This spring, Utah governor Gary Herbert signed a law that authorizes the state’s attorney general to file suits to condemn federal land.
The process is called “eminent domain,” and generally it involves acquiring private property for a public purpose, such as a new city reservoir. If the city can’t come to terms with the property owners, it can use its power of eminent domain to force the owner to sell. In theory, the city pays fair market value, since the Fifth Amendment to the U.S. Constitution states that “nor shall private property be taken for public use, without just compensation.”
But federal land (nearly 65 percent of Utah’s 84,916 square miles) is public property, not private, and the Constitution also states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
With the “supremacy clause” making it pretty clear about who’s in charge, why is Utah challenging the feds on land ownership and usage?
There are two answers. One is that this is just a continuation of Utah’s long struggle against the federal government. The other is that the state government wants to improve school funding without raising taxes.
Start with the struggle. When Brigham Young allegedly said “This is the place” as he looked upon Great Salt Lake on July 24, 1847, it was technically part of Mexico, although a war was underway that would put it in the United States. Continued Mormon settlement resulted in the extensive proposed state of Deseret — stretching from the Great Divide in present Colorado to San Diego, Calif.
That got whittled down to Utah Territory in the Compromise of 1850, but Brigham Young remained territorial governor, and federal courts held little power because Utahns took their litigation to their own probate courts. Meanwhile back East, the new Republican Party adopted its first platform in 1856. It called on “Congress to prohibit in the Territories those twin relics of barbarism — Polygamy, and Slavery.”
Republican presidential candidate John C. Fremont lost but got 39 percent of the electoral vote — impressive for a brand-new party. The winner, Democrat James Buchanan, had solid Southern support, so he wasn’t about to oppose slavery. But Buchanan figured he could deprive the Republicans of a campaign issue by acting against polygamy.
The President ordered the U.S. Army west from Ft. Leavenworth, Kan., on July 18, 1857 to install a new territorial governor to replace Brigham Young and turn a “theodemocracy” into a secular polity.
Young ordered the abandonment of Salt Lake City as he mobilized the territorial militia. No shots were fired at the approaching army, but Mormon raiders burnt grass to deprive it of forage, and ran off livestock. The U.S. Army stalled for the winter in southwestern Wyoming. During that delay, the two sides came to terms and Young was replaced as governor. The Mormons returned to their capital, and the Army built its fort more than 50 miles away, too far to be a factor in daily life.
The heavy hand of federal power returned 30 years later with the passage of the Edmunds-Tucker Act, designed to bankrupt the Mormon Church and eliminate polygamy. Hard-working responsible men went to prison, children were disinherited, plural wives deprived of homes — it was brutal enforcement that would do the modern DEA proud.
The church abandoned polygamy, and the rest of America figured the Saints could be trusted to follow cultural norms. Thus Utah Territory became a state in 1896.
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And that’s when federal lands and the funding of Utah schools started to become an issue.
One quick way to spot a rural Westerner is by the mention of a “school section” — a square mile, more or less, owned by the state to be used for supporting public education. The federal government gave the new state of Utah four sections in every township (36 square miles) to be used “for the support of common schools,” as well as thousands of acres to support other state institutions.
If the land was sold the proceeds went into a permanent fund managed by the state treasurer, with the interest going to public education. The same held for the proceeds of non-renewable resources like coal and oil taken from school lands.
Like many states, Utah didn’t pay much attention to augmenting its school trust fund; it was only $91 million in 1995. That’s about the time that it was noticed by Paula Plant of Salt Lake City, an active Parent Teachers Association member who became state vice-president.
The schools needed more money, and the legislature wasn’t about to raise taxes. Plant looked around for other sources, and discovered the school trust lands. “Hardly any money was coming in from this fund,” she recalled in a 2006 interview, “and if Utah wasn’t at the bottom of the 50 states in school funding, we were close.”
The legislature responded with the formation of SITLA (State and Institutional Trust Lands Administration) with a mandate to manage state lands to put more money into the school trust funds.
Partly that involved major land trades with the federal government, swapping scenic state land for federal land with coal, oil or natural gas. SITLA is legally obliged to manage for maximum revenue; the feds can manage for scenery, wildlife and recreation.
This approach has paid off. By 2009, the trust fund had grown to nearly $1 billion, a tenfold increase, with its income going to public schools.
But Utah still ranks at or near the bottom in public-school funding — $6,050 per student per year in 2007. The national average was $10,000; in Wyoming it was $14,277.
State legislators thought that applying eminent domain to federal land could help, and thus the new state law — with litigation ironically financed with $3 million from the school trust fund.
How will the law work? John Harja, director of Utah’s state Public Lands Policy Coordination Office, observed that there are school sections that cannot produce revenue because they’re surrounded by roadless federal land. Condemnation, if legally possible, could produce a road for access to the land, or perhaps inspire the federal government to make a trade for land that would make more money for Utah — from minerals, timber or outright sale.
“Utah isn’t about to try to condemn Bryce Canyon or Arches,” he said. “despite some of the heated talk you may have heard.”
But if a condemnation proceeding ever got into court — many legal observers predict one would be dismissed immediately under the Supremacy Clause — Utah might claim that the federal government hasn’t been living up to its promise in the 1894 Enabling Act.
Section 7 promised Utah’s schools “five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States.” Since it says “shall be sold,” then it could be argued that the federal government is obliged to put all the public land up for sale, even if the federal government quit selling with the Federal Land Policy and Management Act of 1976.
Further, the U.S. Constitution does not list national parks, monuments or forests among the enumerated ownership powers of the federal government, which are presumably limited to military and postal facilities — at least to a strict constructionist.
However, the Enabling Act also says that “the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.” Thus a judge could easily rule that Utah long ago gave up any interest in federal lands, even if it is for a worthy cause like public education.
In some ways, Utah is like other Western states; its attorney general was one of many to join a suit against health-care reform, and some of its citizens, like other Sagebrush Rebels, have driven bulldozers to assert road claims on federal land.
But with its eminent domain claims, Utah is pushing harder against the feds, with rhetoric reminiscent of that from Southern states. And the state also has some history with the U.S. Army.
Ed Quillen is a freelance writer in Salida, Colo.
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