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STUART F. DELERY Acting Assistant Attorney General DAVID B. BARLOW (Bar #13117) United States Attorney CARLIE CHRISTENSEN (Bar #633) JEANNETTE F. SWENT (Bar #6043) Assistant United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch RYAN PARKER (Bar # 11742) * SCOTT RISNER (MI Bar #P70762) * Trial Attorneys Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20001 Telephone: (202) 514-4336 Facsimile: (202) 616-8470 E-mail: ryan.parker@usdoj.gov Attorneys for the United States *Applications for admission pro hac vice forthcoming UNITED STATES DISTRICT COURT DISTRICT OF UTAH

The United States of America, Plaintiff, v. The State of Utah; and Gary R. Herbert, Governor of the State of Utah, in his official capacity, Defendants.

Case No. 2:13CV00332 TS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Plaintiff, the United States of America, by its undersigned attorneys, brings this civil action for declaratory and injunctive relief and alleges as follows: INTRODUCTION 1. In this action, the United States seeks to declare invalid and preliminarily and

permanently enjoin enforcement of Sections 53-13-106.5 and 76-8-512(4) of the Utah Code, as amended by Utah House Bill (HB) 155 (2013), because these provisions are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution. 2. Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, purport to

regulate agents and employees of the federal government in the performance of their federal duties and to restrict the federal governments constitutional authority to regulate the use of federal property. They purport to prohibit federal employees from exercising law enforcement authority granted to them by Congress on federal land, and they purport to make it a criminal misdemeanor for employees of the Bureau of Land Management (BLM) and the Forest Service to perform the duties required of them by federal law. Accordingly, these provisions of Utah law, as amended by HB 155, are preempted by federal law. 3. HB 155 was signed into law on April 13, 2013, and will take effect on May 14,

2013. The Government seeks preliminary relief enjoining enforcement of Sections 53-13-106.5 and 76-8-512(4) of the Utah Code, as amended by HB 155, while the Court considers the United States request that the provisions be declared invalid and enforcement be permanently enjoined. JURISDICTION AND VENUE 4. This action arises under the Constitution of the United States, Article VI, Clause 2

and Article IV, Section 3, Clause 2; the Federal Land Policy and Management Act (FLPMA),

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43 U.S.C. 1701, et seq.; the National Park Service Organic Act, 16 U.S.C. 1, et seq.; and the Forest Service Organic Administration Act, 16 U.S.C. 551. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1345, and the United States seeks remedies under 28 U.S.C. 1651, 2201, and 2202. 5. Venue lies in the District of Utah pursuant to 28 U.S.C. 1391(b). Defendants

are the State of Utah and the Governor of Utah, who resides in Utah. A substantial part of the events or omissions giving rise to this claim occurred in Utah. PARTIES 6. The United States of America is the plaintiff in this action, suing on its own

behalf, as well as on behalf of the United States Department of the Interior (DOI) and the United States Department of Agriculture (USDA). 7. DOI is an executive department of the United States. DOI manages federal land

through its component bureaus, including the BLM, the National Park Service (NPS), the Fish and Wildlife Service (FWS), and the Bureau of Reclamation (BOR). 8. USDA is an executive department of the United States. USDA manages federal

land through its component, the Forest Service. 9. Defendant, the State of Utah, is a state of the United States that entered the Union

as the 45th state in 1896. 10. Defendant Gary R. Herbert is the Governor of Utah and is being sued in his

official capacity.

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STATEMENT OF THE CLAIM 11. The Supremacy Clause of the United States Constitution mandates that [t]his

Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const., art. VI, cl. 2. Management and Protection of Federal Land 12. The Property Clause of the United States Constitution provides that 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. U.S. Const. art. IV, 3, cl. 2. In our constitutional system, the power over the public land thus entrusted to Congress is without limitation. United States v. City & County of San Francisco, 310 U.S. 16, 29 (1940). 13. Through the enactment in 1976 of the Federal Land Policy and Management Act

(FLPMA), Pub. L. 94-579, Congress recognized that it is the policy of the United States that . . . the public lands be retained in Federal ownership. 43 U.S.C. 1701(a). 14. Congress has exercised its constitutional authority by granting DOI and USDA

responsibility to manage and protect federal land. As part of this responsibility, Congress has authorized the Secretaries of the Interior and Agriculture to issue rules and regulations for the management, use, and protection of federal land. See, e.g., 43 U.S.C. 1733(a); 16 U.S.C. 1, 551. Congress further empowered the Secretaries to authorize agency employees to exercise law enforcement authorities on such land. See, e.g., 43 U.S.C. 1733(c); 16 U.S.C. 1a-6(b), 551, 559, 559b-559g.

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15.

Pursuant to the authority provided by Congress, DOI, through BLM, FWS, NPS,

and BOR, and USDA, through the Forest Service, manage approximately 670 million acres of federal land, approximately thirty percent of the land in the United States. Approximately sixty percent of the land in the State of Utah is federally owned and managed by either DOI or USDA. 16. To implement their statutory and regulatory responsibilities, DOI and USDA have

adopted various regulations governing conduct that affects federal lands. Through their components, these agencies also employ Law Enforcement Officers (LEOs) to protect and manage the land in their care. These officers are responsible for the enforcement of regulations and administrative orders that protect national parks, national forests, and other public lands, and secure the safety of the members of the public and employees who use and enjoy those lands. 17. BLM manages and protects approximately twenty-two million acres of land in

Utah, more than forty percent of the State. BLM LEOs enforce federal law and regulations governing land managed by that component, some of which adopt or otherwise incorporate standards from the laws of the state in which the land is located. See, e.g., 43 C.F.R. 8341.1(d) (prohibiting operat[ing] an off-road vehicle in violation of State laws and regulations relating to use, standards, registration, operation, and inspection of off-road vehicles). BLM officers enforce such federal regulations as part of their official job responsibilities. 18. NPS is responsible for managing and protecting thirteen National Parks,

Monuments, and other NPS units in Utah. These NPS units approximately encompass 2.3 million acres and receive an average of over 9.7 million visitors annually. NPS employs both full-time and seasonal LEOs in Utah. Those officers enforce federal law and regulations governing the national parks, some of which adopt or otherwise incorporate standards from the 4

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laws of the states in which the land is located. See, e.g., 36 C.F.R. 4.2 (providing that traffic and the use of vehicles within a park area are governed by State law). NPS officers enforce such federal regulations as part of their official job responsibilities. 19. FWS protects and manages three National Wildlife Refuges in Utah: the Bear

River Migratory Bird Refuge, the Ouray National Wildlife Refuge, and the Fish Springs National Wildlife Refuge. Together, these three refuges comprise approximately 110,000 acres. FWS employs full-time LEOs in Utah, and has other LEOs work within the state on special operations and assignments. Those officers enforce federal law and regulations governing the National Wildlife Refuges, some of which adopt or otherwise incorporate standards from the laws of the state in which the refuge is located. See, e.g., 50 C.F.R. 20.72 (prohibiting hunting migratory birds in violation of any applicable law or regulation of a state). In addition to managing and protecting National Wildlife Refuges, FWS LEOs engage in law enforcement activity on private or state owned land to enforce regulations authorized by federal wildlife statutes such as the Bald and Golden Eagle Protection Act, the Endangered Species Act, the Lacey Act, and the Migratory Bird Treaty Act. FWS officers enforce such federal regulations as part of their official job responsibilities 20. BOR is responsible for administering critical water management projects

throughout the Western United States, including in Utah. BOR employs LEOs to enforce federal laws and regulations governing conduct affecting BOR projects and lands, some of which adopt or otherwise incorporate standards from the laws of the state in which the projects and lands are located. See, e.g., 43 C.F.R. 423.30 (prohibiting possession of firearms on BOR lands and

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waterways when not in compliance with state law). BOR officers enforce such federal regulations as part of their official job responsibilities. 21. The U.S. Forest Service is responsible for protecting and managing the nine

National Forests that fall entirely or partially in the State of Utah. These forests comprise approximately 9.15 million acres of federal land. The Forest Service relies on its employees in Utah to help manage and protect the National Forests. These employees include Special Agents and Law Enforcement Officers, who are authorized to make felony arrests, and Forest Protection Officers, who are authorized to write misdemeanor citations for violation of certain categories of regulations, in limited circumstances. These employees enforce federal law and regulations governing the National Forests, some of which adopt or otherwise incorporate standards from the laws of the state in which the forests are located. See, e.g., 36 C.F.R. 261.8 (prohibiting the hunting or trapping of wild animals to the extent Federal or State law is violated). Forest Service officers enforce such federal regulations as part of their official job responsibilities. Utah House Bills 146 (2010) and 155 (2013) 22. In 2010, the State of Utah enacted HB 146, entitled Law Enforcement by Federal

Land Management Agency. HB 146 (2010). HB 146 enacted a new provision, Utah Code 53-13-106.5, entitled State limitations on functions of federal law enforcement officers, which purported to limit the circumstances in which employees of the federal government could perform law enforcement functions on land managed by federal agencies. See Utah Code Ann. 53-13-106.5 (2010).

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23.

On April 3, 2013, Governor Herbert signed into law HB 155, entitled Federal

Law Enforcement Amendments. HB 155 (2013). The text of HB 155 is attached as Exhibit 1 to this complaint. 24. HB 155 modifies Utah Code 53-13-106.5 in several important respects and

amends the section of the Utah Criminal Code entitled Impersonation of officer, Utah Code 76-8-512(4). Unless enjoined by this Court, HB 155 will take effect on May 14, 2013. 25. Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, expressly apply to

employees of the federal government. Indeed, the restrictions contained in Sections 53-13106.5(2), (3), (4), (5), and (6), and section 76-8-512(4) do not apply to anyone who is not a federal employee. The laws apply to the federal governments operations on federally managed land within the State of Utah. As defined in Section 53-13-106.5(1)(d), federally managed land means land managed by BLM, NPS, FWS, BOR, and the Forest Service. Utah Code Ann. 53-13-106.5(1)(d).1 26. Sections 53-13-106.5 and 76-8-512(4) are thus clearly intended to impose

restrictions on how the federal government may exercise its law enforcement authorities on federally managed land within the State of Utah. 27. As amended by HB 155, Section 53-13-106.5(2) provides that BLM and Forest

Service employees may not exercise law enforcement authority solely because the land on which they exercise the authority is federally managed. Utah Code Ann. 53-13-106.5(2)(a). The law further provides that such employees may exercise only law enforcement authority (i) expressly granted by federal statute; and (ii) consistent with the Constitution of the United
1

Unless otherwise indicated, citations to Sections 53-13-106.5 and 76-8-512(4) are to the statutory language as amended by HB 155. 7

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States. Id. 53-13-106.5(2)(b). This provision purports to restrict the activities of federal employees in ways not permitted by federal law. 28. Section 53-13-106.5(4)(a), as amended by HB 155, purports to prohibit DOI

employees from exercising law enforcement powers unless they are strictly necessary for the management, use, and protection of federally managed lands, including property located on those lands, as limited by 43 U.S.C. Sec. 1733(a). Utah Code. Ann. 53-13-106.5(4)(a)(ii). This provision purports to restrict the activities of DOI employees in ways not permitted by federal law. 29. The provision also purports to deny DOI employees the authority to exercise law

enforcement powers before the United States Secretary of the Interior has achieved the maximum feasible reliance upon the countys law enforcement officials in enforcing federal laws and regulations for the management, use, and protection of lands managed by [BLM], as required under 43 U.S.C. Sec. 1733(c)(2). Utah Code Ann. 53-13-106.5(4)(a)(i). This provision conditions the exercise of federal law enforcement authority on the satisfaction of conditions not permitted by federal law by requiring the Secretary to take action that Congress has otherwise left to her discretion. See 43 U.S.C. 1733(c) (authorizing the Secretary to contract with local officials when she determines it is necessary to do so). 30. Section 53-13-106.5(6), as enacted by HB 155, purports to limit the authority of

BLM and Forest Service employees to enforce certain provisions of federal law. Specifically, the provision provides that Utah does not recognize the authority of such employees to take any law enforcement actions based on a federal assimilation of the Utah Code, Utah Administrative Rules, or country or municipal ordinances. Utah Code Ann. 53-13-106.5(6). 8

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31.

Although the Utah law does not define assimilation, the text of the law, read in

its entirety, and the legislative history of this law make clear that this subsection is meant to prohibit Forest Service and BLM employees from enforcing federal regulations and rules of conduct that adopt the standards of state or local law. For example, Representative Noel indicated that, through the adoption of HB 146, the State of Utah had disallowed the BLM rangers, et cetera to use our code. Essentially, what they did is just go assimilate our code into their federal code, so thats why thats there. . . . [W]e dont believe that they ever had that authority. See Committee Testimony on HB 155 (Feb. 28, 2013). Section 53-13-106.5(6), as amended by HB 155, thus purports to deny BLM and Forest Service employees the authority to enforce certain federal regulations. 32. Section 53-13-106.5(6), as enacted by HB 155, purports to impose additional

limitations on the authority of Forest Service employees who are not certified law enforcement officers. Pursuant to Section 53-13-101(2) of the Utah Code, certified means recognized and accepted by the [Peace Officer Standards and Training] division as having successfully met and maintained the standards and training requirements set and approved by the director of the division with the advice and consent of the [Peace Officer Standards and Training] council. Utah Code. Ann. 53-13-101(2). This provision purports to impose state certification requirements on federal employees in ways not permitted by federal law. 33. Section 76-8-512(4), as enacted by HB 155, makes it a Class B misdemeanor if a

person exercises law enforcement authority in violation of Section 53-13-106.5, provided that the person is either (1) a Forest Service employee who is not a certified law enforcement officer or (2) a BLM employee. Utah Code Ann. 76-8-512(4). 9

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34.

A class B misdemeanor in Utah is punishable by up to six months in jail and a

fine of up to $1,000. Utah Code Ann. 76-3-204, 76-3-301. 35. Upon information and belief, the State of Utah intends to enforce the law against

employees of the federal government who are responsible for the enforcement of federal law in the course of their official duties in connection with federally managed land in Utah. 36. Due to the enactment of Sections 53-13-106.5 and 76-8-512(4), BLM and Forest

Service employees who operate in the State of Utah will subject themselves to potential criminal penalties under state law by continuing to perform the duties required of them under federal law. 37. By reason of the foregoing, the State of Utahs actions have caused and will

continue to cause substantial and irreparable harm to the United States, and to the protection of federally managed lands and the persons and property located thereon, for which there is no adequate remedy except by this action. FIRST CAUSE OF ACTION: VIOLATION OF THE SUPREMACY CLAUSE INTERGOVERNMENTAL IMMUNITY 38. 39. Plaintiff incorporates paragraphs 1 through 37 as if fully stated herein. Sections 53-13-106.5 and 76-8-512(4) of the Utah Code violate the Supremacy

Clause of the United States Constitution, Article VI, Clause 2, by attempting to regulate the activities of the federal government through restrictions on federal law and the criminalization of actions taken under color of federal office or employment. They are, accordingly, invalid. SECOND CAUSE OF ACTION: VIOLATION OF THE SUPREMACY CLAUSE PREEMPTION UNDER FEDERAL LAW 40. Plaintiff incorporates paragraphs 1 through 39 as if fully stated herein.

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41.

Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, violate the

Supremacy Clause of the United States Constitution, Article VI, Clause 2, and the Property Clause of the United States Constitution, Article IV, Section 3, Clause 2, by attempting to restrict the federal governments constitutional authority to regulate the use of federal property. They are, accordingly, invalid. 42. Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, violate the

Supremacy Clause because they directly conflict with federal laws that empower DOI and USDA to manage and protect the federal lands in their care. 43. Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, violate the

Supremacy Clause because they impermissibly purport to limit the authority of DOI and USDA employees to enforce federal laws and regulations on federal land, and thus stand as an obstacle to the accomplishment and execution of the full purposes and objectives of federal law. PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests the following relief: 1. A declaratory judgment stating that Sections 53-13-106.5 and 76-8-512(4), as

amended by HB 155, are invalid, null, and void; 2. A preliminary and a permanent injunction against the State of Utah prohibiting

the enforcement of Sections 53-13-106.5 and 76-8-512(4), as amended by HB 155, by any officers, agents, and employees of the State and any other public officials acting in concert with such officers, agents, and employees; 3. 4. That this Court award the United States its costs in this action; and That this Court award any other relief it deems just and proper. 11

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DATED: May 13, 2013.

Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General DAVID B. BARLOW (Bar #13117) United States Attorney /s/ Carlie Christensen CARLIE CHRISTENSEN (Bar #633) JEANNETTE F. SWENT (Bar #6043) Assistant United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch RYAN PARKER (Bar # 11742) * SCOTT RISNER (MI Bar #P70762) * Trial Attorneys Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20001 Telephone: (202) 514-4336 Facsimile: (202) 616-8470 E-mail: ryan.parker@usdoj.gov Attorneys for the United States * Applications for admission pro hac vice forthcoming

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