Utah asks U.S. Supreme Court to decide whether federal government may permanently retain 'unappropriated' public lands

Rich Johnson, an attorney with the Utah Attorney General’s Office, told the Emery County Public Lands Council on Jan. 8 that the state has filed a complaint asking the U.S. Supreme Court to decide whether the federal government may constitutionally permanently retain so-called “unappropriated” public lands.

The complaint, Johnson said, targets roughly 18.5 million acres of Bureau of Land Management land in Utah out of about 22.8 million acres administered by the BLM in the state. The suit asks a single legal question: can the federal government permanently retain those unappropriated lands rather than dispose of them, Johnson said.

Kathy Davis, section chief for public plans in the Attorney General’s Office, joined Johnson for the Council presentation and emphasized that the state is not, in that filing, asking the court to transfer specific lands to Utah. “The lawsuit in front of the Supreme Court does not ask for transfer of lands to the State of Utah. It asks only for the Supreme Court to determine whether it’s constitutional for the federal government to continuously retain these unappropriated lands,” Davis said.

Why it matters: If the court accepts the case and rules in a way favorable to the state, it could prompt large-scale changes in how those federal lands are managed and who makes management decisions. Johnson and Davis described scenarios the state has analyzed, including the statutory trigger that would create a new Utah Department of Public Lands Management if the state ever acquired 250,000 or more acres of federal estate. That statute directs a new agency to manage lands under a multiple-use, sustained-yield standard, the presenters said.

What the state says brought the lawsuit: Johnson framed the suit as a response to decades of federal designations and policy decisions that, in the state’s view, have removed land from multiple-use management. He said that since passage of the Federal Land Policy and Management Act in 1976, roughly half of formerly multiple-use BLM lands in Utah have been given other designations—wilderness study status, monuments, or other protections—that limit uses the state says were expected under FLPMA. Johnson also cited recent federal rulemaking and decisions, including a Biden administration public-lands rule and a late notice on the Grand Staircase-Escalante record of decision, as factors that prompted the state to seek a definitive legal ruling.

Scope and exclusions: Davis explained the terminology to the Council: “Appropriated” lands are those Congress or statute has explicitly set aside—national parks, forest reserves and the like—whereas “unappropriated” lands are those left in the public domain. She added that monuments created under the Antiquities Act and tribal lands established by treaty were not included in the state’s complaint.

Legal process and timing: The Attorney General’s Office has asked the Supreme Court to consider the case; as of the Jan. 8 meeting the state had been informed the matter was distributed to the justices for conference on Jan. 10, though the court can delay consideration. Davis cautioned the Council the justices may or may not take the case and the timeline beyond the initial conference is uncertain.

Responses, allies and opposition: Johnson said several western states and other parties have filed amicus briefs backing state interests; about 13 states filed supporting briefs in some form. He also said the U.S. government and several tribal intervenors oppose the complaint; tribal positions, he noted, sometimes overlap with federal concerns. The presenters said the next steps depend on whether the Supreme Court grants review.

Budget, access and local revenues: Council members asked how management and costs would be handled if the state ultimately acquired lands. Johnson said the state has modeled several scenarios and believes managing lands is feasible largely using royalties and other resource receipts, but wildfire suppression remains an unpredictable cost. Council members raised the question of county revenues, including payments in lieu of taxes (PILT) and other offsets. The presenters said county financial impacts are part of the state’s deliberations and that mechanisms such as CITLA or other offsets have been discussed but not finally determined.

Related litigation and local impacts: Johnson and other state staff reported a favorable lower-court ruling in an RS 2477 (road-rights) case that they said affirms county entitlements to historic roads; they framed that decision as significant for counties. They also said the state anticipates more litigation over resource-management plans and travel-management decisions as it seeks to preserve what it describes as multiple use.

What officials said they could not discuss: Davis and Johnson repeatedly told the Council the Attorney General’s Office asked they not speculate about exact outcomes or settlement strategy; they declined to discuss prospective resolutions in detail.

Where to get documents: The presenters said the state’s transfer-of-public-lands report and other supporting materials from earlier analyses exist and can be shared; they noted some documents previously posted on AG web pages may have moved.

The Council thanked the AG office for the briefing and was told the office will accept follow-up questions by email and may request local data if the court grants review and the case proceeds to briefing.

Ending: The presenters emphasized uncertainty: whether the Supreme Court will accept the case and, if it does, what remedy the court might craft. For now, the state’s single request to the court is narrow: a constitutional determination about the federal government’s authority to permanently retain unappropriated lands.