A bill signed last week by Utah Gov. Gary Herbert (R) authorizing the state to take federal land by eminent domain could induce other Western states to try to reclaim their own national monuments and landmarks, eventually opening them for energy production and other development.
Utah lawmakers say they have contacted representatives in Arizona, Montana, Nevada, New Mexico and Wyoming about adopting similar legislation in their states, with the goal of taking the issue to the Supreme Court.
But legal analysts say the issue of ownership over federal lands has long been decided by the courts in the federal government's favor and Utah and other states seeking eminent domain claims against the federal government are wasting taxpayer money on political gestures that have virtually no chance of success.
"I would say it's frivolous and clearly unconstitutional," said Adam Babich, director of the Tulane Environmental Law Clinic in New Orleans.
Bob Keiter, a public lands expert at the University of Utah's S.J. Quinney College of Law, added the Constitution's "supremacy" clause clearly allows the federal government to own and manage lands as it sees fit.
"Every court that's considered whether to override the federal prerogative on federal lands has sided with the federal government," Keiter said. "The state doesn't have much to stand on legally."
Still, Utah lawmakers are adamant that the eminent domain legislation signed by Herbert on Saturday is worth a commitment of $3 million in legal fees to defend because, if successful, it could raise the tax base and bolster underfunded public schools.
State lawmakers say they are frustrated that millions of acres of federal land in Utah containing vast storehouses of oil, natural gas and coal cannot be tapped because wilderness designations, national monument designations and other federal land preservation programs have locked up valuable resources.
"A lot of people have said this is little more than a message bill, but I truly believe it is not," said state Rep. Chris Herrod (R) from Provo, who sponsored the House version of the bill.
"We need to gain some control," he added. "Our only real options are that we can change Congress ... or we can fight through the courts. And that's what this bill is designed to do. It's designed to go to court."
Déjà vu all over again
Opponents of Utah's eminent domain aspirations point to a federal case decided 14 years ago in Nevada that represented the last major legal challenge to federal authority over public land.
The case involved a Nye County ordinance declaring that the county, not the federal government, owned the land within its borders -- a major point of contention since more than 90 percent of the county is federal land.
The county hired Roger Marzulla, a former assistant attorney general in the Reagan administration, to defend its ordinance against a Justice Department lawsuit.
The case drew national attention after a county commissioner used a bulldozer to block a national forest road and, according to press reports, threatened to have a Forest Service ranger arrested if the ranger or anyone else tried to remove him. The Justice Department, conversely, compared Nye County leaders to segregationist leaders in the 1960s-era South who resisted civil rights legislation.
In the end, a federal district court judge in Las Vegas ruled that the county ordinance was illegal and that the federal government has sovereignty over its own land. The county did not appeal, and the decision essentially struck down more than 30 similar ordinances filed by lawmakers across the West.
"I was dismayed the [Nye County] clients ultimately threw in the towel and didn't take this case farther," said Marzulla, who today has a private law practice in Washington, D.C. "They kind of ran out of steam."
But Utah lawmakers say they are resolved to press their arguments all the way to the Supreme Court, where they believe they could persuade a majority of justices to uphold their interpretation of a 116-year-old statute.
At issue is the Utah Enabling Act of 1894 that laid out conditions for Utah to become the 45th state in the Union. Utah lawmakers believe the law contains a stipulation that the federal government would sell its landholdings in the state and give 5 percent of the proceeds to the state school trust fund.
Utah says the federal government has not met that obligation and is compelled by law to do so.
"I know the critics say this is just a ridiculous theory, but I think there's a true legal basis for a case to be made for it," Herrod said.
Marzulla said he is intrigued by the argument, though he says Utah faces "an uphill pull" to succeed in court. But, he added, the state could draw inspiration from the health insurance reform legislation approved by Congress last month after decades of futility.
"One could well have said to President Obama, 'C'mon, this is a dead issue. What makes you think you'll get health care legislation passed?' " Marzulla said. "So, I hesitate to say that any constitutional matter, especially one like this which has not been resolved mostly due to political difficulties, is a dead issue."
Utah's eminent domain legislation authorizes the state attorney general to identify a federal landholding where the state has the strongest case and file an eminent domain claim, kicking off what is expected to become years of legal wrangling and a possible Supreme Court case.
A potential target for a first claim could be the Grand Staircase-Escalante National Monument in southern Utah, which President Clinton designated in 1996 to build favor among environmentalists during his re-election campaign. The designation, state leaders say, was done without consulting Utah's state or federal lawmakers, a fact that still irritates Utah Republicans.
Herrod said the monument site sits atop massive coal reserves worth an estimated $1 trillion. If the federal government were to sell the monument and give 5 percent to the state, as he and others say it should, it would raise billions of dollars for the state's financially strapped public school system.
Other potential targets are Bureau of Land Management parcels that were leased for oil and gas development by the George W. Bush administration but later rescinded by the Obama administration. An Interior Department review of the parcels released last October found that only 17 were suitable for leasing. BLM, at Interior Secretary Ken Salazar's direction, threw out eight of the 77 originally issued leases and sent 52 back for more environmental review (Land Letter, Oct. 15, 2009).
Pulling those leases will cost Utah $139 million in tax revenues over the life of the leases, Herrod said.
"We rank last in the nation in per-pupil funding for education," he said, "and I would argue the biggest reason is that 70 percent of our land is not taxable."
Utah is among a number of Intermountain West states where elected leaders are fighting against what they perceive as a new round of conservation land grabs by the federal government. By expanding federal protections on Western public lands, state leaders say the Obama administration and Democrats in Congress are infringing on states' rights to develop their resources and promote economic growth.
It is hardly a new complaint. In the 1970s, a grassroots movement called the "Sagebrush Rebellion" arose that protested federal land management policies under the Jimmy Carter administration. And the Nye County legal challenge in the late 1990s was loosely affiliated with a movement that called itself the "Sagebrush Rebellion II."
Utah's eminent domain law comes at a time of nearly unprecedented federal conservation efforts, with Congress last year approving an omnibus public lands bill that added 2.1 million acres to the 46-year-old National Wilderness Preservation System. Designated wilderness lands are strictly off-limits to development of any kind, with only hiking, hunting, fishing and other light activities permitted.
There are currently dozens of wilderness bills covering millions of acres pending in Congress. Among them is a bill sponsored by Rep. Maurice Hinchey (D-N.Y.) and Sen. Dick Durbin (D-Ill.) that would designate 9.4 million acres in Utah as "America's Red Rock Wilderness," including portions of Grand Staircase-Escalante National Monument and areas adjacent to Capitol Reef National Park, Canyonlands National Park and the Glen Canyon National Recreation Area.
Some conservationists and congressional observers believe lawmakers will introduce a second omnibus public lands bill this year (Land Letter, March 25).
Responding to the expansion of federal land protections and worried about what is to come, congressional leaders in Utah, Montana, Colorado, Nevada and California in recent weeks have filed bills attempting to strip the federal government's authority to create new national monuments -- and tie up large tracts of land in the process -- by first requiring congressional approval for such designations (Land Letter, March 4).
Environmentalists say the recent moves are borne of frustration that the political pendulum under the Obama administration has swung toward conservation of public lands and away from energy development, a centerpiece of the Bush administration's public lands policies.
Utah's eminent domain law has "no rational basis" and ignores the fact that national monuments and parks bring visitors -- and their money -- to the state, said Scott Groene, executive director of the Southern Utah Wilderness Alliance in Moab.
"In their zeal to attack the federal government, [Utah lawmakers] have demonstrated a complete lack of recognition that these public lands are what make the Western U.S., and Utah in particular, so great," Groene said. "It will fail and fortunately it will fail because it would be a disaster for those of us who live here."
Click here to read the Utah legislation.
Streater writes from Colorado Springs, Colo.