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. On the health care mandate thread, Duh wrote [April 1, 2010 at 12:08 pm]: “I don’t believe the Constitution is a living document. I think the only way to breath[e] life into the Constitution is through the process of Amendment.”
    http://jonathanturley.org/2010/03/31/is-the-individual-mandate-constitutional/#comment-123046

    Again: “Following precedent provides for continuity in our legal system.” http://jonathanturley.org/2010/03/31/is-the-individual-mandate-constitutional/#comment-123104

    But Duh takes a different position on following precedent on Utah’s state powers of eminent domain. Duh wrote: “Article IV would permit only Congress to grant the land to a private entity, or to decide how federal monies should be expended on that land, but should not be construed as to eliminate the right of the sovereign to condemn federal land, not used for a specific governmental purpose, to a legitimate public use when that land is within the borders of a state.”

    In 1789, the people of the States granted Congress plenary power over federal lands, and that power has been upheld for over two centuries. No case has ever held that a State can condemn federal land. [There is dicta in one case (City of Chicago), and another case may possibly be distinguished (Utah Light and Power)]. But the fact remains that NO case has ever upheld such a state power, and no state has ever exercised such power.

    I suggested that an Amendment would be necessary.

    So Duh came back and said that Article IV “should not be construed” in a way that prevents state condemnation. So Duh in effect advocated a “living constitution,” since its literal language and uniform judicial interpretation would be modified by his “construction,” to allow the “right of the sovereign to condemn federal land, not used for a specific governmental purpose, to a legitimate public use when that land is within the borders of a state.”

    That right of the state to condemn federal may be a good idea, but that right was assigned by the people to the federal government in the compromises of 1789, and all the states admitted to the Union since that time have accepted those compromises.

    Duh should stop the contradictions. If Duh opposes a living constitution, then support an amendment to Article IV. If Duh wants to change it without an amendment through judicial construction that contradicts the express language and 220 years of precedent, then drop this rhetoric opposing the living constitution. Where is the continuity in abandoning 220 years of precedent?

    Duh also wrote, “My position acknowledges state’s rights. You[r] position favors federal control. My position recognizes the functional needs of a sovereign state. You position favors federal control.”

    Duh should not misrepresent my position or put words in my mouth. My position is that, on the particular issue of public lands, “federal control” was written into the Constitution for very good historical reasons; that the states and their people are represented in that federal government; and that they can exercise control over federal lands by democratic processes.

    And Duh kept using the word “sovereign” without defining it or telling us why it has any relevance. I have explained, to all, that some aspects of state sovereignty (that is, their autonomy as governmental entities) were transferred to the federal government when the people ratified the Constitution.

    For example, states cannot close their borders, recognize foreign governments, exchange ambassadors, or interfere with interstate commerce. They cannot impair the obligation of contracts. The states are governmental entities of sovereignty that is limited, in part, by specific terms of the federal Constitution. They do not have absolute sovereignty. The people made them give up certain rights, such as rights over federal lands. (The States did not create the Constitution. The Framers wrote it, and the people ratified it in conventions called for that purpose in each state). Now Duh wants to rewrite the arrangement without an amendment.

    The proposed suits by the “landers” in Utah are just as frivolous as the suits by the birthers everywhere else. They are going to lose. [Written prediction ™©®]

    “Doublethink is the holding of two contradictory beliefs simultaneously, fervently believing both, and being unaware of their incompatibility. George Orwell.

    As defined in the novel Nineteen Eighty Four, Doublethink is “The power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them….”

  2. Byron,

    You’re confused s to the timing of the events. The land in question belonged to the U.S. before Utah became a state.

  3. Vince:

    I need some more help in understanding this. I was thinking about what you wrote and started wondering if that is true then why can’t congress just pass a law and make my land a national park or an army base. But actually it can through eminent domain. So maybe they should be required to pay Utah for the land if not actually giving it back?

    Also aren’t national parks a fairly recent (the last 100 years) development? And once the LA purchase was approved wasn’t that land open to the public for use and settlement? The idea that the federal government can sequester enormous tracks of land from use by private enterprise seems to me not at all what was intended.

    It seems to me that if people want to hold tracks of land as national parks or conservation areas they should find groups of investors to buy the land and set it aside. What does the federal government need with millions and millions of acres of land?

  4. Duh,

    I’m a little busy today so I’ll have to get back to you with a longer answer later, but I’ll say a quick perusal gave me the giggles. Yep. They had me at “Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.” I laughed and laughed.

  5. The hard right, duh.

    Those with the PNAC agenda.

    Our own internal infection of domestic terrorists hiding behind the flag and graft who spoon feed lies to the propaganda susceptable.

    You know.

    The usual suspects.

    It was a general usage of you as indicative of a population whose views sometime intersect with yours but not you per se, i.e. the audience.

  6. Buddha,

    Who was this statement directed to “Your double standards are showing”?

  7. Don’t worry Buddha. I know that if you intended to direct the statements solely at me you wouldn’t be so cowardly as to not accept responsibility for doing so. 🙂

  8. Good, duh. If you were laughing, you were paying attention.

    Again, don’t mistake that any of my rants are directed solely at you even if they have your name on them.

  9. Buddha,

    Where have I ever stated or implied that I supported the Patriot Act? I triple-dog-dare you to find any such comment from me to support you assertion.

    When you’re done, you can show me where the Vice-President has the authority to give orders; let alone those to torture someone.

    I hope you enjoyed your little rant. It did make me laugh. 🙂

  10. Vince Treacy,

    You’re a smart man. I’m sure you can recognize that the Utah Power case distinguishes itself in that the land was granted to a for-profit electric company, and involves consequential effects on federal lands not condemned.

    My position acknowledges state’s rights. You position favors federal control. My position recognizes the functional needs of a sovereign state. You position favors federal control.

    My interpretation of this quote (“It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress.”) is that the court was applying its opinion to the instant case, because of the particular way it distinguishes itself, but would not have the same effect in cases where the public use did not get turned over to a for-profit agency, or those with which the impact would not effect consequential federal lands.

    Article IV would permit only Congress to grant the land to a private entity, or to decide how federal monies should be expended on that land, but should not be construed as to eliminate the right of the sovereign to condemn federal land, not used for a specific governmental purpose, to a legitimate public use when that land is within the borders of a state.

    We’ll just have to agree to disagree. Thankfully, we already have a system in place where disputes of this nature can be settled.

  11. But tyranny was all well and good when Bush the Insipid was appointed President, wasn’t it Duh?

    The Patriot Act rammed down Congresses throat by an aggressive Executive with a personal profit motive for encouraging both fear and war.

    Torture. On the orders of the Vice President.

    Illegal wars for private profit over valid national security interests.

    Massive Constitutional and criminal violations by elected officials.

    It all started on “the other side’s” watch.

    But it wasn’t tyranny then, was it Duh? Just “sound conservative thinking”. Or perhaps it was something else.

    It was that last refuge of scoundrels . . . just patriotism. Patriotism layered with jingoism and glossy graft-filled gravy. Just look the other way, America – don’t mind the hands reaching into your pockets or your rights being stolen.

    Pardon me whilst I get a good laugh. Your double standards are showing.

  12. Duh: “I think the state, as a sovereign power must have the ability to exercise eminent domain rights when a legitimate public use is necessary. To refuse such can only be seen as national tyranny. If the government has a military base on the property, it would be ridiculous for the state to be able to interfere with that, but to build a road thru property that has no buildings on it, is a reasonable use of eminent domain.”

    A state is a sovereign power in some respects, but not in others, since the states voluntarily ceded parts of their sovereignty to the federal government. So the premise is flawed. The state is not an absolute sovereign.

    The state does in fact have eminent domain authority to take PRIVATE property for public use. The sole issue is federal property. The problem is that the states granted the power to rule, regulate and dispose of U.S. property to Congress. If that was a mistake, there is an amendment process.

    Duh never addresses this principle. If state power over federal land is a problem, then take it up under Article V with a proposed amendment or national convention.

    “To refuse such can only be seen as national tyranny.”

    “National tyranny” is nonsense. I repeat. Nonsense. The national legislature is part of a duly elected, democratically chosen republican form of government. Utah sends powerful representatives to it. The legislature is open for debate and logrolling. If this issue is so important, Hatch and Bennett would have rammed it through after 2000 when their party controlled both Congress and the White House, but they did not.

    Just because the vote may go against your position is no reason to turn up the hyperbole.

    This is just great. Lose a vote and declare national tyranny.

    This posting by Duh is really pernicious. He wants to let states condemn federal land. Fine. Congress, acting through duly elected representatives, has declined to do so.

    Instead of saying that they made a mistake and that new representatives should be elected, or that a constitutional amendment should be proposed, he declares “national tyranny.”

  13. Duh: “It is extremely important to point out that in the Utah Power & Light case (cited by you), the Court makes this statement; ‘It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress.’ My purpose for presenting the information above was not in hopes of having it settled on a blog (which would be a ridiculous endeavor), but to point out that this is not as much of a black and white issue as many are claiming it to be. Arguments from both sides have merit.”

    Why is this extremely important?

    The Court is stating what I have written all along. State laws of eminent domain cannot affect federal lands unless Congress has consented. THAT IS BECAUSE THE CONSTITUTION GRANTS THE POWER TO DISPOSE OF FEDERAL LANDS CONGRESS. So what is the point of this quotation?

    The quotation surely does not show any merit in Utah’s claims.

  14. Vince Treacy,

    It is extremely important to point out that in the Utah Power & Light case (cited by you), the Court makes this statement;

    “It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress.”

    My purpose for presenting the information above was not in hopes of having it settled on a blog (which would be a ridiculous endeavor), but to point out that this is not as much of a black and white issue as many are claiming it to be. Arguments from both sides have merit.

    Permitting the federal government to limit the state’s reasonable access to other parts of the state is ludicrous. Asking them to make political concessions to be granted that access is also ridiculous. (We know how Washington politics work. Do I hear Nelson?) I think the state, as a sovereign power must have the ability to exercise eminent domain rights when a legitimate public use is necessary. To refuse such can only be seen as national tyranny. I do believe Justices Story and Fields got it right. If the government has a military base on the property, it would be ridiculous for the state to be able to interfere with that, but to build a road thru property that has no buildings on it, is a reasonable use of eminent domain.

  15. Duh at 8:18 pm says, “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 interpretation is found in the Utah Power and Light v. United States, one of the cases discussed.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=243&invol=389

    According to the syllabus, the case involved suits by the United States “to enjoin the continued occupancy and use, without its permission, of certain of its lands in forest reservations in Utah as sites for works employed in generating and distributing electric power, and to secure compensation for such occupancy and use in the past. The reservations were created by executive orders and proclamations with the express sanction of Congress. Almost all the lands therein belonged to the United States, and before the reservations were created were public lands subject to disposal and acquisition under the general land laws.”

    Let’s listen to the Court: “The first position taken by the defendants is that their claims must be tested by the laws of the state in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that lands of the United States within a state, when not used or needed for a fort or other governmental purpose of the [United States, are subject to the jurisdiction, powers, and laws of the state in the same way and to the same extent as are similar lands of others. To this we cannot assent. Not only does the Constitution (art. 4, 3, cl. 2) commit to Congress the power ‘to dispose of and make all needful rules and regulations respecting’ the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court, have gone upon the theory that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired.” 243 U.S. 389, 404.

    “From the earliest times Congress by its legislation, applicable alike in the states and territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of way over them for highways, railroads, canals, ditches, telegraph lines, and the like. The states and the public have almost uniformly accepted this legislation as controlling, and in the instances where it has been questioned in this court its validity has been upheld and its supremacy over state enactments sustained…” 243 U.S. 389, 405.

    “And so we are of opinion that the inclusion within a state of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power.”

    So I have taken it up with the Supreme Court, and the Court supports me, not Duh. The Court quotes the same language that I did. The power is committed to Congress. The power is exclusive to Congress. It is only through Congress that rights in public lands can be acquired. There is no role for the States, by eminent domain or otherwise. I think that settles it.

    The dicta, in the Chicago case, about land bought in a State without its consent has no application to the public lands of the United States. My interpretation is based on the Supreme Court’s, and their interpretation is controlling, not Duh’s.

    The statement 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” is confused. It seems to refer to land purchased in a State by the federal government, not to land originally owned by the United States before statehood and reserved by it upon admission of the State to the Union. It is just not relevant.

    Also, I contributed to this thread because someone challenged JT’s conclusion. Looking into the Constitution, laws, and cases, I can only find support for his position.

  16. A bit of irony from Gov. Herbert’s official website:
    ________________________________

    Quote:

    ‘Governor’s Priorities Public and Higher Education’

    “This is the opportunity for people to develop the skills to succeed in the future. In order for our state to remain competitive we must focus on improving our public education system. A good education is a powerful tool to empower the individual to succeed. An emphasis on attracting and retaining the best teachers into our schools will enable our education system to excel.”

    End Quote

    ________________________________

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

    Ok.
    _________________________________
    Byron,

    V.T. et al are attempting to increase your stream of legal knowledge.

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