Utah lawmakers gave a quick green light to a bill proposing to let cities and counties take over federal land, despite strong warnings from legislative attorneys that it is almost certainly unconstitutional.
"When it comes to public lands, I consider it a badge of honor to have a constitutional note," said Rep. Ken Sumsion, R-American Fork, referring to the note from lawyers cautioning about the bill’s legality.
The bill, HB511, passed easily — breezing through the House Natural Resources Committee on an 8-1 vote. Only one member, Rep. Doug Sagers, R-Tooele, questioned the legal analysis, which he said "paints a picture that’s not very pretty," but he voted for the bill.
The Legislature’s lawyers said that cities and counties have no standing to exercise eminent domain over federal land and the law would violate a string of Supreme Court precedents and the Property Clause of the Constitution.
Two years ago, Sumsion and Rep. Chris Herrod, R-Provo, sponsored legislation that would have let the state use eminent domain authority to seize land from the federal government. But the governor and attorney general have never exercised the authority.
Now Sumsion, who is running against Gov. Gary Herbert, wants to extend the authority to cities and counties, which he acknowledges would be a useful tool for counties looking to expand oil and gas development and southern Utah counties where there are frequent clashes over access to federal lands.
But he said it could also be used in his district to take over land owned by the U.S. Bureau of Land Management.
"On the west side of Utah Lake … along West Mountain, there are substantial acreage of BLM land on that mountain, and generally the common use of that land is: Every summer it burns and almost burns down Saratoga Springs," Sumsion said. "But it’s very developable and I could see a county or city using this authority, coming in and saying, ‘What is the best use of this land?’ "
Sumsion’s argument hinges on the contention that when Utah was granted statehood Congress agreed to sell off land within the state’s borders, but has failed to do so.
Under his proposal, counties would not receive the eminent domain authority until 2014 because he and Rep. Ken Ivory have other legislation demanding the federal government sell land to Utah or face taxes or other penalties.
He said he wants to give those efforts a chance to work through the courts before cities begin to take action.
"In essence, what I’m trying to do is be creative and use court cases to find ways to get access and use of some of our public lands in a little different way than we have been talking about over the past couple of years," Sumsion said.
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