U.S. Rep. Harriet Hageman, Gov. Mark Gordon and 26 members of the Wyoming Legislature — a majority members of the Wyoming Freedom Caucus — filed briefs this week urging the U.S. Supreme Court to hear a lawsuit brought by the state of Utah that could result in more than 200 million acres of federal lands being turned over to Western states.
Hageman and the Utah delegation argue that the federal government’s ownership of land in Western states denies them equal statehood and representation when compared to other states with less federal acreage.
Utah wants the Supreme Court to rule on whether states or the federal government have sovereignty or BLM lands and if it’s fair for residents of these states to face changing regulations on these lands.
The Wyoming lawmakers also say they submitted their brief not only because of the constitutional issues raised in the case, but as a way to reverse the negative impacts they believe have been caused to Utah and other Western states because of federal government control over land inside their borders.
On Tuesday, Hageman and Utah’s congressional delegation submitted a friend of the court brief to support Utah’s case before the U.S. Supreme Court. That same day, the Mountain States Legal Foundation filed an amicus brief on behalf of the Wyoming legislators.
The legislators write that the constitutionality of federal land ownership is “not just a Utah problem; it is a problem facing other Western states” like Wyoming.
“Like Utah, Wyoming has — and its legislators have — long been frustrated by the federal government exercising complete ownership and control over vast expanses of land within the state’s borders,” the legislators’ brief reads.
Gov. Mark Gordon announced Thursday that the state of Wyoming has joined Idaho, Alaska and the Arizona Legislature in another brief supporting Utah.
In his statement, Gordon said federal ownership of unappropriated land negatively impacts local land use and cited the recent examples of the controversial Rock Springs and Buffalo resource management plans as an example of how presidential administration whims can sharply impact policy.
"The well-established legal principle of multiple-use of public lands is sacred to Wyoming citizens, and that concept is something we have lost in this era of Washington, D.C., constantly curtailing their uses," Gordon says in a statement. "Wyoming believes it is essential for the states to be recognized as the primary authority when it comes to unappropriated lands within our borders.
“The Federal government’s indefinite retention of millions of acres of land is a critical question that impacts all Western states, which is why Wyoming has filed this amicus.”
What Does It Do?
The case, State of Utah v. United States, calls into question 18.5 million acres of what that state calls “unappropriated” lands, essentially lands Congress hasn’t set aside for a specific purpose, that are managed by the BLM across Utah.
“The federal burden in the West infringes on our sovereignty and undermines our equality with the states, all in direct violation of the Constitution,” Hageman says in a Thursday press release. “This ownership serves no purpose other than to inflict bad management policies which lock up lands from productive use.”
Hageman and the members of Congress argue that the case “raises important questions about the proper scope of state sovereignty, the proper understanding of vertical and horizontal federalism, and this court’s authority to enforce the Constitution’s separation of powers.”
Utah is effectively asking the justices to declare unconstitutional the 1976 Federal Land Policy and Management Act, in which Congress declared that it intends for federal lands to remain in federal hands.
The act governs 245 million acres of federal land overseen by the BLM spread across 11 Western states, Alaska, the Dakotas and a few Eastern states.
Utah is taking the unusual procedural step of bypassing lower courts by filing its lawsuit in the original jurisdiction of the Supreme Court.
Some have called the lawsuit the latest chapter in the Sagebrush Rebellion, a revolt against federal land ownership that arose in the 1970s after the passing of laws such as the Federal Land Policy and Management Act.
What It Would Mean
The BLM manages about 18.4 million acres of public land and 42.9 million acres of federal mineral estate for multiple use in Wyoming, according to the agency. Nearly 47% of Wyoming surface lands are owned by the federal government.
If the case is heard and Utah wins, it would exclude “appropriated” lands, such as national parks, national monuments, wilderness areas and tribal lands. However, the Wyoming legislators go farther than Gordon by making a special request for the court to rule on appropriated lands in this case or at some point in the future.
“Federal agencies like the Bureau of Land Management are wielding an unconstitutional police power over Wyoming’s land and resources,” the legislators’ brief reads. “These lands were committed to the purposes of Wyoming statehood by the terms of its congressional act of admission.”
Various environmental groups have criticized the lawsuit, like Backcountry Hunters and Anglers (BHA). Although Utah Gov. Spencer Cox has stressed that all public lands would remain public if transferred to Utah, BHA is skeptical.
“The transfer of public lands from federal to state governments is the pathway to streamlined privatization,” the organization said in a statement last month. “Despite the state’s adamant claims that it intends to keep public lands in public hands, the reality of the matter is that the bar for sale is significantly lower under state control than it is under the current federal management system, which has proven to be very effective at retaining lands in the public domain.”
Others, like University of Utah law professor John Ruple, told High Country News in August that legal precedent is not on the state’s side.
“There’s pretty solid case law going back a very long time that says Congress has the authority over public lands,” he said.
The congressional brief argues that nearly half of the land the federal government owns in Utah is used either for profit or other land uses. Because Utah doesn’t own the land, the state can’t make money off it or regulate it.
They also argue that this results in the federal government denying Utah and other Western states basic powers that other states have over their land.
According to Deseret News Utah has launched a national public information campaign promoting its lawsuit in the hopes that it will increase the likelihood that the court will take up the case. The ads have been placed with national news outlets like The Dispatch and The Wall Street Journal.
At its meeting in September, the Wyoming Republican Party discussed ways it could potentially support the Utah lawsuit.
Who Signed On?
The Wyoming legislators listed on the brief are state Sens. Cheri Steinmetz, R-Lingle, Bo Biteman, R-Ranchester, Brian Boner, R-Douglas, Tim French, R-Powell, Larry Hicks, R-Baggs, Bob Ide, R-Casper, John Kolb, R-Rock Springs, Dan Laursen, R-Powell, Troy McKeown, R-Gillette, and Tim Salazar, R-Riverton; and Reps. Bill Allemand, R-Midwest, John Bear, R-Gillette, Jeremy Haroldson, R-Wheatland, Scott Heiner, R-Green River, Ben Hornok, R-Cheyenne, Christopher Knapp, R-Gillette, Chip Neiman, R-Hulett, Pepper Ottman, R-Riverton, Sarah Penn, R-Fort Washakie, Rachel Rodriguez-Williams, R-Cody, Daniel Singh, R-Cheyenne, Allen Slagle, R-Newcastle, Scott Smith, R-Lingle, Tomi Strock, R-Douglas, Jeanette Ward, R-Casper, and John Winter, R-Thermopolis.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
