It’s been more than two years since Utah political leaders set aside $4 million for a yet-to-be-filed lawsuit aimed at “taking back” 31 million acres of public land in the state controlled by the U.S. government.
State leaders have hardly mentioned the land transfer idea of late, while the new administration of President Donald J. Trump delegates ever more control to states and undoes regulations and initiatives that some saw as obstacles to energy development.
But a big Utah lawsuit may still be in the works, relying on a backup plan first offered by the legal consultants hired by the Utah Legislature in 2015. Meeting with rural lawmakers last week, Utah Attorney General Sean Reyes said his office is preparing a lawsuit targeting aspects of the 1976 Federal Land Policy and Management Act (FLPMA) that diminish local and state influence over public lands.
Reyes told members of the Utah Legislature’s Rural Caucus on Friday his office intends to challenge the law that ensures the federal government keeps ownership of pubic land — although, he said, the lawsuit could be handled by outside lawyers.
Critics contend attacks on the status of public lands goes against the tide of history and could put parochial interests such as resource extraction ahead of national ones, including wildlife habitat and archaeology.
“Instead of driving a wedge between Americans with different values, we should work together to find answers that sustain both America’s public lands and rural communities,” said Chris Wood, president of the conservation group Trout Unlimited.
Reyes’ plan mirrors a recommendation made by the legal team hired by the Utah Legislature in 2015 to analyze the prospects for transferring 31 million acres of public land in Utah from federal to state ownership.
Led by the New Orleans-based Davillier Law Group, the team of lawyers urged Utah to file a petition before the U.S. Supreme Court seeking transfer of title to the land, and state legislators created a $4 million war chest to fund such an action.
But the group of private attorneys also offered a less costly alternative: Seek a declaratory judgement that would invalidate a key section of FLPMA, which requires public lands be kept in federal ownership, unless it is determined that disposal serves the national interest.
While not accomplishing full state control of public land, a victory in that kind of legal challenge could resolve Utah’s issues with federal oversight of most of the land within its borders, the legal team wrote.
“The issue would then be thrown to elected representatives at the state and federal level to resolve legislatively, something some members of the court might prefer,” the team wrote. “A legislative solution, in which the state and Congress can resolve the issue in the manner they feel works best, may be preferable to Utah as well.”
Reyes’ representatives seemed to agree. The suit the Utah attorney general envisions would be aimed at “reforming” FLPMA, according to his spokesman Dan Burton.
“It is decidedly less sexy than land transfer, but we think it’s a way to deal with management issues of public lands,” Burton said. “The main message is we are working to support the president and his administration and what they have done in recent months showing they have heard Utah’s concerns.”
The Davillier report said a piece of FLPMA reversed a 200-year land policy, flipping from “disposal” to “near permanent retention” of public lands. That change, they argued, was unfair to Utah, where nearly two-thirds of the land remains in federal hands. As a result, FLMPA locked huge areas in the West under public ownership, impairing the ability of Utah and other public-lands states to grow and control their own destinies.
But the analysis ignores historical contexts that inspired Congress to embrace retention of public lands, according to Robert Keiter, a professor at the University of Utah’s S.J. Quinney College of Law.
Rather than signaling a major policy shift, FLPMA simply put in writing a trend that had been under way for decades, according to Keiter, a public-lands legal expert who heads the U.’s Wallace Stegner Center for Land, Resources, and the Environment.
The government had long ceased systematically giving away federal land because demand had evaporated and the transferred lands were in terrible shape.
“The number of applications for homesteads had diminished dramatically since the turn of the 20th century,” Keiter said. “Most of the land suitable for homesteading had been claimed and was in private hands and the remaining land was not suitable for homesteading.”
More than a century ago, court rulings affirmed federal retention of land reserves that became national forests, according to Keiter. Since then, the nation’s interest in public lands has evolved in ways that few anticipated, he said, and FLMPA let land managers adapt to these changing needs.