Property Rights: UT Eminent Domain

Utah Eminent Domain Update…

Utah’s Bid to Take Back Its Land
March 30, 2010
by ALEX ALTMAN
There’s little doubt that defenders of states’ rights are feeling emboldened by the perception that the Obama Administration has overstepped its authority on issues ranging from the bank bailouts to health care reform. The New York Times recently published a good piece on how local lawmakers have harnessed this notion as a rallying cry, a phenomenon that manifested itself in a rash of lawsuits and sovereignty statements (Kansas has just joined the party). The court challenge state attorneys general filed last week to the Obama Administration’s health-care reform bill, which argued the bill’s individual mandate is unconstitutional, was the most high-profile example of this tension. But a story out of Utah provides what is perhaps a more interesting flash point.
On Saturday, Gov. Gary Herbert signed two bills authorizing efforts to invoke eminent domain as a way to reclaim land from the U.S. government, which owns more than 60% of Utah. Lawmakers say the gambit could lead to a court ruling that permits Utah to take back valuable parcels, including a coal-rich plateau, from the feds. Proceeds from developing those lands would be used to bankroll the state’s cash-strapped public schools. “This is the solution to being the lowest-funded education system in the nation,” Utah Rep. Ken Sumsion, a Republican, told the Salt Lake Tribune last month.
As the Wall Street Journal and the AP report, however, it’s highly unlikely that judges would back a bid to seize federal lands:
The goal is to spark a U.S. Supreme Court battle that legislators’ own attorneys acknowledge has little chance of success.
But Utah Attorney General Mark Shurtleff and other Republicans say the case is still worth fighting, since the state could reap millions of dollars for state schools each year if it wins.
Framing the lawsuit – for which the state has set aside $3 million – as a way to bolster sagging schools may be politically fraught, given that Utah recently slashed education funding by $10 million. As the Journal notes, lawmakers may be hoping to capitalize on the state-sovereignty movement’s momentum, as well as a widespread frustration throughout Western states over government encroachment and federal control of natural resources. In an interview with the Deseret News after he signed the bills, Herbert summarized this irritation succinctly: “When the donkey doesn’t move sometimes you need to hit him across the head with a two by four just to get their attention.” Utah voters will have to decide whether delivering that blow is worth $3 million.
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