A submission by Kathleen Marquardt, American Policy Center

In 2013, Utah submitted its Transfer of Public Lands Act to the federal government, calling on it “to fulfill its pledge under the state’s Enabling Act to dispose of most federal lands in the state,” with some of that land being transferred back to the state.

Eleven years later, in January of this year, the Supreme Court refused Utah’s filing to bring 18.5 million acres of its land and resources under state control. This is unappropriated land—land that is not designated as national monuments, national parks, military bases, or trust land for Indian reservations. The decision came in a brief order with no explanation.

This is about land and ownership. Should the federal government control our land, or should we the People and our states?

Western states are at a disadvantage when it comes to land ownership. The federal government owns over 46% of the land in the 11 contiguous Western states, while it owns only 4.2% of land in Eastern states. In Utah, about 70% of the total land area is under federal control. However, this Act addresses only one-third of Utah’s land, meaning the federal government would still control a significant portion.

Yet, on January 14, the Supreme Court refused to allow Utah to file its case seeking to bring 18.5 million acres—only half of Utah’s land—under state control. That doesn’t seem like too much to ask.

The federal government manages about 640 million acres (2.6 million km²) of land in the United States, approximately 28% of the total land area (2.27 billion acres). Most of that land is in the Western states, accounting for 46.4% of land in the 11 contiguous Western states.

The case, State of Utah v. United States, questions whether the state should have control over 18.5 million acres of “unappropriated” lands—land that Congress has not set aside for a specific purpose—which is currently managed by the Bureau of Land Management across Utah.

The federal government controls nearly 70% of Utah’s land, compared to 1-3% in most Eastern states. “Nothing in the text of the Constitution authorizes such an inequitable practice or relationship,” said Utah Attorney General Sean Reyes.

Utah’s state leaders called the lawsuit “historic,” arguing that the state is better equipped to manage land within its borders. They contend that federal red tape stymies forest management, permitting, and industry, while local governments could generate more tax revenue if they had control over the land.

What does the Constitution say about land ownership in the U.S.?

Article I, Enclave Clause:
Empowers the federal government with exclusive legislative authority (as it does in Washington, D.C.) over “Places purchased by the Consent of the Legislature of the State in which the same shall be, for the erection of Forts, Magazines, Arsenals, Dock-yards, and other needful Buildings.”

“The United States’ indefinite retention of huge swathes of Utah’s territory severely restricts Utah’s sovereignty—both absolutely and relative to its sister sovereigns—including its powers to tax, legislate, and exercise eminent domain.

“This Court’s original jurisdiction is designed to defuse that kind of dispute between domestic sovereigns. The issues are purely legal and surpassingly important, as Utah’s ample amicus support attests. The federal government’s actions are flatly unconstitutional. While the Framers authorized the federal government to maintain enclaves, own property needed for Article I powers, and ‘dispose of’ acquired federal lands, they did not empower it to retain unappropriated lands within a state in perpetuity.

“The federal government’s policy of indefinitely retaining unappropriated lands deprives Utah of basic incidents of sovereignty over nearly one-third of the land within its borders. That diminishes the Constitution’s careful balance between federal and state power and violates the foundational principle of equal sovereignty among states.

“Utah’s constitutional claims against the United States are precisely the type of ‘high claims affecting state sovereignty’ that call for an exercise of this Court’s original jurisdiction.”

While environmental groups argue that the Supreme Court made the right decision, we must recognize that many of these groups were formed or influenced by NGOs to serve as spoilers in property rights disputes—whether against state and local governments or private landowners.

The Sutherland Institute, which promotes constitutional values of faith, family, and freedom, summarized Utah’s Transfer of Public Lands Act as follows:

• Only one-third of Utah’s land is locally owned.
• The other two-thirds is controlled from Washington, D.C.
• The Transfer of Public Lands Act (HB 148) demands that Congress return certain federal lands to Utah by December 31, 2014, with exceptions for:
  • National parks and monuments
  • Certain wilderness and Department of Defense areas
  • Tribal lands
• Utah must pay the U.S. 95% of proceeds from the sale of any land, while the remaining 5% would be allocated to school funding in Utah per its Enabling Act.

For over 80 years, the federal government has used questionable methods that undermine free state operations—and this has accelerated in the past decade, further weakening states’ 10th Amendment rights.