Guv supports effort to take on feds over public lands
By Amy Joi O'Donoghue
Published: Monday, March 29, 2010 5:10 p.m. MDT
SALT LAKE CITY — Gov. Gary Herbert has thrown his support behind an effort to take on the federal government over access to public lands.
On Saturday, Herbert signed two bills that passed the Utah Legislature this session. Earlier in the week, he gave his nod during a televised press conference to a possible court battle that critics have said has little chance of success.
The so-called eminent domain measures, promoted by two conservative Utah County lawmakers, direct the state to use the legal strategy to wrest control of lands from the federal government so they can be developed.
Although subject to review and approval each year, the measures provide up to $3 million over a three-year period to pursue the battle supporters hope will be mimicked by other Western states.
Herbert agreed with the legislative sponsors and other supporters that access to school trust lands has proven problematic in some instances because federal agencies won't relinquish control over roads that lead to those lands.
"We need to get a right of way, and so eminent domain, adverse possession would provide access into those trust lands, which could generate millions and millions of dollars for us," Herbert said.
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While open to negotiation with federal agencies, Herbert conceded that strategy does not always work.
"When the donkey doesn't move sometimes you need to hit him across the head with a two by four just to get their attention. And sometimes the federal government needs to be brought to attention so we can negotiate and have some discussion."
Despite legal analysis by state attorneys that says the measure would not withstand court scrutiny, private attorney Mike Lee assured legislative committee members during the session that he believes it is a fight worth fighting. Lee is a Republican candidate for U.S. Senate and has argued land-use issues in the courts.
"I cannot rule out the possibility of victory in this case nor can I assure it," Lee told members of a natural resources committee. "I believe we have a good-faith basis for an argument here, an argument the likes of which has yet to be addressed as far as I am able to discern. It is an argument that strikes at the heart of the sovereignty of the state."