Note: This is a joint Mountain States Policy Center op-ed with William Duncan, a constitutional law fellow at Sutherland Institute.
Among the flurry of executive orders issued by President Donald Trump in the first days of his term was the withdrawal of an unwelcome plan, the Lava Ridge Wind Energy Project, to place hundreds of wind turbines on public land in Idaho. That action received praise from Idaho state officials who have been tirelessly fighting the project, and it exemplifies an issue that is critical for states in the West. With the new Congress and administration fully in place, policymakers at the state and federal level should pursue substantive reforms to federal control of public lands.
While the federal government owns tiny amounts of land in the Eastern states, it is the largest landowner in many Western states. Some of this land is used for appropriate national uses like military bases or national parks, but a large proportion is “unappropriated.” This means it is “sitting in limbo, inefficiently utilized, and horribly underserved because of the overwhelming volume of acreage.”
The U.S. Constitution gives Congress authority to legislate for lands purchased for national purposes. It also gives Congress authority to “dispose of” federal lands. That, however, is not what is happening when the federal Bureau of Land Management (BLM) holds onto enormous tracts of land in states for no specific purpose. That land is funded by taxpayers, but any benefits it creates, like leases for various land uses, go to the federal government rather than rural communities and other potential beneficiaries like school systems.
Last year, Utah attempted to wrest some control over the 22.8 million acres now controlled by BLM by bringing a lawsuit in the U.S. Supreme Court. In late December the court declined to take the case. This is not entirely surprising, since the court accepts exceedingly few such cases. The rejection of the case should be viewed as more procedural than a judgment on the merits.
That dismissal does not resolve the underlying problem of disproportionate federal land management, and it should not be the last word. Utah or other states can still bring a challenge in a federal trial court that might work its way back to the Supreme Court. Really, though, the political branches of the federal government can, and should, do much to fix the problem.
The president can continue to require restraint in taking and managing lands within the states. He can direct the BLM to work more closely with state and community officials and citizens who will be directly impacted by decisions on federal land management. The tragic destruction caused by recent wildfires in California is a reminder of how important this can be, and inadequate federal wildfire management has been a source of serious concern – indeed, existential concern – for communities in the West.
More fundamentally, Congress should begin a process of reviewing the use of public lands to ensure that they are being used for bona fide national purposes, not just being held indefinitely to prevent state management. Land that is not needed for valid federal purposes could be appropriately disposed of in ways that would benefit local communities and states.
Some worry that this would mean unrestrained development of lands that should be preserved for public uses. That is entirely mistaken. The states, accountable to their citizens, have powerful incentives to protect this land for the public and, in fact, have a great track record of managing public lands better than the federal government does. Congress can also use its disposal power to ensure that lands now owned by the national government will not be exploited.
That would be more consistent with the Constitution and its system of federalism, which limits federal authority to “few and defined” responsibilities while reserving to the states and the people the bulk of day-to-day decision-making authority.
That system serves a compelling purpose by ensuring that decisions that impact people are made by those who are accessible and responsive to their needs and who understand local realities. By contrast, disproportionate federal control of land use ensures that most decisions about the use of that land, and the effects of those decisions on people, will be made by unelected and distant federal officials.
Utah’s effort to break loose a federal monopoly on federal lands should be the start, not the end, of the effort to restore responsiveness and local control in Western land management. States should demand this result.