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Feds block Utah law over police power on public lands

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Tribune file photo Rep. Mike Noel, R-Kanab, sponsored HB155, which prohibits Forest Service and BLM employees from law enforcement activities on public lands.

By Robert Gehrke

The Salt Lake Tribune

First published May 13 2013 01:41PM
Updated Dec 7, 2013 11:31PM

A federal judge signed an order Monday blocking implementation of a Utah law prohibiting some Bureau of Land Management and Forest Service employees from enforcing state laws anywhere in Utah after the U.S. Department of Justice argued the law was unconstitutional.

HB155, sponsored by Rep. Mike Noel, R-Kanab, makes it a class B misdemeanor, punishable by a $1,000 fine and six months in jail, for federal employees who are not certified law enforcement officers to enforce any state law within Utah.

In a filing Monday, the Justice Department said that Congress has the authority to make laws governing federal lands and that the Utah Legislature does not have the power to overturn or supersede those laws and rules.

The federal regulations governing the officers and land have been written to incorporate state laws and local ordinances.

After a conference call with attorneys for the state and federal governments, Judge David Nuffer signed a temporary restraining order blocking the law from taking effect until a June hearing on a longer-term injunction. The law had been scheduled to kick in Tuesday.

Ultimately, the Justice Department is asking the judge to strike down the law as unconstitutional.

"BLM and Forest Service employees who operate in the State of Utah will subject themselves to potential criminal penalties under state law by continuing to perform the duties required of them under federal law," the federal government wrote in the brief.

During the legislative hearing on the bill, Noel said he worked with staff attorneys to try to ensure the bill was not given a constitutional note by legislative attorneys — meaning there is a high likelihood the bill would be found unconstitutional by a judge.

Noel said federal officers in rural Utah have been stopping and detaining residents on county roads. He argued that the county sheriffs who are elected and more responsive to residents should be the ones enforcing the law.

Utah Attorney General John Swallow said that his office will "vigorously defend" the new state law.

"We don’t want Utah citizens going before a federal magistrate for a speeding ticket," Swallow said in a statement. "We are concerned about the federal government once again encroaching on states’ rights and we will vigorously defend the constitutionality of HB155."

There is a decades-old dispute about the ownership of thousands of roads, trails and dirt paths across federal lands and Utah is suing for ownership of them.

Noel says HB155 was drafted narrowly, applying only to BLM rangers and Forest Service protection officers and employees and had the support of sheriffs. He said it makes sense that officers should be trained and certified if they are going to enforce Utah laws.

For example, BLM rangers are stopping people for speeding on state and county roads, Noel said, when Utah never gave them permission to do that.

"That, to me, is an overstepping of their authority," he said. "If we can’t stop this, how do we stop them from encroaching on any area of states’ rights and matters of federalism?"

Noel said the issue is important to all Western states, so he would like to see the courts resolve it.

"It’s a question that needs to be answered," he said, "and I’m OK with them coming back and saying, ‘Let’s get the courts involved and let them decide.’ "

Kane County Sheriff Lamont Smith told a legislative committee during the session that untrained BLM and Forest Service employees are abusing their discretion in issuing speeding and other citations. "It’s an assault on the sovereignty of the State of Utah," Smith said.

gehrke@sltrib.com

Twitter: @RobertGehrke

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