Judge blocks Utah law limiting federal authority on public lands
By Brian Maffly
The Salt Lake TribuneFirst published Jun 28 2013 01:46PM
A federal judge on Friday blocked Utah’s latest anti-federal law, saying HB155 appears to impose the state’s will on federal land management and "creates irreparable harm to the constitutional order."
After fielding arguments on the law that seeks to limit federal police powers on public lands, U.S. District Judge David Nuffer issued a preliminary injunction pending a final ruling at trial.
"There is a strong public interest in the enforcement of law on public lands. We do not want to leave federal lands without clear boundaries of law enforcement," Nuffer said. "Nothing in my ruling will prevent Utah from enforcing state law on federal land."
The federal government filed suit last month, claiming HB155 violates the U.S. Constitution’s Supremacy Clause, undermines public and officer safety and hamstrings agencies’ ability to manage natural and cultural resources.
The judge concluded these arguments will likely prevail and agreed HB155 could thwart agencies from pursuing obligations Congress has delegated to them. He also had serious concerns about the criminal penalties the law would impose on federal agents for pursuing legitimate law-enforcement duties.
Abuses • But Mark Ward, representing the Utah Sheriffs’ Association which backed the law, said HB155 merely tries to curtail federal law-enforcement abuses in which agents arrest citizens for state offenses. He accused the Bureau of Land Management and U.S. Forest Service of unlawfully "assimilating" state laws to extend the reach of their authority.
The judge agreed such acts would be improper if done on an ad hoc basis, but HB155 tries to block federal enforcement of any federal laws that references Utah law. "Federal agents are authorized to enforce federal laws that incorporate state standards," Nuffer said. "It makes sense that laws enforced by state and federal agencies in overlapping jurisdictions should be the same."
Ward argued the case as a "friend of the court" on behalf of the Utah Association of Counties and the sheriffs. Although disappointed by Friday’s ruling, he was heartened by some of Nuffer’s pronouncements, particularly his dim view of the feds’ alleged "ad hoc" assimilation of state laws.
"That was the main problem that caused the sheriffs association to lobby for the bill," Ward said. "It’s unfortunate that he viewed the statute more broadly than that."
Deputy Utah Attorney General Paul Tonks, who argued for the state Friday, also saw a silver lining in some of the judge’s words, although his office may consider an appeal and plans to continue litigating the case. He also said the Legislature could amend the bill to address the constitutional doubts Nuffer raised.
"We will find some way where we can work together to make sure all citizens are taken care of as far as law enforcement on public lands goes," he said.
Sheriff complaints • While not a final decision, Nuffer’s ruling signals that the Utah Legislature overreached when it enacted HB155 last session after hearing a litany of complaints from rural sheriffs. They told lawmakers forest protection officers and BLM rangers trample local law enforcement by pulling over speeders, checking fishing licenses and citing ATV riders.
The bill’s sponsor Rep. Mike Noel, R-Kanab, argued rural communities chose their sheriffs and hold them accountable at the ballot box every four years. Not so with federal bureaucrats.
"I have heard anecdotal reports of citizens cited on a state law basis. Instead of going to local courts they have to go a federal magistrate’s office," Ward told the judge. "There have been some egregious episodes where people have been humiliated and shouted at by federal agents."
But when the judge pressed him, Ward couldn’t cite a specific instance of such behavior.
In Friday’s hearing, federal lawyers noted the state may disagree with the feds’ law-enforcement priorities, but decades of case law say states cannot constrain what regulations agencies adopt and enforce on public land.
"Under the Supremacy Clause, a state is free to enforce its laws, but where they conflict with federal laws, the state laws must give way," Assistant U.S. Attorney Scott Risner said.
Arresting federal agents • The feds’ case may have been bolstered by the conduct of Utah sheriffs who informed BLM officials of their intent to arrest the agency’s cops for violating HB155, even before the law took effect.
At a recent confrontation in a BLM campground, according to court filings, a sheriff’s deputy threatened to arrest a BLM officer who had responded to a disturbance the deputy said should be handled by local authorities.
Incidents like these highlight the public’s confusion arising from HB155, which casts doubt on federal authority and puts officers at risk, Risner said.
Regardless, land agencies have a limited, although important law-enforcement presence, according to court filings. The BLM employs eight agents and 16 rangers to patrol 22 million acres of federal land in Utah. Last year they made just three arrests and issued 27 citations and 110 warnings, according to a declaration filed by Erik Boik, Utah BLM’s chief ranger.
The Forest Service employs 200 forest protection officers and 22 law-enforcement officers, who made 69 arrests in Utah and issued 759 misdemeanor citations last year. Just over half the arrests were for drugs and 69 percent of the citations involved violations of rules protecting forest resources.
HB155 deprives the Forest Service of a critical land-management tool, according to Marlene Finley, deputy forester for the Intermountain region.
"Without an effective law enforcement presence to deter violation of federal laws and rules, there is a greater potential for damage to national forest land and resources from illegal fires, littering and other property damage, and illegal use of off-road vehicles in undesignated areas," she wrote in her declaration.