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Utah Invokes Eminent Domain Against the Federal Government
abovethelaw.com ^ | 29 Mar 2010 at 3:41 PM | ELIE MYSTAL

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 it’s 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. government’s 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 don’t know what the hell Utah lawmakers are smoking …

I’m going to put some kind of latex protection around my brain before I get down into the muck and deal with Utah’s argument. I suggest you do the same. The Salt Lake Tribune reports:


TOPICS: Extended News; Government; US: Utah
KEYWORDS: coal; eminent; eminentdomain; energy; government; kelo; land; utah; waste
http://blogs.wsj.com/law/2010/03/29/in-war-between-states-and-feds-utah-strikes-latest-blow/

http://www.sltrib.com/ci_14377307?IADID=Search-www.sltrib.com-www.sltrib.com

1 posted on 03/29/2010 7:05:20 PM PDT by JerseyHighlander
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To: JerseyHighlander

GOOD!!!!


2 posted on 03/29/2010 7:07:47 PM PDT by SandRat (Duty, Honor, Country! What else needs said?)
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To: JerseyHighlander

Sounds like a plan.


3 posted on 03/29/2010 7:09:20 PM PDT by Parley Baer
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To: JerseyHighlander
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. Clinton and Obama both took over millions of acres through new park designations. The problem is the school trust lands, that fund education in the state through oil and gas revenues, are now landlocked thanks to Obama’s purposeful and direct intentions.

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?

4 posted on 03/29/2010 7:11:36 PM PDT by Ripliancum (I'm not ignoring you, just taking good counsel. - Proverbs 15:1-4)
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To: JerseyHighlander

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.


5 posted on 03/29/2010 7:13:53 PM PDT by sourcery (Government should be as powerless as possible, while still able to protect individual rights)
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To: JerseyHighlander

It is in these unorthodox ways that the States (and citizens) will successfully battle Fedzilla.


6 posted on 03/29/2010 7:16:32 PM PDT by PGR88 (I'm so open-minded, my brains fell out.)
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To: JerseyHighlander
The Constitution authorizes the Federal government to operate "forts, dockyards, arsenals, magazines, and other needful buildings."

Not parks, wilderness, critical habitat, national forests, BLM rangeland, and other sequestered resources.

7 posted on 03/29/2010 7:17:56 PM PDT by Carry_Okie (The Democrats were the Slave Party then; they are the Slave Party now.)
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To: JerseyHighlander
I read the article and can't say that I know much about the western states and the federal governments hold on the land. With that said, I can see how the feds are a hindrance to economic growth for the inhabitants of the state. In today's environment of the feds taking over, I would say, “Go Utah”.
8 posted on 03/29/2010 7:18:20 PM PDT by Bronzy
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To: sourcery

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.


9 posted on 03/29/2010 7:22:05 PM PDT by tbw2 (Freeper sci-fi - "Humanity's Edge" - on amazon.com)
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To: Ripliancum

“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.


10 posted on 03/29/2010 7:24:19 PM PDT by Sherman Logan (It's the worse case in the nation of the Feds stealing from the state and it's residents.)
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To: Sherman Logan
Correct, on the first count. I should have said the worst case of valuable land grabs in the nation. The energy reserves in oil, gas, coal and shale that were tied up by Clinton and Obama within Utah is absolutely criminal!
11 posted on 03/29/2010 7:27:30 PM PDT by Ripliancum (I'm not ignoring you, just taking good counsel. - Proverbs 15:1-4)
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To: JerseyHighlander

The “new sagebrush rebellion”; I like it!


12 posted on 03/29/2010 7:32:25 PM PDT by JSDude1 (www.wethepeopleindiana.org (Tea Party Member-Proud), www.travishankins.com (R- IN 09 2010!))
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To: Ripliancum

“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.


13 posted on 03/29/2010 7:33:24 PM PDT by Loyal Sedition
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To: Loyal Sedition

Thanks, I’ve been pointed out my error already.


14 posted on 03/29/2010 7:38:32 PM PDT by Ripliancum (I'm not ignoring you, just taking good counsel. - Proverbs 15:1-4)
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To: Ripliancum
Thanks, I’ve been pointed out my error already.

Consider yourself fortunate if it doesn't happen 3 or 4 more times.

15 posted on 03/29/2010 7:40:06 PM PDT by Graybeard58
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To: Sherman Logan
“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.

“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.

Photobucket

Not useful for anything? The government held lands (shown in black) in Alaska, Nevada, Oregon, and Utah are filled with lumber, silver, uranium, oil, natural gas, low sulfur coal, gold, etc... I can't speak for Idaho because I don't know much about it.
16 posted on 03/29/2010 7:40:14 PM PDT by Tailback
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To: JerseyHighlander

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.


17 posted on 03/29/2010 7:41:56 PM PDT by Tymesup
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To: Tailback

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.


18 posted on 03/29/2010 7:56:51 PM PDT by Sherman Logan (It's the worse case in the nation of the Feds stealing from the state and it's residents.)
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To: JerseyHighlander

All the Red states need to do this now. We have to fight back. Use the same tactics.


19 posted on 03/29/2010 7:59:36 PM PDT by Frantzie (McCain=Obama's friend. McCain called AMERICANS against amnesty - "racists")
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To: JerseyHighlander

What? You mean everybody’s dogs don’t talk? Guess I better reevaluate my mini-pin.


20 posted on 03/29/2010 7:59:56 PM PDT by pappyone (New to Freep, still working a tag line.)
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To: Tymesup
The Grand Staircase-Escalante National Monument has about 1.9 million acres and tied up some of the best low sulfur coal deposits in the US.

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.

21 posted on 03/29/2010 8:00:05 PM PDT by OldMissileer (Atlas, Titan, Minuteman, PK. Winners of the Cold War)
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To: Sherman Logan
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.

Oh really?!

Who died and made you boss so that you could make that choice for every other US citizen?
22 posted on 03/29/2010 8:09:55 PM PDT by SoConPubbie
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To: SoConPubbie

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.


23 posted on 03/29/2010 8:32:59 PM PDT by Sherman Logan (It's the worse case in the nation of the Feds stealing from the state and it's residents.)
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To: JerseyHighlander

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.


24 posted on 03/29/2010 8:33:04 PM PDT by yefragetuwrabrumuy
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To: Sherman Logan
How am I making such a choice for others?

Sorry, too strong of a statement on my part.

I guess what I should have said is that there are other uses for the land besides making a buck.

Maybe someone would love to live on land that might be otherwise non-profitable.

I, for one, are sick and tired of land being gobled up by the Feds or the State or any other government agency. They have enough. Whatever land that is left, should remain in private hands.
25 posted on 03/29/2010 8:36:48 PM PDT by SoConPubbie
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To: SoConPubbie

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.


26 posted on 03/29/2010 8:40:32 PM PDT by Sherman Logan (It's the worse case in the nation of the Feds stealing from the state and it's residents.)
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To: Sherman Logan
Unless I’m mistaken, the government isn’t taking private land in Utah.

I believe Clinton did by adding land that had a specific type of coal as some sort of monument.

I don't believe that it is necessary to create anymore parks or monuments, in fact, I think the reverse is true. We need to return land to private control, private ownership.
27 posted on 03/29/2010 8:45:49 PM PDT by SoConPubbie
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To: yefragetuwrabrumuy
Importantly, much of the western land takings were done by “presidential proclamation”.

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.

28 posted on 03/29/2010 8:45:57 PM PDT by Sherman Logan (It's the worse case in the nation of the Feds stealing from the state and it's residents.)
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To: SoConPubbie

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.


29 posted on 03/29/2010 8:54:40 PM PDT by Sherman Logan
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To: JerseyHighlander; pandoraou812
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.

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

it couldn't."

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?"

30 posted on 03/29/2010 9:06:36 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: Sherman Logan
This area, BTW, includes some of the most spectacular country in Utah, right up there with Zion and other National Parks.

I'm sure it does, but that does not mean it, and all the land around it, should be locked up under federal or state lock and key.

As you probably could figure out, I'm not much into the environmental movement.
31 posted on 03/29/2010 9:07:39 PM PDT by SoConPubbie
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To: Sherman Logan; yefragetuwrabrumuy
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.

Really?

So from the point in time that any of these areas were either a territory or state of the US, they have never been in private hands?
32 posted on 03/29/2010 9:09:03 PM PDT by SoConPubbie
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To: Tailback
Two states in you map jump out at me:

1) There doesn't seem to be anything worth "taking" in Kansas.

2) The Feds "don't mess with Texas.

33 posted on 03/29/2010 9:11:24 PM PDT by ZOOKER ( Exploring the fine line between cynicism and outright depression)
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To: TigersEye

I like this, good one.


34 posted on 03/29/2010 9:21:54 PM PDT by pandoraou812 (timendi causa est nescire)
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To: JerseyHighlander

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.


35 posted on 03/29/2010 9:25:35 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: pandoraou812

Zappa.


36 posted on 03/29/2010 9:25:53 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: Sherman Logan
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.

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.

37 posted on 03/29/2010 9:30:03 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: SoConPubbie

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.


38 posted on 03/29/2010 9:31:07 PM PDT by Sherman Logan
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To: ZOOKER

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.


39 posted on 03/29/2010 9:35:56 PM PDT by Sherman Logan
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To: Sherman Logan

You should check out north eastern and central Utah where there are beautiful forested mountains with lots of water.


40 posted on 03/29/2010 9:37:55 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: TigersEye

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.


41 posted on 03/29/2010 9:39:46 PM PDT by Sherman Logan
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To: TigersEye

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.


42 posted on 03/29/2010 9:43:24 PM PDT by Sherman Logan
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To: sourcery

Yup.
Kelo.

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.


43 posted on 03/29/2010 9:48:13 PM PDT by djf
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To: Sherman Logan
That wouldn't be as appealing to me either but it would be to some people. Less so for commercial interests as well. I think of all the mountainous lands in CO, WY, MT, ID, OR, WA and northern CA. Purely as residential real estate it would be worth loads. Also for privately developed recreational uses.

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.

44 posted on 03/29/2010 10:02:51 PM PDT by TigersEye (Duncan Hunter, Jim DeMint, Michelle Bachman, ...)
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To: Tymesup
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.

There was one other known large deposit of low-sulfur lignite in the world--in Bosnia.

45 posted on 03/29/2010 10:46:11 PM PDT by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: JerseyHighlander

bflr


46 posted on 03/29/2010 10:52:35 PM PDT by Kevmo (So America gets what America deserves - the destruction of its Constitution. ~Leo Donofrio, 6/1/09)
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To: Sherman Logan
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.

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.

47 posted on 03/29/2010 10:56:24 PM PDT by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: Sherman Logan
Not all of it is beautiful.

Until it rains. What a transformation!

48 posted on 03/29/2010 10:57:29 PM PDT by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: Sherman Logan

Resource development and building better access so more people can use the area seems useful.


49 posted on 03/30/2010 3:29:35 AM PDT by thackney (life is fragile, handle with prayer)
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To: Sherman Logan

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.


50 posted on 03/30/2010 8:35:05 AM PDT by yefragetuwrabrumuy
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