First Substitute H.B. 76

Representative Ken Ivory proposes the following substitute bill:

1 FEDERAL LAW EVALUATION AND RESPONSE
2 2011 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ken Ivory
5 Senate Sponsor: Wayne L. Niederhauser
6
7 LONG TITLE
8 General Description:
9 This bill authorizes the Constitutional Defense Council to evaluate and respond to
10 federal law.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . requires the Constitutional Defense Council to:
15 . evaluate and respond to federal law;
16 . report to legislators and an interim committee; and
17 . mail a copy of legislation and the journal to government officers;
18 . authorizes the Constitutional Defense Council to:
19 . discuss challenging certain federal court rulings;
20 . correspond with other states about federal law and coordinate responses to
21 federal law; and
22 . recommend that the governor call a special session of the Legislature to respond
23 to federal law;
24 . establishes standards by which the Constitutional Defense Council shall evaluate
25 federal law;

26 . establishes a procedure by which the Constitutional Defense Council may respond
27 to a federal law;
28 . creates a Federalism Subcommittee within the Constitutional Defense Council;
29 . requires the Public Lands Policy Coordinating Office to provide staff assistance to
30 the Constitutional Defense Council and the Federalism Subcommittee;
31 . repeals the distribution from the Land Exchange Distribution Account to the
32 Permanent Community Impact Board;
33 . increases the distribution from the Land Exchange Distribution Account to the
34 Constitutional Defense Restricted Account; and
35 . makes technical changes.
36 Money Appropriated in this Bill:
37 This bill appropriates:
38 . to the Constitutional Defense Restricted Account as an ongoing appropriation:
39 . from the Land Exchange Distribution Account, $1,124,000;
40 . to the Constitutional Defense Council as an ongoing appropriation:
41 . from the Constitutional Defense Restricted Account, $144,000, subject to intent
42 language stating that the appropriation is to be used to evaluate and respond to
43 federal law;
44 . to the Civil Division of the Office of the Attorney General as an ongoing
45 appropriation:
46 . from the Constitutional Defense Restricted Account, $486,000, subject to intent
47 language stating that the appropriation is to be used to hire three attorneys and
48 one paralegal or legal secretary to advise and work for the Public Lands Policy
49 Coordinating Office and the Constitutional Defense Council;
50 . to the Public Lands Policy Coordinating Office as an ongoing appropriation:
51 . from the Constitutional Defense Restricted Account, $494,000, subject to intent
52 language stating that the appropriation is to be used to hire two persons to assist
53 in preparing cases for trial, field staff, litigation expenses, and factual and legal
54 studies;
55 . to the Permanent Community Impact Fund as an ongoing appropriation:
56 . from the Mineral Bonus Account, $1,124,000; and

57 . to the Permanent Community Impact Board as an ongoing appropriation:
58 . from the Permanent Community Impact Fund, $1,124,000, subject to intent
59 language stating that the appropriation is to be used for grants to political
60 subdivisions to mitigate the impacts resulting from the development of minerals
61 on federal land.
62 Other Special Clauses:
63 This bill provides revisor instructions.
64 Utah Code Sections Affected:
65 AMENDS:
66 9-4-303, as last amended by Laws of Utah 2007, Chapter 303
67 9-4-307, as last amended by Laws of Utah 2008, Chapter 382
68 53C-3-203, as last amended by Laws of Utah 2010, Chapters 79 and 262
69 63C-4-101, as last amended by Laws of Utah 2010, Chapter 286
70 63C-4-102, as last amended by Laws of Utah 2010, Chapter 262
71 63C-4-103, as last amended by Laws of Utah 2010, Chapter 262
72 63J-4-603, as last amended by Laws of Utah 2009, Chapters 121 and 262
73 ENACTS:
74 63C-4-106, Utah Code Annotated 1953
75 63C-4-107, Utah Code Annotated 1953
76 63C-4-108, Utah Code Annotated 1953
77
78 Be it enacted by the Legislature of the state of Utah:
79 Section 1. Section 9-4-303 is amended to read:
80 9-4-303. Impact fund -- Deposits and contents -- Use of fund money.
81 (1) There is created an enterprise fund entitled the "Permanent Community Impact
82 Fund."
83 (2) The fund consists of:
84 (a) all amounts appropriated to the impact fund under Section 59-21-2 ;
85 (b) bonus payments deposited to the impact fund pursuant to Subsection 59-21-1 (2);
86 [(c) all amounts appropriated to the impact fund under Section 53C-3-203 ;]
87 [(d)] (c) all amounts received for the repayment of loans made by the impact board

88 under this chapter; and
89 [(e)] (d) all other money appropriated or otherwise made available to the impact fund
90 by the Legislature.
91 (3) The state treasurer shall:
92 (a) invest the money in the impact fund by following the procedures and requirements
93 of Title 51, Chapter 7, State Money Management Act; and
94 (b) deposit all interest or other earnings derived from those investments into the impact
95 fund.
96 (4) The amounts in the impact fund available for loans, grants, administrative costs, or
97 other purposes of this part shall be limited to that which the Legislature appropriates for these
98 purposes.
99 (5) Federal mineral lease revenue received by the state under the Leasing Act that is
100 deposited into the impact fund shall be used:
101 (a) in a manner consistent with:
102 (i) the Leasing Act; and
103 (ii) this part; and
104 (b) for loans, grants, or both to state agencies or subdivisions that are socially or
105 economically impacted by the leasing of minerals under the Leasing Act.
106 [(6) The money described in Subsection (2)(c) shall be used for grants to political
107 subdivisions of the state to mitigate the impacts resulting from the development or use of
108 school and institutional trust lands.]
109 Section 2. Section 9-4-307 is amended to read:
110 9-4-307. Impact fund administered by impact board -- Eligibility for assistance --
111 Review by board -- Administration costs -- Annual report.
112 (1) (a) The impact board shall:
113 (i) administer the impact fund in a manner that will keep a portion of the impact fund
114 revolving;
115 (ii) determine provisions for repayment of loans; and
116 (iii) establish criteria for determining eligibility for assistance under this part.
117 (b) [(i)] Criteria for awarding loans or grants made from funds described in Subsection
118 9-4-303 (5) shall be consistent with Subsection 9-4-303 (5).

119 [(ii) Criteria for awarding grants made from funds described in Subsection
120 9-4-303 (2)(c) shall be consistent with Subsection 9-4-303 (6).]
121 (c) In order to receive assistance under this part, subdivisions and interlocal agencies
122 shall submit formal applications containing the information that the impact board requires.
123 (2) In determining eligibility for loans and grants under this part, the impact board shall
124 consider the following:
125 (a) the subdivision's or interlocal agency's current mineral lease production;
126 (b) the feasibility of the actual development of a resource that may impact the
127 subdivision or interlocal agency directly or indirectly;
128 (c) current taxes being paid by the subdivision's or interlocal agency's residents;
129 (d) the borrowing capacity of the subdivision or interlocal agency, its ability and
130 willingness to sell bonds or other securities in the open market, and its current and authorized
131 indebtedness;
132 (e) all possible additional sources of state and local revenue, including utility user
133 charges;
134 (f) the availability of federal assistance funds;
135 (g) probable growth of population due to actual or prospective natural resource
136 development in an area;
137 (h) existing public facilities and services;
138 (i) the extent of the expected direct or indirect impact upon public facilities and
139 services of the actual or prospective natural resource development in an area; and
140 (j) the extent of industry participation in an impact alleviation plan, either as specified
141 in Title 63M, Chapter 5, Resource Development, or otherwise.
142 (3) The impact board may not fund any education project that could otherwise have
143 reasonably been funded by a school district through a program of annual budgeting, capital
144 budgeting, bonded indebtedness, or special assessments.
145 (4) The impact board may restructure all or part of the agency's or subdivision's
146 liability to repay loans for extenuating circumstances.
147 (5) The impact board shall:
148 (a) review the proposed uses of the impact fund for loans or grants before approving
149 them and may condition its approval on whatever assurances that the impact board considers to

150 be necessary to ensure that the proceeds of the loan or grant will be used in accordance with the
151 Leasing Act and this part; and
152 (b) ensure that each loan specifies the terms for repayment and is evidenced by general
153 obligation, special assessment, or revenue bonds, notes, or other obligations of the appropriate
154 subdivision or interlocal agency issued to the impact board under whatever authority for the
155 issuance of those bonds, notes, or obligations exists at the time of the loan.
156 (6) The impact board shall allocate from the impact fund to the department those funds
157 that are appropriated by the Legislature for the administration of the impact fund, but this
158 amount may not exceed 2% of the annual receipts to the impact fund.
159 (7) The department shall make an annual report to the Legislature concerning the
160 number and type of loans and grants made as well as a list of subdivisions and interlocal
161 agencies that received this assistance.
162 Section 3. Section 53C-3-203 is amended to read:
163 53C-3-203. Land Exchange Distribution Account.
164 (1) As used in this section, "account" means the Land Exchange Distribution Account
165 created in Subsection (2)(a).
166 (2) (a) There is created within the General Fund a restricted account known as the Land
167 Exchange Distribution Account.
168 (b) The account shall consist of revenue deposited in the account as required by
169 Section 53C-3-202 .
170 (3) (a) The state treasurer shall invest money in the account according to Title 51,
171 Chapter 7, State Money Management Act.
172 (b) The Division of Finance shall deposit interest or other earnings derived from
173 investment of account money into the General Fund.
174 (4) The Legislature shall annually appropriate from the account in the following order:
175 (a) $1,000,000 to the Constitutional Defense Restricted Account, created in 63C-4-103 ,
176 to be used in accordance with Subsection 63C-4-103 [(6)](5) for:
177 (i) fiscal year 2010-11;
178 (ii) fiscal year 2011-12; and
179 (iii) fiscal year 2012-13; and
180 (b) from the deposits to the account remaining after the appropriation in Subsection

181 (4)(a), the following amounts:
182 (i) 55% of the deposits to counties in amounts proportionate to the amounts of mineral
183 revenue generated from the acquired land, exchanged land, acquired mineral interests, or
184 exchanged mineral interests located in each county, to be used to mitigate the impacts caused
185 by mineral development;
186 (ii) 25% of the deposits to counties in amounts proportionate to the total surface and
187 mineral acreage within each county that was conveyed to the United States under the agreement
188 or an exchange, to be used to mitigate the loss of mineral development opportunities resulting
189 from the agreement or exchange;
190 (iii) 1.68% of the deposits to the State Board of Education, to be used for education
191 research and experimentation in the use of staff and facilities designed to improve the quality
192 of education in Utah;
193 (iv) 1.66% of the deposits to the Geological Survey, to be used for natural resources
194 development in the state;
195 (v) 1.66% of the deposits to the Water Research Laboratory at Utah State University, to
196 be used for water development in the state; [and]
197 (vi) [7.5%] 14% of the deposits to the Constitutional Defense Restricted Account
198 created in Section 63C-4-103 [.]; and
199 [(5) Beginning with fiscal year 2009-10, the Legislature shall annually appropriate]
200 (vii) 1% of the deposits [remaining in the account after the appropriation is made in
201 accordance with Subsection (4)(a)] to the Geological Survey, to be used for test wells, other
202 hydrologic studies, and air quality monitoring in the West Desert.
203 [(6) Beginning with fiscal year 2009-10, the Legislature shall annually appropriate 6.5%
204 of the deposits remaining in the account after the appropriation is made in Subsection (4)(a) to
205 the Permanent Community Impact Fund created in Section 9-4-303 , to be used for grants to
206 political subdivisions of the state to mitigate the impacts resulting from the development or use
207 of school and institutional trust lands.]
208 Section 4. Section 63C-4-101 is amended to read:
209 63C-4-101. Creation of Constitutional Defense Council -- Membership --
210 Vacancies -- Reports -- Per diem, travel expenses, and funding.
211 (1) There is created the Constitutional Defense Council.

212 (2) (a) The [defense] council shall consist of the following members:
213 (i) the governor or the lieutenant governor, who shall serve as chair of the council;
214 (ii) the president of the Senate or the president of the Senate's designee who shall serve
215 as vice chair of the council;
216 (iii) the speaker of the House or the speaker of the House's designee who shall serve as
217 vice chair of the council;
218 (iv) the minority leader of the Senate or the minority leader of the Senate's designee;
219 (v) the minority leader of the House or the minority leader of the House's designee;
220 (vi) the attorney general or the attorney general's designee, who shall be one of the
221 attorney general's appointees, not a current career service employee;
222 (vii) the director of the School and Institutional Trust Lands Administration;
223 (viii) four elected county commissioners, county council members, or county
224 executives from different counties who are selected by the Utah Association of Counties, at
225 least one of whom shall be from a county of the first or second class;
226 (ix) the executive director of the Department of Natural Resources, who may not vote;
227 (x) the commissioner of the Department of Agriculture and Food, who may not vote;
228 (xi) the director of the Governor's Office of Economic Development, who may not
229 vote; and
230 (xii) two elected county commissioners, county council members, or county executives
231 from different counties appointed by the Utah Association of Counties, who may not vote.
232 (b) The council vice chairs shall conduct a council meeting in the absence of the chair.
233 (c) If both the governor and the lieutenant governor are absent from a meeting of the
234 council, the governor may designate a person to attend the meeting solely for the purpose of
235 casting a vote on any matter on the governor's behalf.
236 (3) When a vacancy occurs in the membership for any reason, the replacement shall be
237 appointed for the unexpired term in the same manner as the original appointment.
238 (4) (a) (i) Except as provided in Subsection (4)(a)(ii), the [defense] council shall meet
239 at least monthly or more frequently as needed.
240 (ii) The [defense] council need not meet monthly if the chair, after polling the
241 members, determines that a majority of the members do not wish to meet.
242 (b) The governor or any six members of the council may call a meeting of the council.

243 (c) Before calling a meeting, the governor or council members shall solicit items for
244 the agenda from other members of the council.
245 (d) (i) The [Constitutional Defense Council] council shall require that any entity that
246 receives money from the Constitutional Defense Restricted Account provide financial reports
247 and litigation reports to the council.
248 (ii) Nothing in this Subsection (4)(d) prohibits the council from closing a meeting
249 under Title 52, Chapter 4, Open and Public Meetings Act, or prohibits the council from
250 complying with Title 63G, Chapter 2, Government Records Access and Management Act.
251 (e) A majority of the voting membership on the [defense] council is required for a
252 quorum to conduct council business. A majority vote of the quorum is required for any action
253 taken by the [defense] council.
254 (5) (a) The Office of the Attorney General shall advise:
255 (i) the [defense] council[.]; and
256 (ii) the federalism subcommittee.
257 (b) The Public Lands Policy Coordinating Office shall provide staff assistance for
258 meetings of the council and federalism subcommittee.
259 (6) A member may not receive compensation or benefits for the member's service, but
260 may receive per diem and travel expenses in accordance with:
261 (a) Section 63A-3-106 ;
262 (b) Section 63A-3-107 ; and
263 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
264 63A-3-107 .
265 (7) (a) The council shall be funded from the Constitutional Defense Restricted Account
266 created in Section 63C-4-103 .
267 (b) Money appropriated for or received by the council may be expended by the
268 governor in consultation with the council.
269 (8) (a) There is created a federalism subcommittee of the council.
270 (b) (i) The subcommittee shall consist of members listed in Subsections (2)(a)(i)
271 through (vi).
272 (ii) (A) The governor or the lieutenant governor shall serve as chair of the
273 subcommittee.

274 (B) The council vice chair shall conduct a council meeting in the absence of the chair.
275 (c) The subcommittee shall assist the council in the evaluation of federal law as
276 required by Subsection 63C-4-106 (2).
277 Section 5. Section 63C-4-102 is amended to read:
278 63C-4-102. Duties.
279 (1) The Constitutional Defense Council is a council to assist the governor and the
280 Legislature on the following types of issues:
281 (a) the constitutionality of [unfunded] federal mandates;
282 (b) when making recommendations to challenge the federal mandates and regulations
283 described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those
284 federal mandates or regulations;
285 (c) legal and policy issues surrounding state and local government rights under R.S.
286 2477;
287 (d) legal issues relating to the rights of the School and Institutional Trust Lands
288 Administration and its beneficiaries; and
289 (e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
290 (i) federal court rulings that:
291 (A) hinder the management of the state's prison system and place undue financial
292 hardship on the state's taxpayers;
293 (B) impact a power reserved to the state by the United States Constitution, Amendment
294 IX or X; or
295 (C) expand or grant a power to the United States government beyond the limited,
296 enumerated powers granted by the United States Constitution;
297 (ii) federal laws or regulations that reduce or negate water rights or the rights of owners
298 of private property, or the rights and interest of state and local governments, including
299 sovereignty interests and the power to provide for the health, safety, and welfare, and promote
300 the prosperity of their inhabitants;
301 (iii) conflicting federal regulations or policies in land management on federal land;
302 (iv) federal intervention that would damage the state's mining, timber, and ranching
303 industries;
304 (v) the authority of the Environmental Protection Agency and Congress to mandate

305 local air quality standards and penalties; and
306 (vi) other issues that are relevant to this Subsection (1).
307 (2) The council shall:
308 (a) provide advice to the governor, state planning coordinator, and the public lands
309 policy coordinator concerning coordination of:
310 (i) state and local government rights under R.S. 2477; and
311 (ii) other public lands issues;
312 (b) approve a plan for R.S. 2477 rights developed in accordance with Section
313 63C-4-104 ; [and]
314 (c) review, at least quarterly:
315 (i) financial statements concerning implementation of the plan for R.S. 2477 rights;
316 and
317 (ii) financial and other reports from the Public Lands Policy Coordinating Office
318 concerning its activities[.]; and
319 (d) evaluate and respond to federal law as provided in Section 63C-4-106 .
320 (3) The council chair may require the attorney general or a designee to provide
321 testimony on potential legal actions that would enhance the state's sovereignty or authority on
322 issues affecting Utah and the well-being of its citizens.
323 (4) The council chair may direct the attorney general to initiate and prosecute any
324 action that the council determines will further its purposes, including an action described in
325 Section 67-5-29 .
326 (5) (a) Subject to the provisions of this section, the council may select and employ
327 attorneys to implement the purposes and duties of the council.
328 (b) The council chair may, in consultation with the council, direct any council attorney
329 in any manner considered appropriate by the attorney general to best serve the purposes of the
330 council.
331 (c) The attorney general shall negotiate a contract for services with any attorney
332 selected and approved for employment under this section.
333 (6) The council chair shall, only with the concurrence of the council, review and
334 approve all claims for payments for:
335 (a) legal services that are submitted to the council; and

336 (b) an action filed in accordance with Section 67-5-29 .
337 (7) Within five business days' notice, the council chair may, with the concurrence of
338 the council, order the attorney general or an attorney employed by the council to cease work to
339 be charged to the fund.
340 (8) (a) At least 20 calendar days before the state submits comments on the draft
341 environmental impact statement or environmental assessment for a proposed land management
342 plan of any federal land management agency, the governor shall make those documents
343 available to:
344 (i) members of the council; and
345 (ii) any county executive, county council member, or county commissioner of a county
346 that is covered by the management plan and that has established formal cooperating agency
347 status with the relevant federal land management agency regarding the proposed plan.
348 (b) (i) Council members or local government officials receiving the documents may
349 make recommendations to the governor or the governor's designee concerning changes to the
350 documents before they are submitted to the federal land management agency.
351 (ii) Council members or local government officials shall submit recommendations to
352 the governor or the governor's designee no later than 10 calendar days after receiving the
353 documents under Subsection (8)(a).
354 (c) Documents transmitted or received under this Subsection (8) are drafts and are
355 protected records pursuant to Subsection 63G-2-305 (22).
356 (9) (a) The council shall submit a report on December 1 of each year [to the speaker of
357 the House of Representatives and the president of the Senate that summarizes the council's
358 activities.] by electronic mail that summarizes the council's activities to each legislator.
359 (b) The council shall submit a report by electronic mail that summarizes action taken in
360 accordance with Section 63C-4-106 to the Government Operations Interim Committee on May
361 20 and October 20 of each year.
362 Section 6. Section 63C-4-103 is amended to read:
363 63C-4-103. Creation of Constitutional Defense Restricted Account -- Sources of
364 funds -- Uses of funds -- Reports.
365 (1) There is created a restricted account within the General Fund known as the
366 Constitutional Defense Restricted Account.

367 (2) The account consists of money from the following revenue sources:
368 (a) money deposited to the account as required by Section 53C-3-203 ;
369 (b) voluntary contributions;
370 (c) money received by the [Constitutional Defense Council] council from other state
371 agencies; and
372 (d) appropriations made by the Legislature.
373 (3) Funds in the account shall be nonlapsing.
374 [(4) The account balance may not exceed $5,000,000.]
375 [(5)] (4) Subject to Subsection [(6)] (5), the Legislature may annually appropriate
376 money from the Constitutional Defense Restricted Account to one or more of the following:
377 (a) the [Constitutional Defense Council] council to carry out its duties [in Section
378 63C-4-102 ] established in this chapter;
379 (b) the Public Lands Policy Coordinating Office to carry out its duties in Section
380 63J-4-603 ;
381 (c) the Office of the Governor, to be used only for the purpose of asserting, defending,
382 or litigating state and local government rights under R.S. 2477, in accordance with a plan
383 developed and approved as provided in Section 63C-4-104 ;
384 (d) a county or association of counties to assist counties, consistent with the purposes
385 of the council, in pursuing issues affecting the counties; or
386 (e) the Office of the Attorney General, to be used only [for]:
387 (i) for public lands counsel and assistance and litigation to the state or local
388 governments including asserting, defending, or litigating state and local government rights
389 under R.S. 2477 in accordance with a plan developed and approved as provided in Section
390 63C-4-104 ; [or]
391 (ii) for an action filed in accordance with Section 67-5-29 [.]; or
392 (iii) to advise the council and federalism subcommittee.
393 [(6)] (5) Money appropriated to the Constitutional Defense Restricted Account in
394 accordance with Subsection 53C-3-203 (4)(a), if appropriated by the Legislature, may only be
395 expended by the agency to which it was appropriated to pay:
396 (a) the costs of an action filed in accordance with Section 67-5-29 ; and
397 (b) expenses associated with an action described in Subsection [(6)] (5)(a).

398 [(7)] (6) (a) The [Constitutional Defense Council] council shall require that any entity
399 that receives money from the Constitutional Defense Restricted Account provide financial
400 reports and litigation reports to the council.
401 (b) Nothing in this Subsection [(7)] (6) prohibits the council from closing a meeting
402 under Title 52, Chapter 4, Open and Public Meetings Act, or prohibits the council from
403 complying with Title 63G, Chapter 2, Government Records Access and Management Act.
404 Section 7. Section 63C-4-106 is enacted to read:
405 63C-4-106. Evaluation of federal law and policy -- Response.
406 (1) As used in this chapter:
407 (a) "Council" means the Constitutional Defense Council created in Section 63C-4-101 .
408 (b) "Federal governmental entity" means:
409 (i) the President of the United States;
410 (ii) the United States Congress;
411 (iii) a United States agency; or
412 (iv) an employee or official appointed by the President of the United States.
413 (c) "Federal law" means:
414 (i) an executive order by the President of the United States;
415 (ii) a statute passed by the United States Congress;
416 (iii) a regulation adopted by a United States agency; or
417 (iv) a policy statement or action by:
418 (A) a United States agency; or
419 (B) an employee or official appointed by the President of the United States.
420 (d) "United States agency" means a department, agency, authority, commission,
421 council, board, office, bureau, or other administrative unit of the executive branch of the
422 United States government.
423 (2) In accordance with Section 63C-4-107 , the council shall evaluate a federal law
424 submitted to the council by a council member.
425 (3) The council may request information regarding a federal law under evaluation from
426 a United States Senator or Representative elected from the state.
427 (4) If the council finds that a federal law is not authorized by the United States
428 Constitution or violates the principle of federalism as described in Subsection 63C-4-107 (2),

429 the council may:
430 (a) request from a United States Senator or Representative elected from the state:
431 (i) information about the federal law; or
432 (ii) assistance in communicating with a federal governmental entity regarding the
433 federal law;
434 (b) (i) give written notice of the evaluation required by Subsection (2) to the federal
435 governmental entity responsible for adopting or administering the federal law; and
436 (ii) request a response by a specific date to the evaluation from the federal
437 governmental entity; and
438 (c) request a meeting, conducted in person or by electronic means, with the federal
439 governmental entity and a council member, a representative from another state, or a United
440 States Senator or Representative elected from the state to discuss the evaluation of federal law
441 and any possible remedy.
442 (5) The council may recommend to the governor that the governor call a special
443 session of the Legislature to give the Legislature an opportunity to respond to the council's
444 evaluation of a federal law.
445 (6) The council may coordinate the evaluation of and response to federal law with
446 another state as provided in Section 63G-4-108 .
447 Section 8. Section 63C-4-107 is enacted to read:
448 63C-4-107. Standard for evaluation of federal law.
449 (1) The council shall evaluate whether a federal law submitted under Subsection
450 63C-4-106 (2) is authorized by:
451 (a) United States Constitution, Article I, Section 2, to provide for the decennial census;
452 (b) United States Constitution, Article I, Section 4, to override state laws regulating the
453 times, places, and manner of congressional elections, other than the place of senatorial
454 elections;
455 (c) United States Constitution, Article I, Section 7, to veto bills, orders, and resolutions
456 by Congress;
457 (d) United States Constitution, Article I, Section 8, to:
458 (i) lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for
459 the common defense and general welfare of the United States, but all duties, imposts, and

460 excises shall be uniform throughout the United States;
461 (ii) borrow money on the credit of the United States;
462 (iii) regulate commerce with foreign nations, among the several states, and with the
463 Indian tribes;
464 (iv) establish a uniform rule of naturalization and uniform laws on the subject of
465 bankruptcies throughout the United States;
466 (v) coin money, regulate the value of coin money and of foreign coin, and fix the
467 standard of weights and measures;
468 (vi) provide for the punishment of counterfeiting the securities and current coin of the
469 United States;
470 (vii) establish post offices and post roads;
471 (viii) promote the progress of science and useful arts, by securing for limited times to
472 authors and inventors the exclusive right to their respective writings and discoveries;
473 (ix) constitute tribunals inferior to the supreme court;
474 (x) define and punish piracies and felonies committed on the high seas and offences
475 against the law of nations;
476 (xi) declare war, grant letters of marque and reprisal, and make rules concerning
477 captures on land and water;
478 (xii) raise and support armies, but no appropriation of money to that use shall be for a
479 longer term than two years;
480 (xiii) provide and maintain a navy;
481 (xiv) make rules for the government and regulation of the land and naval forces;
482 (xv) provide for calling forth the militia to execute the laws of the union, suppress
483 insurrections, and repel invasions;
484 (xvi) provide for organizing, arming, and disciplining the militia, and for governing the
485 part of the militia that may be employed in the service of the United States, reserving to the
486 states respectively, the appointment of the officers and the authority of training the militia
487 according to the discipline prescribed by Congress;
488 (xvii) exercise exclusive legislation in all cases whatsoever, over such district, which
489 may not exceed 10 miles square, as may, by cession of particular states and the acceptance of
490 Congress, become the seat of the government of the United States, and to exercise like

491 authority over all places purchased by the consent of the legislature of the state in which the
492 place shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful
493 buildings; or
494 (xviii) make all laws which shall be necessary and proper for carrying into execution
495 the powers listed in this section, and all other powers vested by the United States Constitution
496 in the government of the United States, or in any department or officer of the United States;
497 (e) United States Constitution, Article I, Section 9, to authorize a federal officer to
498 receive benefits from a foreign nation;
499 (f) United States Constitution, Article I, Section 10, to fix the pay of members of
500 Congress and of federal officers;
501 (g) United States Constitution, Article II, Section 1, to:
502 (i) set the time for choosing electors; or
503 (ii) establish who succeeded to the presidency after the vice president;
504 (h) United States Constitution, Article II, Section 2, to:
505 (i) serve as Commander-in-Chief of the armed forces;
506 (ii) require the written opinions of executive officers;
507 (iii) grant reprieves and pardons;
508 (iv) make vacancy appointments;
509 (v) make treaties, subject to the advice and consent of the United States Senate;
510 (vi) appoint foreign affairs officers subject to the advice and consent of the United
511 States Senate;
512 (vii) appoint domestic affairs officers subject either to the advice and consent of the
513 United States Senate or pursuant to law;
514 (viii) appoint judges subject to the advice and consent of the United States Senate; or
515 (xiv) authorize the president to fill designated inferior offices without senatorial
516 consent;
517 (i) United States Constitution, Article II, Section 3, to:
518 (i) receive representatives of foreign powers;
519 (ii) execute the laws;
520 (iii) commission United States officers;
521 (iv) give Congress information;

522 (v) make recommendations to Congress;
523 (vi) convene Congress on extraordinary occasions; or
524 (vii) adjourn Congress if it cannot agree on a time;
525 (j) United States Constitution, Article III, Section 1, to:
526 (i) create exceptions to the supreme court's appellate jurisdiction;
527 (ii) fix the jurisdiction of federal courts inferior to the supreme court; or
528 (iii) declare the punishment for treason;
529 (k) United States Constitution, Article IV, Section 1, to establish the rules by which the
530 records and judgments of states are proved in other states;
531 (l) United States Constitution, Article IV, Section 3, to:
532 (i) manage federal property;
533 (ii) dispose of federal property;
534 (iii) govern the federal territories; or
535 (iv) consent to admission of new states or the combination of existing states;
536 (m) United States Constitution, Article IV, Section 4, to defend states from invasion,
537 insurrection, and non-republican forms of government;
538 (n) United States Constitution, Article V, Section 1, to propose constitutional
539 amendments;
540 (o) United States Constitution, Article VI, Section 1, to prescribe the oath for federal
541 officers;
542 (p) United States Constitution, Amendment XIII, to abolish slavery;
543 (q) United States Constitution, Amendment XIV, to guard people from certain state
544 abuses;
545 (r) United States Constitution, Amendment XVI, to impose taxes on income from any
546 source without having to apportion the total dollar amount of tax collected from each state
547 according to each state's population in relation to the total national population;
548 (s) United States Constitution, Amendment XX, to revise the manner of presidential
549 succession;
550 (t) United States Constitution, Amendment XV, XIX, XXIII, or XXIV, to extend and
551 protect the right to vote; or
552 (u) United States Constitution, Amendment XVII, to grant a pay raise to a sitting

553 Congress.
554 (2) The council shall evaluate whether a federal law submitted under Subsection
555 63C-4-106 (2) violates the principle of federalism by:
556 (a) affecting the distribution of power and responsibility among the state and national
557 government;
558 (b) limiting the policymaking discretion of the state;
559 (c) impacting a power reserved to the state by the United States Constitution,
560 Amendment IX or X; and
561 (d) impacting the sovereignty rights and interest of the state or a political subdivision to
562 provide for the health, safety, and welfare and promote the prosperity of the state's or political
563 subdivision's inhabitants.
564 (3) In the evaluation of a federal law, the council:
565 (a) shall rely on:
566 (i) the text of the United States Constitution, as amended;
567 (ii) the meaning of the text of the United States Constitution, as amended, at the time
568 of its drafting and ratification; and
569 (iii) a primary source document that is:
570 (A) directly relevant to the drafting, adoption, ratification, or initial implementation of
571 the United States Constitution, as amended; or
572 (B) created by a person directly involved in the drafting, adoption, ratification, or
573 initial implementation of the United States Constitution, as amended;
574 (b) may rely on other relevant sources, including federal court decisions; and
575 (c) is not bound by a holding by a federal court.
576 Section 9. Section 63C-4-108 is enacted to read:
577 63C-4-108. Communication with other states.
578 (1) The council may correspond with the presiding officer of the legislative branch of
579 another state or an entity of another state that has powers and duties that are similar to the
580 council to discuss and coordinate the evaluation of and response to federal law as provided in
581 Section 63C-4-106 .
582 (2) The council shall send a copy of this bill and the pages of the House and Senate
583 Journal that pertain to this bill to:

584 (a) the governor of each state;
585 (b) the presiding officer, the majority leader, and the minority leader of each house, if
586 applicable, of each state legislature;
587 (c) each United States Senator or Representative elected from this state;
588 (d) the Chief Justice of the United States Supreme Court;
589 (e) the President of the United States; and
590 (f) the presiding officer, the majority leader, and the minority leader of each house of
591 the United States Congress.
592 Section 10. Section 63J-4-603 is amended to read:
593 63J-4-603. Powers and duties of coordinator and office.
594 (1) The coordinator and the office shall:
595 (a) make a report to [and provide staff assistance to] the Constitutional Defense
596 Council created under Section 63C-4-101 concerning R.S. 2477 rights and other public lands
597 issues under Title 63C, Chapter 4, Constitutional Defense Council;
598 (b) provide staff assistance to the Constitutional Defense Council created under Section
599 63C-4-101 for meetings of the council and federalism subcommittee;
600 [(b)] (c) under the direction of the state planning coordinator, assist in fulfilling the
601 state planning coordinator's duties outlined in Section 63J-4-401 as those duties relate to the
602 development of public lands policies by:
603 (i) developing cooperative contracts and agreements between the state, political
604 subdivisions, and agencies of the federal government for involvement in the development of
605 public lands policies;
606 (ii) producing research, documents, maps, studies, analysis, or other information that
607 supports the state's participation in the development of public lands policy;
608 (iii) preparing comments to ensure that the positions of the state and political
609 subdivisions are considered in the development of public lands policy;
610 (iv) partnering with state agencies and political subdivisions in an effort to:
611 (A) prepare coordinated public lands policies;
612 (B) develop consistency reviews and responses to public lands policies;
613 (C) develop management plans that relate to public lands policies; and
614 (D) develop and maintain a statewide land use plan that is based on cooperation and in

615 conjunction with political subdivisions; and
616 (v) providing other information or services related to public lands policies as requested
617 by the state planning coordinator;
618 [(c)] (d) facilitate and coordinate the exchange of information, comments, and
619 recommendations on public lands policies between and among:
620 (i) state agencies;
621 (ii) political subdivisions;
622 (iii) the Office of Rural Development created under Section 63M-1-1602 ;
623 (iv) the Resource Development Coordinating Committee created under Section
624 63J-4-501 ;
625 (v) School and Institutional Trust Lands Administration created under Section
626 53C-1-201 ;
627 (vi) the committee created under Section 63F-1-508 to award grants to counties to
628 inventory and map R.S. 2477 rights-of-way, associated structures, and other features; and
629 (vii) the Constitutional Defense Council created under Section 63C-4-101 ;
630 [(d)] (e) perform the duties established in Title 9, Chapter 8, Part 3, Antiquities, and
631 Title 9, Chapter 8, Part 4, Historic Sites;
632 [(e)] (f) consistent with other statutory duties, encourage agencies to responsibly
633 preserve archaeological resources;
634 [(f)] (g) maintain information concerning grants made under Subsection (1)[(h)](i), if
635 available;
636 [(g)] (h) report annually, or more often if necessary or requested, concerning the
637 office's activities and expenditures to:
638 (i) the Constitutional Defense Council; and
639 (ii) the Legislature's Natural Resources, Agriculture, and Environment Interim
640 Committee jointly with the Constitutional Defense Council;
641 [(h)] (i) make grants of up to 16% of the office's total annual appropriations from the
642 Constitutional Defense Restricted Account to a county or statewide association of counties to
643 be used by the county or association of counties for public lands matters if the coordinator,
644 with the advice of the Constitutional Defense Council, determines that the action provides a
645 state benefit;

646 [(i)] (j) provide staff services to the Snake Valley Aquifer Advisory Council created in
647 Section 63C-12-103 ; and
648 [(j)] (k) coordinate and direct the Snake Valley Aquifer Research Team created in
649 Section 63C-12-107 .
650 (2) The coordinator and office shall comply with Subsection 63C-4-102 (8) before
651 submitting a comment to a federal agency, if the governor would be subject to Subsection
652 63C-4-102 (8) if the governor were submitting the material.
653 (3) The office may enter into a contract or other agreement with another state agency to
654 provide information and services related to:
655 (a) the duties authorized by Title 72, Chapter 3, Highway Jurisdiction and
656 Classification Act;
657 (b) legal actions concerning Title 72, Chapter 3, Highway Jurisdiction and
658 Classification Act, or R.S. 2477 matters; or
659 (c) any other matter within the office's responsibility.
660 Section 11. Appropriation.
661 Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures Act, the
662 following sums of money are appropriated from resources not otherwise appropriated out of the
663 funds or accounts indicated for the fiscal year beginning July 1, 2011 and ending June 30,
664 2012. These are additions to amounts previously appropriated for fiscal year 2012.

665	Item 1 To General Fund Restricted - Constitutional Defense Restricted Account
666		From General Fund Restricted - Land Exchange Distribution Account			$1,124,000
667		Schedule of Programs:
668			Constitutional Defense Restricted Account	$1,124,000
669	Item 2 To Governor's Office
670		From General Fund Restricted - Constitutional Defense			$144,000
671		Schedule of Programs:
672			Constitutional Defense Council	$144,000

673 The Legislature intends that the Constitutional Defense Council use this appropriation

674 to evaluate and respond to federal law.

675	Item 3 To Office of Attorney General
676		From General Fund Restricted - Constitutional Defense			$486,000
677		Schedule of Programs:
678			Civil	$486,000

679 The Legislature intends that the Office of Attorney General use this appropriation to
680 hire three attorneys and one paralegal or legal secretary to advise and work for the Public Lands
681 Policy Coordinating Office and the Constitutional Defense Council.

682	Item 4 To Public Lands Policy Coordinating Office
683		From General Fund Restricted - Constitutional Defense			$494,000
684		Schedule of Programs:
685			Public Lands Office	$494,000

686 The Legislature intends that Public Lands Policy Coordination Office use this
687 appropriation to hire two persons to assist in preparing cases for trial, field staff, litigation
688 expenses, and factual and legal studies.

689	Item 5 To Permanent Community Impact Fund
690		From General Fund Restricted - Mineral Bonus			$1,124,000
691		Schedule of Programs:
692			Permanent Community Impact Fund	$1,124,000

693	Item 6 To Department of Community and Culture - Community Development Capital Budget
694		From Permanent Community Impact Fund			$1,124,000
695		Schedule of Programs:
696			Permanent Community Impact Board	$1,124,000

697 The Legislature intends that this appropriation be used for grants to political
698 subdivisions to mitigate the impacts resulting from the development of minerals on federal
699 land.
700 Section 12. Revisor instructions.

701 It is the intent of the Legislature that, in preparing the Utah Code database for
702 publication, the Office of Legislative Research and General Counsel shall replace the
703 references in Subsection 63C-4-108 (2) from "this bill" to the bill's designated chapter number
704 in the Laws of Utah.