By Douglas V. Gibbs
First, to understand why Utah's demand that they be able to take back control of federal lands in their State, we must establish where in the Constitution it indicates that National Parks, or lands seized for conservation reasons by the federal government, are not within the authorities of the federal government. In other words, unconstitutional.
In Article I, Section 8, Clause 17 of the U.S. Constitution it reads, "...and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be..."
In other words, federal properties must be approved by the State Legislatures, and the lands must be purchased. National Parks, and lands taken for conservation reasons by the federal government, were not given by consent of the State legislature, nor were those properties purchased from the States by the federal government - making the possession of those properties by the federal government unconstitutional.
If the properties were taken against the authorities granted, then it is the right of the States to take those lands back.
In Utah, a bill is on the verge of passing that will demand the federal government relinquish back to Utah lands taken.
The State lawmakers are working to return control of federal lands in the State of Utah back to the State, and are willing to do so by pushing a legal battle they insist is winnable. The federal government, and establishment politicians, argue that Utah's attempt to retake their lands is highly unconstitutional and will fail in court. But the land was taken by the federal government unconstitutionally in the first place. Utah is in the right to take back those lands, and they don't need the permission of a judge to enable it.
Utah is the first State working to pass a package of bills that demand the federal government relinquish claims to huge sections of public land. The current proposal would return to State control from the federal government nearly 30 million acres, or almost half of the entire state.
Arizona also has an identical bill in the works. The argument is that the federal government doesn't treat states like equal partners in land management.
"If sovereignty means anything, it means not having to say pretty please, or mother may I."
Another drive behind this effort is the desire for the opportunity to develop and mine lands managed by the U.S. Bureau of Land Management and U.S. Forest Service.
There is also concern that access to state-owned or private lands will be increasingly restricted by Congress or even with the stroke of a president's pen, which happened in 1996 when President Bill Clinton created the 1.9-million-acre Grand Staircase-Escalante National Monument in southern Utah, a move that was also unconstitutional.
-- Political Pistachio Conservative News and Commentary
Utah on Verge of Passing Bill Demanding Feds Relinquish Public Land - Fox News
2 comments:
On constitutional law I would like to make a point. Some people like to use Article 1 Section 8 Clause 17 to say that the National Parks, and National Forests, etc are unconstitutional due to the fact that they are not mentioned. Let me post the text.
The Congress shall have Power ... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
There are those who argue that the lack of mention of parks or forests in Article 1 Section 8 Clause 17 makes them unconstitutional, this is a moot argument. Let me explain why.
Notice the presence of the words "to exercise exclusive legislation in all cases whatsoever" and "to exercise like authority" thereby linking the two, exercising exclusive legislation is not the same thing as owning land, if it was then there would not be any private property inside Washington DC but there is.
The land that is now Washington DC was once part of the states of VA and MD, but since the state legislatures voted to cede those lands to the federal government, that meant that the states would no longer hold any power over those lands, thus the state laws do not apply and the state authorities have no power.
In Great Smoky MOuntains National Park however, all TN and NC state laws do apply and not only do the State Authorities have power, but the county authorities do too. The parks are not federal enclaves, they are federal lands. Big difference.
The Power to own land is a separate power from the power to create federal enclaves, and the government gets this power from the 5th amendment and the eminent domain clause which states “for public use” giving the government much broader power in owning land than in creating federal enclaves. Are parks for public use? Absolutely.
Article 4 Section 3 Clause 2 makes a case for the parks The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The national parks and national forests are properties of the United States, but the lands are still under state authority, meaning if you break a state law they can and will arrest and prosecute. The same does not old true in DC and other federal enclaves.
Just thought I would point that out, being a huge fan of the parks and forests.
The reason Article I, Section 8, Clause 17 makes national parks unconstitutional is not because they are not mentioned, but because the clause states that in order to obtain the property the federal government must 1) purchase the property 2) with the consent of the State legislature 3) for the purpose of needful buildings. If all three criteria are not met, the property was obtained illegally . . . therefore, unconstitutionally.
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