Hunters Cannot Dismiss the Magnitude of Utah’s Public Lands Lawsuit

On August 20th, 2024, Utah’s Governor Cox announced a sweeping lawsuit that the State filed with the U.S. Supreme Court to challenge the federal government’s legal right to hold and manage 18.5 million acres of “unappropriated” BLM lands within Utah’s state borders, an ultimate maneuver to transfer these lands to State control. While we have seen the “land transfer” song and dance for decades from the State of Utah, this particular action is especially concerning for sportsmen and women who cherish public lands, and the potential negative implications extend far beyond Utah’s borders.

When you act as a steward of something so valuable as public land, it is bound to ignite conflict. In Utah, almost 70% of the lands within our borders are managed by federal agencies, the largest of which is the Bureau of Land Management (BLM). These lands are owned by the American people and held in trust by the federal government for the benefit of all Americans. Utah officials have long complained about “federal overreach” on these lands, which reached a critical moment in 1976 with the passage of the Federal Land Management Policy Act (FLPMA). FLPMA is the federal legislation that mandates the BLM to manage its lands for multiple-use and requires the agency to balance the various interests which include mining, extraction, grazing, and recreation, all while conserving resources for long-term, sustained yield. The mandate empowers the “public trust” responsibility of the agency. It’s a tough balancing act - one that comes with very strict protocols involving stakeholder input and public management planning processes outlined in FLPMA to ensure that all uses remain on equal footing. FLPMA also established the policy for the BLM to retain public lands, rather than to transfer or sell it. Prior to FLPMA, this balance between the uses did not exist in the same way, and those that had previously benefited from this lack of multiple-use mandate (i.e. generally, those who profited off of the land resources) felt as though they were losing ground with FLPMA. These frustrations culminated in the Sagebrush Rebellion, a movement that seems to have never died in the State of Utah. Since then, we have witnessed a number of attempts by elected officials in Utah to challenge federal land management with various efforts to transfer these lands to state control. Today’s tactic: this lawsuit. And it may be Utah’s most strategic, well-funded, and concerted effort yet in its quest to dismantle our uniquely American public lands system. 

While the Governor’s Office estimates the cost of the lawsuit to be around $14M, Utah has also appropriated millions of taxpayer dollars from the “Federal Overreach” account in its general fund to support marketing efforts around this lawsuit and “educating the public on federalism issues.” The name of the account alone suggests the bias that the State is placing on these education efforts. Politicians who support the land transfer movement often throw around catchy buzzwords like “Washington bureaucrats” to gain traction and the elaborate marketing campaign for the lawsuit even includes a TV advertisement featuring a frustrated, vacationing family getting turned around on a closed BLM road. If you were to watch the press conference announcing the lawsuit and read through the State’s “Stand for our Land” website justifying the lawsuit to the public, one might think this is a good thing without fully understanding the broader context at work. After all, what can be so bad about local control? 

The catch is simply this: the transfer of public lands from federal to state governments is the pathway to streamlined privatization. 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. The Property Clause of the U.S. Constitution issues the power of disposal and regulation of federal lands to Congress, while the State points to Utah’s Public Land Management Act in defense of its position that it would not sell off these lands (which is, in comparison, far weaker). The problem is that State law can be altered with each passing Legislative Session and there are no guarantees that the language around sale requirements will last past even one legislative cycle. With past attempts by Utah officials to sell public lands, including but not limited to Rep. Jason Chaffetz’s H.R. 621 that would have disposed of 3 million acres of public lands and Sen. Mike Lee’s HOUSES Act, which would ease the process of selling public lands for affordable housing, there are clearly interests within the State that will undoubtedly lobby for amendments that favor privatization should these lands come into the State domain. Our angling community knows this all too well; anglers lost access to streambeds of approximately 2,700 miles of Utah’s non-navigable, public waterways that flow through private lands overnight with the passage of the State’s Public Waters Access Act in 2010, demonstrating the susceptibility of State law to privatization interests. Additionally, the lawsuit argues that the State is hampered by having no ability to tax a large portion of the State because of federal lands. Unless the State is considering raising taxes to offset management costs of retaining these lands in the public domain, they would need to be privatized in order to actually yield property tax revenues. We have seen further evidence of the state’s history for selling public lands through our school and institutional trust lands, managed by the Utah Trust Lands Administration (TLA, formerly SITLA) which has divested over half of the 7.5 million acres that were granted to Utah by the federal government at the time of statehood. While these trust lands are subject to a fiduciary duty requirement by state law (as intended by the Utah Enabling Act), meaning that they essentially need to turn a profit to be in the best interest of the trust beneficiaries (or otherwise be sold), the public lands referenced in the lawsuit would not be subject to the same exact clause. However, there will still be a need to balance the budget for these lands and our record of trust land disposals is indicative of the likely financial realities, and therefore, ultimate fate we can expect of some of these unappropriated lands in question under State control.

But it is not just Utah’s 18.5 million acres of unappropriated BLM lands that are at stake. The legal filing includes several requests of the Supreme Court and the United States, the first two of which are: (1) that the Court declare that the practice of the federal government retaining these unappropriated lands within Utah’s borders over the State’s objection is unconstitutional, and (2) that the clauses within FLPMA allow the federal government to indefinitely retain unappropriated  lands and implement that policy (43 U.S.C. §1701(a)(1) and 3 U.S.C. §1713(a), respectively) are also unconstitutional. “Constitutionality” is not a concept that is limited to how the federal government interacts with Utah; it applies to all states. If Utah prevails in these requests, it could surely set precedent for other states and the roughly 210 million acres of unappropriated BLM lands throughout the country, and could also bring all other forms of federally held public land into question. States have varying policies regarding how they treat state-owned, public lands and disposals, which will make these lands highly vulnerable to privatization under such a ruling.

Furthermore, an equally concerning request is the third demand for the Court to “Order the United States to begin the process of disposing of its unappropriated federal lands within Utah, consistent with existing rights and state law.” Here, Utah is referring to the Utah Transfer of Public Lands Act, which spells out what happens if a transfer were to occur; however, the federal government is under no obligation to follow state law, so a forced disposal is actually quite ambiguous. There is no guarantee that the State will receive these lands if the Court deems that they cannot be held by the BLM. Would the federal government dispose of the lands to the State? Would it be a transfer of title? Would a transfer include leasing rights? Would the lands just be disposed of by direct sale to the highest bidder? These are all, as yet, unknowns, even to State officials or so it appears.

Outside of the privatization concerns, the American public benefits greatly from the multiple-use mandate currently embedded in FLPMA. This mandate ensures that ALL interests have a legitimate role in land management decision making, including hunting, fishing, and habitat conservation and that uses with higher economic return are not favored above other uses. The legislation is quite robust on the public input processes that the BLM must follow in order to execute this mandate successfully; this is something that is lacking in Utah’s Public Lands Management Act, which articulates how Utah would, given the opportunity, manage these lands. The Act is quite vague and only states that “The director shall… allow an opportunity for public involvement” in land use planning decisions but provides no real framework on how interests will be balanced. This lack of clarity around equality of the uses and public input process raises serious concerns regarding whether certain uses will take priority, and how unbalanced priorities may affect the landscape. As the State takes on the financial burden of managing these lands, higher revenue-driving uses (i.e. natural resource extraction and incumbent road building) could be leaned on more heavily at the expense of other uses. Further, it is possible that the cost of recreational access rises to offset management costs - the Utah Division of Wildlife Resources currently pays TLA $1.8M annually for hunter access rights to trust lands through an interagency agreement. Can we expect an even larger price tag, likely funded by license/tag sales and taxpayer dollars, to continue hunting access on BLM lands if transferred to the State?

Lastly, one of the things hunters care deeply about is wildlife conservation on these lands. To Utah’s credit, something our State executes very well is its Watershed Restoration Initiative (WRI), an effective collaborative program operated by the Utah Department of Natural Resources (DNR) that is funded and executed by federal and state partners to improve watersheds and wildlife habitat. Without federal funding assistance, this program would not be nearly on the same scale that it is today. By essentially removing the BLM, the largest single program funding contributor, the effectiveness of that program in maintaining and restoring quality habitat for wildlife greatly diminishes. The State would also forgo the fuels reduction and fire suppression support that the BLM provides. Inhibiting the State’s (and arguably, the Nation’s) top habitat conservation program is not something any hunter or wildlife advocate can subscribe to easily, if at all. 

For those sportsmen and women who have had the opportunity to hunt Utah’s incredible public lands, it’s tough to imagine that we could have it so much better. I get chills from excitement every time I see a Your Public Lands sign driving up to BLM lands, anticipating the adventure that awaits me over the next rise. As someone that grew up without public lands nearby, I can attest that we have something truly remarkable here in Utah and we should not take it for granted. Public land access is a primary reason many of us choose to live in the West, and Utah in particular. Utah has consistently made the argument “we can manage it better”, but one must honestly ask: What more do we have to gain with what Utah is trying to accomplish through this lawsuit? I have a difficult time finding an answer that would benefit me as a hunter, public land owner, or even just as an average Jane resident. I would rather see our politicians stop shutting down both policies that would better fund federal lands conservation and provide federal land managers the tools they need to manage our landscapes, and focus rather on building more collaborative partnerships. Disappointingly, Utah’s actions have harmed and continue to threaten these federal partnerships. The “grass is greener” land transfer platform from the State comes with serious potential consequences and many unknowns. We already have the envy of the world with our public lands. Why dare risk losing it?

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