Sens. Lee and Romney make a power play for Utah and the West

Republican lawmakers in the West say they want states to control more of their own land, rather than Washington, D.C., officials, especially as the state’s residents are deprived of benefits they would get if it was under state ownership.

Sen. Mike Lee along with Sen. Mitt Romney and Utah Reps. John Curtis, Celeste Maloy, Blake Moore, Burgess Owens and Wyoming Rep. Harriet Hageman submitted a friend of the court brief to support Utah’s case before the U.S. Supreme Court as the state hopes to take control of 18.5 million acres of unappropriated land.

The public land Utah wants to bring back under state control doesn’t include national parks, national monuments and national forests — much of it is desert scape or farm lands, not necessarily the photo-worthy landscapes some people think of when they hear the term public lands.

The federal government oversees 70% of the state’s land, and rules can change on how that land can be used depending on who is in charge of the White House. In the brief, lawmakers said they submitted it not only because it is a constitutional issue, but because they wanted to begin reversing harms Utah and the West have experienced from federal government control over their lands.

Lee said in a statement to the Deseret News that the vast control of Utah land by the federal government “has increasingly limited what Utahns can do in their backyard.”

“This has to change, and I am proud to stand with Utah families — along with our entire congressional delegation — urging the Supreme Court to allow this case to move,” Lee continued.

In Romney’s statement to the Deseret News, he noted Utah has “one of the highest percentages of its land owned by the federal government.”

“Whether or not the federal government can continue to indefinitely control more than 18 million acres of this land—which is currently unappropriated—should be considered,” said Romney. “Public lands are best managed by those closest to them.”

Frustrated over the lack of local control over the land, state lawmakers in Utah decided to go straight to the Supreme Court, to address some of the harms they see to the state’s resident. Federal agencies can impact the livelihoods of Utahns by saying how much access farmers have to land for grazing, which roads Utahns can use or where campers can set up their tents.

The state hired former U.S. Solicitor General Paul Clement and seasoned Supreme Court advocate Erin Murphy to argue the case. The suit argues the federal government makes money off Utah’s lands through commercial filmmaking and grazing and the state loses out on that revenue.

But more than that, Utah said the federal government’s control of the land was unconstitutional — and that the feds would not budge when asked to return unappropriated land to the state. Unappropriated land is land held by the Bureau of Land Management that isn’t reserved for a designated purpose.

Who gets to control the land?

There are a couple of core questions the lawsuit wants the Supreme Court to rule on. Should states or the federal government have sovereignty or control over these lands? And, is it fair for people living in the state to face changing rules on how the land is used?

In their brief, Lee, Romney and the representatives made the case the Supreme Court should give Utah control over unappropriated land. They noted Utah’s lawsuit came after state leaders repeatedly requested the federal government give up these lands — only to be repeatedly ignored.

It’s a uniquely western phenomenon to have more than half of the land in a state controlled by the federal government. According to Ballotpedia, most states East of the Mississippi have well below 10% of their land owned by the federal government, but in the West that number is much higher. The lawmakers say this puts the state on unequal footing with other states in the U.S.

Nearly half of the land the federal government owns in Utah is used either for profit or is just held, said the group of politicians in the brief. It isn’t used under a specific constitutional power. But because Utah doesn’t own the land, the state can’t tax or regulate it.

This means the federal government denies Utah basic powers other states have over their land, the brief says. This is unique to Utah and nine other Western states that also have a lot of land owned by the federal government.

“By allocating control over one-third of Utah’s land to the BLM (Bureau of Land Management), the United States altogether denies Utah ownership over that land,” said the brief. This reduces equality with other states and “imposes second-class status” onto Utah and other Western states.

Utah and Western states can’t manage lands within their own boundaries in ways that would lead to the flourishing of citizens, the brief says.

The brief raises another issue — the president’s control over state lands. To the frustration of local citizens, presidents have expanded the size of national monuments without input from local residents. Former President Bill Clinton designated Grand Staircase-Escalante National Monument without stepping foot on Utah soil. The area was going to be used for coal mining and people in the surrounding area experienced economic hardship because of the monument designation.

Presidents can step in and declare land monuments or not because of the Antiquities Act. It’s a law which the brief said has allowed presidents to vastly expand monuments and landmarks without limit.

“The President should not have more control over Utah’s land than the people of Utah or their elected representatives,” said the brief. The Supreme Court’s ruling on Utah’s lawsuit could end up resolving some existing legal issues involving the Antiquities Act.

The brief does raise some of the issues local residents have faced because of the federal control of land.

In Panguitch, a charming town that’s the seat of Garfield County, local sawmill workers faced unemployment when the amount of timber the mill was allowed to take out of the national forests was whittled down. Even as one of the main industries that kept the town booming was shut down in 1996, state and federal lawmakers could do nothing about it.

SUWA response to Utah lawsuit

But opponents to the state’s lawsuit see it as corrosive to conservation. Shortly after Utah filed its suit, team members at the Southern Utah Wilderness Alliance stopped by the Deseret News for an on the record editorial board meeting.

During the meeting Steve Bloch, the group’s legal director, said the state was emboldened by the 6-3 majority on the Supreme Court and that’s why they didn’t go to federal district court.

Putting up a map of the lands owned by the federal government in Utah (highlighting the unappropriated lands), Bloch said the term is used for PR to make people think the land isn’t special. He doesn’t think Utah could actually afford to take over the land anyway.

“This is just an unserious approach,” said Bloch. “This is anti-federal rhetoric.” He added he thought it was “throwing red meat at some part of the electorate in Utah who’s animated by this.”

SUWA may see it as anti-federal rhetoric, but Utah politicians say this suit has been a long-time coming after trying to work with the federal government for years.

“We’ve been asking for 50 years,” said Utah Gov. Spencer Cox when announcing the suit. “And not only are they not willing to negotiate or help on this at all, it’s the exact opposite. It’s not only ‘no,’ but, ‘hell no, and we’re going to close more of your roads and make it harder.”