No state in recent years has been more aggressive than Utah, home to some of the nation’s most magnificent landscapes, in trying to seize control of land owned by the federal government.
In the “sagebrush rebellion” of the late 1970s to the early 1980s, challenges by Utah and other Western states to the federal government’s ownership of vast swaths of land within their borders got no traction in Congress or the courts. More recently, claims of federal land grabs and colonialism have been mostly pushed by extremists, like those who seized control of a National Wildlife Refuge in Oregon for a few weeks in 2016.
Now, with the U.S. Supreme Court firmly in the hands of a conservative majority, Utah’s leaders are making a Hail Mary move. The state is asking the court to bypass the lower federal courts, something it rarely does, to hear its argument that the federal government is required by the Constitution to transfer about half of the 37.4 million acres it owns in Utah to the state.
The court is expected to decide whether to take up the matter in mid-January. Should it agree to consider the case and side with Utah, tens of millions of acres of land across the West now owned by all Americans could be opened to largely unregulated exploitation of its mineral, fossil fuel, timber and grazing resources.
Utah and other states supporting its lawsuit see these lands, which the federal government reserved for all Americans when the states entered the union, as potential sources of tax revenue and development opportunities, and have long complained about the lack of local control over lands held by Washington.
Many of those resources are already being used or extracted under the federal government’s policies of allowing for multiple uses of the land while maintaining sustained yields of their renewable resources. But those lands also contain some the nation’s most culturally, historically and environmentally significant treasures, which the federal government also is responsible for protecting. Utah’s lawsuit is nothing less than a frontal assault on the long tradition of safeguarding these landscapes in trust for all Americans.
Utah argues that a 1976 law passed with bipartisan support (16 of the 19 members of the congressional conference committee who drafted the final version were from the West) exceeded Congress’s authority under the Constitution’s property clause. That clause gives Congress unqualified “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The challenged law laid out how the federal Bureau of Land Management would administer the land under its control, now approximately 245 million acres, primarily in 12 Western states.
Utah puts forward a muddled mishmash of arguments that the property clause does not mean what it says. For one thing, the state quotes only one of several definitions contained in the leading dictionary at the time the Constitution was drafted, one defining “dispose of” to mean “to put in the hands of another.” But then and ever since, dictionaries have defined “dispose of” to have several other meanings as well, including to “employ to various purposes,” which is exactly how Congress has exercised its property clause power for more than two centuries. And even if, for the sake of argument, “dispose” meant only to divest, the clause merely allows rather than requires Congress to do it.
Utah further muddies the waters by arguing that the property clause requires the federal government to transfer control of all public lands that are not dedicated to “any enumerated federal function.” The state describes such lands as “unappropriated” and says it includes about half of the land the federal government owns in Utah and hundreds of millions of acres in other Western states and Alaska. But the word “unappropriated” does not appear in the Constitution and rarely shows up in federal land laws and has no generally accepted legal meaning.
The state’s lawyers also fail to mention that Utah’s own Constitution, adopted in 1895 just before its admission to the union, declares that its people “forever disclaim all right and title to the unappropriated public lands” within its borders.
Last, Utah’s claim flies in the face of a string of post-Civil War Supreme Court decisions. In those rulings, the court has consistently found that Congress’s power over public lands under the property clause is, as the court put it in a unanimous decision in 1976, “without limitations.” The title of one law review article succinctly framed Utah’s efforts this way: “The battle to take ‘back’ lands that were never theirs.”
Only once before has the Supreme Court ignored the property clause’s plain language to strike down an act of Congress. Perhaps understandably, Utah’s briefs to the court do not mention that infamous 1857 Dred Scott decision, in which the court held that the property clause did not apply to the vast territory the United States acquired from foreign governments after the Revolutionary War, and thus struck down acts of Congress that had prohibited slavery in some of it. Generally considered the worst decision in the court’s history, it helped propel the county into the Civil War, and the court never again interpreted the property clause to invalidate an act of Congress.
Congress and the executive branch have worked together over decades to increasingly protect federal lands for the benefit of all. The safeguarding of these large landscapes can be justly celebrated as an American political success story. Throughout the Western states, opinion polling over many years has consistently shown that a large majority from across the political spectrum love public lands and want to see more protected. (Although 12 other states have filed briefs urging the court to hear Utah’s claim, only three of them, Alaska, Idaho and Wyoming, have significant amounts of federal lands.)
Indeed, Utah’s own Office of Tourism has long celebrated what it calls its “Mighty Five” national parks and even trademarked the phrase. It tells would-be visitors in a promotion for the parks to “expect your time spent outdoors to result in soul-awakening experiences.” Together, those parks — Zion, Bryce Canyon, Arches, Capitol Reef and Canyonlands — now attract around 10 million visitors annually. There can be no disputing that visitors to these and other national parks and monuments in Utah are huge contributors to the Utah economy.
Any attempt by Utah to wrest control of those parks from the federal government would be a public-relations nightmare for the state. No wonder Utah says national parks are constitutional. But the reason it offers for distinguishing parks from other public lands it seeks to control — that they are authorized elsewhere in the Constitution, not in the property clause — is manifestly false.
The Constitution does not mention parks, and nothing other than the property clause provides any basis for their establishment by Congress. So if the court accepts Utah’s interpretation of “dispose” in the property clause, the parks would be at risk along with all the other public lands.
Utah seeks to give a small group of unelected justices, and not Congress, ultimate authority over America’s public lands, owned by all Americans and entrusted to the federal government for their wise use and protection. The result would most likely spell disaster for the stewardship of some of the nation’s most significant landscapes, while accelerating the decline in the court’s stature with the American people.
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