Legal Commentary

Utah May Try to Use Eminent Domain to Take Federal Government Land

By Ilya Somin

The Utah House of Representatives recently enacted a law that would enable the state to seize federal land using its power of eminent domain (see also this shorter account) [HT: Edward Lopez]:

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.

I can understand westerners? frustration with federal control of so much of the land in their states. In my view, much of that federal land should be privatized or transferred to state and local governments. However, the use of eminent domain is unlikely to be a good way to address the problem.

Utah Power & Light Co. v. United States, a 1917 Supreme Court decision, ruled that the states cannot use eminent domain or other powers to dispose of federally owned land except in so far as Congress permits them to do so. I think that decision was probably correct. As the Court pointed out, Article IV, Section 3, Clause 2 of the Constitution gives Congress the power to ?dispose of and make all needful rules and regulations respecting? the lands of the United States.? This congressional authority supersedes any contrary state law because of the Supremacy Clause of Article VI. Thus, a federal law assigning federally owned land to a particular purpose such as a National Park supersedes any state law that seeks to take the land and use it for other purposes.

At least some of the Utah bill?s backers are aware of the Supreme Court?s position, and they hope to use the new law to generate litigation that will get the Court to reverse it. I?m not opposed to states? enacting laws they know to be contrary to current Supreme Court doctrine for the purpose of creating test cases. Sometimes, that?s the best way to get erroneous precedents reversed. I doubt, however, either that the precedent in this field is wrong, or that the Court is likely to reverse it any time soon.

Even if states do get the power to take federal land by eminent domain, that may not solve their problems. The federal government could presumably use its own eminent domain authority to take the land back. The result could be a vicious cycle of back and forth condemnations.

Full post as published by The Volokh Conspiracy on March 03, 2010 (boomark / email).