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State’s eminent domain law little more than a postcard to feds for now

The overwhelming majority of land on the Arizona-Mexico border is controlled by the federal government or Native American tribes, which would have to grant permission before the state's Joint Border Security Advisory Committee could build any fencing there. Many of the federal agencies say they would not grant permission for the committee to build on the border without getting approval from the U.S. Department of Homeland Security and the White House, as well. (Click to enlarge)

A new law aimed at giving Arizona the power to wrest control of millions of acres from the federal government may end up as nothing more than a sharply worded message — and an ineffective one at that.

The Legislature in 2011 passed SB1546, which sought to give Arizona eminent domain powers over federal land.

Sen. Al Melvin, R-Tucson, said the bill was meant to help Arizona take control of the vast swaths of land owned by the federal government, and suggested that the state may be able to use eminent domain if the feds won’t give the state permission to build a new border fence on its land.

While the land in Eastern states is mostly controlled by private landowners or the states themselves, the feds control much of the land in the newer Western states. Melvin said he modeled his legislation after a similar measure passed in Utah in 2010.

“After almost 100 years we’re finally doing something about it,” Melvin said.

The original bill called on the state attorney general to file eminent domain actions on any federal land that was not acquired with the consent of the Legislature. But lawmakers effectively neutered the bill when they added an amendment stipulating that the attorney general could only initiate eminent domain against federal land “with the consent of the United States government.”

A spokesman for Attorney General Tom Horne said the office had not received any requests from legislators or the Governor’s Office to initiate an eminent domain action against federal land.

The Senate passed the original bill, but he House Rules Committee amended it to require federal consent. Rep. Russ Jones, a Yuma Republican who sponsored an identical measure in the House, said there were concerns that the bill violated the Supremacy Clause of the U.S. Constitution.

Melvin said the law was a “step in the right direction,” but said it may need some changes in 2012 to make it more effective and address concerns over Indian reservations.

“Maybe a couple of teeth were pulled out to get it to pass,” he said. “We may have to go back and strengthen it a little bit more.”

Melvin may want to wait and see how the Utah bill that inspired SB1546 fares in court. Utah has not yet used its eminent domain law, but the bill’s sponsor, Rep. Chris Herrod, R-Provo, said he expects the state to take action within three months that would prompt a court challenge.

Herrod said his primary goal is to challenge the federal government’s ownership of about 67 percent of Utah’s land. But his plan is also for the law to force a U.S. Supreme Court ruling over the breadth of the Supremacy Clause. He said that clause, much like the Commerce Clause, has been expanded and interpreted in unconstitutional ways.

“Everybody just assumes that whatever Congress does is supreme, and that’s not how the Constitution works,” Herrod said. “I’m not going to say that I don’t think it’s a long shot, but through the long shot process we’ll know better which avenues we can sue on.”

Melvin said he has case law on his side and plans to consult with the Goldwater Institute about a follow-up to SB1546. He also plans to work with officials in Idaho, Utah and Wyoming to wrest control of their land from the federal government.

Goldwater Institute attorney Nick Dranias said there is case law to support some state use of eminent domain against federal land. But that case law doesn’t go as far as Melvin had hoped, and said the Supremacy Clause would prohibit the state from using eminent domain on most federal land.

Dranias said a 1938 U.S. Supreme Court ruling that allowed California to tax alcohol sales at Yosemite National Park affirmed at least limited authority by the states to exercise their authority on federal land. He said that ruling could be used as a springboard to allow Arizona to exercise police powers, and therefore eminent domain, on federal land, but only in a very limited sense.

Any land the feds held at the time of Arizona’s statehood in 1912 would likely be off-limits, regardless of any state law to the contrary. Only land that the feds purchased or acquired since then — which Dranias said doesn’t amount to much — would be fair game.

“Before it was probably over-broad in that it would reach properties over which the federal government does have exclusive control. But it could have been applied in ways that are at least arguably constitutional,” Dranias said.

But Arizona State University constitutional law professor Paul Bender said there is no question than any attempt by a state to use eminent domain would run afoul of the Supremacy Clause, “as well as a lot of other things in the Constitution.”

“I couldn’t think of any circumstances in which the state could do that,” Bender said.

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