Eminent Domain and Payback

In a seemingly brilliant turnabout, the State of Utah is setting itself up to use eminent domain to seize land owned by the federal government.

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.

As delicious of an irony as this may sound it may not be such a good idea. Ilya Somin at the Volokh Conspiracy considers some of the potential fallout:

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.

<snip>

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.

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