Utah Uses Eminent Domain to Seize Land of ... Uncle Sam

But according to the Southern Utah Wilderness Alliance (SUWA), more than three-quarters of the nearly 23 million acres of BLM land in the state is available for oil and gas development, even though only 1.1 million acres are currently in production.

SUWA is a leading advocate in Utah for greater federal protections of the state's dramatic canyons, rugged cliffs, and lumpy stacks of gravity-defying red rocks. Like many preservationists, SUWA sees much of the state's public lands as national treasures in need of conserving. It's also advocating that much more of the state's pristine canyon lands receive wilderness designation.

"We still have these truly wild areas, and that's becoming a real rarity," says Ray Bloxham, a SUWA field inventory specialist.

Mr. Bloxham recently flew with a reporter from Salt Lake City to Moab, an eastern Utah hamlet that serves as a tourists' gateway to Arches and Canyonlands national parks. From the window of a small airplane, Utah reveals its scenery: Snowcapped peaks slope into deep crevices that squiggle like centipedes across the landscape.

On the ground in Moab, a town once populated with uranium prospectors, residents largely rely on tourism for their livelihoods. If development isn't tempered, they say, visitors may start going elsewhere.

"If you don't set aside wilderness for the future, what will you have?" asks Theresa Butler, a river guide, shrugging her shoulders.

But Representative Herrod says he'd never advocate sticking an oil well in the middle of Zion National Park, one of Utah's five national parks. But, he says, "I believe that we should manage the land. We are better stewards of it."

Many legal scholars and environmental law experts say Utah has little chance of successfully defending its eminent domain law in court. But according to Herrod, the federal government is in violation of the 1894 Utah Enabling Act, which allowed Utah into the Union. In his view, the law stipulated that the federal government was to sell lands held in a public trust back to Utah.

"When Utah and other states came into the Union, they gave these lands up," says Steve Bloch, an attorney for SUWA. "Trying to hang your hat on the language of the Enabling Act is a dead end. That is not going to be the basis for the state to survive a constitutional challenge in this case."

Other states have tried similar tactics and failed. For example, the US government controls about 80 percent of the land in Nevada. In a case in the 1990s, the state argued that this violated the equal footing doctrine, which holds that states should be treated equally when admitted to the Union. A federal judge rejected the case.

For its part, Utah has set aside $3 million to cover legal fees to defend its eminent domain law. The state hasn't tested the law yet, but it may do so next year.

The moment Utah begins plowing through federally protected lands, a Justice Department lawsuit will probably follow. Many states will be watching.

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