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H.J.R. 15

             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     
             8      LONG TITLE
             9      General Description:
             10          This joint resolution of the Legislature declares and asserts the jurisdictional right of the
             11      state of Utah and its political subdivisions to respond to and take action when
             12      conditions on federally managed land in the state adversely affect, or may adversely
             13      affect, the health, safety, or welfare of the people.
             14      Highlighted Provisions:
             15          This resolution:
             16          .    declares and asserts the jurisdictional right of the state of Utah and its political
             17      subdivisions to respond to and take action when conditions on federally managed
             18      land in the state adversely affect, or may adversely affect, the health, safety, or
             19      welfare of the people without the intrusion and interference of the federal
             20      government on its efforts to respond to the needs of its citizens; and
             21          .    urges other states to declare and assert their rights, and the rights of their political
             22      subdivisions, to respond to and take action when conditions on federally managed
             23      land in the state adversely affect, or may adversely affect, the health, safety, or
             24      welfare of the people without the intrusion and interference of the federal
             25      government on the states' efforts to respond to the needs of their citizens.
             26      Special Clauses:
             27          None


             28     
             29      Be it resolved by the Legislature of the state of Utah:
             30          WHEREAS, in its Patient Protection and Affordable Care Act decision, released June
             31      2012, the United States Supreme Court reaffirmed the position of the states as "separate and
             32      independent sovereigns";
             33          WHEREAS, the court made it clear that the federal government "must show that a
             34      constitutional grant of power authorizes each of its actions";
             35          WHEREAS, in contrast, the Supreme Court further explained that "the same does not
             36      apply to the States, because the Constitution is not the source of their power . . . The States
             37      thus can and do perform many of the vital functions of modern government . . . even though
             38      the Constitution's text does not authorize any government to do so";
             39          WHEREAS, the Supreme Court added, "Our cases refer to this general power of
             40      governing, possessed by the States but not by the federal government, as the 'police power.' . . .
             41      Because the police power is controlled by 50 different states instead of one national sovereign,
             42      the facets of governing that touch on citizens' daily lives are normally administered by smaller
             43      governments closer to the governed. The Framers thus ensured that powers which 'in the
             44      ordinary course of affairs, concern the lives, liberties, and properties of the people' were held
             45      by governments more local and more accountable than a distant bureaucracy";
             46          WHEREAS, the Supreme Court also highlighted a vital role of states' authority in
             47      relation to the federal government, stating, "The independent power of the States also serves as
             48      a check on the power of the Federal Government: 'By denying any one government complete
             49      jurisdiction over all the concerns of public life, federalism protects the liberty of the individual
             50      from arbitrary power . . . In the typical case we look to the States to defend their prerogatives
             51      by adopting 'the simple expedient of not yielding' to federal blandishments when they do not
             52      want to embrace the federal policies as their own";
             53          WHEREAS, the Supreme Court, concluding this line of logic, declared, "The States are
             54      separate and independent sovereigns. Sometimes they have to act like it";
             55          WHEREAS, in 1917, the Court, in Utah Power and Light v. United States, held that
             56      "The power of the United States to protect its property by its own legislation from private
             57      trespass and waste does not, and cannot, imply a general police power over the vacant public
             58      lands within a State. The section in the Constitution relating to the admission of new States,


             59      and the concomitant disposition of the public lands, excludes, by its express terms, any
             60      construction by which the United States may claim any additional governmental or police
             61      powers within the States in which such public land is situated";
             62          WHEREAS, Article 1, Section 8, Clause 17, of the United States Constitution states
             63      that the federal government will "exercise exclusive Legislation in all Cases whatsoever, over
             64      such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the
             65      Acceptance of Congress, become the Seat of the Government of the United States, and to
             66      exercise like Authority over all Places purchased by the Consent of the Legislature of the State
             67      in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
             68      other needful Buildings";
             69          WHEREAS, the domain of exclusive jurisdiction by the federal government is limited
             70      to the District of Columbia and other Places purchased by the Consent of the State Legislatures
             71      for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings
             72      incidental to the powers expressly granted within the Constitution;
             73          WHEREAS, "other needful Buildings" did not include vast acres of undeveloped land;
             74          WHEREAS, although Section 3 of the Utah Enabling Act states, in part, "That the
             75      people inhabiting said proposed State do agree and declare that they forever disclaim all right
             76      and title to the unappropriated public lands lying within the boundaries thereof," the state of
             77      Utah did not disclaim its jurisdiction;
             78          WHEREAS, during the Eisenhower Administration, the United States government
             79      published a report entitled "Report of the Interdepartmental Committee for the Study of
             80      Jurisdiction Over Federal Areas Within the States" in which four basic areas of federal
             81      jurisdiction were identified:
             82          1. Exclusive Legislative Jurisdiction: This term is applied when the federal government
             83      possesses, by whichever method acquired, all of the authority of the State, and in which the
             84      State concerned has not reserved to itself the right to exercise any of the authority concurrently
             85      with the United States except to serve civil or criminal process in the area for activities that
             86      occurred outside the area;
             87          2. Concurrent Legislative Jurisdiction: This term is applied in those instances wherein
             88      by granting to the United States authority -- which would otherwise amount to exclusive
             89      legislative jurisdiction over an area -- the State concerned has reserved to itself the right to


             90      exercise, concurrently with the United States, all of the same authority;
             91          3. Partial Legislative Jurisdiction: This term is applied in those instances wherein a
             92      state has granted authority to the federal government to legislate over an area of the state but
             93      the state has reserved to itself the right to exercise, by itself or concurrently with the United
             94      States, other authority constituting more than merely the right to serve civil or criminal process
             95      in the area, or the right to tax private property;
             96          4. Proprietorial Interest Only: This term is applied to those instances wherein the
             97      federal government has acquired some right or title to an area in a state, but has not obtained
             98      any measure of the State's authority over the area. In applying this definition, recognition
             99      should be given to the fact that the United States, by virtue of its functions and authority under
             100      various provisions of the Constitution, has many powers and immunities not possessed by
             101      ordinary landholders with respect to areas in which it acquires an interest, and of the further
             102      fact that all its properties and functions are held or performed in a governmental, rather than a
             103      proprietary, capacity;
             104          WHEREAS, the report also stated, "It scarcely needs to be said that unless there has
             105      been a transfer of jurisdiction pursuant to clause 17 by a Federal acquisition of land with State
             106      consent, or by cession from the State to the Federal Government, or unless the Federal
             107      Government has reserved jurisdiction upon admission of the State, the Federal Government
             108      possesses no legislative jurisdiction over any area within a State, such jurisdiction being for
             109      exercise by the State, subject to non-interference by the State with Federal functions. . . The
             110      consent requirement of Article I, Section 8, Clause 17, was intended by the framers of the
             111      Constitution to preserve the State's jurisdictional integrity against federal encroachment. The
             112      Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over
             113      any area within the exterior boundaries of a State";
             114          WHEREAS, an Inventory Report On Jurisdictional Status of Federal Areas Within the
             115      States, compiled by the United States General Services Administration, categorizes all United
             116      States Forest Service (USFS) and Bureau of Land Management (BLM) land in the state of Utah
             117      as #4, Proprietorial Interest Only;
             118          WHEREAS, the USFS and the BLM have caused a public nuisance and safety issue for
             119      the people of the state of Utah and Utah's political subdivisions by not removing the condition,
             120      persistently in the National Forest and BLM system lands, of imminent fire and not mitigating


             121      the effects of recent fires;
             122          WHEREAS, Utah's 2012 Shingle Creek Fire was human caused on USFS land;
             123          WHEREAS, the fire was one-third contained by the operation of one bulldozer;
             124          WHEREAS, four bulldozers were ready for use by 6 p.m. on the day of the fire, but
             125      since the fire was on USFS land, only one bulldozer was allowed to operate until 10 p.m. and
             126      was only allowed to operate one blade wide and to dig no deeper than two inches;
             127          WHEREAS, as a result, the fire burned more than 8,000 acres, damaged and altered the
             128      local watershed, created future risks of debris and mudslides, and will require costly repairs;
             129          WHEREAS, Utah's 2012 Seeley Fire, which was started by lightning, eventually
             130      destroyed over 48,000 acres, or 76 square miles;
             131          WHEREAS, debris flow and sediment from the Seeley Fire will be a major issue in the
             132      surrounding watershed for the next two to five years, impacting local municipalities, power
             133      plants, local businesses, homes, roads, bridges, and farms;
             134          WHEREAS, in one instance, the USFS chose to bulldoze a portion of private land,
             135      claiming it was the best place to fight the wildfire;
             136          WHEREAS, these are just two examples of conditions at the community level that have
             137      been made worse by the federal government's mismanagement of federal lands;
             138          WHEREAS, the jurisdictional right of states and their political subdivisions to mitigate
             139      potential risks to the health, safety, or welfare of the state or a political subdivision should not
             140      be fettered by the federal bureaucracy; and
             141          WHEREAS, states should assert their rights to mitigate potential risks to the health,
             142      safety, or welfare of the state or a political subdivision and not allow their authority to be
             143      eroded by federal government claims of authority:
             144          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah
             145      declare and assert its jurisdictional right, and the right of its political subdivisions, to respond
             146      to and take action when conditions on federally managed land in the state adversely affect, or
             147      may adversely affect, the health, safety, or welfare of the people without the intrusion and
             148      interference of the federal government on its efforts to respond to the needs of their citizens.
             149          BE IT FURTHER RESOLVED that the Legislature urges the states to declare and
             150      assert their jurisdictional rights, and the rights of their political subdivisions, to respond to and
             151      take action when conditions on federally managed land in the states adversely affect, or may


             152      adversely affect, the health, safety, or welfare of the people without the intrusion and
             153      interference of the federal government on efforts to respond to the needs of their citizens.
             154          BE IT FURTHER RESOLVED that a copy of this resolution be sent to the president of
             155      the United States, the majority leader of the United States Senate, the Speaker of the United
             156      States House of Representatives, the United States Forest Service, the commissions of each
             157      county in the state of Utah, the Council of State Governments, the National Conference of State
             158      Legislatures, and the members of Utah's congressional delegation.




Legislative Review Note
    as of 2-26-13 8:57 AM


Office of Legislative Research and General Counsel


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