The Federal Government Shouldn’t Control 70% Of A State’s Land

This article is based in part on an amicus brief the Sutherland Institute has filed with the U.S. Supreme Court in Utah v. United States.

In Utah v. United States, the state of Utah is asking the U.S. Supreme Court to hear a lawsuit challenging the federal government’s practice of indefinitely holding on to a large percentage of land in the state without a specific purpose. This deprives the state and its citizens of the ability to manage and benefit from the lands around them. It also undercuts the principle of federalism. The court should accept Utah’s case and give the state a chance to make its argument against this federal overreach.

Overwhelming amounts of land in the Western states are actually owned by the federal government, nearly 70 percent of the state of Utah alone. According to the state, about half of Utah’s federal land is “unappropriated,” meaning the federal government has not designated it for any particular use (like a national park or a military base). This is in contrast to much smaller proportions of federally owned land in the Eastern and Midwestern states. 

Federal land ownership is actually addressed in the U.S. Constitution. As the motion filed by the state of Utah notes, the U.S. Constitution gives the federal government authority to govern the District of Columbia and land “purchased by the Consent of the Legislature of the State” where the land is “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” (emphasis added). These are important limitations on Congress’ authority. The state also argues that the Constitution gives Congress authority to “dispose of” and regulate the property “belonging to the United States,” but not to retain it indefinitely without purpose.

As the United States began acquiring property, such as in the Northwest Territory, the lands were quickly sold for development and other purposes and to raise money for national projects. It was only In 1976 that Congress decided to officially authorize the federal ownership of lands with, as the state notes, no specific purpose.

This raises the question of whether the national government is really allowed to control so much land without a designated purpose. The state of Utah has filed a unique lawsuit with the U.S. Supreme Court (the Constitution allows the court to directly accept lawsuits by states against the United States without requiring a hearing in lower courts) arguing that the indefinite federal control of so much state land “over Utah’s express objection” is not authorized by the U.S. Constitution. The state has clarified that the case would not affect federal management of national parks or other land used for national purposes, only the “unappropriated” land held by the government.

The case raises issues not only about land use concerns but also core principles of federalism.

The U.S. Constitution reserves most powers for the states rather than the national government. As James Madison explained, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

This division of powers ensures that the decisions most likely to impact the day-to-day experiences of citizens will be made by elected representatives closest to them and with whom they can readily interact and hold accountable through their vote. Situating the bulk of government decision-making close to those affected also makes it more likely that the unique context in which citizens live will be taken into consideration.

This is particularly clear in the context of land use implicated by Utah’s case. The practice of federal control of large swaths of unappropriated land in the state of Utah undercuts these principles by ensuring that many land use decisions affecting the people of the state will be made by unelected and distant decision-makers.

Federalism principles also promote innovation and experimentation, allowing state and local governments to formulate and try out solutions to vexing problems and, where successful, become an example to others. 

State and local governments are actively engaged in many of the tasks the national government has assumed in the unappropriated federal lands in Utah. They have developed innovative responses to land use concerns, such as environmental protection, water quality, and wildfire management. They are often very successful, sometimes experiencing better results than the national government. Utah is severely limited in attempting similar problem-solving and innovation because so much of its land is managed by the national government. This stifles experimentation and deprives the nation of potential examples of successful land use management.

Utah’s lawsuit is not just a matter of local interest. Allowing the state to manage its own land promotes the key constitutional value of accountability to those whose lives are affected by the government. It gives state and local governments room to experiment and find solutions to vexing environmental concerns. It would also ensure that the textual limits on the federal government’s power are respected and enforced. These kinds of benefits make it an important case for the entire country.

William C. Duncan is the constitutional law and religious freedom fellow at Sutherland Institute.