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Utah to challenge federal land ownership

By Henry Lamb
web posted February 22, 2010

In a modern David and Goliath battle, Utah Representative Christopher Herrod has introduced HB143 which, if enacted, would authorize the state to use eminent domain to take land from the federal government.  About 60 percent of the state is owned by the federal government.

Herrod, and his backers, hope to inspire other western states to join their effort to force the Supreme Court to hear their arguments.  The federal government owns most of the land in all western states.

As a condition of statehood, the citizens of Utah were required to "…forever disclaim right and title to unappropriated public lands."    In the same July 16, 1894 Enabling Act, the federal government agreed to grant four sections of every township, and various other grants of land, to the state to provide permanent funding for schools and other government purposes. 

Herrod, and his backers, contend that the federal government has not lived up to its end of the bargain, and its failure has imposed economic hardship on Utah.  Virtually every other western state can make the same claim.  Moreover, the federal government has imposed environmental regulations that have further stifled the state's ability to use its natural resources.

A particular target of eminent domain will likely be the massive reserves of low-sulfur coal that was locked away forever by the Clinton-era designation of the Grand Staircase-Escalante National Monument.  Estimates of the value of the coal deposits reach into the tens of billions of dollars.

Backers of the initiative recognize that it will be an uphill battle.  The legislature's own research staff concludes that "…there is a high probability that a court would hold that the federal government is the sovereign of public lands."  Nevertheless, the state's Attorney General, Mark Shurtleff, is ready to lead the fight in court, and Herrod's bill sets aside $3 million for the legal battle.

Should the other western states get on board, and join Utah's initiative, the Supreme Court would be hard pressed to ignore their petition.  More important might be a public awareness of the case and a public outcry in support of returning the lands to the states.

The timing could be perfect for this battle.  The federal government is facing robust public criticism for the unstoppable bloating bureaucracy, and the spiraling cost of government.  If federal lands were returned to the states, massive downsizing of the federal government would follow.  If there were no other reason to return the land to the states, the downsizing of government should be sufficient justification.

There are other reasons. Good reasons.  Western states were admitted into the union on a so-called "equal footing" status.  How can Utah, with the federal government owning 60 percent of the land, be considered equal to any state east of the Mississippi, where the percentage of land owned by the federal government is minimal.

Environmentalists and socialists are quick to claim that federal lands are "public" lands, which belong to all people.   Except for public parks authorized by elected representatives of the people, there is absolutely no justification for government to own any lands, aside from the lands authorized by Article 1, Section 8, Clause 17 of the U.S. Constitution.  

If the federal government is justified in owning 33 percent of all the land area in the nation, why is it not justified in owning 66 percent, or 99 percent?  Of course, environmentalists and socialists would prefer that the federal government own all the land, and absolutely control its use.  This position is diametrically opposed to the concept of private property honored in both the U.S. Constitution and the Utah Constitution. 

The federal government should own no land other than the land authorized by Article 1, Section 8, Clause 17.

 Were the Supreme Court to rule in favor of the Utah initiative, the federal government could shed enormous expense and reduce the size of government.  State governments would have enormous resources to convert to revenue to fund budget deficits and provide tax relief for private citizens and small businesses. 

The Utah initiative is, indeed, a modern David and Goliath battle, but it can be a battle joined by a powerful equalizer.  The legislatures of western states can follow Utah's lead.  The people in every state can demand that the federal government reduce its size and cost.  A painless way to do both is to simply return federal lands to the states. 

The people would reap an additional benefit because states are far better stewards of the land within their borders than the federal government could ever be.  The people who live in Utah know Utah far better than bureaucrats in Washington.  The people who live in Utah are entitled to their own land and resources, just as the people of New Jersey are entitled to theirs.  Perhaps Utah's initiative will be the stone that will knock some sense into the federal Goliath. ESR

Henry Lamb is the author of "The Rise of Global Governance,"  Chairman of Sovereignty International , and founder of the Environmental Conservation Organization (ECO) and Freedom21, Inc.






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