Counties could seize federal land through Utah law

By Josh Loftin

Associated Press

Published: Monday, Feb. 27 2012 9:51 p.m. MST

Constitutional concerns failed to derail a bill in the Utah House on Monday that would give counties the power to seize federal lands for development.

Stuart Johnson, Deseret News archives

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SALT LAKE CITY — Constitutional concerns failed to derail a bill in the Utah House on Monday that would give counties the power to seize federal lands for development.

Many Republican lawmakers instead seemed willing and even excited to challenge federal control of public lands within the state.

"We will not have political equality until we control the lands within our boundaries," said Rep. Mike Noel, R-Kanab, one of the most vocal advocates for the state's sovereignty. "We've pilfered away our rights like a slab of bologna, one slice at a time. I am not going to put up with it anymore."

House Bill 511, which passed the House 57-14 on Monday and now moves to the Senate, would give the counties eminent domain power over federal lands. The bill passed on a mostly party line vote, with only Democrats opposing it.

Legislative attorneys have cautioned the bill has is very likely unconstitutional, just as they did in 2010 when the Legislature gave the state the same power.

The state has not used the power and a lawsuit is unlikely until it does, which is at least part of the motivation for expanding the law to include counties, said Rep. Ken Sumsion, R-American Fork, the bill's sponsor. After all, counties are in a better position to identify federal land that could be better utilized.

If a lawsuit does happen, Sumsion said it would likely ultimately be decided by the U.S. Supreme Court.

While the federal government controls millions of acres — approximately 60 percent of the state — a county may have just a few acres of "sagebrush that could be developed into a hotel," Sumsion said.

Rep. Brian King, D-Salt Lake City, countered by saying that entering into such a court fight is ridiculous, especially at a time when budgets are flat and economic concerns linger. The resulting lawsuit could cost "millions and millions of dollars" to argue claims that will almost surely be lost.

"Our legislative counsel isn't here to make a ruling on whether something is constitutional," King said. "They're just trying to keep us out of trouble ... and it's highly probable this whole argument will go down in flames."

But the potential costs didn't discourage supporters, who argue the state was given the right to control the lands at statehood.

"The only way to overcome bad case law is put something forward to challenge it," Rep. Chris Herrod, R-Provo, said.

Josh Loftin can be reached at http://www.twitter.com/joshloftin

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