The Utah bill H.B. 511 titled Eminent Domain of Federal Land was introduced February 27 and on March 2 it was submitted to Rules Committee.
This bill authorizes a political subdivision to exercise eminent domain authority on property possessed by the federal government unless the property was acquired by the federal government with the consent of the Legislature and in accordance with the United States Constitution Article I, Section 8, Clause 17.
To the point this bill would require that the federal government turn over to the state all lands within the boundaries of the state of Utah that are presently under its control unless the state of Utah had deeded that land to them.
Now here is where it gets interesting:
As required by legislative rule and practice, the Office of Legislative Research and General Counsel provides the following legislative review note to assist the Legislature in making its own determination as to the constitutionality of the bill.
They have stated that:
Two clauses in the U.S. Constitution empower the federal government to own and retain land. The first, the Enclave Clause, authorizes the federal government to “purchas[e] by the Consent of the Legislature of the State” land for specific and enumerated purposes like military structures “and other needful Buildings.” U.S. Const. art. I, sec. 8, cl. 17. This bill would not affect lands acquired by the federal government in accordance with the Enclave Clause.
The second, the “Property Clause,” authorizes Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” U.S. Const. art. IV, sec. 3, cl. 2. Unlike the Enclave Clause, the Property Clause does not require that the federal government receive a state legislature’s consent to own land. The U.S. Supreme Court has held that “Congress has the same power over [territory] as over any other property belonging to the United States; and this power is vested in Congress without limitation…”
Parties contesting federal control or ownership of public lands under the Property Clause have argued that the equal footing doctrine requires Congress’ recognition of a state’s sovereignty over public lands. “The equal footing doctrine is grounded in the idea that new states enter the Union with the same rights as the original states.” Koch v. United States, DOI, Interior Bd. Of Land Appeals, BLM, 47 F.3d 1015, 1018 (10th Cir. 1995) (citations omitted). The courts, however, have limited the equal footing doctrine to apply only to the title of land underlying navigable waters: “The equal footing doctrine simply does not cause land in non-navigable waters to pass from the federal government to the state.” Id. at 1019. See also Texas v. Louisiana, 410 U.S. 702, 713 (1973). Furthermore, the equal footing doctrine requires political, not economic or geographic, equality between the states. United States v. Texas, 339 U.S. 707, 716 (1950). See also Texas v. Louisiana, 410 U.S. at 713.
So, basically according to the Supreme Court if you are not one of the original 13 states the federal government can do what it wishes with the land that it has refused to turn over when the territory became a state. Who would have ever though that the Supreme Court made up of 9 federal employees, nominated by the President confirmed for life by the Senate would ever side with the federal government?
But I think Utah’s real problem lies in the act that brought it into existence:
In 1894, the U.S. Congress passed the Utah Enabling Act. Act Cong. July 16, 1894, ch. 138, 28 Stat. 107. The Act declared that as a condition of Utah’s acceptance into the Union, the people of Utah “agree[d] that they forever disclaim[ed] all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States …” Id. at § 3. At this time, Utah also adopted the U.S. Constitution as a condition to joining the Union. Id.
It seems that the best scenario for resolution of this problem would be for all the states that contain federal lands “that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States” pass a bill through Congress turning these lands over to the states effected.
How much land are we talking about anyway?
The top 10 list of states with the highest percentage of federally owned land
looks like this:
1. Nevada 84.5%
2. Alaska 69.1%
3. Utah 57.4%
4. Oregon 53.1%
5. Idaho 50.2%
6. Arizona 48.1%
7. California 45.3%
8. Wyoming 42.3%
9. New Mexico 41.8%
10. Colorado 36.6%
Most of this land has tremendous natural resources that could be developed for the benefit of the citizens of the state and the United States citizens as a hole. Even though these lands are within the boundaries of the state the state has no control over them, if you see no problem with federal government having absolute control over these lands then you might want to read this article.
The United States is becoming a debtor nation with trillions of dollars owed to foreign countries predominantly China. When payment is demanded for this debt will federally ‘owned lands’ with extensive natural resources be used to settle the debt?
This is an issue that with the continued encroachment on state sovereignty by the federal government will need to be addressed so that all states are put on ‘equal footing.’
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