12 states are behind Utah’s lawsuit to seize millions of acres of federally controlled land

Utah’s Western Desert, which includes much of the “unsuitable land” controlled by the Bureau of Land Management that the state claims it should control, is pictured Monday, Sept. 3, 2018. (Kyle Dunphey/Utah News Dispatch)

A handful of states are backing the Utah lawsuit, which questions whether the Bureau of Land Management can preserve nearly 18.5 million acres of public land within the state’s borders.

Filed in the U.S. Supreme Court in August, the Utah lawsuit claims the BLM can’t keep the land indefinitely without granting it a designation, such as a national monument, national forest or wilderness area. That 18.5 million acres is what the state calls “unsuitable land” — it’s still leased for grazing, recreation and mineral extraction, but it doesn’t have a title.

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Now, 13 states and several state legislatures support Utah’s effort, signing amicus briefs with the nation’s highest court on Tuesday.

An amicus brief, also called a “friend of the court,” is filed by organizations or individuals who are not named in the lawsuit but have an interest in the case or would like to support a particular party. In all, 11 briefs were filed with the Supreme Court by various groups, states and politicians, all supporting Utah’s effort. These include:

• Idaho, Alaska, Wyoming and the Arizona Legislature.

• Iowa, which led a brief signed by the attorneys general of Alabama, Arkansas, Mississippi, Nebraska, North Dakota, South Carolina, South Dakota and Texas.

• Utah’s entire congressional delegation, which includes Sens. Mitt Romney and Mike Lee and Reps. Blake Moore, Celeste Maloy, John Curtis and Burgess Owens, all Republicans. Wyoming GOP Rep. Harriet Hageman also signed the petition.

• Utah Legislature.

• Wyoming Legislature.

• Utah Association of Counties.

• The American Lands Council, a Utah-based nonprofit that advocates for access to public lands.

• The Sutherland Institute, a conservative think tank in Utah.

• Utah Public Lands Council, Utah Wool Growers Association, Utah Farm Bureau Federation and county farm offices in Beaver, Garfield, Iron, Kane, Piute, Sanpete, Sevier, Uintah and Washington counties.

• Pacific Legal Foundation, a nonprofit law firm.

• A coalition of counties in Arizona and New Mexico, the New Mexico Federal Lands Council and the New Mexico Farm and Livestock Bureau.

The brief, led by Idaho Attorney General Raul Labrador, argues that the federal government’s control of unsuitable land limits state sovereignty.

“The federal government may validly own land in the interior as necessary to exercise its enumerated powers, such as military bases, federal courts, and so on. But the unowned lands in question here are not used in the exercise of the enumerated powers. They are “land that the United States simply owns without formally reserving for any designated purpose,” the brief states.

In the filing, attorneys argue that the state’s inability to control that land is causing a number of problems. There is another criminal code; land cannot be taxed by the state and results in tax increases; the state cannot exercise eminent domain; and the state cannot generate revenue from grazing fees, mineral leases or timber sales, the brief claims.

“Granting the Utah relief claims would begin to level the playing field for all western states and restore the proper balance of federalism between the western states and the federal government,” the brief states.

The brief led by Iowa and signed by nine other attorneys general focuses more on whether the Supreme Court should take up the case and less on the merits of the Utah lawsuit. Utah invokes original jurisdiction, which allows states to petition directly to the Supreme Court, rather than starting in a lower court and then going through the appellate process. To invoke original jurisdiction, the matter must be between a state and the federal government.

Most of the cases the high court hears are appeals — in the Iowa patent, lawyers are asking the justices to consider Utah’s complaint.

“Few issues are as important to a state as the control of its lands,” the brief states. “The Friendly States respectfully request the Court to take this case out of respect for the sovereign dignity inherent in the dispute of a State against the United States.”

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