By David Harrison, Staff Writer
Utah State Representative Chris Herrod has gotten a lot of attention since his bill to explore seizing federal land through eminent domain became law last month. Colleagues in other Western legislatures have called seeking tips on replicating his success in their states. And the law was a topic of discussion this week when U.S. Interior Secretary Ken Salazar paid a visit to Salt Lake City.
A majority of the land in Utah, as in many Western states, is owned by the federal government. Herrod's measure treats the federal government like any other property owner in the state. It allows Washington to keep the rights and title to the land but not ultimate jurisdiction over it. That jurisdiction rests with Utah, and it means that federal land holdings may be subject to state eminent domain authority.
To Herrod, the law is an expression of long-simmering anger. Last year, he watched as the new Obama administration canceled 77 leases to oil and gas companies that had been approved by President George W. Bush. Then he saw a leaked administration memo that purported to list 14 sites as possible new national monuments, two of them in Utah.
Outrage over federal land policies is nothing new in Western states, where local officials have long sought to develop public land and collect tax revenue from it. Now, with Democrats in charge in Washington and conservative activists energized in their opposition towards the Obama administration's health care, energy and budget policies, some in the West are trying to counter what they see as federal heavy-handedness in land-use matters. Herrod, a Republican, has spoken at Tea Party rallies trying to tap into that anger, although he is wary of calling his bill a "Tea Party bill."
"It's a natural outflow of the frustration," he says. "We kind of feel like we're serfs. We have this land and we have to beg Washington to see if we can use it."
So far, there are few signs that the West is gearing up for a full-scale renewal of the Sagebrush Rebellion, the 1970s movement that challenged Washington's control of public lands. While numerous bills have cropped up in Western legislatures attempting to wrest control of land from the federal government, few have been as radical as Herrod's and few have received anywhere near the same attention. By contrast, when President Bill Clinton designated the Grand Staircase-Escalante National Monument on 1.9 million acres of public land in southern Utah, he touched off a fury in Western states that had many comparing it to the earlier uprising.
“I can’t see really anything in the Obama administration that would be cause to start another Sagebrush Rebellion,” says John Freemuth, a political scientist at Boise State University.
For instance, Interior Secretary Salazar is a Colorado rancher who last year decided to keep wolves off the endangered species list, furthering a Bush-era policy that angered environmentalists but pleased Western ranchers. The administration has spurned calls to list the sage grouse as an endangered species, a move that would close off vast swaths of land to development. Instead, Salazar has indicated he is willing to let states work through their own procedures for protecting the birds, which scientists from the U.S. Fish and Wildlife Service say need to be protected.
George Nickas, executive director of the environment group Wilderness Watch, is not worried. The Utah bill is little more than “political theater,” he says. “Every so often some of these folks in these states kind of rebel. They like to pick on the federal government and say ‘We resist any federal government control on these lands.’ My guess is it’s wrapped up in the anti-Obama, anti-federal government, anti-Washington, D.C., rhetoric that seems to be so hot right now.”
Herrod says his bill was intended to do more than send a message. He wants to use money generated from developing public lands to fund Utah schools. And he believes that if and when the law is subjected to a federal court test, it could win a 5-to-4 decision in the U.S. Supreme Court. Even some of Herrod’s supporters are skeptical of that view. “I’d say go for it but I think that’s a bit of a stretch,” says Lynn Luker, a lawyer and Republican state representative in Idaho.
Luker sits on the State Affairs Committee in the Idaho House, which last month approved a measure to explore suing the federal government to get control of parcels of federal land in Idaho. Members of the committee say that claiming the land could open it up for logging, which, Luker says, would reduce the risk of forest fires while also providing electricity from burning dead timber.
Other Western states are looking for ways to take on the federal government. Wyoming lawmakers approved a resolution that claimed sovereignty from Washington under the 10th Amendment. An almost identical resolution was debated but defeated in Nevada last year. Montana lawmakers voted on — and turned down — a bill to assert the state's right to manage its own wolf population.
It’s still unclear whether Utah’s sweeping eminent domain legislation is a sign of things to come. “We’ve got this sort of opening shot from the Utah Legislature, and I think it remains to be seen whether any other Western state will adopt or pursue similar sorts of policies,” says Robert Keiter, a law professor and public lands expert at the University of Utah.
Utah’s anti-Washington sentiment did not stop state officials from warmly receiving Salazar this week as he tried to smooth over differences. But lawmakers and Governor Gary Herbert grilled the interior secretary on Utah’s effort to open old roads in federally protected areas and on the new eminent domain law.
Salazar said he got the message.