s rare. I am doubtful that it will happen here. On the other hand, cases like this also bring an issue to the forefront of public attention and may give state officials bargaining power in some of the disputes that arise over management of these lands.

It’s personal for Governor Cox and for many families shut out of areas they historically have enjoyed. One last bit of audio here:

COX: As somebody who grew up as a child recreating on this land with my family, hunting and fishing and herding sheep with my family, 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, where people went to recreate, to spend time with their families.

So this case has the ability to affect many residents of Utah as well as other western states. I suspect it’ll take years to resolve.

BROWN: Well that’s Legal Docket for this week. Thanks for your work, Steve.

WEST: My pleasure.

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