“We have fallen heirs to the most glorious heritage a people ever received, and each one must do his part if we wish to show that the nation is worthy of its good fortune.”– President Theodore Roosevelt By Ben Neary NMWF Conservation Director The State of Utah is leading a push to force the federal government to divest itself of millions of acres of unappropriated lands in that state. The effort ultimately could force the disposal of hundreds of millions of acres of federal land around the West. At first blush, Utah’s effort may sound too crazy to be a real threat. But New Mexico hunters, anglers and all who love our public lands need to understand that this is no joke. The stakes are too high to ignore. Utah is leading a full-court press by far-right, well-funded political and legal operatives who have been working for decades to insinuate themselves into position to control federal land management with an eye toward ultimate privatization. It’s clear that achieving their objective would be a catastrophe for the general public. Utah in late August asked the Supreme Court of the United States to allow the state to bring a case arguing that it’s unconstitutional for the federal government to hold unappropriated lands, meaning lands for which Congress has not yet designated a particular use. The Utah lawsuit targets over 18 million acres of land in that state administered by the U.S. Bureau of Land Management. However, If the court ultimately agrees to hear the case, some legal experts warn that it could order the federal government to divest itself of hundreds of millions of acres of public land administered by various government agencies in New Mexico and around the West. The U.S. Department of Justice filed a response in the Supreme Court to Utah’s petition on Nov. 22. The federal government argued that the court should refuse to hear Utah’s case. In its response, the Justice Department noted that the U.S. Constitution grants Congress, not the courts, the power to dispose of public property. “A court therefore could not order Congress to enact legislation disposing of federal lands,” the government’s brief states. It states that the courts likewise lack authority to order the president to dispose of public lands without congressional authorization. And it states Utah can’t sue the federal government without the government’s permission. The federal government noted that Utah’s state constitution specified that it gave up any claim to federal lands in its boundaries. And the federal government states that Utah it too late to file any such claim, given a six-year statute of limitations to bring such claims. “Utah has brought this suit 176 years after the United States acquired the lands at issue, 128 years after Utah joined the Union, and 48 years after Congress adopted the statutory provisions that Utah challenges,” the brief states. The Supreme Court is scheduled to announce in January whether it will take up Utah’s case. If the Supreme Court won’t hear Utah’s case, it’s predictable that the state will file it in U.S. District Court in some venue and push it for the years necessary to bring it up to the Supreme Court on appeal. Many of the players involved in Utah’s current land-grab effort have deep roots and long history in conservative politics. There are also disturbing ties among the proponents to President-elect Donald Trump, who campaigned on the notion of developing federal lands to help alleviate the nation’s housing shortage. In just the few months since Utah filed its petition, 13 other states have weighed in with “friend of the court” briefs asking the U.S. Supreme Court to grant Utah’s argument a hearing. The states siding with Utah so far are: Alaska, Arizona, Arkansas, Idaho, Iowa, Mississippi, Nebraska, North Dakota, South Dakota, South Carolina and Texas. At the core of Utah’s case, the state alleges that there’s nothing in the U.S. Constitution that allows the federal government to hold lands for which Congress hasn’t specified a particular use, such as serving as a military installation or Indian reservation. Utah also claims it’s unfair for a large percentage of the lands in that state to be tied up in federal ownership that’s not subject to state taxation or eminent domain action for state projects. It notes that states in the East aren’t similarly burdened. The federal government holds about 650 million acres of land nationwide, including about 65 percent of the land in Utah, which trails only Nevada with over 80 percent in federal ownership. Utah politicians have been chafing for generations at the extent of federal control. Their concerns have been aggravated in recent years by wholesale expansion of national monuments there under Democratic presidents. Utah Sens. Mike Lee and Mitt Romney, both Republicans, have filed a brief of their own supporting the State of Utah’s request for the high court to address the issue. In their brief, Lee and Romney say the issue of whether the federal government may hold land is also of interest to other states around the West. “Those states’ sovereign territories are effectively being held captive by an overbearing federal government,” the senators’ lawyers wrote. The notion that it’s improper for the federal government to hold land has percolated for decades in conservative circles. It was a common refrain in the “Sagebrush Rebellion” – a push by ranchers in Utah, Idaho, Nevada and other states in the 1970s and ‘80s to protest federal grazing restrictions and other environmental regulations. The Sagebrush Rebellion simmered down in the early 1980s after President Ronald Reagan appointed Jim Watt as secretary of interior. Watt took some steps to roll back environmental regulations. Before Watt’s tenure at the Interior Department, he had been president of the Mountain States Legal Foundation, a conservative Denver law firm funded in the 1970s by the late beer baron Joseph Coors and others. In addition to funding Mountain States Legal Foundation, Coors also provided start-up funding for the creation of the Heritage Foundation, a right-wing think tank that continues to have an outsized role in setting the national political agenda for conservatives. Throughout its existence, the Mountain States Legal Foundation has served as an incubator for right-wing political operatives interested in seeing federal lands in the West sold off to the highest bidder. The foundation also has a long history of opposing the interests of Native American tribes on many issues. The foundation’s fingerprints are all over Utah’s current legal effort. Former Interior Secretary Gale Norton, who served in the George W. Bush Administration, served as a senior attorney at the Mountain States Legal Foundation. William Perry Pendley, who served as acting director of the U.S. Bureau of Land Management in Donald Trump’s first administration, also had served as director of the Mountain States Legal Foundation. Writing in “The National Review” in 2016, Pendley stated, “The Founding Fathers intended all lands owned by the federal government to be sold.” Pendley never went before the U.S. Senate for confirmation as BLM director during Trump’s first term because it was clear that his extreme views on disposing of public lands would have disqualified him in the minds of many senators. More recently, Pendley authored the “Department of Interior” chapter in the “Project 2025” publication funded by the Heritage Foundation that lays out a conservative blueprint for Trump’s second term. The document, released last year, calls for gutting the federal workforce and closing some federal agencies. The Department of Interior manages the BLM lands that Utah wants to see sold off. While at the BLM, Pendley made the controversial decision to move the agency’s headquarters from Washington, D.C., to Grand Junction, Colo. Although the Biden Administration later reversed the move, it resulted in hundreds of agency workers leaving the beleaguered agency. Since Trump’s reelection, he has floated the names of many authors of the Project 2025 document to fill positions in his cabinet. For example, Trump has nominated John Ratcliffe, who’s listed as a contributor to Project 2025, to serve as the director of the Central Intelligence Agency. In the vice-presidential debate held Oct. 1, VP-Elect JD Vance said, “What Donald Trump has said is we have a lot of federal lands that aren’t being used for anything. They’re not being used for national parks. They’re not being used. And they could be places where we build a lot of housing. And I do think that we should be opening up building in this country. We have a lot of land that could be used.” The late Ann Gorsuch, an attorney and mother of current U.S. Supreme Court Associate Justice Neil Gorsuch, worked at the Mountain States Legal Foundation before she briefly took over as head of the U.S. Environmental Improvement Agency under President Ronald Reagan. Ann Gorsuch was forced to resign her post in 1983 as Congress looked into relationships between the EPA under her leadership and regulated industries. Several groups representing agricultural interests in New Mexico have filed a brief in support of Utah’s position. The groups are represented by Karen Budd-Falen, a Cheyenne, Wyo., lawyer who worked for the Mountain States Legal Foundation in the 1980s. Budd-Falen represents the following groups: _ The New Mexico Farm and Livestock Bureau; _ The New Mexico Federal Lands Council – a group representing ranchers who graze their cattle on public lands; _The Coalition of Arizona/New Mexico Counties for Stable Economic Growth. The brief states the coalition includes Chaves County, Eddy County, Lea County, Luna County, Rosevelt County, Hildago County, Otero County, Socorro County, Sierra County, McKinley County and Catron County in New Mexico and the Boards of County Supervisors of Gila County, Graham County, Cochise County, Apache County, and Navajo County in Arizona. Dozens of Wyoming legislators have filed a brief in support of Utah’s request to the Supreme Court. They’re represented directly by the Mountain States Legal Foundation. The Pacific Legal Foundation, another Coors-backed conservative legal group, also has filed a brief asking the Supreme Court to take Utah’s case. The New Mexico Wildlife Federation strongly opposes the prospect of requiring the federal government to divest itself of our public lands. The NMWF holds that the collective ownership of our public lands is our nation’s greatest asset. It allows all citizens – regardless of personal wealth – to hunt and fish and otherwise enjoy nature. Our public lands truly make us all equal, and no one can put a price tag on that. More than any other state in the West, New Mexico has seen the privatization of its wildlife. Our citizens know firsthand that we don’t want to see our priceless public lands fenced off to create more pay-to-play areas for the wealthy. Public lands play a critical role in New Mexico’s economy, particularly in rural areas. The state is seeing an increase in its outdoor recreation industry, which relies heavily on public lands. The state’s vital tourism industry likewise depends on them. In short, public lands and the public wildlife they support are the backbone of American sporting traditions. They differentiate our country from nearly every other country in the world. Visionary conservationists such as Theodore Roosevelt, John Muir and Aldo Leopold, founder of the New Mexico Wildlife Federation, entrusted us with the duty to protect and preserve the priceless legacy of public lands and wildlife they left us. Now it’s up to all of us to prove ourselves worthy of that trust. |
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