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H.B. 143

             1     

EMINENT DOMAIN AUTHORITY

             2     
2010 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Christopher N. Herrod

             5     
Senate Sponsor: Stephen H. Urquhart

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill authorizes the state to exercise eminent domain authority on property
             10      possessed by the federal government unless the property is owned by the federal
             11      government in accordance with the United States Constitution Article I, Section 8,
             12      Clause 17.
             13      Highlighted Provisions:
             14          This bill:
             15          .    authorizes the state to exercise eminent domain authority on property possessed by
             16      the federal government unless the property is owned by the federal government in
             17      accordance with the United States Constitution Article I, Section 8, Clause 17.
             18      Monies Appropriated in this Bill:
             19          None
             20      Other Special Clauses:
             21          None
             22      Utah Code Sections Affected:
             23      ENACTS:
             24          78B-6-503.5, Utah Code Annotated 1953
             25     
             26      Be it enacted by the Legislature of the state of Utah:
             27          Section 1. Section 78B-6-503.5 is enacted to read:


             28          78B-6-503.5. Other property which may be taken.
             29          Property which may be taken under this part includes property possessed by the federal
             30      government unless the property is owned by the federal government in accordance with the
             31      United States Constitution Article I, Section 8, Clause 17.




Legislative Review Note
    as of 11-30-09 4:01 PM


As required by legislative rule and practice, the Office of Legislative Research and General
Counsel provides the following legislative review note to assist the Legislature in making its
own determination as to the constitutionality of the bill. The note is based on an analysis of
relevant state and federal constitutional law as applied to the bill. The note is not written for the
purpose of influencing whether the bill should become law, but is written to provide
information relevant to legislators' consideration of this bill. The note is not a substitute for the
judgment of the judiciary, which has authority to determine the constitutionality of a law in the
context of a specific case.

This bill authorizes the state to exercise eminent domain authority on property possessed by the
federal government unless the property is owned by the federal government in accordance with
the U.S. Constitution article I, section 8, clause 17, also known as the "Enclave Clause." The
U.S. Supreme Court has held that eminent domain authority, or the right to take and dispose
land for public use and necessity, belongs to the sovereign government of the land (i.e. federal
or state government). See Pollard v. Hagan, 44 U.S. 212, 223 (1845). This bill contests the U.S.
Supreme Court's opinion that the federal government is the sovereign of public land or property
acquired by the federal government in accordance with federal constitutional authority other
than the Enclave Clause.

In 1894 the U.S. Congress passed the Utah Enabling Act. Act Cong. July 16, 1894, ch. 138, 28
Stat. 107. The Act declared that as a condition of Utah's acceptance into the Union, the people
of Utah "agree[d] that they forever disclaim[ed] 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 . . ." Id. at § 3. At this time, Utah also adopted the U.S. Constitution as a condition to
joining the Union. Id.

Two clauses in the U.S. Constitution empower the federal government to own and retain land.
The first, the Enclave Clause, authorizes the federal government to "purchas[e] by the Consent
of the Legislature of the State" land for specific and enumerated purposes like military
structures "and other needful Buildings." U.S. Const. art. I, sec. 8, cl. 17. This bill would not
affect lands acquired by the federal government in accordance with the Enclave Clause.

The second, the "Property Clause," authorizes Congress "to dispose of and make all needful


Rules and Regulations respecting the Territory or other Property belonging to the United States
. . ." U.S. Const. art. IV, sec. 3, cl. 2. Unlike the Enclave Clause, the Property Clause does not
require that the federal government receive a state legislature's consent to own land. The U.S.
Supreme Court has held that "Congress has the same power over [territory] as over any other
property belonging to the United States; and this power is vested in Congress without
limitation . . ." United States v. Gratiot, 39 U.S. 526, 537 (1840). See also Kleppe v. New
Mexico
, 426 U.S. 529, 539 (1976). Pursuant to its broad authority under the Property Clause,
Congress may enact legislation to manage or sell federal land, and any legislation Congress
enacts "necessarily overrides conflicting state laws under the Supremacy Clause." Kleppe, 426
U.S. at 543. See U.S. Const. art. VI, cl. 2.

Parties contesting federal control or ownership of public lands under the Property Clause have
argued that the equal footing doctrine requires Congress' recognition of a state's sovereignty
over public lands. "The equal footing doctrine is grounded in the idea that new states enter the
Union with the same rights as the original states." Koch v. United States, DOI, Interior Bd. of
Land Appeals, BLM
, 47 F.3d 1015, 1018 (10th Cir. 1995) (citations omitted). The courts,
however, have limited the equal footing doctrine to apply only to the title of land underlying
navigable waters: "The equal footing doctrine simply does not cause land in non-navigable
waters to pass from the federal government to the state." Id. at 1019. See also Texas v.
Louisiana
,
410 U.S. 702, 713 (1973). Furthermore, the equal footing doctrine requires
political, not economic or geographic, equality between the states. United States v. Texas, 339
U.S. 707, 716 (1950). See also Texas v. Louisiana, 410 U.S. at 713.

Based on the courts' previous application of the Property Clause, there is a high probability that
a court would hold that the federal government is the sovereign of public lands surrendered to
or withheld by the federal government at the time of Utah's acceptance into the Union. See
generally United States v. Nye County
, 920 F. Supp. 1108, 1109 (D. Nev. 1996); Gibson v.
Chouteau
, 80 U.S. 92 (1872). In short, 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.

Office of Legislative Research and General Counsel


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