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A leader in Utah's fight against the federal government's public lands policies says the death of Supreme Court Justice Antonin Scalia means it could be years before the state is in a position to pursue a lawsuit over who should rightly control tens of millions of acres of federal land in Utah.
State Rep. Mike Noel said that, while the state Legislature took steps to lay the groundwork for such a lawsuit, the odds of success seem slim given the current and potentially future makeup of the high court.
"I'm a little bit worried about the lawsuit because of the change in the Supreme Court," said the Kanab Republican. "The timing before was pretty good for a good decision. I'm just worried about the politics of this. It might not be decided on the merits and more on the politics. That seems to be what has happened in the courts. A four-four tie doesn't get us anywhere."
Noel said he's not sure if it would be any better for the state if the Republican front-runner, Donald Trump, picks the ninth Supreme Court justice than if it's President Barack Obama or either of the Democratic candidates Hillary Clinton or Bernie Sanders.
Steve Bloch, legal director for the Southern Utah Wilderness Alliance, said Noel's comments make it sound like the state "is throwing in the towel."
"Representative Noel's change of heart confirms what we all knew: that the 'legal claims' behind the state's land grab effort have little to do with the law and everything to do with politics," Bloch said. "It's time to move on from the loose talk about 'taking back' our federal lands. Those lands, including Utah's amazing redrock wilderness, are right where they belong in the hands of all Americans."
The Utah Legislature, during the final days of the session ended Thursday, put $4.5 million into a reserve account that could be used for the first phase of a lawsuit by the state asserting it is entitled to ownership of more than 30 million acres of federal lands.
Noel also sponsored and passed a sweeping bill to create a new state agency to manage the acreage the state might gain in the future.
Gov. Gary Herbert, too, indicated the time may not be right for the state to pursue a lawsuit because, he said, he wants to wait and see if a Republican wins the presidency in November. Herbert said in an interview Thursday that he was told by Bill Redd, a former San Juan County Commissioner, and Bill Howell, a long-time rural advocate, that "you have to wait until there's a Republican in the White House."
"For me, [the money set aside] is more of a placeholder, let's say," Herbert said. "We've got the resources available. If, in fact, we need to file suit and commence litigation, having the money in the bank and set aside is probably an appropriate first step."
Indeed, Herbert's office worked to water down a legislative resolution, sponsored by Rep. Keven Stratton, R-Orem, that was to have directed state agencies to proceed with steps toward filing the lawsuit. The revised resolution gave the governor much more latitude, but ultimately did not get a vote in the Senate.
For now, Herbert said, he wants to see what might come of the Public Lands Initiative, a broad proposal that was put together by U.S. Reps. Rob Bishop and Jason Chaffetz and Sen. Mike Lee.
Stratton said his revised resolution represents what he thinks are the views of the governor and the Legislature that they would still like to give Congress a chance to act. But if that doesn't happen, then litigation remains an option.
"I don't have the same concern that some do on the makeup of the Supreme Court, because what you're dealing with is 100 years of rulings from the Supreme Court and the court would have to overturn [those]," Stratton said.
The lawmaker, an attorney and chairman of the commission that recommended a public-lands lawsuit, also said that there are concepts of equal treatment between Eastern and Western states in the state's argument that are similar to those raised in the recent same-sex marriage rulings that could appeal to the court's liberal justices.
"Many of the same principles relating to equality and fairness and preservation of rights of all would be very sympathetic, which is a measure of what the court would be considering relating to the proper control and management of public lands," he said.
Noel also wants to keep pursuing legislative options. But recognizing the state likely would only get one shot at the court fight, he wants to make sure the facts of the case and the judges on the court are just right.
"Long-term, I think we're going to have problems, I really do, in being able to advance this lawsuit. … I'm hoping it'll change, but I just don't see it happening," Noel said. "In terms of what we accomplished this year, we've got all the tools in place. But I'm not sure we've got the people in the right places to make the right decisions, which would be on the Supreme Court."