By Kennedy Maize
The state of Utah’s odd-ball, long-shot attempt to wrest control of federal land from the U.S. Interior Department has crashed and burned at the U.S. Supreme Court. The Beehive State sought a direct appeal to the high court, skipping the conventional legal brick road to the court, starting at a U.S. district court, then a trip to an appeals court, before beseeching a ruling from the Supremes.
On Jan. 13, the high court rejected the state’s appeal without comment, as is customary with the court’s denials of certiorari. According to Findlaw, “While the Supreme Court’s denial was recent, the core issue goes back a long time in the state’s history.”
The federal government owns about 70% of Utah’s territory, acquired when the territory became a state in 1896. Interior’s Bureau of Land Management along with the Agriculture Department’s U.S. Forest Service, control the federal real estate, as in other mostly Western states, where Uncle Sam owns some 47% of the landscape, between the BLM and the U.S. Forest Service.
Divestiture of federal land was a major feature of the now moribund “Sagebrush Rebellion” of the 1970s and early 1980s. Among the key figures were Reagan administration Interior Secretary James G. Watt (1938-2023) and his aide William Perry Pendley, who worked together at the Mountain States Legal Foundation before Reagan’s rise to power.
Pendley, 79, was a key Watt aide who was fired after a scandal over coal leasing on federal land in Wyoming. He later became acting head of BLM in the first Trump administration. At BLM, Pendley was ultimately ousted by court order because he had not been confirmed by the U.S. Senate.
In 2016, High Country News commented, “Only one certainty exists — that Sagebrush is a revolt against federal authority, and that its taproot grows deep in the century’s history. Beyond this, it is incoherent.”
BLM and the Forest Service make money for the federal government from the land they control, through leases, fees, and royalties from coal, oil, and gas development, grazing, timber sales, and other commercial activities. About 19 million acres of federal land in Utah is not currently developed.
While most federal litigation must go through the normal procedures, Findlaw explains that in some cases “especially where a state is a party, the Constitution allows the Supreme Court to have original jurisdiction, although the high court can refuse such a request.”
In its motion to the Supreme Court last August, Utah argued, “As a direct consequence of the United States’ indefinite retention of unappropriated public lands within its borders, Utah is deprived of basic and fundamental sovereign powers as to more than a third of its territory. It cannot tax the federal government’s land holdings. It cannot exercise eminent domain over them as needed for critical infrastructure like public roads and transportation and communications systems. It cannot even exercise legislative authority over the purposes for which they may be used. In short, throughout much of Utah it is the federal government, not Utah, that wields the general police power.”
When it filed the case, Utah Republican Gov. Spencer Cox said, “Utah deserves priority when it comes to managing its land. It’s been a tragedy to see what this administration and past administrations have done to our land, closing down roads that have been open for generations.”
Utah’s challenge asked the court to give it authority over territory equivalent to the entire state of South Carolina, about 28,000 square miles. Coincidentally, that’s about the same size as the Arctic National Wildlife Refuge in Alaska. The state’s petition did not cover the state’s national parks and monuments, which would remain under Interior Department control.
Western-oriented environmental groups opposed the Utah suit. Several said they feared Utah would sell off the land if the court granted the state’s arguments. Cox denied that privatization was his ultimate aim.
When the high court rejected the case, Lawyer Allison Flint of The Wilderness Society said, “Utah’s case is massively flawed, and we’re pleased to see the Court recognize that and leave 150 years’ worth of established public lands law firmly in place. The nation’s public lands are as popular as ever. People want these places conserved and managed responsibly–not sold off, privatized or despoiled. Today’s news is good for the stability, safety and sustainability for America’s public lands and the people who depend on them.”
Flint added that “we fully expect Utah’s misguided attacks to continue and stand ready to mount a robust defense to ensure our public lands are protected.”
Governor Cox and a bevy of top state Republicans in a statement said, “While we were hopeful that our request would expedite the process, we are disappointed in the Supreme Court’s decision not to take up this case. The Court’s order does not say anything about the merits of Utah’s important constitutional arguments or prevent Utah from filing its suit in federal district court.
“Utah remains able and willing to challenge any BLM land management decisions that harm Utah. We are also heartened to know the incoming Administration shares our commitments to the principle of “multiple use” for these federal lands and is committed to working with us to improve land management. We will continue to fight to keep public lands in public hands because it is our stewardship, heritage and home.”
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