Utah Lawmakers Hint at “War” in Federal Land Dispute

Back in August, the state of Utah filed an unusual lawsuit directly before the Supreme Court that sought to wrest control of millions of acres of federal public lands. Disputes over federal land policies in the West can be emotionally charged at times. But more recently, Utah’s congressional delegation took what could only be called an extraordinary step—arguing that the status quo could potentially “justify” civil war.

In a friend of the court brief submitted in October, the six federal lawmakers—Senators Mike Lee and Mitt Romney, as well as Utah’s four House representatives—likened their state to a separate “country” that was being “occupied” by the United States. Wyoming Representative Harriet Hageman, a fellow Republican, also joined the brief.

The federal government denies Utah basic sovereign powers over more than one-third of its territory for no constitutional purpose. And both common sense and history confirm that, if anything would justify war, it is one country’s continued occupation of another. Such occupation, after all, necessarily entails the exploitation of resources belonging to the other and an unnecessary risk that the occupying country will hinder the occupied country’s political processes. Indeed, the Constitution’s drafters were themselves prepared to take action (and did) against an abusive federal power for much less.

Having raised such dire implications, the delegation then tried to back away from this argument almost immediately. “That is not to say that Utah, as part of the federal system of sovereignty, would be justified in actually going to war against the United States,” the brief continued in the next paragraph. “Not at all. The unique relationship between the states and the federal government means that what the United States is doing to Utah is not directly analogous to one sovereign nation’s physical invasion of another.”

Despite all that hedging, the lawmakers were still unwilling to abandon their original premise. “But this court has never required states to make a showing that war is actually justified when it considers whether to allow a state to invoke the court’s original jurisdiction,” the delegation continued in its brief. “Instead, the standard is whether the federal government’s actions would amount to an invasion and conquest of that land if—assuming a counterfactual—Utah were a separate sovereign nation.”

Well, it isn’t. The case, Utah v. United States, has a mundane name and a massive request: The state is asking the justices to declare that the federal government’s ownership of millions of acres of public lands in the state’s borders is unconstitutional. The United States currently holds title to more than 18.5 million acres of “unappropriated” public lands within Utah’s borders, meaning that it is not currently set aside or designated for any specific purpose.

“The federal government has no constitutional authority to retain in perpetuity unappropriated lands within a State, over the State’s objection, without reserving or using those lands to carry out any enumerated federal power,” the state argued in its filing in August. Utah is asking the justices to compel federal officials to sell or transfer the land: “The United States must instead dispose of these unappropriated lands, as the Constitution requires.”

Utah is hardly the first state to squabble with Washington, D.C., over the fate of federal public lands. But the lawsuit represents a well-funded, well-coordinated effort to bypass Congress and achieve a major policy victory through the courts. Some of the lawsuit’s supporters have used strong language to object to the status quo. Along the way, it would disrupt long-settled areas of constitutional law and, indeed, upend how the West is run.

In many Western states, the federal government owns a significant portion of the land. Utah is no different: The state told the justices that the United States owns about 69 percent of the land within its borders. The proportion is less than, say, Nevada, where the federal government owns more than 80 percent of its territory. But it is substantially more than states further east. In New York, for example, the federal government only owns 0.8 percent of the land.

It’s worth noting that Utah is not seeking possession of all federally owned lands within its borders. Unappropriated land, by definition, does not include lands owned by the federal government for courthouses, post offices, military bases, and so on. Unappropriated lands are also separate from national parks, national forests, and similarly protected wilderness areas. Taken altogether, the lands in question amount to just under half of the federal total for Utah. The state disavowed the rest.

“Unappropriated” can be misleading in other ways. As Utah noted in its lawsuit, those vast tracts do not simply sit idle. “Those 18.5 million acres are administered by the federal Bureau of Land Management … which earns significant revenue by leasing those lands to private parties for activities such as oil and gas production, grazing, and commercial filmmaking, and by selling timber and other valuable natural resources that the federal government retains for its own exploitation,” the state observed. If anything, Utah wants the revenue and regulatory control over those resources that the federal government currently enjoys.

The federal government’s landholdings in Utah, Nevada, and other Western states are the product of its westward expansion. When Congress admitted Utah to the Union in 1896, it required the state’s constitutional convention to proclaim “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.” Other Western states made similar disavowals when they attained statehood as well. That declaration is what Utah now seeks to renege upon.

To get around that disclaimer, Utah raised novel interpretations of some federal constitutional provisions. It narrowly read the enclave clause, which allows the federal government to create and operate the District of Columbia and certain types of other federal properties, to mean that the federal government can only operate those properties. The state claimed that the Framers “took pains” to use “careful language” to limit the federal government’s prerogatives in this clause for reasons of federalism.

Utah also argued that the language of the property clause, which says 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,” actually forbids the federal government from holding unappropriated land in perpetuity. “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,” the state argued.

While some of the legal arguments are new, the policy arguments are not. In the late 1970s, a movement arose in Western states to pressure the federal government to transfer its massive public landholdings to them, and then ultimately to private ownership. The Sagebrush Rebellion, as it became known, led some states to pass laws claiming legal ownership of the lands, which some state officials tried to (nonviolently) enforce. Though it garnered some sympathy in Republican circles, the Reagan administration ultimately declined to go through with plans to sell off the lands amid conservationist opposition and broader economic headwinds. In 1996, a federal judge invalidated the state laws in question.

Utah revived its efforts in 2012 when state lawmakers passed the Transfer of Public Lands Act, which demanded that the federal government give up the lands by either transfer or sale by 2014. (As you may have guessed, the Obama administration did not follow through.) The law also created multiple state bodies, including a state commission and a policy coordinating office, to pursue other means to acquire the federal lands. The commission voted in 2015 to recommend legal action—despite some skepticism from legal scholars.

One problem for Utah is that the status quo is well entrenched in federal law and policy. Utah’s best bet for change would be to persuade Congress, which retains full power to sell or transfer the public lands as it sees fit. Federal lawmakers have declined to do that so far. The executive branch generally cannot sell off those lands without legislative approval. And the Supreme Court has long embraced a broad view of federal ownership of public lands, and the justices have shown no interest in changing course.

Another problem is that the lands in question never belonged to Utah in the first place. They previously belonged to Mexico, which ceded them to the United States by the Treaty of Guadalupe Hidalgo in 1848. Congress then organized some of those lands, including present-day Utah, into the Utah Territory in 1850 under exclusive federal control. When Utah joined the Union in 1896, the federal government did not take any lands from the new state; it simply kept the lands it already owned.

To get around these hurdles, Utah made a series of quasi-legal arguments that also reflect policy-based desires. It argued that the state only agreed to the disclaimer when it joined the Union because it assumed that the federal government “would hold the unappropriated public lands in that territory only on a temporary basis, not as a permanent federal fiefdom.” Utah also invoked federalism in abstract terms: It claimed that federal ownership of so much public land “imposes substantial and disproportionate burdens that disrupt both the federal-state balance and the balance of power among the states.”

Utah’s lawsuit is unconventional in a few other ways. First, there is the aggressive marketing campaign that has striven to push the dispute into the public consciousness. The Salt Lake Tribune reported in November that the state signed a $2.62 million contract with a local public relations firm to advertise the lawsuit. That is a significantly higher amount than the $500,000 the state spent to hire Clement & Murphy, a nationally prominent law firm, to represent it at the Supreme Court. While PR campaigns around high-profile lawsuits are hardly new or unusual, it is rare for a state government to fund one.

Second, and perhaps most importantly, the state brought the lawsuit through an unusual mechanism. The Constitution establishes two forms of jurisdiction for the Supreme Court. Under appellate jurisdiction, the justices review cases that are first tried and heard in state and lower federal courts. Those cases account for almost all of the high court’s docket. The Supreme Court also has what’s known as original jurisdiction, where it can act as a trial court and hear a legal dispute in the first instance.

Original jurisdiction cases are rare because the Constitution only allows them in limited circumstances, which it defines as “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Legal disputes involving foreign diplomats are so rare that it is not immediately apparent when this jurisdiction was last exercised by the court. On the other hand, cases between the states are regular occurrences, usually over water rights disputes.

In its brief, Utah took an even more expansive approach to cases “in which a State shall be Party.” The state argued that it could bring its lawsuit against the federal government directly to the Supreme Court based on the Constitution’s language that I quoted earlier. It also cited a provision in federal law that grants the high court “original but not exclusive jurisdiction of … all controversies between the United States and a State.”

Utah does not elaborate on this argument beyond these two citations, as if this is a normal practice. It is not. States routinely sue the federal government for all sorts of things. California and other Democratic-led states sued the Trump administration over its policies; Texas and other Republican-led states sued the Biden administration over its policies. Many of these lawsuits eventually reached the Supreme Court, but they were first heard in federal district courts and then (usually) reviewed by the federal circuit courts of appeal before the justices could weigh in.

Utah’s own theory has a limited track record of success. In the 1973 case United States v. Nevada, for example, the federal government sued California and Nevada over a water rights dispute involving the Truckee River, which flows from Lake Tahoe to Pyramid Lake, and the Paiute tribe’s reservation, which is affected by lower water levels in the lake. The federal government took the unusual step of invoking the court’s original jurisdiction under the same provisions cited by Utah to bring the case.

The Supreme Court, however, declined to hear the case. In an unsigned ruling on behalf of eight of the justices, the court acknowledged that it had “original but not exclusive jurisdiction” over the dispute but refused to exercise it. “We seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim,” the justices said. (The ninth justice, William O. Douglas, did not write a separate opinion to explain his dissent, but may have done so for environmentalist reasons.)

In a series of friend of the court briefs filed in October, Utah’s allies elaborated further on this strategy. Nine Republican-led states urged the justices to take up the case, arguing that the court was obligated to do so by Congress’s use of “shall” in the provision I mentioned earlier. This, in and of itself, is not so novel: Justices Clarence Thomas and Samuel Alito argued that the court lacked the ability to turn down those cases outright in Texas v. Pennsylvania, a 2020 lawsuit that sought to overturn the results of that year’s presidential election. (The two justices claimed to express no views on the merits of that particular lawsuit.)

Some of Utah’s allies also made arguments that sounded more grounded in policy concerns than legal or constitutional ones. The Utah Association of Counties, for example, described an ongoing Bureau of Land Management, or BLM, rulemaking process as a “daunting threat to Utah’s dignity as a State over the subject lands” and said the Supreme Court “should avenge Utah’s dignity as a State, remove the subject lands from protracted federal ownership, and lay the whole misadventure to rest.” Its brief is largely a summary of its grievances with the BLM, without much explanation of the Supreme Court’s purported authority to “avenge” a state’s “dignity.”

But the most eye-opening brief, as I noted earlier, comes from Utah’s congressional delegation. It framed the dispute in emotionally charged terms. Utah, the lawmakers argued, was being “held captive” by federal land use policy. They claimed the federal government had denied them “equal” statehood, citing the equal footing doctrine. (Ohio made a similar argument when asking the Supreme Court to overturn California’s ability to set vehicle emissions standards earlier this year.)

Those lawmakers also claimed that federal ownership of Utah’s lands deprived the state’s residents of “equal representation.” This was not a gerrymandering argument or something akin to that. The representatives and senators instead claimed that federal ownership affected their time management while serving in office.

“Because of that inequality, the congressional delegations of Utah and other western states are required to expend time and political capital solely to ensure proper management of federal lands—issues other state congressional delegations do not have to consider,” the lawmakers argued. “The reduction in Utah’s effective congressional power, in turn, reduces the state’s effective representation as compared to other states, undermining the state’s equal representation.”

This is an extraordinary argument, to say the least. I am not aware of any other instance where federal lawmakers—who could theoretically address a policy issue through legislation—nonetheless asked the judiciary to address it for them because that policy issue made their jobs harder.

Utah’s bill of complaint—the name for an original jurisdiction filing before the court—is a conscious effort to break new legal and constitutional ground. If it weren’t, the status quo that Utah’s leaders lament wouldn’t exist in the first place. That also makes it hard to predict how the justices will respond to the lawsuit. (They are still awaiting the federal government’s reply brief, which is due later this month.)

If the Supreme Court agrees to hear the case, however, their ruling could have monumental implications for how the western half of the United States is governed. Taking up the case could also have far-reaching implications for when and how states can bring legal disputes straight to the Supreme Court without bothering with the lower federal courts, potentially ballooning the justices’ workload. If you believe Utah’s congressional delegation, however, avoiding the case could have even more revolutionary consequences.