President Trump’s Department of Government Efficiency (“DOGE”) has huffed and puffed about shrinking the federal government. DOGE is looking at hundreds of programs to cut, assets and property to sell, and bureaucracy to eliminate. It’s a tough slough, but fortune stares DOGE in the face. It offers the Trump administration an immediate chance to dramatically shrink the federal government. How DOGE addresses this issue will determine whether it follows a long list of failed commissions or makes a historic decision that drastically reduces the size of the federal government.
On August 24, 2024, the state of Utah petitioned the U.S. Supreme Court to exercise direct jurisdiction (review without the benefit of a lower court record) over Utah’s land claim and declare unconstitutional the federal government’s policy of perpetual retention of unappropriated lands in Utah. On December 4, 2024, Utah amended its original complaint to seek only a declaration that the federal government’s perpetual ownership of its unappropriated lands in Utah is unconstitutional.
Biden’s Department of Justice argued the case should be dismissed. On January 13, 2025, the Supreme Court, in a one-sentence order, refused to accept the case for direct review. Its decision, however, does not preclude Utah from filing the lawsuit in a federal district court, which is the usual process.
The Utah case is significant because it is one of the few times the issue has been raised since the former western territories were admitted into the United States. While determining the constitutionality of the dispute will take several years in the courts, Utah’s path to securing the land within its border is more appropriately addressed by Congress since the Constitution directly places these types of land decisions with Congress.
In the year of the DOGE and its vociferous assertions that it will shrink the federal government, DOGE and the Trump administration should request Congress to dispose of the unappropriated federal lands to achieve a massive reduction in federal land holdings.
Unappropriated federal lands are properties the government has not reserved to support any enumerated federal powers, such as military bases, national parks, or conservation programs. The fact that the U.S. owns the land in Utah by purchase from Mexico is not in dispute. The dispute concerns whether the U.S. Constitution permits the federal government to hold these unappropriated lands in perpetuity.
While the original complaint centered on the interpretation of the Constitution’s Property Clause (Congress shall have the power to dispose of and make all needful rules and regulations respecting the property of the United States), the amended filing centers on the powers Congress delegated to the Bureau of Land Management (“BLM”) under the Federal Land Policy and Management Act 1976 Act, (“FLPMA”), which clearly states the FLPMA lands will remain in public ownership.
Utah argues that under the Property Clause, the federal government only has the right to dispose of and regulate unappropriated lands, not to retain them forever. The federal government counters that the Property Clause does not specify any time limits or duty to dispose of the unappropriated lands. Moreover, it argues it cannot transfer any of the lands without authorization from Congress.
At the heart of the dispute lies a fundamental question: can the federal government retain unappropriated land in states in perpetuity? Returning the unappropriated federal lands to Utah (and the other western states) would be a seismic shift in federal control over the nation. Presently, the federal government owns 70% of Utah or 37.4 million of its 59.3 million acres. Of the 37.4 million federal acres, 18.9 million acres are designated for federal purposes such as national parks, monuments, or federal installations. The remaining 18.5 million unappropriated acres are not designated for use and are primarily managed by BLM.
Utah’s is only a small part of federal land holdings. The federal government owns 48% of Wyoming, 62% of Idaho and Alaska, and 34% of Arizona. In addition, Iowa, Alabama, Arkansas, Mississippi, Nebraska, North Dakota, South Carolina, South Dakota, and Texas stood in solidarity with Utah before the Supreme Court. Nationwide, the federal government owns 640 million acres of land of the 2.27 billion acres that comprise the nation. About 245 million acres of federal lands are unappropriated; a court order or a decision by Congress to return the lands to the states in which they are located could impact about 38% of all land owned by the federal government.
The fight has many other components, including revenue distribution from oil and gas leases, grazing, and timber rights on the unappropriated lands within the state. Moreover, BLM’s restrictive land use regulations, such as closing off access roads to visitors, harm tourism. A more general complaint is that the federal government limits the economic growth of the entire West by capping the land the state can own, tax, regulate, and develop. These limits translate into the most critical harm: federal ownership restricts the representation of the western states in Congress by limiting their population. By reducing federal control of western lands, the western states could increase their population and revenue, promote tourism, and, most significantly, have a more significant say in national policies.
The Trump administration is at a crossroads with three options for addressing the controversy surrounding Western Lands. The decision it makes will have far-reaching implications. It’s a decision that carries the weight of history and the responsibility to uphold the principles of federalism and state sovereignty.
Its first option is to continue the policy of the Biden administration that refuses to dispose of the land or transfer it to the state of Utah. Taking this position undercuts the seriousness of the DOGE pronouncements to shrink the federal government.
Second, it could agree with Utah by entering into a Consent Decree should Utah refile the case in federal district court. While this would be a typical “sue and settle” scam lawsuit to circumvent Congress, the trial court would likely reject the settlement since it lacks congressional approval.
The last and most appropriate option is for Congress to enact legislation establishing a process for transferring all unappropriated federal lands to the states in which they are located. This approach is the most legally sound since Article IV of the Constitution directly grants Congress the power to dispose of all territories and property of the United States.
Involving Congress should be a DOGE recommendation. Since Doug Burgum, the former governor of North Dakota, will have managerial control of the lands as the interior secretary, he is well-positioned to advocate for the return of the lands to the states. North Dakota filed in support of Utah’s petition. “Trump’s administration has expressed interest in reducing the size of national monuments, [and] reversing land protections.” Returning all unappropriated lands to the states would be a much more significant achievement.
If there is ever the right time politically to return the unappropriated federal lands to the states, it is now with the Trump administration wanting more energy and economic development. Utah raised the issue; it is now time for the rest of the western states to lobby for transferring all unappropriated lands in their states. As for DOGE’s role, it can prove the sincerity of its “huffing and puffing” by recommending to the Trump administration that it is time to shrink the federal government.
This article concludes the five-part DOGE series. Links to the first four articles are below:
Part Four: DOGE: Can’t Shrink Government Without Eliminating Its Power
Part Three: DOGE Its Enforcement Stupid Not Another Report.
Part Two: The Many Efforts by Predecessors of DOGE to Root Out WFA.
Part One: When DOGE Meets Political Chaos.
William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. It received five stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com
