A recent filing at the U.S. Supreme Court should anger every Idahoan, and every Westerner, who loves the land.
The state of Utah, which has led the public lands grabbing movement among conservative Western states (with Idaho often towed close behind), asked the U.S. Supreme Court to force the federal government to hand over millions of acres of Bureau of Land Management land under a dubious legal theory, as the Utah News Dispatch reported.
A victory for Utah’s government would be an incalculable loss for the West — the loss of an entire way of life — because of the radical reading of the U.S. Constitution it relies upon, a reading that seemingly forbids the federal government from permanently holding almost any kind of land apart from a few, limited cases. And without public land, the West would be nothing like it is today.
No limiting principle
There are three parts of the Constitution that allow the federal government to hold land, Utah argues. First, there’s the Enclave Clause, which creates Washington, D.C., and authorizes military bases and federal buildings. Second, there’s the Property Clause, which gives Congress “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” but that requires that the land eventually be disposed of — sold off or transferred — Utah argues.
It briefly brushes past the Necessary and Proper Clause, which the Supreme Court has held since the 1880s authorizes the federal government to hold any land necessary to execute “any of its powers, whether for arsenals, fortifications, light houses, custom houses, courthouses, barracks, or hospitals, or for any other of the many public purposes for which such property is used.” That’s pretty expansive, which is probably why Utah edited and took it out of context that quotation in its brief.
Read Utah’s filing, and here’s the important thing you won’t find: any limiting principle.
The state says it only wants control of 18.5 million acres, so-called “unappropriated land,” a vague term which Utah seems to count as BLM land that hasn’t received a national monument, wilderness or other special designation.
But why?
Utah isn’t after Zion or Arches, state officials want to reassure the public. But it is unclear why any national forest, any national monument or even any national park would be allowed under this reading. Why does the Yellowstone National Park Act of 1872 (the law creating Yellowstone) fulfill a constitutional purpose if the Federal Land Policy and Management Act of 1972 (the law governing BLM lands) does not?
Two Californias
Without a clear limiting principle, Utah’s reading of the Constitution seems to require that the Grand Canyon and Yellowstone be “disposed” of, as well. It seems possible that even Supreme Court Justice Clarence Thomas, who famously enjoys traveling around in his RV when free trips on a billionaire’s superyacht aren’t available, might be reluctant to do something that radical.
Even if a limiting principle could be clearly articulated, the impact on public lands would be devastating. The Wilderness Society estimates that if the standards used by Utah to land on its 18.5 million acre figure were applied across country, BLM would have to get rid of some 210 million acres of land — roughly twice the size of California.
In Idaho, it would be around 10 million acres, roughly a fifth of the state, according to Rob Mason, Idaho state director of the Wilderness Society. That includes vast, wild areas like the Pahsimeroi Valley and major sections of the Owyhees.
And there’s little question what would happen to most of that land.
The big sell-off
Idaho spent around $50 million fighting wildfires this year, as the Idaho Capital Sun reported. In 2022, the federal government spent over $4 billion fighting wildfires compared to less than $2 billion for all states combined, according to the National Association of State Foresters.
And that’s just fire suppression. It doesn’t include the massive costs of maintaining trails, roads and other access infrastructure, environmental monitoring and a thousand other costs.
Idaho simply can’t shoulder its portion of that cost if it became solely responsible for federal lands — no state could — so the only way to make holding a big new chunk of public land financially feasible would be to sell off or develop the rest to provide income.
This is what Idaho has done with a lot of the public lands it holds. A significant portion of those, called endowment lands, are managed to provide funding for education. And over time, nearly half of them have been sold off, according to a 2016 report.
Ignoring our Constitution
Utah’s lawsuit also asks the Supreme Court to breeze past language found in the constitutions of most Western states, including Utah and Idaho, specifically renouncing forever any claim on federal lands within their boundaries.
So this suit opens the door for a partisan Supreme Court to set aside the federal land system in general, a move so radical that most legal analysts expect it to fail.
“The courts have made a more conservative turn, but I don’t think even this Supreme Court is likely to overcome the quite clear law and Constitutional provisions that would bar Utah from taking over public lands,” University of Colorado environmental law professor Mark Squillace told the AP.
But we shouldn’t count on that. We should apply continuous pressure against this and similar land-grabbing efforts (like the hundreds of thousands of dollars Idaho has spent on dubious efforts to have its federal lands valued).
If you’re against the land-grabbing movement, make sure your elected officials know it — particularly Attorney General Raul Labrador, who can decide whether Idaho files an amicus brief in support of Utah’s lawsuit.
Bryan Clark is an opinion writer for the Idaho Statesman.
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Publish date : 2024-09-21 22:59:00
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