Wyoming’s governor, some legislators and its U.S. representative support Utah’s suit to claim federal lands, marking a turning point in the state’s position on federal holdings, a court filing indicates.
U.S. Department of Justice attorneys pointed to arguments made by a former Wyoming attorney general in a recent filing to deter the U.S. Supreme Court from taking up Utah’s case. The Beehive State is seeking 18.5 million acres of property owned by all Americans, and the Department of Justice is asking the high panel to reject the bid.
Utah asserts that the federal government should turn over vast swaths of Bureau of Land Management-administered property because the land is not reserved by the government for a designated purpose.
Utah’s August complaint doesn’t meet the usual criteria for immediate attention, faces imposing barriers and lacks merit, federal attorneys argue in their recently filed motion. Therefore, the court should reject Utah’s request to officially file a complaint, the DOJ states in a 41-page brief.
“Utah’s attempt to take control of federal lands within its borders is highly unlikely to succeed in court because its legal theories rest on weak foundations.”
former Wyoming Assistant AG Jeremiah Williamson
Turning ownership over to Utah would have widespread implications for other federally managed property in the West, including in Wyoming. In making their rebuttal against Utah, federal attorneys twice cite Wyoming’s own state attorneys’ positions against divesting American citizens of their property.
In 2016, then-Wyoming Attorney General Peter Michael concluded, along with other Western attorneys general, that supreme court precedents “provide little support” for the notion of compelling a transfer of public lands.
In 2016, then Wyoming Assistant AG Jeremiah Williamson reiterated that position in a memo to then-Gov. Matt Mead’s natural resource policy advisor. “Utah’s attempt to take control of federal lands within its borders is highly unlikely to succeed in court because its legal theories rest on weak foundations,” Williamson wrote to Mead advisor Jerimiah Rieman.
Be careful what you wish for
Wyoming, Idaho, Alaska and the Arizona Legislature support Utah, according to a brief the states filed last month. Wyoming legislators also asked to aid Utah’s action and said they might not be satisfied with obtaining only BLM-managed lands.
Wyoming legislators’ claims could extend to “all former federal territorial lands … now held by the United States … [including] parks, monuments, wilderness, etc.,” their brief states.
U.S. Rep. Harriet Hageman teamed with U.S. Sens. Mitt Romney, Mike Lee and other Western members of Congress in a proposed amicus brief that claims the Supreme Court must hear the case. Their position rests on “basic sovereign powers” of the states.
Hageman, a former trial attorney who worked on water and natural resource issues, likens federal ownership to an invasion and occupation — actions as serious as war. As such, Utah’s claims need to be addressed now, her brief contends.
Federal attorneys dismiss the notion that American citizens’ ownership and BLM management of the 18.5 million acres rises to a casus belli — an event or situation that justifies a nation to start a war.
“Utah raises no claim that it owns the ‘18.5 million acres,’” federal attorneys state in rejecting the invasion-and-occupation concept. “Utah instead agrees that the United States owns that land, but argues that the Constitution requires Congress to convey that land to it or to third parties whom Utah can then tax and regulate.”
But the Supreme Court can’t order Congress, the only arm of the government that can transfer or sell federal land, to do anything, the DOJ says. Even if the court agreed that BLM land has to be designated for a specific purpose, the federal government could reserve the property for uses Utah agrees are legitimate, such as “national parks, post offices, or military training ranges.”
“Utah would still be unable to tax, condemn, or control the land, and Utah’s asserted injuries would remain unredressed,” federal attorneys state.
Utah can’t sue the federal government without the government’s permission, according to the doctrine of sovereign immunity, the DOJ says. The deadline for any state complaint expired long ago, according to the government’s position. Civil complaints must be made within six years.
“Utah has brought this suit 176 years after the United States acquired the lands at issue, 128 years after Utah joined the Union, and 48 years after Congress adopted the statutory provisions that Utah challenges,” the federal response states. “Utah’s delay in bringing the suit has prejudiced the United States, which has granted oil-and-gas leases, issued grazing permits, entered into contracts, authorized recreational and scientific activities, and made other arrangements in reliance on its ownership of the lands at issue.”
Conservationists decry Wyoming action
Conservationists have called Utah’s bid a “land grab” and criticized Gov. Gordon’s involvement when he and other state officials joined the battle last month. Gordon has called federal land transfer “a fool’s mission,” according to Earl DeGroot, a representative of Wyoming Sportsmen for Federal Lands. Alec Underwood, program director for the Wyoming Outdoor Council, called Utah’s lawsuit “a coordinated effort to privatize and sell off our public lands.”
Gordon “is trying to silence the public’s voice and cut the people of Wyoming out of the decision making process around our public lands,” Julia Stuble, Wyoming state director for the Wilderness Society, said in a statement. Wyoming Wilderness’ Wildlands Manager Lauren Marsh called Wyoming’s public lands “some of the best in the country” because of federal stewardship.
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