Skip to comments.Utah Invokes Eminent Domain Against the Federal Government
Posted on 03/29/2010 7:05:19 PM PDT by JerseyHighlander
Utah Invokes Eminent Domain Against the Federal Government By ELIE MYSTAL
This is the kind of story that sounds unbelievable until you realize that its dealing with the people who run Utah. The WSJ Law Blog reports:
Utah Governor Gary Herbert on Saturday authorized the use of eminent domain to take some of the U.S. governments most valuable parcels. A state is invoking the Takings Clause against the federal government? This reminds me of the time I came home and my dog told me to get off the couch. Sure, I was surprised that my dog was (a) talking and (b) ordering me off my own property. And so I resolved, right then and there, to never drop acid again.
Unfortunately, I dont know what the hell Utah lawmakers are smoking
Im going to put some kind of latex protection around my brain before I get down into the muck and deal with Utahs argument. I suggest you do the same. The Salt Lake Tribune reports:
Sounds like a plan.
This effort by the Governor seeks to bring the issue to the public forefront and take it all the way to the Supreme Court. How would you feel if a state like Iowa was gobbled up by the Federal Government?
Interestingly enough, the Kelo decision may leave the Feds essentially defenseless. Nothing in the Constitution exempts the Feds from this sort of action by a State.
It is in these unorthodox ways that the States (and citizens) will successfully battle Fedzilla.
Not parks, wilderness, critical habitat, national forests, BLM rangeland, and other sequestered resources.
There is also the argument that leaving that land as a useless “monument” in a state full of them is “blight”, whereas mining coal turns it into a high tax value property and creates desperately needed jobs. Thus the higher tax revenue for the state of Utah from mining would trump fallow status by the Fed.
“It’s the worse case in the nation of the Feds stealing from the state and it’s residents.”
Actually third worst.
Here’s federal land ownership in the top 5 states.
1. Nevada 84.5%
2. Alaska 69.1%
3. Utah 57.4%
4. Oregon 53.1%
5. Idaho 50.2%
It’s also reasonable to point out that a great deal of the land in federal ownership in these states isn’t very useful for any private purpose anyway.
The “new sagebrush rebellion”; I like it!
“The federal government owns 50 percent of the State of Utah. It’s the worse case in the nation of the Feds stealing from the state and it’s residents”.
BZZZZT! Thank you for playing, but the Feds claim 87% + of all Nevada lands!
They are on the verge of announcing seizure or control of another 300,000 acres via pending “National Monument” status.
Several Nevada counties have so little taxable land that other counties have to fund their basic services.
Nevada was unconstitutionally ripped off as a condition of statehood.
The Fed. claims contradict the equal footing clause of our U.S. constitution.
The court of original jurisdiction in any state vs Fed. action would be SCOTUS.
Utah is making their case more difficult than necessary, apparently their senators are not doing their job of representing their state.
I hope Nevada makes their own stand via legislative finding in 2011.
Thanks, I’ve been pointed out my error already.
Consider yourself fortunate if it doesn't happen 3 or 4 more times.
Let us remember that Clinton made a lot of Utah land into a monument. This land had a lot of coal in it. His friends, the Riady’s, happen to own a lot of coal. With the Utah coal off the market, the Riady’s made a lot of money.
I said much, not all.
I’m most familiar with Utah.
Where there aren’t minerals much of the desert has little or no economic value. Can’t grow anything. You can run cattle on much of the land, but a good deal of it isn’t even usable in practical terms for that.
All the Red states need to do this now. We have to fight back. Use the same tactics.
What? You mean everybody’s dogs don’t talk? Guess I better reevaluate my mini-pin.
Clinton sure did pay back that criminal Riady and in the process screwed us royally.
I have not checked yet but it would not surprise me if Obama’s new “Monuments” will tie up a bunch of that new oil we have found up toward the Bakken range.
The Democrats want us to move back toward the stone age and have as many of us as possible die. They will remain the leaders so they will still have all the energy, money, and riches while they then rule over the remaining serfs.
How am I making such a choice for others?
I’m expressing an opinion, which I believe is my inalienable right.
I have backpacked over large sections of SE Utah. While obviously this gave me no information about the possibility of mineral wealth, I can tell you I can’t think of any other possible economic use for the land.
Importantly, much of the western land takings were done by “presidential proclamation”. But this is on decidedly shaky constitutional grounds, compared to the State right of eminent domain.
In past, the courts have found that the US congress is superior to State legislatures, and that federal courts are superior to State courts. But they have *never* found that the president is superior to a State governor. This has meant that presidents in conflict with governors in the past have often resorted to the threat of violence to get what they wanted.
But there is no such thing as “presidential eminent domain” in the US constitution. But eminent domain *is* a right of State governments through their executive.
Unless I’m mistaken, the government isn’t taking private land in Utah.
They’re shifting it from one category of federal control to another, usually from a less restrictive to a more restrictive category.
I adore the SE canyon country of Utah, but I can’t imagine wanting to actually live there.
I don't think this is entirely correct. These areas are not private land "taken" by the federal government. These areas have never been private property.
What Clinton and others did is take BLM or other federal land and make it a National Monument, administered by the Park Service. Or BLM or Forest Service land is reclassified as wilderness area.
None of these changes take private land away from owners, although sometimes private owners unfairly lose access to their land when roads leading to it are closed.
The land in question, with which I’m quite familar, was federal BLM land, not private property, that was made a National Monument and thereby removed from possible mining claims.
The primary group affected was a Dutch company that was trying to get permission to mine coal on leased land in the area.
This area, BTW, includes some of the most spectacular country in Utah, right up there with Zion and other National Parks.
Well then Fido got up off the floor, and he rolled over
and he looked me straight in the eye
And you know what he said?
"Once upon a time, somebody say to me"
This is the dog talkin' now
"What is your conceptual continuity?"
"Well I told 'em right then," Fido said,
"It should be easy to see:
The crux of the biscuit is the apostrophe."
Well you know, the man that was talking to the dog
looked at the dog and he said,
Sort of staring in disbelief,
"You can't say that."
And the dog said
"It doesn't, and you can't, I won't, and it don't
it hasn't, it isn't, it even ain't, it shouldn't, and
I told him, "No, no, no."
He told me, "Yes, yes, yes."
I said, "I do it all the time.
Ain't this boogie a mess?"
1) There doesn't seem to be anything worth "taking" in Kansas.
2) The Feds "don't mess with Texas.
I like this, good one.
The author is very dismissive of the idea but with SCOTUS’ ruling in the Kelo case it would be poetic justice for a state to take some Fed property.
I wouldn't say that. Nat. Forest and Nat. Park land is some of the most beautiful, forested and water laden lands in states like Utah, Colorado and Idaho. Not to mention energy and mineral resources.
I believe this is correct, although I’m willing to be corrected if wrong.
You have to keep in mind these areas are unbelievably remote, rugged and dry.
Parts still had mail service via pack train till 1940. Most of it is completely uninhabited.
The treaty by which TX entered the Union left its land in state title.
All other states (after original 13) had most or all land in federal control until sold or otherwise transferred to private ownership. Much of the federal land in the West is federal because nobody wanted to buy it during the period when it was still up for sale.
You should check out north eastern and central Utah where there are beautiful forested mountains with lots of water.
Agreed. Not so much in Nevada and Utah desert country.
Sure there’s some great land that would sell for a bunch in federal control. But there’s also a lot that you couldn’t give away.
I love the desert, but I am also forced to admit that very large stretches of it bear a close resemblance to an abandoned construction site. Not all of it is beautiful.
Very true. I have backpacked and climbed across a lot of it. Notably the Henrys, Abajos and La Sals. Also parts of the Book Cliffs.
I was speaking specifically of the country Clinton converted into the Grand Staircase Escalante National Monument. Some of which I’ve also backpacked in and which is unbelievably remote, rugged and dry.
I was thinking the same thing.
But there are other arguments as well. Why should the feds not take over say, half of Manhattan?
The people of Utah, by losing the availability of tax revenues and resources in THEIR OWN STATE are being penalized and limited far more than the big pop centers like LA and NYC.
Which, interestingly enough, is where a great many insiders live.
It’s almost like a tax, a collective tax on the People of Utah and a direct tax on any one there who has to pay higher local taxes because all this other stuff is off the tax base.
I have always had mixed feelings about it. The Feds, by preventing a lot of development, have kept a lot of great land in a wilderness condition. I love the wilderness even in the deserts. On the other hand I have never been able to defend the FedGov's ownership of it on Constitutional grounds.
The middle ground would seem to be for the states to own it and they could sell what they wanted to and preserve what they wanted to. But if you look at the eastern states they didn't preserve much. Of course there is nothing preventing a state and its people from returning land to a wilderness condition if that were their will.
There was one other known large deposit of low-sulfur lignite in the world--in Bosnia.
There is a lot of "go-back" land from failed farming operations in the '30s, too. Much of it is leased for grazing land in these parts, and would be privately owned if offered for sale.
It is a property owner's nightmare to have private land interspersed with Federal land, where one lives at the whim of the current administration.
An awful lot of people were 'relocated' out of the National Park areas back East, and where I currently live, the Federal holdings around major lakes restrict public access to the point of stifling the recreational industry which could be present otherwise.
In this part of the country, if you control the water, you control the land.
Until it rains. What a transformation!
Resource development and building better access so more people can use the area seems useful.
There is an unusual conflicting argument that may open the door for Utah, though not other western States. However, it gives the SCOTUS the opportunity to enlarge on the power of these other States to reclaim their lands.
In the case of Utah, the Enabling Act to allow Utah to become a State (1896) required Utah to “agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof”.
However, there is also the Equal Footing Doctrine, confirmed through the US Supreme Court when Alabama became a state (1819) that all states entering the Union should be able to do so on the same or equal footing of the original states.
“The equal footing doctrine is a limitation only upon the terms by which Congress admits a State. That is, States must be admitted on an equal footing in the sense that Congress may not exact conditions solely as a tribute for admission, but it may, in the enabling or admitting acts or subsequently impose requirements that would be or are valid and effectual if the subject of congressional legislation after admission.”
In short this means that Utah’s State lands not claimed were taken by the federal government as the *price* of admission, which it was not allowed to charge at the time. So the court might decide that Utah’s lands must *first* revert to Utah, before the US congress or president can take them away again.
And if the courts choose to do so, then Utah could sell most of the State, at nominal cost, to private owners, so that the federal government would have to use eminent domain, paying those landowners a lot of money, to take those lands back.
This last part is theory, of course. But at least it gives Utah standing before the SCOTUS.