Mike Terry, Deseret News
Saratoga Springs, Utah on Tuesday, June, 30, 2009.
We can make use of court cases to help us find ways to get access and use some of our public lands. —Rep. Ken Sumison

SALT LAKE CITY — Shaking off any legal analysis that says his measure is blatantly unconstitutional, Rep. Ken Sumsion is forging ahead this session with a proposal that would give cities the power to condemn federal public land if it can be put to a better use.

"I consider it a badge of honor to have a constitutional note" on HB511, the Republican from American Fork said to a committee Thursday.

Sumsion is hitching his reasoning to a U.S. Supreme Court decision, Kelo v. New London, that gave cities eminent domain power over land if it could be proven the property is not being put to "best use."

Although he called it a "horrible case," Sumsion said the 5-4 decision in Kelo could help local and state governments embrace a creative path when it comes to the destiny of Utah's vast public lands controlled by the federal government.

He specifically mentioned Bureau of Land Management controlled lands on the mountains west of Utah Lake and abutting the growing community of Saratoga Springs.

"There are substantial acreage of BLM lands on that mountain and almost every summer it burns and nearly burns down Saratoga Springs," he said. "We can make use of court cases to help us find ways to get access and use some of our public lands."

If it becomes law, HB511, which passed out of the House Natural Resources committee to the full House, would not go in effect until 2014 and would augment a law passed two years earlier by the Utah Legislature that gave the state eminent domain authority over public land.

A constitutional note by the committee's legislative analyst said Sumsion's bill would run counter to the U.S. Supremacy Clause.

In Kelo, justices agreed the city had the right to seize the private land of one owner in favor of transferring it to another owner — a development company — because the land could be put to better use for a planned economic development.

Sumsion said such a strategy fits Utah's arsenal when it comes to idle public lands that aren't being put to good use.

"This would be another tool to help garner access to some of those properties," he said. "We've been engaged in this battle for 100 years. We want to move that battle to a higher level in our courts."

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