'Glenn Beck': Showdown Over States' Rights

This is a rush transcript from "Glenn Beck," March 31, 2010. This copy may not be in its final form and may be updated.

JUDGE ANDREW NAPOLITANO, GUEST HOST: A legal showdown is brewing out west over states' rights with Utah Governor Gary Herbert authorizing the state use of eminent domain to seize the federal government’s most valuable real estate.

Now, remember, eminent domain is right of government to take private property for public use. But this will be the first time in American history that a state is able to lay claim to federal land in this way. Supporters now hope this legislation triggers similar bills throughout the west.

Here is Utah State Representative Carl Wimmer. He's a cofounder of the National Patrick Henry Caucus and Josh Eboch — he's a policy analyst with the Tenth Amendment Center.

Rep. Wimmer to you first. Tell us what happened. What property do the feds own, and what property does Utah want to take from them, and how does it propose to do this?

REP. CARL WIMMER, R-UTAH: Well, thank you very much, judge. It's an honor to be on here with you to talk about this. It was a little less than a year ago that we announced the formation of the Patrick Henry Caucus on this very show.

This particular piece of legislation is the brainchild of one of the cofounders of the caucus, Rep. Chris Herrod from Provo. And what this does is essentially creates a funding source and compels our attorney general to claim eminent domain over certain pieces and parcels of land that the federal government has come in and taken from Utah. Utah right now —

NAPOLITANO: So the feds took the money - took the property. Excuse me. A Freudian slip there. So the feds took property from Utah, paid Utah for it against its will. Utah accepted the money, deeded property to the feds.

Now, Utah wants to reverse that project. What does Utah want to do with the property? Why do they lay claim to this real estate?

WIMMER: Well, at statehood Utah was granted several parcels of land that was supposed to go to our school trust. That money was supposed to be developed and/or sold and the money was supposed to go to help our children's education. Utah is the lowest funded-per-pupil in the nation because we have a lot of children.


WIMMER: But what we want to do with it is we want to be able to develop these lands or sell these lands and have that money go toward our education system as it was intended at statehood.

But the federal government has come in and locked up access. We can't even access a tremendous amount of the land that we were granted at statehood. Almost 70 percent of Utah is owned by the federal government.

NAPOLITANO: Mr. Eboch, how unusual is this that a state would lay claim to federal property? I must tell you, as someone who watches the Constitution and the interplay between the states and the federal government for a living, I have never heard of a state seizing real estate owned by the feds. Have you?

JOSH EBOCH, POLICY ANALYST, TENTH AMENDMENT POLICY CENTER: No, judge, I haven't. But these are strange times we live in. And this is not the first state in recent weeks and months to stand up to federal government and say, "You’ve overstepped the bounds," or "You haven't upheld obligations that you have to the states and the citizens of the states.

We're — at the Tenth Amendment Center, we're very much in favor of states doing this kind of thing to push back.

NAPOLITANO: Rep. Wimmer, we are going to put on the screen a map of the western part of the United States. Now, if you start with California, you go to Nevada and then you go to Utah. The red shows how much of the state of Utah is already owned by the federal government.

Now, I know you can't see if from where you are, but it looks to me like it's 80 or 90 percent of the state of Utah is owned by the feds. What did they do with this real estate? What is it?

WIMMER: They do nothing with it. That's the problem. Right now — back in '90s when they came in and commandeered the Grand Staircase-
Escalante under the Clinton administration, they locked up $1 trillion worth of natural resources, clean coal and natural gas.

They continue to do the same thing, and Sec. Salazar has said that they are looking to create some more national monuments here in Utah. It’s 70 percent of the land in Utah is owned right now and it is high time that we started fighting back and take this to court and find out who indeed is the sovereign.

Is it the state that is set up to protect the sovereign people or is it the federal government? That is the purpose of this particular piece of legislation and we intend to fight it, including the Supreme Court.

NAPOLITANO: Josh, you can expect a tremendous pushback, of course, from the Justice Department. They'll never accept this laying down, and it probably will go because of the unique nature of this all the way to the Supreme Court.

What are the best arguments in favor of the right of a state to seize federal lands within the state, especially federal lands that aren't even being used for any discernible purpose?

EBOCH: I would have to say that the best argument in favor of the state making use of its resources is the fact the states created federal government as a common agent to take care of their mutual needs.

And if the federal government is monopolizing property that the state could use for their citizens, for their own freedom and their prosperity, and they're not able to make use of that property in a way that they would like to, that they should turn to federal government and say, "You're not upholding your obligations under the Constitution. And as such, we're going to take this land back and use it in a way that does benefit our citizens and does protect their rights.

NAPOLITANO: Rep. Wimmer, I guess you're going to need a battle chest for this one. You know that the feds will resist this to the hilt.

WIMMER: Absolutely. Here we are suing the federal government in federal court to get them to overturn federal decisions. No doubt, it's an uphill battle but we know that under Article One, Section 8, Clause 17, which is the Enclave Clause, if the federal government is going to take land from the state, they have to coordinate that with the state legislature for the approval.


WIMMER: We have never given it. We have never given it. And we're not going to give it.

NAPOLITANO: And they have to put the land to some discernible public use, which they haven't. Gentlemen, thanks very much joining us.

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