Utah Governor Signs Law Authorizing Use of Eminent Domain Over Federal Lands

In the latest sign of how American politics has descended into virtual graffiti legislation, the governor of Utah has signed legislation authorizing the state to exercise eminent domain over federal lands. It is clearly unconstitutional but that seems to matter little to legislators or Gov. Gary Herbert who signed the two bills.

What is truly amazing is that the state is setting aside $3 million dollars to litigate the frivolous claims at a time when the state is facing budget shortfalls and other economic problems.

For the full story, click here.

142 thoughts on “Utah Governor Signs Law Authorizing Use of Eminent Domain Over Federal Lands”

  1. Vince Treacy said

    “Stop evading the issue.

    What part of the words of Article IV, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” that have been so studiously avoided, are inapplicable to this issue?”

    You’ll have to bring that up with SCOTUS. They didn’t seem to find your interpretation of Article IV to be controlling in any of the cases discussed. The most important thing gleaned from reading the Court’s opinion is that when the federal government is the proprietor of property not sold to them by the state, the federal government is treated like a private party.

    “The proprietorship of the United States remained.”

    I agree, and the Court discussed this at length. Let me repeat it a third time for your benefit.

    Vince Treacy said “I have seen no indication that the lands were ceded to the US, or bought by the US with the consent of the State.”

    But chooses to ignore Justice Fields opinion that “Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.”

    Vince Treacy said “National parks are a purpose of government.”

    It’s nice to know that you think so, but what authority can you cite to support your conclusion? I haven’t had a chance to research national parks yet.

  2. Vince Treacy,

    Thank you for your U.S. Government and US Constitution refresher. That is the best review of certain Articles since my basic LE training 28 years ago. I think that the wide-ranging ignorance of how our tripartite government functions and a misunderstanding of the Constitution are principal reasons why the U.S.A. is a declining power.

    Mike A. thanks also for your detailed follow-ups and to Mespo for your contributions. How refreshing to have learned and credentialed attorneys reiterating the correct meaning and force of an often misinterpreted ‘supreme law of the land’ document and reminding us how government functions in this specific instance.

    The Supremacy Clause established that the U.S. Constitution as the ‘supreme law of the land’



    Article VI

    All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

    From Cornell Univ. Law School


  3. Byron, March 30, 2010 at 6:00 pm: “But I guess my understanding of the law is piss poor.”


    “The land doesn’t belong to the federal government. I[t] belongs to the people.”

    Sure. The “people” ratified a Constitution that provided for the authority to “dispose” of that land to be vested in their elected Representatives and in their appointed Senators in Congress. The authority was not granted to the States. The States, through their people, ceded that right to the new national government to eliminate disputes among the States themselves. Ignore history at peril.

    “I was under the impression the people gave consent to be governed.” Except for the people of the District of Columbia and the Territories, all of the people gave their consent to be governed by their ratification of the Constitution and its Amendments, and by their election of Representatives and Senators to the national Congress. The States gave their consent by admission to the Union. The consent of the governed is exercised by elected representatives. That is in the text of the Constitution. What is the problem?

    “As such nothing belongs to the government per se it is vested in the people.” Do you know nothing about the Constitution? The people in 1789 had the question of public lands and property before them. They gave Congress the power to dispose of “Property belonging to the United States.” How can there be property of the U.S. if nothing can belong to the government?

    If nothing belongs to the government, how then could the Constitution, as ratified by the people, provide for the disposal by Congress of “Property belonging to the United States”? It could not. This is nonsense, self-contradictory rhetoric.

    Byron was the one who suggested reading the Constitution. Fine. Everyone else sees the words “Property of the United States” in there, as well as the power of Congress to dispose of that property. But not Byron. He puts in his own words in there, not the words of the Framers, and finds in its terms the principle that “nothing belongs to the government.”

    Take another look at Byron’s comment at March 29, 2010 at 7:58 pm: “I would be happy if most judges spent more time looking at the intent of the Founders instead of making up stuff from ‘emanations from the penumbra’. Oh and why can’t a citizen spend a little time and energy and determine what the constitution says? It was written in pretty straight forward language by a group of individuals that knew the English language. And it was first and foremost designed to protect the “individual rights” of citizens, it wasn’t written with the collective in mind. But maybe I misread the Declaration.”

    Spend a little time and energy and determine what the constitution says. Note: it won’t be found in the Declaration.

    “That land should be given away by a fair and independent lottery to the people to develop as they see fit.”

    Fine. Draft the bill and get your Representative and Senators to introduce it in Congress.

    If, in fact, you respect the terms of the Constitution.

    It will be yet another prime example of JT’s new phrase, “virtual graffiti legislation.”

  4. Actually, Byron, I had a client some years ago who bought some land near Disney here in Florida. His plan was to subdivide it into square foot parcels and sell them for $100.00 each as “your little piece of Florida.” Needless to say, he ran into some planning and zoning issues, not to mention some serious estimates for the necessary surveying. Another brilliant scheme abandoned.

  5. Mike A:

    You can have a weedy patch for a $1,000 per sq. ft. 🙂 25 sq. ft. minimum

  6. Joe, my reference to “weedy” was to restrict my request to land which Byron is wasting by not putting it into productive use. On your further point, I also agree that we are losing electoral control, but primarily through the uncontrolled purchase of political power with money. That money is the root of all evil is especially true of the political system.

  7. Mike why would you assume that Byron’s patch of yard is weedy? Does he sound that lazy? Also, I believe I have a firm grasp on what a republic is and I know this string has wandered off topic at times but just to check my premises the Justices of the Supreme Court aren’t elected are they? And I really was trying to just make the point that we get what we elect but I’m not convinced we do the electing anymore. As for “We The People” that was written in response to Vince who apparently doesn’t share that opinion.

  8. Byron,

    “How do you figure that? It is not equivalent. Native Americans had no conception of private property. They were nomads following the buffalo.
    Certainly some had localized communities but I believe most were nomadic tribes.”


    You need to expand your reading on the histories of the indigenous peoples of the Americas. They were far from nomads following the buffalo.

    As to personal property, a cultural non-sequitor does not mean they didn’t have a concept of equity or justice, albeit “savage” to our heeled European ancestors “senses”. Most of them had the concept of personal property as well, just not as it attaches to land.

  9. Byron, what you mean is that Native Americans did not have English common law concepts of property ownership. They nevertheless believed that they could utilize all of their ancestral lands for the purposes of maintaining their traditional lives and culture. They also believed that certain lands were sacred and were reserved only for spiritual or ritual uses. When they were forced onto reservations, their lands were taken way from them to the same extent as you would consider your land to be taken should the government condemn half your front yard to widen the street. Their culture stressed communal rather than individual values. They perceived their lands to belong to their people in perpetuity. You believe your land is owned by you pursuant to a deed in perpetuity. That’s why I made the joke about a piece of your backyard. It made no more sense to tell Native Americans that there was plenty of land to go around than it does for me to ask for an unused, weedy patch of your lawn.

  10. Mike A:

    How do you figure that? It is not equivalent. Native Americans had no conception of private property. They were nomads following the buffalo.
    Certainly some had localized communities but I believe most were nomadic tribes.

    Please explain why it would be equivalent?

  11. Byron, I forgot to add that if King George and his palace guard had been ensconced in New York or Philadelphia, there may well have been some real atrocities.

  12. Nice try, Byron. Do you mind if I take a little corner of your backyard? You’ll hardly notice it.

  13. Joe, I believe that the difficulty with your argument is not in your understanding of the intent of the Constitution, but in the sort of mixing together of the separate branches of government. We are not a direct democracy. “We, the people” act through elected representatives. Most of the ills attributed to government action are a consequence of legislative determinations by those representatives. Different results require different representatives, but we continue to elect the same people because everyone despises every representative but his own. The “legal translation” is not that mysterious really, but it is critical to having a society in which there is a shared understanding and general acceptance of the rule of law in the conduct of our affairs.

  14. Mike A:

    We didn’t use the “National Razor” so yes I do think it was a lot less brutish than France’s revolution and ours was based in individual rights and not “liberty, equality, fraternity”.

    Kicking the Indians off their land is water under the bridge at this point. And there are many who believe it was justifiable because Native Americans did not own property or recognize property rights or individual rights for that matter. Personally I don’t think it was our finest hour. But there was certainly enough land to go around.

  15. Jericho
    1, March 30, 2010 at 2:19 am
    Joe ..
    1. Who’s “us” in “How is this unconstitutional when the Constitution was written to protect us from the fed not the other way around?”
    2. who’s going to protect this “us” from the governor?

    I apologize for being vague when discussing the Constitution of the United States, you are correct I merely assumed (yes I know) that the “us” would be taken for granted as the following:

    Constitution: The fundament and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its soverign power and the manner of its exercise.

    We the People of the United States,
    (please note: “PEOPLE” NOT GOVERNMENT (i.e. “US”))

    in Order to form a more perfect Union,
    (an attempt to unite)

    establish Justice,
    (The fair and proper administration of laws)

    insure domestic Tranquility,
    (calm, serene, placid)

    provide for the common defence, (using the framer’s spelling)
    (to guard from attack, protect)

    promote the general Welfare,
    (a condition of health, happiness, prosperity, well being)

    and secure the Blessings of Liberty to ourselves and our Posterity,
    (Life, Liberty and the Pursuit of Happiness)

    do ordain and establish the Constitution for the United States of America
    (notice: for the United States)
    (on behalf of)

    National Parks may or may not have been what they had in mind when promoting the general welfare, and staking out 60% of one or three states may seem fine if you don’t live there, but what if the President and Congress had decided that New Orleans (the flood plain) should be turned into a tida wetland and no reconstruction will be permitted?

    Further, clearly providing for the common defence should require the federal government to do everything within the stated powers of the constitution to protect us from all enemies both foreign and domestic, but they don’t seem to be. What they do seem to be doing is enslaving us “sorry we the people” to any foreign power (government or corporation) be it through turning natural resources into national parks, while killing our troops to protect someone else’s natural resources or by spending us into a debt amount that appears improbable to repay once we pass the interest tipping point of no return or in changing the very nature of our Republic by permitting our politician’s to become perpeutual into second and third generations beholden to special interests, lobbists, and foreign powers rather than their constituents. Sounds like treasonous activity to me.

    The above legal arguments are very interesting, but somehow I believe the point was lost. Yes the governer of Utah is probably manuevering for political purposes, but he is only working within the framework we permit. I believe what has escaped us all is that the founder’s were laying the ground work for our governments operation based on a mistrust of all government. They were smart enough to know that power corrupts etc. Therefore, the only opinion’s that do matter are “We the People”.

    Do I still get an “F” in U.S. Government, because I was foolish enough to believe that the framers intended the document to protect us without having to actually state the obvious, I’m curious why no one else actually stated what the purpose of the Constitution is in their opinion. It’s funny how everything gets lost in the legal translation unless you disagree then your opinion is incorrect, huh?

  16. Byron, do you believe there was nothing thuggish or brutal about the Revolutionary War in this country? Also, the Oklahoma Land Rush is not a good precedent for anything other how to force Native Americans off tribal lands to make them available to white settlers.

  17. Mike A:

    how so? I am not a big fan of Thomas Paine. He talked a good game but in the end he supported the French Revolution a brutal, thuggish event. The French havent been right since.

  18. Vince:

    “let’s take a look at the actual text of the Constitution. Article IV, sec. 2 provides “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.””

    This is more of a philosophical debate about the nature and power the federal government has over the resources of the country. The land doesn’t belong to the federal government. I belongs to the people. But I guess my understanding of the law is piss poor. I was under the impression the people gave consent to be governed. As such nothing belongs to the government per se it is vested in the people. That land should be given away by a fair and independent lottery to the people to develop as they see fit.

    The Oklahoma land rush is an example of this and sets a precedent for something along those lines.

  19. Byron, I don’t think Edmund Burke is a real good example. You might wish to read Tom Paine’s “Rights of Man” to get a feel for Burke’s influence on the Founders.

Comments are closed.