This spring, Utah governor Gary Herbert signed a law that authorizes the state's attorney general to file suits to condemn federal land.
The process is called “eminent domain,” and generally it involves acquiring private property for a public purpose, such as a new city reservoir. If the city can't come to terms with the property owners, it can use its power of eminent domain to force the owner to sell. In theory, the city pays fair market value, since the Fifth Amendment to the U.S. Constitution states that "nor shall private property be taken for public use, without just compensation."
But federal land (nearly 65 percent of Utah's 84,916 square miles) is public property, not private, and the Constitution also states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
With the "supremacy clause" making it pretty clear about who's in charge, why is Utah challenging the feds on land ownership and usage?
There are two answers. One is that this is just a continuation of Utah's long struggle against the federal government. The other is that the state government wants to improve school funding without raising taxes.
Start with the struggle. When Brigham Young allegedly said "This is the place" as he looked upon Great Salt Lake on July 24, 1847, it was technically part of Mexico, although a war was underway that would put it in the United States. Continued Mormon settlement resulted in the extensive proposed state of Deseret -- stretching from the Great Divide in present Colorado to San Diego, Calif.
That got whittled down to Utah Territory in the Compromise of 1850, but Brigham Young remained territorial governor, and federal courts held little power because Utahns took their litigation to their own probate courts. Meanwhile back East, the new Republican Party adopted its first platform in 1856. It called on "Congress to prohibit in the Territories those twin relics of barbarism -- Polygamy, and Slavery."
Republican presidential candidate John C. Fremont lost but got 39 percent of the electoral vote -- impressive for a brand-new party. The winner, Democrat James Buchanan, had solid Southern support, so he wasn't about to oppose slavery. But Buchanan figured he could deprive the Republicans of a campaign issue by acting against polygamy.
The President ordered the U.S. Army west from Ft. Leavenworth, Kan., on July 18, 1857 to install a new territorial governor to replace Brigham Young and turn a "theodemocracy" into a secular polity.
Young ordered the abandonment of Salt Lake City as he mobilized the territorial militia. No shots were fired at the approaching army, but Mormon raiders burnt grass to deprive it of forage, and ran off livestock. The U.S. Army stalled for the winter in southwestern Wyoming. During that delay, the two sides came to terms and Young was replaced as governor. The Mormons returned to their capital, and the Army built its fort more than 50 miles away, too far to be a factor in daily life.
The heavy hand of federal power returned 30 years later with the passage of the Edmunds-Tucker Act, designed to bankrupt the Mormon Church and eliminate polygamy. Hard-working responsible men went to prison, children were disinherited, plural wives deprived of homes -- it was brutal enforcement that would do the modern DEA proud.
The church abandoned polygamy, and the rest of America figured the Saints could be trusted to follow cultural norms. Thus Utah Territory became a state in 1896.
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Herbert's attempt to gain state control over state lands illustrates how outdated his ideas are. His approach is in the vein of Reagan-type Republicans of the late 1970s and early 1980s, when states wanted to gain access to federal lands to expedite energy development and other resource development. This was the so-called Sagebrush Rebellion, mainly comprised of conservative politicians in the West.
Put simply, the Sagebrush Rebellion was an attempt to place our public property and our public resources into private hands. This seems to be Herbert's objective. (Herbert comes from a background in real estate development and politics in Utah County, a place where avaricious and unplanned suburban development has occurred over the past 20 years.)
The federal government by no means is a model steward of public domain. See the BLM lands in the Intermountain west covered with sprawling roads and oil and gas pads--or our off-shore public property in the Gulf of Mexico, where spilled oil is devastating an entire marine ecosystem.
But states like Utah, with politicians selling off our public domain--and resources, which are also public property--are far worse stewards of the land.
Claiming that selling off our public lands is solely motivated by interest in public education without acknowledging a fundamental resource extraction philosophy--not to mention political backers with interests from resource extraction industries--is a particularly dubious and ingenuous discourse. Particularly when we consider that many Utah politicians, leaning more and more toward Tea Party and libertarian agendas, are trying to privatize both public education and public lands.
To Herbert, I would pose the question: What would our world look like if the BPs, Exxons, Halliburtons, and Ted Turners of the world ran our schools and owned all of our public property.
My guess is that it would look like the cesspool that BP has turned the Gulf into.