Impacts as far as the eye can see: Utah’s public lands lawsuit
A new dawn of federalism may be coming to our states, particularly as it pertains to federal lands. In August, Utah filed a lawsuit asking the U.S. Supreme Court to rule on the legality of the indefinite federal hold on “unappropriated” land. The potential impacts across many states are quite literally vast.
In particular, the lawsuit focuses on 18.5 million acres – roughly equivalent to the entire state of South Carolina and roughly one-third of Utah’s territory – that the Bureau of Land Management controls in the state. The lawsuit excludes “appropriated” lands, such as national parks, national monuments, wilderness areas, national forests, tribal lands and military properties. The unappropriated land, by contrast, is held by the U.S. government without any designated purpose.
‘Federal Lands’ and Federalism
In late October 2024, Sutherland Institute filed an amicus brief in support of the state’s case and challenging the growing ownership and control of Utah lands by the national government.
Pointing out that the Constitution reserves most powers to the states, Sutherland argues that the principle of state subsidiarity is particularly applicable to land use. Applying this principle to public lands would ensure that those who live near them – and are most affected by their management – are able to engage in the destiny of their own communities and natural assets. These citizens enjoy direct accountability from their state and local officials. It is impossible for distant national bureaucrats operating under a byzantine regulatory framework to be as responsive.
Federalism principles, moreover, allow for innovation and flexibility in response to changing conditions on the ground in Utah. These areas of innovation range from conservation to grazing rights to energy development to recreation to forest fire prevention. Federal control across wide and diverse territories often undermines responsible and sensible oversight by painting across these territories with the same wide policy brush.
As Sutherland put it in its October 22 amicus brief to the U.S. Supreme Court: “The practice of federal control of large swaths of unappropriated land in the State of Utah undercuts [federalism] principles by ensuring that many land use decisions affecting the people of the State will be made by unelected and distant decision-makers.”
The greater the scope of national control, the more the problem is exacerbated.
The Bureau of Land Management oversees about 23 million acres, or 42 percent of the state – an area equivalent to the entire state of Indiana. The National Forest Service and the National Park Service hold most of the rest of Utah’s federal lands. In total, 33.3 million acres are in federal hands. Superimpose a land area the size of Alabama or Arkansas on Utah, and you see the scope of it: Roughly two-thirds of Utah is the U.S. government’s. Only Nevada has a higher percentage of federally controlled land. In most northeastern states, by contrast, the proportion of federal land is negligible, typically less than 3 percent.
Ironically, large portions of these so-called “public lands” are not open to the public. Federal land policies have trended toward greater restrictions on public use of public lands – for example, roads and access trails previously used by campers, hunters and anglers have been closed off. Territories that should be public lands under federal management is becoming “no one’s lands,” usually at the behest of environmental special interest groups.
The Development Impact
As things stand, development in Utah is constrained by mountain ranges and access to drinking water. Utahns treasure their forest areas, ski slopes and natural assets. Utah’s “Mighty 5” national parks are emblematic of the state itself. And the state has a robust collection of state parks as well.
In short, before you get to the question of federal control, much of Utah’s land is already off the table for development.
Given its conservative leanings, Americans may imagine Utah as a rural state. But because of all the growth constraints, Utah has one of the nation’s most urbanized populations. While Salt Lake County accounts for only 1 percent of the state’s land area, it contains 36 percent of the state’s population. Suburban Davis, Utah and Weber counties, which are also on the smaller side, contain another 40 percent. In short, the vast majority of Utah’s 3.4 million population is crammed into a small corridor along the Wasatch Mountains. To complicate matters, Utah has been the fastest growing state during the past 15 years.
It should come as no surprise that Utah is facing crushing housing challenges. In a state once known as ground zero for the American Dream, homeownership has moved out of reach for many young families. Over the past 10 years, only five other states have seen more rapid home price growth, with Utah prices rising 135 percent.
However, unlocking the 18.5 million acres in question would not simply open that land to homebuilders, because the state intends to preserve it for public purposes. Portions are simply not suitable for development. Still, opponents of state control suggest that the state would despoil these lands by throwing the door open to developers. This is impossible simply as a practical matter. To put the matter in perspective, even if an area equal to the entirety of Salt Lake County were open to development, more than 18 million acres would remain untouched. Just 1 percent of the total would be more than sufficient to accommodate hundreds of thousands of housing units. Looked at another way, even extremely limited new opportunities to relieve population demands across the 18.5 million acres in question could help to address Utah’s housing crunch.
Multistate Team-Up
In October, eight states (Alabama, Arkansas, Mississippi, Nebraska, North Dakota, South Carolina, South Dakota and Texas) joined an amicus brief from Iowa’s attorney general in support of Utah’s lawsuit. Specifically, the brief calls on the U.S. Supreme Court to accept the case on the basis of original jurisdiction. In other words, SCOTUS should take the case directly without channeling it through the lower court and appeals process. The amicus argues that the Supreme Court should “take this case out of respect for the sovereign dignity inherent in a State’s dispute against the United States.” Few issues, it argues, “are as fundamentally important to a State as control of its land.”
The stake other states hold in this case should be obvious. For instance, two-thirds of Alaska’s hundreds of millions of acres are federal. In Nevada, the proportion is 80 percent. In Idaho, it’s over 60 percent. In Oregon and Wyoming, it’s about half. Arizona, California, Colorado, Montana, New Mexico and Washington all contain huge swaths of federal land.
With a changing of the guard at the federal level, the environment for state prerogatives on federal lands is bound to become more favorable. The Republicans and the previous Trump administration have repeatedly shown sympathy to state concerns about federal lands overreach, whereas the Democrats and the Biden administration expanded federal control and sought to reverse rollbacks.
Then there’s the current composition of the U.S. Supreme Court, in which some members have articulated a strident rejection of federal overreach.
In short, Utah’s lawsuit is striking while the iron is hot.
Peter Reichard is chief development officer at the Sutherland Institute in Utah. He has served as a public policy organization executive and researcher for more than 20 years.
