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

May 9, 2010 -- Utah is itching for a land fight. A battle with Washington over territorial rights and state sovereignty. It wants to spark a revolt in which Western states attempt to wrest control of federal lands within their borders.

The Beehive State might just get its way, too. In March, Gov. Gary Herbert (R) signed a controversial law authorizing the use of eminent domain to capture some of the millions of acres that the federal government owns here. The law was tailor-made to provoke a lawsuit, possibly reaching the US Supreme Court, and to inspire other Western states to enact similar legislation.

While it's unusual for eminent domain to involve the taking of federal lands, this law is a byproduct of many Utahns' frustrations: The US government owns more than 60 percent of the state, thus dictating whether land has been set aside for preservation or can be accessed for mineral deposits.

The law also comes amid a wave of states' rights initiatives nationwide, which are challenging the federal government's authority on gun laws and President Obama's health-care reform.

"In this country, people are awake. They are seeing the encroachment of the federal government more than ever," says Amber Harrison, an activist who traveled last fall to Washington from Vernal, in northeastern Utah. She advocates that the federal government offer more leases on its land for oil and natural-gas drilling.

The eminent domain law, Ms. Harrison says, "gives us the opportunity as a state to tell the federal government that this is ours and we know how to control it." She adds, "We can take some of these public lands and put them back to work for us."

Land disputes are certainly nothing new in the rural and rugged West. But many conflicts pitting preservationist against developer have become a central theme in Utah's contemporary narrative – especially as education spending is cut, budget shortfalls climb, and unemployment persists.

Indeed, some blame the federal government's barriers to development on mineral-rich public lands for keeping millions in associated tax revenues from flowing into schools. Utah has the lowest per capita student spending in America.

Over the past 15 or so years, the state has taken an increasingly aggressive stance against the expansion of federally protected land. The catalyst: In 1996, President Clinton designated the Grand Staircase-Escalante National Monument, a 1.9 million-acre swath of southern Utah that the state had eyed for energy developments.

"One small section of the Grand Staircase has a trillion dollars in natural resources," says Rep. Chris Herrod, the Republican state legislator from Provo who sponsored the eminent domain bill. "The people of Utah are being robbed."

Then, last year, the Obama administration revoked 77 leases for development on Bureau of Land Management (BLM) land in Utah. Many here saw it as a sign that more federal control was bound for Utah's public lands.

What's more, a recently leaked Interior Department memo suggests that two more sites in Utah could be potential national monuments, which would put them off limits to any development. That set off a firestorm of criticism from Republican lawmakers who said Mr. Obama was on the verge of orchestrating a massive and secretive federal "land grab."

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.