Over the course of the past decade, the embers left by the Sagebrush Revolution—first ignited in the 1970s in the western states—have begun smoldering again. In Utah v. United States, the State of Utah asserts that the federal government, which owns nearly 70 percent of Utah, lacks constitutional authority to retain much of that land.

The federal government actually owns 28 percent of all land in the country, but the vast majority of federally owned land lies in western states. For example, it owns 80 percent of Nevada, 60 percent of Idaho, 50 percent of Oregon, and 40 percent of California, just to mention a few. The federal government’s control over additional land began to balloon under President Jimmy Carter, who used the Antiquities Act to designate an additional 56 million acres as national monuments. Western states rebelled, but the Sagebrush Revolution fizzled after the election of Ronald Reagan, a former western-state governor who had sympathy for their cause.

Forty years later, several western states, led by Utah, appear to have had enough again. In their renewed effort, western states have turned the focus of their attention from Congress to the courts to obtain relief. Last week, the Supreme Court denied the State of Utah’s motion for leave to file a bill of complaint in the Supreme Court under the Court’s original jurisdiction. Utah’s lawsuit claimed that the federal government lacks authority under the Constitution to indefinitely hold and control the 18.5 million acres of “unappropriated” land within the state. That unappropriated land—which does not include national parks, national monuments, lands held in trust for Indian reservations, or military bases—comprises only half of the total land owned by the federal government in Utah.

Utah and its western-state amici had hoped the Supreme Court would rein in the federal government’s public-land practices with a fresh and commonsense reinterpretation of the Constitution’s federal-land provisions. The federal government, Utah argued, has no constitutional authority to retain millions of acres of land that have not been designated for any constitutionally enumerated purpose. Specifically, the Enclave Clause of Article I authorizes Congress to retain federal land within a state for only two purposes: 1) the creation of the District of Columbia, and 2) “Places purchased” by the federal government, with the consent of a state legislature, “for the erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.” The Property Clause of Article IV confers on Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States . . . .” Neither clause authorizes Congress or the President to retain unappropriated, undesignated land in perpetuity without the consent of the state legislature. And to clarify the state’s position, in 2012, Utah enacted a state statute ordering the federal government to “extinguish title to public lands [within the state]; and [ ] transfer title to public lands to the state.”

Arguing that the federal government’s continued retention of its 18.5 million acres of unappropriated land in the state violates the Constitution, Utah sought a court declaration to that effect and injunctive relief. In 2022, Utah and several of its political subdivisions filed suit in federal district court against President Biden and other federal officials challenging the president’s authority to create national monuments under the Antiquities Act. The district court dismissed the lawsuit for plaintiffs’ lack of standing, and the state’s appeal of that dismissal is pending in the Tenth Circuit. Last summer, Utah filed its broader unappropriated-public-land complaint as an original action in the Supreme Court.

As Pacific Legal Foundation explained in its amicus brief in the case, the Constitution’s Original Jurisdiction Clause—found in Section 2 of Article III—sets forth the cases over which the Supreme Court “shall” exercise its original jurisdiction. It says, “[i]n all Cases . . . in which a State shall be Party, the Supreme Court shall have original Jurisdiction.” In other recent original-jurisdiction cases where the Court has denied a state’s filing of a bill of complaint, two members of the Court objected, explaining that Article III “establishes [this Court’s] original jurisdiction in mandatory terms . . . [i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” In another case, the Justices wrote, “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”

Under Article III, Utah is entitled to the Supreme Court’s consideration of its complaint against the United States. The Court’s denial both perpetuates constitutional confusion and prior misinterpretation and undermines our system of federalism. The Court should have allowed the state to file its original action or at least explained why it declined to resolve a weighty and fundamental dispute between sovereigns.

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