This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Perhaps Utah's governor and some of its more conservative legislators are correct when they say many citizens don't read or understand the state and federal constitutions.
Considering the nonsense being spewed by Utah Gov. Gary Herbert and many legislators about states' rights and the Utah and federal constitutions with regards to federal land management, it appears many of our leaders need to take some remedial constitutional law classes.
This is an important debate for the majority of Utahns who use federal lands for recreation — be it skiing, backpacking, riding off-highway vehicles, camping, hiking, fishing or hunting. A state takeover of these lands would be a disaster on many levels and would likely result in mass selloffs of land to private interests, which would lock us all out.
"I firmly believe if we, as a state, fail to vigorously fight to protect and defend our rights under the Constitution, those rights will invariably be seized and usurped by the federal government," Herbert said in his State of the State address. "I remind Washington: We are a state, not a colony, and I assure you, on my watch Utah will not stand idly by."
Rep. Carl Wimmer, R-Herriman, has filed a bill that asserts Utah's right to disregard any federal land designation with which the state does not concur and require county sheriffs to open any closed-off areas.
"The fact is there's a land grab going on in our state, and the more we dig into this the more destructive it appears," said Senate Majority Leader Scott Jenkins.
Those are nice sound bites. But can they be backed by U.S. Supreme Court decisions or an objective reading of the state and federal constitutions?
In a legislative review note of a 2010 bill asserting Utah's right to use eminent domain to take over federal lands, that body's own lawyers pointed out a number of constitutional problems with that law, all of which legislators ignored.
For example, the Utah Enabling Act declared that as a condition of Utah's acceptance into the Union, the people of Utah "agree that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; 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."
Or how about Article III, Section 2 of the Utah Constitution? "The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof."
Utah Legislature lawyers said that the Property Clause and Enclave Clause of the U.S. Constitution empower the federal government to own and retain land. They cite no fewer than seven U.S. Supreme Court rulings supporting the U.S. government's claim to federal land ownership.
"In short," concluded the Utah Legislature's own legal staff, "the state has no standing as sovereign to exercise eminent domain or assert any other state law that is contrary to federal law on land or property that the federal government holds under the Property Clause."
I'm no constitutional lawyer, but it seems to me that all the chest-thumping and whining about federal land policies by our county, state and federal leaders is a waste of time and the ensuing legal challenges would be a lousy use of tax dollars badly needed elsewhere.
It would be interesting to see how Gov. Herbert and the legislators screaming that Utah's constitutional rights are being violated with regards to federal land management would refute the language in the state enabling act, the state and federal constitutions and over 150 years of Supreme Court rulings.
A far better approach would be to work closely with federal land managers who are not the ogres and faceless bureaucrats they are often made out to be and find a reasonable and balanced approach to providing for recreation, wilderness, grazing, mining, wildlife uses and oil and gas development on public lands.
Tom Wharton is an outdoors and travel columnist. Reach him at wharton@sltrib.com or 801-257-8909.