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:
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.
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.
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.
bflr
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.
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