On August 20, the State of Utah asked the U. S. Supreme Court to consider its claim that parts of the Federal Land Policy and Management Act (FLPMA) that allow it to retain and manage lands as federal property are unconstitutional. (The State’s “news advisory” includes a link to the court documents.) It will ask the Court to:
Order the United States to begin the process of disposing of its unappropriated federal lands within Utah, consistent with existing rights and state law.
Utah argues that the Constitution does not give the federal government the authority to retain lands that it has not designated for a federal purpose. The key language at issue in the Constitution, which has been traditionally viewed as establishing such federal authority, is the Property Clause of Article IV, which provides:
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
Which plaintiffs interpret this way:
By its terms, that Clause empowers the federal government to regulate and “dispose of” land belonging to the United States—not to retain such land indefinitely, without regard to whether it is needed to carry out any enumerated federal function.
They read this language as requiring the federal government to dispose of such lands. Maybe that’s ambiguous, but even it were to now be reinterpreted it this way, there is a counter-argument that any such authority was supplanted by western state enabling acts:
University of Colorado environmental law professor Mark Squillace said the lawsuit was unlikely to succeed and was “more a political stunt than anything else.” The Utah Enabling Act of 1894 that governed Utah’s designation as a state included a promise that it wouldn’t make any claim on federal land, Squillace said.
If the court accepts the case, it will be interesting to see how many other states want to join in this “stunt.” Utah has been preparing for this case for years, and challenges to other federal lands had been considered. If this lawsuit is successful, would the Forest Service be immune to something similar? This should all make the “local control” fans ecstatic.
If this case goes forward, it may have significant implications for the HUGE expansion of some of our national monuments, especially those expansions that have obviously been to achieve a political agenda, not a preservation one.
I don’t know for sure but I think that there is a separate case about interpretations of the Antiquities Act. Maybe others know?
Sharon,
I realize these are two separate issues (the Federal Land Policy and Management Act (FLPMA) and the Antiquities Act), but they have some things in common, which triggered my comment. I did a little digging, and found that President Trump issued Executive Order 13792 of April 26, 2017, directing the Secretary of the Interior (Zinke) to review designations of national monuments and determine that they were consistent with the requirements of that act (https://www.federalregister.gov/documents/2017/05/01/2017-08908/review-of-designations-under-the-antiquities-act). Here is a link to a .pdf file of Zinke’s report: https://www.doi.gov/sites/doi.gov/files/uploads/revised_final_report.pdf. I do not know if there is an Antiquities Act case pending before the SCOTUS or an inferior court but, if there is, and in consideration of Zinke’s report, it will certainly be interesting to see what happens, especially in light of Loper Bright.
JB
Loper Bright (and Chevron) apply to federal agency actions. National Monuments are designated by POTUS, so Loper has no relevance.
https://forestpolicypub.com/2023/08/18/public-lands-litigation-update-through-august-17-2023/
Under OTHER is information about the Utah case against the two monuments. The State lost and is appealing.
Which expansions are those, specifically?
First of all, my pet peeve is when outlets use “public lands”; as I dislike any time when people take the more specific word and them more general. In certain legal contexts, like this one, public means BLM, in plain English it means all federal, state and county land. I’m all for words that help people understand complex issues, not abstractions that muddle the issue at hand.
This is a fascinating case study of how different sources cover issues. I first read about it in Center for Western Priorities (run by D operatives, funded by the Resource Legacy Fund; not that they don’t have the right to their views, it’s just that they might be biased).
“The lawsuit, which several legal scholars said is baseless and unlikely to succeed, asks the U.S. Supreme Court to give the state ownership of what Utah calls “unappropriated” public lands managed by the Bureau of Land Management.
Bret Birdsong, a law professor at the University of Nevada, Las Vegas, told E&E News that the property clause of the U.S. Constitution has long been interpreted “to provide Congress with essentially unlimited authority to determine the use or transfer of public lands.”
Professor Mark Squillace of the University of Colorado called the lawsuit “more a political stunt than anything else.” Squillace explained that the 1894 law granting Utah statehood included a promise that the state wouldn’t make any claim on federal lands.
“This is directly contrary to what they agreed to when they became a state,” Squillace told the Associated Press. “The courts have made a more conservative turn, but I don’t think even this Supreme Court is likely to overcome the quite clear law and Constitutional provisions that would bar Utah from taking over public lands.”
Conservation groups, including the Center for Western Priorities, blasted the lawsuit as a waste of time and money.”
OK, well we know the predilections of those law profs, and it’s not CWP’s job to tell both sides, quite the opposite. So let’s go to E&E news.
E&E makes it clear that it’s BLM. They also interviewed Governor Cox:.
“We are not trying to take this land away; we’re not trying to privatize this land,” Cox
said. “We’re actually trying to manage it in a way that will better help the environment,
that will help the people of Utah.”
“John Leshy, who served as the Interior Department’s solicitor during the Clinton
administration, compared Utah’s latest bid to seize federal lands to the “Sagebrush
Rebellion,” a similarly failed effort by some Western counties in the late 1970s to buck
federal land management.” I suppose we should be glad Leshy didn’t invoke “incipient Bundys.”
So let’s check out what the Federalist had to say (which we might expect to tell the other side of the story) https://thefederalist.com/2024/08/21/utah-files-lawsuit-to-reclaim-state-control-over-public-lands-locked-up-by-federal-government/:
They too used “public lands” but added “locked up by the federal government”.
This article tells us more about “unappropriated lands.”
Tuesday’s legal effort underscores a decades-long tension between western states and the federal government, as they wrestle over control of vast land areas. For years, locals have sought permission to utilize the land for harvesting timber, oil, and gas, grazing animals, and pursuing other opportunities, but Washington bureaucrats have blocked their efforts. The lawsuit filed by Utah raises issue with “unappropriated” land held by the Bureau of Land Management, noting that 34 percent of “total state territory” is unappropriated land under federal control.
In contrast to appropriated lands such as national parks, monuments, and forests, land that is “unappropriated” describes property the government is simply holding without any designated use.
“Nothing in the text of the Constitution authorizes such an inequitable practice,” said Utah Attorney General Sean Reyes. “In fact, the Framers of the Constitution carefully limited federal power to hold land within states. Current federal land policy violates state sovereignty and offends the original and most fundamental notions of federalism.”
While unappropriated lands are supposed to be made available under the Bureau of Land Management’s “multiple use mandate,” Gov. Cox complained the agency “has increasingly failed to keep these lands accessible and appears to be pursuing a course of active closure and restriction.”
So the tension goes on.. to my mind this is overreach by the feds causing reaction by the states. I don’t know why the feds do those things.. sure donors want that.. perhaps appointees honestly believe in these things over the protests of the States, or maybe irritating R states is a feature not a bug.
And I thought this was a hoot (a quote at the end of the CWP story):
“There is room for Utah to work more effectively with the federal government on matters involving water, energy and natural resource management. Unfortunately, today’s lawsuit will only make responsible and collaborative stewardship more difficult.”
—John Ruple, director of the Stegner Center Law and Policy Program at the University of Utah School of Law,
I don’t see how that would work since most people doing collaborative stewardship are not involved in court cases. Unless he’s talking about collaboration between the states and the feds, so “if you tell the authorities, we’ll treat you worse.” It sounds more like the approach of bullies or abusers.
Maybe the rest of us should sent a peace-keeping force to de-amplify these tensions. Or actually University of Utah has a department of Peace and Conflict Studies.. perhaps they could be brought in to help.
I can’t help but think that partisanship, aided to some extent by ideological absolutists, is an impediment to pragmatic solutions.
Sharon,
I’m not an expert in these things, but I wonder if the specific passage in the Utah Statehood Act forbidding any future claims of the state for federal land is constitutional? Article IV, Section 3, paragraph 2, clause 2 reads: “[] nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” The operative part is “[shall not] Prejudice any Claims… or of any particular state.” Seems to me that a plain reading of this clause forbids the state to prejudice US claims AND forbids the US to prejudice state claims. Looks like SCOTUS should take a crack at this after all.
JB
“asks the U.S. Supreme Court to give the state ownership”
That’s not what they asked for. They asked that BLM dispose of its lands. There are no doubt a lot of rules that would apply to that, but I assume anyone could potentially be a recipient.
You bet, Jon. After reading Utah’s motion, I day-dreamed about the range of outcomes if Utah prevailed and the Supreme Court ordered Congress to dispose of unallocated federal lands in Utah. Perhaps Congress would use the opportunity to make real estate reparations to the continent’s indigenous peoples. That might be a fitting thumb-in-the-eye to Utah.
In 1981 a federal district court rejected the argument that FLPMA’s land retention provision was unconstitutional. State of Nev., Etc. v. United States, 512 F. Supp. 166 (D. Nev. 1981).
https://casetext.com/case/state-of-nev-etc-v-united-states
“Art. 4, § 3, Cl. 2 of the Constitution (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other property belonging to the United States. . . .”) entrusts Congress with power over the public land without limitations; it is not for the courts to say how that trust shall be administered, but for Congress to determine.”
Id. at 172. This just hits one of the district court’s key points, interested readers should check out the whole thing (although the court’s partial reliance on Dred Scott is slightly unnerving).
The Ninth Circuit affirmed the dismissal on mootness grounds; the Secretary of Interior had withdrawn the public land order that was the ostensible basis for the suit. State of Nev. St. Bd. of Agricul. v. U.S., 699 F.2d 486 (9th Cir. 1983).
https://casetext.com/case/state-of-nev-st-bd-of-agricul-v-us
Dicta in the Ninth circuit’s opinion suggests the panel would have been skeptical of the state’s constitutional argument had the court reached the merits.
“Since 1964, when the action challenged here was taken, federal land law has undergone substantial revision. Congress has enacted the Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. § 1701 to 1782 (1976)), establishing a detailed planning procedure for determining when disposal of parcels of land will serve the national interest. See 43 U.S.C. § 1701(a)(1) (1976). Any future challenges to actual or anticipated federal action with respect to federally held lands will arise in a different legal and historical context from that surrounding the 1964 moratorium which prompted this suit.”
Id. at 488.
It’s odd to see this particular legal zombie clawing its way out of the grave now. Even Project 2025 (whose DOI chapter was written by one William Perry Pendley) does not go this far.
Thanks, Rich! To me this seems like an example where resolving these kinds of disputes through legal processes can be unhelpful and ultimately unsatisfactory, plus expensive.
Tell Utah and all other Western States. How many Democratic administrations have tilted at this windmill? None, I think. This is all part of “state’s rights/anti-fed” Republican propaganda dating back to James Watt and Gale Norton types.
I agree. Although I do not typically follow Utah politics closely, I’m guessing the lawsuit has its roots there. It appears that Governor Spencer Cox recently won the Republican primary over his opponent by approximately a 54-45 margin. His opponent, Phil Lyman, campaigned on (among other things) federal land divestment. Cox has been, as far as I am aware, an effective and scandal-free governor, making his primary winning margin fairly weak, and he lost most of the counties south of Salt Lake City.
So I suspect this lawsuit is more about internal Utah politics than anything else – Cox and his allies have reason to be worried about their political futures and the suit may be a way of fending off some apparently powerful criticism.
On the legal substance, several Supreme Court opinions have held that under Article IV of the Constitution, Congress has “plenary” (that is, unlimited) authority to decide how federal lands should be managed. For the state to win here it would have to convince the current Court to overrule those previous decisons (some of which date back to the 19th century). That’s a steep climb.
OOPS!
Thank you Rich! I just replied to Sharon above, but as I wrote “I’m no expert.” I guess I was out in front of my headlights. I was focusing on the very last part of Art. 4, § 3, Cl. 2.
Thanks for your insights.
JB
SF: “…to my mind this is overreach by the feds causing reaction by the states”
Seriously? I see it as exactly opposite – overreach by Utah, garnering a fed reaction, as it must. States have attempted scaling this “greasy pole” before. Always thwarted by Constitution, ample judicial precedent, and a losing rationale. When Utah was admitted to the Union, it knowingly gave up any right to the federal domain.
From a 2007 Congressional Research Service report : “Sagebrush Rebellion” was a collection of unsuccessful state and local efforts, beginning in 1978, to assert title to federal lands or force their divestiture. It also included efforts by the Reagan Administration and in Congress to divest of
many federal lands, which also proved unsuccessful.
Jim, to me this seems like a case of “who started it”.. I’m not on either side here. There’s history, there’s law, there’s politics, there are ideologies both political and environmental, there are local communities and cultures.
To me, Monumentizing after the election was a “sharp stick in the eye” to Utah.
To me, there is no reason for conservation leases that existing authorities don’t allow, except to move power over land away from communities and the RMP’s they worked on.
If we could take (partisan politics) off the table for a moment.. if Govs and Feds disagree, they could… sit down and work it out. Why doesn’t this Admin, for example, not sit down with western govs before rolling out ideas, or listen to their input?
I was actually working in Sagebrush Rebellion country during the Sagebrush Rebellion, and I would say that the similarity is that people feel that their views are not taken into account in federal land decisions. One solution would be to take their views into account. Another solution is to dismiss their concerns.
Sharon,
I think we’re on the same page. I may have gotten ahead of myself with the Utah land claim, and I’m sorry about that, but the Antiquities Act abuses (in my opinion; I side with Zinke on this one) are another matter. One of the requests to Zinke was to assess the degree to which local interests are considered. The degree to which “Monument designations that result from a lack of public outreach and proper coordination with State, tribal, and local officials and other relevant stakeholders…” are taken into account.
We’ll see how this one shakes out.
JB
“people feel that their views are not taken into account in federal land decisions”
This claim has always felt like a cop out to me. I’m sure they were taken into account, but not given much weight, and the real complaint is that the agency did not adopt their views. Is there a difference, and if so, how do you tell?
Jim points out one way: “lack of public outreach and proper coordination with State, tribal, and local officials and other relevant stakeholders…” “Proper” outreach and coordination should be spelled out in regulations, so there may be legal claim, but otherwise they should arguing for a change in the regulations. And if it is a game of obfuscation, I believe it is played equally well (or better) by the other side.
Or maybe you’re just saying the government should be nicer; good luck with that.
I tend to turn to Sally Fairfax on these issues, and found her paper on Public Lands Federalism from 1988 in which she traces the early context and history of the Sagebrush Rebellion. In her account, after prolonged controversy over the Forest Service wanting to increase grazing rates, President Hoover proposed giving the unreserved lands to the states. “Ironically, the chief opponents of this disposal plan were the states themselves. Their opposition was nearly unanimous, in part because the federal government planned to reserve title to the subsurface rights….and in part because the transfer woudl reduce each state’s share of federal aid for highways, which is apportioned according to the number of federally owned acres in the state”. This last part, if I remember correctly, was part of the inter-state bargaining that occurred during statehood.