The Southern Utah Wilderness Alliance filed a lawsuit Wednesday in Utah’s 3rd District Court challenging the legality of actions by the state’s governor and attorney general.
In the complaint, SUWA, an environmental nonprofit, says Gov. Spencer Cox and Attorney General Sean Reyes violated Utah’s own constitution in August when they filed a complaint directly with the U.S. Supreme Court to gain control of some federal lands. They asked the high court to weigh in on whether the federal government can legally maintain control of what Utah officials call “unappropriated lands,” some 18.5 million acres in the state overseen by the Bureau of Land Management.
Utah’s constitution and the Utah Enabling Act both say that the state’s people “forever disclaim all right and title to the unappropriated public lands.”
The complaint cites the state’s history:
All of Utah was once owned by Mexico. In 1848, the United States and Mexico signed the Treaty of Guadalupe-Hidalgo and Mexico gave Utah up. In 1850, the Utah Territory was created by Congress, and in 1894, Congress passed the Utah Enabling Act to pave the way for it to become a state. The act says 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;. . .”
Utah’s constitution says the same thing.
But many Utah officials maintain that the land should not be held indefinitely by the federal government.
In a press conference announcing the filing with the Supreme Court in August, Governor Cox said the federal government “has failed to keep our land accessible and properly managed.”
He noted that more than two-thirds of Utah is under the control of different federal agencies, compared to some 1 percent of the land in small Eastern states such as Connecticut and Rhode Island.
He said the state can manage the land better.
“Utah is committed to keeping public lands in public hands and in local control,” Cox said at the press conference.
A website for the Stand for our Land campaign states, “If the lawsuit is successful, Utah intends to take steps to acquire these BLM lands and actively manage them for public use. . .”
In an online article posted in September, Attorney General Reyes said, “Nowhere in the [U.S.] Constitution does it grant federal authority to simply hold onto lands without use of an enumerated power. The focus is squarely on unappropriated acreage. This lawsuit does not include national parks, forests, monuments, or other federally designated areas.
“The state's preeminent purpose in this case is to protect Utah's lands today and for generations to come. . . . Critics of the lawsuit argue it is a veiled attempt to sell off public lands to the highest bidder. Let me be absolutely clear: this lawsuit is not about selling land.”
But SUWA legal director Steve Bloch told KSJD in a phone interview that it’s highly unlikely Utah would obtain the lands if their suit before the Supreme Court should succeed.
“People are being sold a bill of goods by Utah and other interests supporting Utah,” Bloch said. “They say, ‘this will be great – we’re going to get this land and be the ones in charge’.”
But they are misleading the public, he said. If the Supreme Court should rule that the federal government must “dispose of” unappropriated lands, the more-likely outcome is the acreage being sold to the highest bidders, “and fences and gates being erected with No Trespassing signs on them.”
“It was never state land. It was never Utah’s in the first place. How are we going to get anything back?” he asked.
The privatization of these far-flung lands would raise questions about cattle-grazing, which is allowed for a relatively cheap fee on much BLM acreage, as well as for permitting for oil and gas leases.
Although 11 entities have filed “friend of the court” briefs in support of Utah’s complaint in the Supreme Court, no oil and gas operators have done so, Bloch said.
And even if the state managed somehow to get control of all the BLM lands, it couldn’t manage them, he said.
“The numbers don’t add up. When Utah last thought about this, from 2012 to 2016, there were studies done by the University of Utah and Utah State. The federal government provides hundreds of millions of dollars that for the management of these lands.
“Wildfire suppression, prescribed burns, grazing, road maintenance – there’s a long litany of things the federal agencies do, and it would cost Utah taxpayers hundreds of millions of dollars on annual basis. We don’t have that money and staff.”
He said advocates for disposing of Utah’s unappropriated lands are like people trying to read words written in invisible ink. “They’re using lemon juice to find the language that’s not written down,” he said. “They’re saying, when Utah entered the union and forever disclaimed unappropriated lands, they did so with the understanding that the United States would continue to sell off all the federal land, but that’s not historically accurate. Historians and professors have dug into what was happening when the constitution was passed and Utah entered the union. The answer was, the federal government was selling some land but retaining some.”
Bloch added that if President-elect Trump again downsizes Bears Ears and Grand Staircase-Escalante national monuments, which is a distinct possibility, the lands taken out of the monuments could also be up for auction.
“Utah politicians are not happy with Bears Ears,” Bloch said. “They have an active lawsuit asking to undo the restoration of the monuments, and they hope Trump will undo or re-diminish the monuments. That’s roughly 1 million acres from Bears Ears which would be unappropriated lands. Another 1 million acres would be taken out of Grand Staircase-Escalante.
“That’s the scope and breadth of what Utah is up to.
“Really special wild places are what is in the crosshairs.”
“Utah’s federal public lands are the envy of the nation,” SUWA’s lawsuit states. “From Labyrinth Canyon to Fisher Towers to Nine Mile Canyon to the Dirty Devil, these public lands inspire visitors, are popular for hunting, fishing and many other types of recreation, contain innumerable cultural resources and are home to native flora and fauna.”
Federal public lands in Utah also generate billions of dollars in revenue, the complaint says.
“Far from being a vassal state, Utah derives significant benefits from this arrangement, including: federal funds through Payment in Lieu of Taxes (PILT); a percentage of bonus bids, rents and royalties from the leasing and development of certain federal minerals; extensive predictable and low-cost livestock grazing fees and costs.”
Utah also touts tourism on public land. “Utah also has an extensive advertising campaign built around encouraging tourists to visit the State and explore and recreate on federal lands, including what Utah calls ‘unappropriated public lands’,” the complaint says.
The two lawsuits are on different paths in different courts.
SUWA’s suit in Utah’s court seeks declarations that the governor and attorney general violated the state constitution; and an injunction prohibiting them from pursuing their litigation using state funds.
If SUWA wins, the governor and attorney general could appeal to the Utah Supreme Court. If it rules for SUWA, the governor and attorney general would be ordered to stop.
Meanwhile, the U.S. Supreme Court will have to decide whether to take up Utah’s complaint. The Ute Indian Tribe has filed a motion to dismiss, saying the state’s complaint poses an “existential threat” to the tribe.
Bloch said he expects the Supreme Court to take up the question in early January of whether to decide on Utah’s complaint. If it chooses not to take up the complaint, Utah could file suit the regular way, starting in federal district court in Salt Lake City, Bloch said.