Judge dismisses lawsuit seeking to prevent Utah from suing to acquire federal lands

A state judge has dismissed an environmental group’s lawsuit to prevent Utah lawmakers from again suing the federal government over whether or not it has a right to hold onto its public lands in perpetuity.

The fact that there is no longer any pending litigation was the reason the 3rd District Judge Thaddeus J. May decided that the Southern Utah Wilderness Alliance’s arguments were “moot.”

“Because the Supreme Court denied defendants’ motion for leave to file a bill of complaint, there is no longer a concrete act plaintiff seeks to stop,” wrote May in the order. “But the court finds defendants’ statements about any future action to be too vague to be redressable.”

Utah Attorney General Derek Brown said the state is pleased with the ruling. “Our office will continue to vigorously defend Utah and protect Utah’s public lands,” he said in a statement.

SUWA’s complaint was in reference to the highly publicized Utah v. the United States of America case filed last year in which the state argued that as many as 18.5 million acres of federally-owned land aren’t being used validly and should be turned over to the state to manage. While it was being considered, the state ran a marketing campaign called “Stand for Our Land,” spending millions of taxpayer dollars to promote its arguments locally and nationally.

That case had a narrow focus defined on the “Stand for our Land” website, which was to ask the constitutionality of “whether the federal government can simply hold unappropriated lands within a state indefinitely.”

Nearly 70% of Utah is owned by the federal government, and other states were able to “dispose” of — sell, lease, develop, etc. — the vast majority of the territory within their borders. That ability for each state to dispose of land was part of the haggle to define statehood as far back as the Continental Congress. Utah leaders maintain that it’s only fair for the state to be treated the same.

But the Property Clause of the U.S. Constitution, found in Article IV, Section 3, Clause 2, gives Congress the sole power to dispose of, make rules or regulations about the land under its ownership.

Utah’s case was filed directly with the U.S. Supreme Court, which denied hearing it in January. No similar lawsuits have yet been filed in any lower courts, which is an action that Gov. Spencer Cox and Brown have both said repeatedly that they’re considering.

“While we were hopeful that our request would expedite the process, we are disappointed in the Supreme Court’s decision not to take up this case. The court’s order does not say anything about the merits of Utah’s important constitutional arguments or prevent Utah from filing its suit in federal district court,” Cox and Brown said in a statement released in January. “We will continue to fight to keep public lands in public hands because it is our stewardship, heritage and home.”

Constitutional conflict?

SUWA first filed its lawsuit last December while Utah’s case was being considered by the Supreme Court. That initial action sought to prevent the litigation from moving forward, arguing the state’s claim was in direct opposition to the Utah Constitution, which reads:

“The people inhabiting this state do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.”

That language is found nearly verbatim in the Enabling Act of 1894, which led to Utah statehood in 1896.

Once the case was denied by the Supreme Court, SUWA amended its complaint to seek “relief, not from this now lifeless petition, but from the specter of any similar future litigation by defendants,” the judge wrote in dismissing the complaint.

“The law deals with substance not shadows,” he wrote. “A party cannot gain jurisdiction through prayers for relief seeking shelter from an unknown future storm.”

During arguments, however, SUWA said it believes the state laid bare its intentions regarding what it would do with federal public lands should ownership be transferred to the state.

“We’re disappointed with today’s decision but grateful that the true intent of the state’s lawsuit has been made clear: to force the sale of millions of acres of public lands to the highest bidder and not to acquire these lands for the state, as its deliberately misleading media campaign suggests,” Steven Bloch, SUWA’s legal director, said in a statement.

Bloch said SUWA will review the decision and consider potential next steps, including refiling the case if the state brings a lawsuit in federal court.

What exactly did the state’s attorney say?

In oral arguments on July 14th, ABC4 Utah reported that SUWA’s lawyers pressed that the state’s constitution precludes Utah from ever taking over ownership of the federal lands within its borders, and that it’s bound by its statehood agreement to give up claims to them.

Utah assistant attorney general Lance Sorenson responded by clarifying that the state was not necessarily attempting to take ownership of the land with the lawsuit.

“It’s all that’s speculative, and in the future,” he said. “But the claim in the federal lawsuit was not to transfer title to the state of Utah.”

“We don’t know how the land would get disposed of. Maybe they would sell it to SUWA, right?” Sorenson said.

Bloch said that he understands that as a clear indication that the state never intended to manage the land it attempted to acquire through legal action, which was what the Stand for Our Land campaign reiterated.

Rather, Bloch and SUWA believe that the state intends to dispose of — in this case, meaning to sell — public lands.

It was Sorenson’s comments, Bloch said, where “the things that are said quietly were said out loud.”

Brown, however, responded to the Deseret News’ questions about Sorenson’s comments and SUWA’s interpretation by focusing on what the original lawsuit was about.

“Utah is actively exploring every available avenue, including refiling our lawsuit, to challenge the assumption that the federal government can indefinitely hold onto public lands without designating them for a purpose,” he said.

Bloch said he believes the state made a “very candid acknowledgement” of its intention to sell off public land if it is ever able to win the long-standing legal battle over ownership.

At the very least, it highlights a “deliberately misleading media campaign” on the part of the state, he said.

Because “that’s not what people hear out loud” when the state discusses this issue of federal land ownership, Bloch said. “They hear the media campaign, they hear ‘stand for our land,’ ‘let Utah manage Utah land,’ ‘Utah can do it better.’ Which is now very clearly not what they’re seeking to accomplish in court.”