Deja vu all over again
Remember the Sagebrush Rebellion and the County Supremacy Movement? They were attempts in the 1970s-80s and 1990s, respectively, by state and local governments in the west to assert control over federal lands. They didn’t make any legal progress because of the pesky Supremacy and Property Clauses of the US Constitution, which declare that the federal constitution is the supreme law of the land and give Congress plenary power over the property of the United States, including the nation’s extensive land holdings.
But it seems that the politics of bashing federal land ownership never go out of style in some western states. The latest symbolic legislation comes from Utah, where Governor Gary Herbert this weekend signed into law a bill authorizing the state to acquire federal lands by eminent domain. The targeted lands reportedly include parts of the Grand Staircase-Escalante National Monument thought to harbor substantial coal reserves and the area where Interior last year pulled 77 gas and oil leases in response to a legal challenge (and civil disobedience).
This tactic is more polite than earlier state attempts to take over federal lands, because the use of eminent domain would require that the state go through a judicial proceeding and pay the value of the lands acquired. Hopefully it won’t spark a repeat of the violence that accompanied that movement. But legally its just as doomed. State law is pre-empted if it interferes with achievement of the purposes of federal land management. It doesn’t take a genius to see that coal mining would be inconsistent with the National Monument designation of Grand Staircase-Escalante, that the state can’t undo a federal decision not to permit oil development, and more generally that no state can decide for itself what lands the federal government can and cannot retain.
Utah apparently doesn’t care. Remember, this is the state where the legislature recently got so huffy at EPA that it passed a resolution both denying climate change exists and simultaneously blaming it on chlorofluorocarbons. This battle is even more quixotic. Utah, which is facing the same tough budget times as other states, is ready to spend millions of dollars picking a fight no one thinks it can win.
Supporters of this law say they hope it will provide a model for other western states, spreading in the way the “custom and culture” ordinances did in the last wave of anti-federal lands legislation. Let’s hope not. It’s one thing for Utahans to decide they’re willing to waste their tax dollars on empty anti-federal gestures. But it’s another thing for this small minority of Americans to hijack the US’s own limited resources by forcing Uncle Sam to defend his right to keep his lands.
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About Holly
Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…
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What makes it ok for the Fed to tie up more land in one state than in another state? Why is it ok to own more of Utah than, for example, Kentucky?
It depends what you mean by “ok.” It’s permissible as a matter of law because the US Constitution says it is. Western states have tried without success to assert that the dramatically unequal distribution of federal land holdings violates the Equal Footing Doctrine. Furthermore Utah, like other western states, agreed to it as a condition of admission to the union. The Utah Enabling Act (Act of July 16, 1894, 28 Stat. 107) provides in relevant part:
“That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unapprnpriated public lands lying within the boundaries thereof . . . 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.”
For a good relatively short summary of the law that allows the US to continue to own high proportions of the land in some states, see US v. Gardner, 107 F.3d 1314 (9th Cir. 1997).
Of course, if you’re asking what makes it okay as a policy choice, that’s a longer discussion. Reasonable minds can differ on whether the US should continue to own so much land, but no reasonable lawyer can believe that the US doesn’t have the legal right to do so.
Right… I understand the constitutional issue, and agree. What I refer to is the public policy problems in how the federal gov has managed the land. By declaring the national monument, the federal gov has blocked access to land not protected under the enabling act, lands that provide the state with the lion’s share of funding for public education.
So, while I agree that the way Utah has determined to go after that issue is a little on the, how shall we say, goofy? side, I do not think that their efforts should be dismissed as Quixotic by individuals not aware of the facts, but only the law. As you state, the public policy discussion is longer, and in this case, probably more important than the knee jerk response about the oobvious constitutional problems that the eminent domain action presents.
See also: http://wp.me/pJXZa-2g
To the extent that you’re criticizing Jonathan’s and my posts on this topic, you’re punching at air. Neither of us said there wasn’t a policy discussion to be had about federal land ownership or management. We both simply said that Utah can’t possibly implement the law it has just passed.
And yes, quixotic, which my dictionary defines as “romantic without regard to practicality,” is the right term. Attempting to condemn US land under this law is not only not going to shake the US’s legal title to its lands, it’s not going to shift the political landscape in Utah’s favor either. Quite the contrary. Going after federal lands with this kind of blunt instrument is only going to harden federal determination to stand firm. If Utah wants access over specific federal lands to its own lands, or if it wants the feds to manage their Utah lands differently, there are a variety of political channels it can use. But it has to recognize at the start that it doesn’t have an absolute entitlement to control federal lands.