The Supreme Court decision that could rock Utah

The federal government owns the majority of land in Utah — around two-thirds of it. That land includes the state’s national park gems noted for their acres of striking rock formations and vivid natural arches.

But the federal government also owns scores of desert lowlands and fields where animals can graze.

To say the federal government’s ownership of land in Utah has created tension in certain parts of the state would be an understatement. Economies in Utah, especially in rural areas, depend on the use of land for agriculture, energy, oil, gas and mining — not tourism — for their communities to thrive. In some rural counties, only a small share of land isn’t owned by the federal government. Federal agencies often impose regulations on this land for the stated purpose of conservation.

Environmental groups have raised concerns about the sustainability of the oil and coal industries in particular, which has led to advocacy on their part to protect land from specific usages.

For some residents of the Beehive State, many of whom are blue-collar workers, these regulations have created personal and financial hardships.

“There’s been almost no way for people to deal with bad rules that have been put into place,” said Utah Rep. John Curtis in a phone interview. Curtis’ congressional district stretches across southern and eastern Utah where public lands are plentiful.

Curtis and other leaders across the state have pointed toward two Supreme Court cases that didn’t start in Utah, but could change the state: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. These cases are better known as the ones that may overturn or limit Chevron deference.

The ruling could come any day now.

June 25 will mark 40 years from when the Supreme Court decided the case that established the two-prong legal test known as Chevron deference. At its most basic level, the question underlying this legal test is when do the agencies get to decide how to interpret a law rather than the courts.

In cases where Congress has been ambiguous or silent on a specific question of law and also where an agency has put forward a reasonable or permissible interpretation of law, then the power to interpret is left to the agencies. If both conditions aren’t met, then the court may interpret the law.

But conservative justices seem poised to walk back the precedent.

When Justice Neil Gorsuch was a circuit judge, he expressed concerns about Chevron in an opinion he authored.

“For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them.”

Utah’s House congressional delegation along with Gov. Spencer Cox headlined an event earlier this spring ahead of the ruling.

“The principle of deferring to a federal agency’s interpretation of a federal statute, as long as that interpretation is reasonable, has for the past 40 years empowered federal agencies to grow their missions and expand their power in ways that are consistently bad for state authority, bad for economic growth and bad for individual liberty and human flourishing,” said Cox.

Curtis told the Deseret News that the issue hits Utahns close to home.

“I think people in Utah can really relate to problems with the federal government and federal lands,” said Curtis. “And in essence, under the current situation, agencies like the BLM (Bureau of Land Management) have issued rules like the conservation rule that gives them unchecked authority to take large swaths of land and remove them from grazing, remove them from recreation, remove them from extraction and that impacts Utahns.”

Those three areas — grazing, recreation and extraction — matter to many Utahns both personally and economically.

“There’s no ability, no accountability for that, no ability to push back on a bad decision like there is if it’s an elected official,” said Curtis.

The frustration among Utah residents is real and palpable, said Curtis. He hears about it a lot and thinks it “fosters a really bad relationship between the federal government and the state.”

Curtis explained another one of his frustrations with Chevron is that it gives agencies thousands of miles away the power to make decisions about Utah land instead of the people who actually live in the area.

East of the Mississippi River, the federal government only owns 4% of the land. But that’s different in the West.

“I am confident that locally they understand better than in Washington how to preserve and protect these for future generations and at the same time make them available for the many uses that we like to use them for here in Utah,” said Curtis.

While proponents of Chevron deference will often say it protects lands and keeps them available for conservation, Curtis called that “a false narrative” and a “deception technique.”

“It’s a false narrative to say somehow that somebody two thousand miles away wants to protect them any more than somebody who lives on the land, who makes a living off the land, who wants to protect it for generations to come,” said Curtis.

“I actually think that what the federal government does is they do an inferior job to people who actually live on the land,” added Curtis.

The frustration among Utahns mounts when towns are devastated economically. Panguitch, Garfield County’s seat with charming red brick buildings and a Mayberry-esque atmosphere, is home to about 1,800 Utahns.

At one point, the town had 11 gas stations, three grocery stores and even a Sears store, said Leland Pollock. But now, just one grocery store, a couple of restaurants and four gas stations remain.

“What happens when that happens? You’re going to lose people,” said Pollock, Garfield County Commission chair. “They’re not going to be able to make a living.”

Pollock said there used to be a sawmill in the area that employed 400 people. It was called Kaibab Industries and the operation shut down because the amount of timber Kaibab was allowed to take from Dixie National Forest and Kaibab National Forest was whittled down.

Points of frustration lie not only in how the land is managed, but in who gets to manage the land. Take Bears Ears National Monument as an example.

Cox, Senate President J. Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, wrote a letter saying Utah was withdrawing from negotiations over a possible land exchange due to the Biden administration’s actions.

“The federal government has signaled that it once again plans to adopt a restrictive land management plan that will harm recreational access, grazing and other traditional public uses of these lands,” said the letter. “When the administration is prepared to have a serious and good faith collaborative discussion about land management, we stand ready to renew discussions of a land exchange.”

This point of tension isn’t new and Utah politicians have a long memory of federal overreach. The Antiquities Act has caused heartburn for some in Utah due to the discretionary authority it gives to the executive branch to designate monuments.

To be clear, the immediate impact that overturning Chevron would have on the Antiquities Act may be limited. But long term, if the court decides to reverse Chevron, some are hopeful the act’s power could be rolled back — based on litigation coming out of Garfield County.

Then-President Bill Clinton didn’t step foot on Utah soil in 1996 when he created the Grand Staircase-Escalante National Monument. Some of that land was going to be used for coal mining, but the monument designation prevented that from happening.

The area is home to the biggest coal field in the state — the Kaiparowits Plateau. Pollock was around in 1996 and he said when Clinton created the monument, school enrollment plummeted.

“They wanted us to declare an economic state of emergency,” said Pollock. “That’s exactly what it was.”

“With the simple stroke of a pen at an out-of-state photo op, he instantly transformed 1.8 million acres of productive land into a national monument even though Utah’s governor, bipartisan federal delegation and the overwhelming majority of our citizens were firmly opposed,” said an op-ed signed by Sens. Mike Lee and Mitt Romney along with Curtis and Reps. Chris Stewart, Burgess Owens and Blake Moore.

Pollock said there are good people with the Bureau of Land Management who do work with the locals, but they often run into roadblocks — including when the county tries to improve the health of the land.

“We don’t want it overused, we don’t want it overgrazed and we want it improved,” said Pollock. “We fight continually to do that.”

Before the area was made into a monument, Pollock said they were doing watershed recovery projects and there was allotments for cattle grazing — but all the recovery projects had to stop and half the cattle had to leave.

As for what happened as a result, Pollock said to look at the plummeting school enrollment numbers.

“That tells the whole story in Escalante,” said Pollock.

In their letter, Utah lawmakers also pointed toward the Bears Ears National Monument — designated by President Barack Obama in 2016.

“In the middle of the Christmas holiday, (Obama) swept over 1.3 million acres of land in San Juan County — the poorest county of Utah — into a new national monument overnight, once again despite opposition from Utah’s governor and federal delegation, and once again without local input,” wrote the legislators.

After the monument was established, the Trump administration rolled back the amount of land within the monument. Then, the Biden administration reversed that decision.

“Few national monuments more clearly meet the Antiquities Act’s criteria for protection than the Bear Ears Buttes and surrounding areas,” wrote the Biden administration explaining it would expand the boundaries of the monument back to what it was before.

What Pollock believes some people don’t understand about the pain and frustration of residents is that in a county like Garfield, the overwhelming majority of the land is federally owned.

It’s effectively the equivalent to the size of Connecticut, said Pollock, where only around 3.5% of the land is private land. About 93% is federal public land.

“If you don’t have access and you’re not allowed to use the land for grazing, mining, drilling, timber harvesting, what else do we got?” he asked. He said the area is not only stonewalled for industry usage, but also for water development that could improve the health of the land and help the wildlife.

Pollock said it’s not that he doesn’t support conservation or the use of lands for recreation and tourism. He said he feels strongly about preserving the health of the land and allowing multiple uses of it, but a lot of the monument land is brush and rangeland — nothing like Bryce Canyon or Capitol Reef.

Both Kane and Garfield counties along with the state of Utah sued over the Antiquities Act — due to the expansion of Grand Staircase-Escalante and Bears Ears National Monument. The lawsuits were tossed out, but it’s possible the U.S. Supreme Court could decide to tackle one of the cases.

At the time, Steve Bloch, legal director of the Southern Utah Wilderness Alliance, said he was thrilled with the decision.

“Grand Staircase-Escalante and Bears Ears National Monuments are two of the most significant, intact and extraordinary public landscapes in America — landscapes that will remain protected,” said Bloch.

After Utah filed the suit, Heidi McIntosh, managing attorney for Earthjustice’s Rocky Mountain Office, called it an attack on a bedrock law.

“Utah’s argument that the president may only designate small monuments centered on specific sites is just wrong. In 1920, the Supreme Court upheld President Teddy Roosevelt’s use of the Antiquities Act to protect 800,000 acres in Arizona when he declared the Grand Canyon a national monument,” said McIntosh in a statement. “In the hundred years since, presidents have since routinely designated monuments of a million acres or more — like the Death Valley, Glacier Bay, Gates of the Arctic and the Wrangell St-Elias national monuments — many of which became beloved national parks.”

Cox said he didn’t think the fight was over and said the executive branch overstepped its authority.

“Monument designations over a million acres are clearly outside that authority and end up ignoring local concerns and damaging the very resources we want to protect,” said Cox. “We look forward to starting the appeals process immediately and will continue fighting this type of glaring misuse of the Antiquities Act.”

When Utah backed out of the land exchange deal, Rep. Brian King, D-Salt Lake City, called it “premature, unjustified and counterproductive” to do so in a statement.

“The integrity of our public lands is under threat, demanding our protection as Utahns,” said King adding that he believes this effort “sideline(d) the interests of ordinary Utahns, prioritizing the exploitation of protected lands for mining while politicizing our public lands.”

While the publics land issue matters a lot to Utahns, said Curtis, he thinks almost every point of frustration with the federal government can be boiled down to agencies’ interpretation of law.

“To force Congress to do a better job of being specific to keep agencies from dabbling where they don’t have authority, I think is incredibly important,” said Curtis.

Lee has been a vocal critic of Chevron, including in a 2016 speech on the topic where he said “the upending of our constitutional order has led not only to bad policy, but to deep public distrust in our governing institutions.”

Saying it “helped to midwife this shadowy fourth branch,” Lee explained Congress has abdicated constitutional responsibilities which has created a fourth branch of government “untethered from any clear lines of accountability connecting policy, policymakers and the people.”

Utah Attorney General Sean Reyes joined an amicus brief in support of Loper Bright Enterprises — the case that may lead to the overturning of Chevron.

“I have stated many times before that the Chevron doctrine is one of the greatest threats to individual liberty,” Reyes said in a statement issued when he signed the brief in 2023. “For far too long, it has been wielded by big government proponents, unaccountable federal bureaucrats and activist courts to destroy the freedoms of hard-working Americans and rob local control from our states.”

Raúl Labrador, attorney general for Utah’s northern neighbor Idaho, also joined the brief and said federal agencies were extending authority beyond what Congress had intended.

“The founders never intended for the executive branch to wield such power,” said Labrador in a statement at the time. “We encourage the Supreme Court to reverse course.”

Republican candidates for Utah attorney general have all said if they’re elected and Chevron is overturned, they will look at what lawsuits can be filed to push back against the agencies.

“If Chevron is overturned, which I am hoping it is, there will be hundreds of lawsuits that we will file,” said Derek Brown. “They will not just be on lands, they will be on energy, education, on every one of these issues.”

Rachel Terry and Frank Mylar have expressed similar sentiments.

But before those lawsuits could hypothetically come, the court would have to overturn or limit Chevron deference.

If it’s overturned, then there would be some litigation, said William Duncan, constitutional law and religious freedom fellow at the Sutherland Institute.

“I don’t know if you would see a flood of litigation, but I do think there would be some cases where a wise attorney might say to his client, given the state of the law today, the courts are likely to just allow that to stand because the agencies already made this decision,” said Duncan.

Duncan explained it would also make the role of legislators a little more independent and he thinks they would also have to be more careful about what they put into statute.

Maloy said something similar at the event with the Utah House congressional delegation.

“We’re going to have to do a lot better job of our jobs if ‘Chevron’ gets overturned,” said Maloy. “We’re going to have to write better bills.”

Devin Ombres, senior director of courts and legal policy at the Center for American Progress, expressed concern at the possibility of Chevron being overturned.

“Do you like having workplace safety protections and having routes to push back against abusive workplaces? Think like wage theft and abuse and things like that?” said Ombres. “If you like having that kind of thing, getting rid of Chevron is going to limit all of the protections that you have in those rooms.”

Ombres said environmental law will also be impacted, not just on the climate change front, but also when it comes to microplastics.

“If we’re attacking these agencies’ abilities to regulate quite literally smog, smog will get worse,” said Ombres as he called it “a race to the bottom.”

“If you don’t like financial predators and sophisticated businesses from being able to take advantage of people and hit them up with hidden fees, getting rid of Chevron will make it easier for sophisticated business actors and financial predators to take money out of every American’s pocket,” said Ombres.

The people who compromise the “administrative state” as its called, Ombres said, are hardworking Americans who give up lucrative careers in favor of public service. He said this group of people work in agencies and protect Americans from corporative abuses.

“For the most part, the government is not out to get them,” said Ombres. “And most of the people who work in government are, like I said, every day people.”

With the rapid development of technology, Ombres said statues are written broadly to allow for agency interpretation and by overturning Chevron, it would make it difficult for Congress to keep up with technology.

When asked whether or not Chevron deference prevents the courts from checking the power of bureaucracies, Ombres said he thinks Chevron deference actually acts as a check on the courts system.

“It actually creates a sense of moderation and it creates a sense of judicial moderation,” said Ombres. “And the other thing is that judges simply don’t have the expertise to handle so many of the highly specific and technical details that agencies are regulating on a day-to-day basis.”

Duncan thinks overturning Chevron could actually give some power back to Congress, where he thinks it should be.

“I hope that the Legislature will see itself as the player,” said Duncan. “I think that they’re intended to be, under the constitution, playing a more significant role trying to draft legislation that makes more sense.”

It’s also possible that in Congress, there will be less legislation on contentious topics.

“It’s going to be very, very difficult for Congress to come together and agree on specific language,” said Duncan. “Therefore, the states will have potentially a broader role in dealing with some of the more difficult things, which could be a boon for federalism.”

If agencies no longer have the ability to create sweeping rules, then a little more power will be kicked back to the states, said Duncan adding that it’s a 10th Amendment issue.

The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“Because the Constitution specifies that Congress has all the legislative power, we understand legislative power as the ability to make the binding laws,” said Duncan. “Then any other branch doing something like that is a serious challenge to the constitutional order.”

It stems back to the Declaration of Independence with concerns expressed about the power a king has, said Duncan. The Constitution is designed to limit executive power.

“There’s all kinds of positive optimistic scenarios where Congress is more careful about drafting and works harder to come to consensus on bills so that there’s not so much we wait for the agencies to act (on),” said Duncan.