Long frustrated by Washington’s control over much of their state, Utah legislators are proposing a novel way to deal with federal land -- seize it and develop it.
The Utah House of Representatives last week passed a bill allowing the state to use eminent domain to take land the federal government owns and has long protected from development.
The state wants to develop three hotly contested areas -- national forest land in the Wasatch Mountains north of Salt Lake City, land in a proposed wilderness area in the red rock southwestern corner of the state, and a stretch of desert outside of Arches National Park that the Obama administration has declared off-limits to oil and gas development.
Supporters argue that provisions in the legislation that granted Utah statehood allow it to make such a land grab. They also hope to spark a showdown in the Supreme Court that would rearrange the balance of power between states and the federal government.
Some legal experts say the effort is unlikely to succeed, but Republican state Rep. Chris Herrod, one of the authors of the bill, said the state had little choice.
“I love America, and I’m a peaceful guy,” Herrod said, “but the only real option we have is rebellion, which I don’t believe in, and the courts.”
The eminent domain proposal is among the most audacious yet in a state accustomed to heated battles over the two-thirds of its land owned by the federal government.
This is the state, after all, where local officials bulldozed their own roads through Grand Staircase-Escalante National Monument, tore down signs barring off-roading in Canyonlands National Park and, with funding from the statehouse, spent years unsuccessfully defending those actions in federal court.
The eminent domain proposal quickly drew scorn from environmental groups.
“This is an ideological fantasy,” said Scott Groene, executive director of the Southern Utah Wilderness Alliance in Moab. “Everybody knows this isn’t going to happen. The federal public lands are the thing that makes the American West so great.”
The proposal is one of a host in statehouses nationwide that show a deep discontent with federal authority. Eight legislatures have passed resolutions asserting, to various degrees, the sovereignty of their states.
In Utah, a dozen measures have been introduced since January that defy the federal government. It has reached such a pitch that the House’s Democratic leader last week complained that Republicans were spending too much time on such proposals.
The most aggressive efforts are generally by conservative groups, but Michael Boldin of the 10th Amendment Center in Los Angeles -- named for the constitutional clause that some contend limits federal power over states -- said that states’ rights were also being cited by liberals in support of state proposals to legalize marijuana and gay marriage.
In the Intermountain West, particularly in rural areas, residents have long complained that federal preservation of land has prevented development that could provide reliable jobs and bolster the tax base.
Last week, a Utah congressman warned that the Obama administration was plotting to create two national monuments in the state, and Republican Gov. Gary Herbert announced that he would meet with Interior Secretary Ken Salazar to urge him to reconsider.
The administration said the hullabaloo was sparked by a memo identifying areas that could be protected at some point in the future, not imminently.
A spokeswoman said Herbert supported the concept of the eminent domain proposal but was unsure whether it would survive a legal challenge. The bill’s authors contend they can rely on the legislation that brought Utah into the union in 1896, which they read as requiring the federal government to sell its land in the state and give Utah a 5% cut.
The legislators want to seize and open two roads through national forest land that the federal government closed. This would allow access to state land that they hope to sell to developers to build high-end cabins.
A third area would be more provocative: a swath of federal land outside Arches National Park where the George W. Bush administration, on the eve of the 2008 election, authorized oil and gas exploration. The Obama administration reversed the decision.
Legal experts contend that the federal government is under no obligation to sell its land in Utah and that no state could successfully seize federal property.
“It flies in the face of history and is also inconsistent as a point of law,” said Bob Keiter, a law professor at the University of Utah.
Keiter and others argue that the move illustrates a pattern in recent Western history -- a conservative backlash to the election of a Democratic president. After Jimmy Carter was elected in 1976, the movement known as the Sagebrush Rebellion helped lock up the West for the GOP and put Ronald Reagan in the White House.
President Clinton faced a similar backlash, aggravated by his creation before the 1996 presidential election of Grand Staircase-Escalante Monument.
“Utah has this history of grand conservation gains,” Groene said. “Every time it happens it triggers this anger. And 20 years later we always look back and agree that conservation was a wise idea.”