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H.J.R. 15 Enrolled

             1     

JOINT RESOLUTION ON STATE AND POLITICAL

             2     
SUBDIVISIONS JURISDICTION

             3     
2013 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: Marc K. Roberts

             6     
Senate Sponsor: David P. Hinkins

             7      Cosponsors:
             8      Jacob L. Anderegg
             9      Jerry B. Anderson
             10      Stewart Barlow
             11      Roger E. Barrus
             12      Derek E. Brown
             13      Melvin R. Brown
             14      Kay J. Christofferson
             15      Spencer J. Cox
Susan DuckworthBrian M. Greene
Keith Grover
Stephen G. Handy
Ken Ivory
Dana L. Layton
David E. Lifferth
Mike K. McKell
Jim Nielson
Michael E. NoelCurtis Oda
Jeremy A. Peterson
Douglas V. Sagers
V. Lowry Snow
Jon E. Stanard
Keven J. Stratton
John R. Westwood
Ryan D. Wilcox              16     
             17      LONG TITLE
             18      General Description:
             19          This joint resolution of the Legislature declares and asserts the jurisdictional right of the
             20      state of Utah and its political subdivisions to respond to and take action when
             21      conditions on federally managed land in the state adversely affect, or may adversely
             22      affect, the health, safety, or welfare of the people.
             23      Highlighted Provisions:
             24          This resolution:
             25          .    declares and asserts the jurisdictional right of the state of Utah and its political
             26      subdivisions to respond to and take action when conditions on federally managed
             27      land in the state adversely affect, or may adversely affect, the health, safety, or


             28      welfare of the people without the intrusion and interference of the federal government on its
             29      efforts to respond to the needs of its citizens; and
             30          .    urges other states to declare and assert their rights, and the rights of their political
             31      subdivisions, to respond to and take action when conditions on federally managed
             32      land in the state adversely affect, or may adversely affect, the health, safety, or
             33      welfare of the people without the intrusion and interference of the federal
             34      government on the states' efforts to respond to the needs of their citizens.
             35      Special Clauses:
             36          None
             37     
             38      Be it resolved by the Legislature of the state of Utah:
             39          WHEREAS, in its Patient Protection and Affordable Care Act decision, released June
             40      2012, the United States Supreme Court reaffirmed the position of the states as "separate and
             41      independent sovereigns";
             42          WHEREAS, the court made it clear that the federal government "must show that a
             43      constitutional grant of power authorizes each of its actions";
             44          WHEREAS, in contrast, the Supreme Court further explained that "the same does not
             45      apply to the States, because the Constitution is not the source of their power. . . . The States
             46      thus can and do perform many of the vital functions of modern government . . . even though
             47      the Constitution's text does not authorize any government to do so";
             48          WHEREAS, the Supreme Court added, "Our cases refer to this general power of
             49      governing, possessed by the States but not by the federal government, as the 'police power.' . . .
             50      Because the police power is controlled by 50 different states instead of one national sovereign,
             51      the facets of governing that touch on citizens' daily lives are normally administered by smaller
             52      governments closer to the governed. The Framers thus ensured that powers which 'in the
             53      ordinary course of affairs, concern the lives, liberties, and properties of the people' were held
             54      by governments more local and more accountable than a distant bureaucracy";
             55          WHEREAS, the Supreme Court also highlighted a vital role of states' authority in


             56      relation to the federal government, stating, "The independent power of the States also serves as
             57      a check on the power of the Federal Government: 'By denying any one government complete
             58      jurisdiction over all the concerns of public life, federalism protects the liberty of the individual
             59      from arbitrary power. . . . In the typical case we look to the States to defend their prerogatives
             60      by adopting "the simple expedient of not yielding" to federal blandishments when they do not
             61      want to embrace the federal policies as their own'";
             62          WHEREAS, the Supreme Court, concluding this line of logic, declared, "The States are
             63      separate and independent sovereigns. Sometimes they have to act like it";
             64          WHEREAS, in 1917, the Court, in Utah Power and Light v. United States, held that
             65      "The power of the United States to protect its property by its own legislation from private
             66      trespass and waste does not, and cannot, imply a general police power over the vacant public
             67      lands within a State. The section in the Constitution relating to the admission of new States,
             68      and the concomitant disposition of the public lands, excludes, by its express terms, any
             69      construction by which the United States may claim any additional governmental or police
             70      powers within the States in which such public land is situated";
             71          WHEREAS, Article 1, Section 8, Clause 17, of the United States Constitution states
             72      that the federal government will "exercise exclusive Legislation in all Cases whatsoever, over
             73      such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the
             74      Acceptance of Congress, become the Seat of the Government of the United States, and to
             75      exercise like Authority over all Places purchased by the Consent of the Legislature of the State
             76      in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
             77      other needful Buildings";
             78          WHEREAS, the domain of exclusive jurisdiction by the federal government is limited
             79      to the District of Columbia and other Places purchased by the Consent of the State Legislatures
             80      for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings
             81      incidental to the powers expressly granted within the Constitution;
             82          WHEREAS, "other needful Buildings" did not include vast acres of undeveloped land;
             83          WHEREAS, although Section 3 of the Utah Enabling Act states, in part, "That the


             84      people inhabiting said proposed State do agree and declare that they forever disclaim all right
             85      and title to the unappropriated public lands lying within the boundaries thereof," the state of
             86      Utah did not disclaim its jurisdiction;
             87          WHEREAS, during the Eisenhower Administration, the United States government
             88      published a report entitled "Report of the Interdepartmental Committee for the Study of
             89      Jurisdiction Over Federal Areas Within the States" in which four basic areas of federal
             90      jurisdiction were identified:
             91          1. Exclusive Legislative Jurisdiction: This term is applied when the federal government
             92      possesses, by whichever method acquired, all of the authority of the State, and in which the
             93      State concerned has not reserved to itself the right to exercise any of the authority concurrently
             94      with the United States except to serve civil or criminal process in the area for activities that
             95      occurred outside the area;
             96          2. Concurrent Legislative Jurisdiction: This term is applied in those instances wherein
             97      by granting to the United States authority -- which would otherwise amount to exclusive
             98      legislative jurisdiction over an area -- the State concerned has reserved to itself the right to
             99      exercise, concurrently with the United States, all of the same authority;
             100          3. Partial Legislative Jurisdiction: This term is applied in those instances wherein a
             101      state has granted authority to the federal government to legislate over an area of the state but
             102      the State has reserved to itself the right to exercise, by itself or concurrently with the United
             103      States, other authority constituting more than merely the right to serve civil or criminal process
             104      in the area, or the right to tax private property;
             105          4. Proprietorial Interest Only: This term is applied to those instances wherein the
             106      federal government has acquired some right or title to an area in a state, but has not obtained
             107      any measure of the State's authority over the area. In applying this definition, recognition
             108      should be given to the fact that the United States, by virtue of its functions and authority under
             109      various provisions of the Constitution, has many powers and immunities not possessed by
             110      ordinary landholders with respect to areas in which it acquires an interest, and of the further
             111      fact that all its properties and functions are held or performed in a governmental, rather than a


             112      proprietary, capacity;
             113          WHEREAS, the report also stated, "It scarcely needs to be said that unless there has
             114      been a transfer of jurisdiction pursuant to clause 17 by a Federal acquisition of land with State
             115      consent, or by cession from the State to the Federal Government, or unless the Federal
             116      Government has reserved jurisdiction upon admission of the State, the Federal Government
             117      possesses no legislative jurisdiction over any area within a State, such jurisdiction being for
             118      exercise by the State, subject to non-interference by the State with Federal functions. . . . The
             119      consent requirement of Article I, Section 8, Clause 17, was intended by the framers of the
             120      Constitution to preserve the State's jurisdictional integrity against federal encroachment. The
             121      Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over
             122      any area within the exterior boundaries of a State";
             123          WHEREAS, an Inventory Report On Jurisdictional Status of Federal Areas Within the
             124      States, compiled by the United States General Services Administration, categorizes all United
             125      States Forest Service (USFS) and Bureau of Land Management (BLM) land in the state of Utah
             126      as #4, Proprietorial Interest Only;
             127          WHEREAS, the USFS and the BLM have caused a public nuisance and safety issue for
             128      the people of the state of Utah and Utah's political subdivisions by not removing the condition,
             129      persistently in the National Forest and BLM system lands, of imminent fire and not mitigating
             130      the effects of recent fires;
             131          WHEREAS, Utah's 2012 Shingle Creek Fire was human caused on USFS land;
             132          WHEREAS, the fire was one-third contained by the operation of one bulldozer;
             133          WHEREAS, four bulldozers were ready for use by 6 p.m. on the day of the fire, but
             134      since the fire was on USFS land, only one bulldozer was allowed to operate until 10 p.m. and
             135      was only allowed to operate one blade wide and to dig no deeper than two inches;
             136          WHEREAS, as a result, the fire burned more than 8,000 acres, damaged and altered the
             137      local watershed, created future risks of debris and mudslides, and will require costly repairs;
             138          WHEREAS, Utah's 2012 Seeley Fire, which was started by lightning, eventually
             139      destroyed over 48,000 acres, or 76 square miles;


             140          WHEREAS, debris flow and sediment from the Seeley Fire will be a major issue in the
             141      surrounding watershed for the next two to five years, impacting local municipalities, power
             142      plants, local businesses, homes, roads, bridges, and farms;
             143          WHEREAS, in one instance, the USFS chose to bulldoze a portion of private land,
             144      claiming it was the best place to fight the wildfire;
             145          WHEREAS, these are just two examples of conditions at the community level that have
             146      been made worse by the federal government's mismanagement of federal lands;
             147          WHEREAS, the jurisdictional right of states and their political subdivisions to mitigate
             148      potential risks to the health, safety, or welfare of the state or a political subdivision should not
             149      be fettered by the federal bureaucracy; and
             150          WHEREAS, states should assert their rights to mitigate potential risks to the health,
             151      safety, or welfare of the state or a political subdivision and not allow their authority to be
             152      eroded by federal government claims of authority:
             153          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah
             154      declare and assert its jurisdictional right, and the right of its political subdivisions, to respond
             155      to and take action when conditions on federally managed land in the state adversely affect, or
             156      may adversely affect, the health, safety, or welfare of the people without the intrusion and
             157      interference of the federal government on its efforts to respond to the needs of their citizens.
             158          BE IT FURTHER RESOLVED that the Legislature urges the states to declare and
             159      assert their jurisdictional rights, and the rights of their political subdivisions, to respond to and
             160      take action when conditions on federally managed land in the states adversely affect, or may
             161      adversely affect, the health, safety, or welfare of the people without the intrusion and
             162      interference of the federal government on efforts to respond to the needs of their citizens.
             163          BE IT FURTHER RESOLVED that a copy of this resolution be sent to the President of
             164      the United States, the Majority Leader of the United States Senate, the Speaker of the United
             165      States House of Representatives, the United States Forest Service, the commissions of each
             166      county in the state of Utah, the Council of State Governments, the National Conference of State
             167      Legislatures, and the members of Utah's congressional delegation.


             168     


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