HB 155 Motion for TRO

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 Attorneys 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: [email protected] 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. UNITED STATES’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 2:13-cv-00332-TS Document 3 Filed 05/13/13 Page 1 of 48

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 65, the

United States hereby moves this Court to enter a temporary restraining order and a preliminary

injunction enjoining enforcement of Sections 53-13-106.5 and 76-8-512(4) of the Utah Code, as

amended by Utah House Bill (HB) 155, until this matter can be adjudicated. The United States

asks that the Court enter such relief prior to May 14, 2013, at which time HB 155 will otherwise

take effect. As set forth in detail in the Memorandum of Law in Support of the United States’

Motion for Temporary Restraining Order and Preliminary Injunction, filed herewith, the United

States has established that it is likely to succeed on the merits of its claims that Sections 53-13-

106.5 and 76-8-512(4) violate the Supremacy Clause; that the United States will suffer

irreparable harm if the Court does not enjoin those provisions of law; that the balance of equities

tips in favor of the requested relief; and that a temporary restraining order and a preliminary

injunction are in the public interest.

Pursuant to Rule 65(b)(1)(B), counsel for the United States has conferred with counsel

for the State of Utah regarding its intention to file this motion. Specifically, Deputy Attorney

General James M. Cole informed Governor Gary Herbert and Attorney General John Swallow by

letter dated May 8, 2013, that the Department of Justice was preparing to initiate litigation, if

necessary, to prevent the implementation of Sections 53-13-106.5 and 76-8-512, as amended by

HB 155. Counsel for the United States then spoke by telephone with Bridget K. Romano (801-

366-0533), Utah Solicitor General, on May 10, 2013, regarding the United States’ complaint and

motion, and requested that the State of Utah agree to the entry of a temporary restraining order in


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order to permit briefing on a motion for a preliminary injunction. On May 11, 2013, Ms.

Romano indicated that the State did not consent to entry of a temporary restraining order.

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 Attorneys 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: [email protected] Attorneys for the United States * Applications for admission pro hac vice forthcoming


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TABLE OF CONTENTS Introduction .....................................................................................................................................1 Background......................................................................................................................................3

I. Federal Statutory and Regulatory Framework Governing Federal Lands.....................3

II. Utah’s Enactment of HB 146 (2010) and HB 155 (2013) ...........................................11

A. Section 53-13-106.5(2) (Prohibition of Reliance on Federal Regulations) .....12 B. Section 53-13-106.5(4) (Restrictions on DOI Employees) .............................13 C. Section 53-13-106.5(6) (Restrictions on BLM and Forest Service

Employees) ...................................................................................................13 D. Section 76-8-512(4) (Criminalization of Federal Employees' Conduct) ........14

Legal Standard...............................................................................................................................15 Argument .......................................................................................................................................15

I. The United States Is Likely to Prevail on the Merits ..................................................15

A. The Utah Laws Violate the Doctrine of Intergovernmental Immunity and Are Thus Invalid Under the Supremacy Clause .......................................16

B. The Utah Laws Are Preempted by Federal Law and Are Thus Invalid

Under the Supremacy Clause .........................................................................19

1. Relevant Principles of Preemption ......................................................20 2. Sections 53-13-106.5 and 76-8-512(4) Conflict With Federal Law ....21

II. The United States Will Suffer Irreparable Harm Absent Preliminary Relief..............32

III. A Balancing of the Hardships Favors the United States and Demonstrates That

the Public Interest Would Not Be Disserved by Granting Injunctive Relief...............39 Conclusion .....................................................................................................................................40


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TABLE OF AUTHORITIES Abraham v. Hodges,

255 F. Supp. 2d 539 (D.S.C. 2002) ...................................................................................17 Arizona v. United States,

132 S. Ct. 2492 (2012).......................................................................................................20 Borrego v. United States,

577 F. Supp. 408 (D.N.M. 1983).......................................................................................30 Cal. Coastal Comm’n v. Granite Rock Co.,

480 U.S. 572 (1987) ............................................................................................................3 Camfield v. United States,

167 U.S. 518 (1897) ..........................................................................................................21 Capital Cities Cable, Inc. v. Crisp,

467 U.S. 691 (1984) ....................................................................................................24, 31 Chamber of Commerce of U.S. v. Edmondson,

594 F.3d 742 (10th Cir. 2010) ...........................................................................................40 Clifton v. Cox,

549 F.2d 722 (9th Cir. 1977) .............................................................................................18 Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ....................................................................................................20, 24 Crowe & Dunlevy, P.C. v. Stidham,

640 F.3d 1140 (10th Cir. 2011) .........................................................................................15 Cunningham v. Neagle,

135 U.S. 1 (1890) ..............................................................................................................18 Denson v. United States,

574 F.3d 1318 (11th Cir. 2009) .........................................................................................17 Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta,

458 U.S. 141 (1982) ..........................................................................................................20 Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ..............................................................................................20 Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ..........................................................................................................17 Graham v. Richardson,

403 U.S. 365 (1971) ..........................................................................................................21


iii

Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250 (10th Cir. 2003) ...................................................................................34, 36

Hancock v. Train,

426 U.S. 167 (1976) ....................................................................................................16, 17 Heideman v. S. Salt Lake City,

348 F.3d 1182 (10th Cir. 2003) .........................................................................................32 Int’l Paper Co. v. Oullette,

479 U.S. 481 (1987) ..........................................................................................................24 James Stewart & Co. v. Sadrakula,

309 U.S. 94 (1940) ......................................................................................................16, 17 Johnson v. Maryland,

254 U.S. 51 (1920) ............................................................................................................18 Kleppe v. New Mexico,

426 U.S. 529 (1976) ................................................................................................3, 21, 30 La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ..........................................................................................................20 Maryland v. King,

133 S. Ct. 1 (2012).............................................................................................................36 Mayo v. United States,

319 U.S. 441 (1943) ..............................................................................................16, 17, 28 McCulloch v. Maryland,

17 U.S. (4 Wheat) 316 (1819) .....................................................................................16, 19 McDonald’s Corp. v. Robertson,

147 F.3d 1301 (11th Cir. 1998) .........................................................................................38 New Orleans Pub. Serv., Inc. v. Council of New Orleans,

491 U.S. 350 (1989) ..........................................................................................................39 New York v. Tanella,

374 F.3d 141 (2d Cir. 2004) ..............................................................................................18 Nken v. Holder,

556 U.S. 418 (2009) ..........................................................................................................39 North Dakota v. United States,

495 U.S. 423 (1990) ..........................................................................................................16 O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

389 F.3d 973 (10th Cir. 2004) ...........................................................................................32


iv

Pacific Legal Found. v. Watt, 529 F. Supp. 982 (D. Mont. 1981).....................................................................................26

Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc.,

944 F.2d 597 (9th Cir. 1991) .............................................................................................38 Scott v. Roberts,

612 F.3d 1279 (11th Cir. 2010) .........................................................................................39 Sherley v. Sebelius,

644 F.3d 388 (D.C. Cir. 2011)...........................................................................................32 Sperry v. Florida,

373 U.S. 379 (1963) ....................................................................................................17, 28 Tennessee v. Davis,

100 U.S. 257 (1879) ....................................................................................................16, 22 United States v. Bohn,

622 F.3d 1129 (9th Cir. 2010) .....................................................................................29, 30 United States v. City & Cnty. of San Francisco,

310 U.S. 16 (1940) ........................................................................................................1, 21 United States v. City of Arcata,

629 F.3d 986 (9th Cir. 2010) .......................................................................................17, 18 United States v. Ga. Pub. Serv. Comm’n,

371 U.S. 285 (1963) ..........................................................................................................20 United States v. Pawliuk,

No. 2:12-cv-00137, 2012 WL 2498898 (D. Nev. June 26, 2012) .....................................30 United States v. Virginia,

139 F.3d 984 (4th Cir. 1998) .............................................................................................28 United States v. Wakefield,

111 Fed. Appx. 529 (9th Cir. 2004) ..................................................................................29 Utah Coal. of La Raza v. Herbert,

No. 2:11-cv-00401, Dkt. 45 (D. Utah May 11, 2011) .......................................................32 Utah Power & Light Co. v. United States,

243 U.S. 389 (1917) ........................................................................................................2, 3 Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ..............................................................................................................32 Wyoming v. Livingston,

443 F.3d 1211 (10th Cir. 2006) .........................................................................................18


UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65, the United States hereby moves this

Court to immediately and preliminarily enjoin enforcement of Sections 53-13-106.5 and 76-8-

512(4) of the Utah Code, as amended by HB 155, until this matter can be adjudicated.

INTRODUCTION

This motion seeks to enjoin the operation of a cluster of recently enacted or amended

Utah provisions that – despite settled caselaw unequivocally demonstrating the illegality of this

effort – purport to prohibit the enforcement of federal law on federal lands and criminally

sanction the federal officers who engage in such enforcement efforts.

The Property Clause of the United States Constitution provides that “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.” 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 & Cnty. of San Francisco, 310 U.S. 16, 29 (1940). In its

exercise of that authority, Congress has charged various federal agencies with stewardship of

federal lands throughout the country. The United States Department of the Interior and the

United States Department of Agriculture have been authorized by Congress to enforce federal

law in order to protect the land and the people who use it, including the public and agency

employees. Together, these agencies manage and protect the national forests, lands, waterways,

national parks, and monuments that are located on federal lands, and they oversee the availability

of those lands for public recreation, the conservation of wildlife, and the commercial use of


2

national resources. At all times, the Constitution reserves to “Congress the power to control

the[] occupancy and use [of federal lands], to protect them from trespass and injury and to

prescribe the conditions upon which others may obtain rights in them.” Utah Power & Light Co.

v. United States, 243 U.S. 389, 405 (1917).

The amended versions of Sections 53-13-106.5 and 76-8-512(4) cross a constitutional

line by seeking to prevent the United States from exercising the responsibilities clearly conveyed

by the Property Clause and the statutes enacted by Congress that regulate the use of these public

lands.1 Expressly written to apply only to the employees of the United States, the law purports to

deny federal employees the authority to exercise law enforcement functions on federal lands

within the state except under certain narrow conditions. With respect to employees of the

Bureau of Land Management (BLM) and the Forest Service, the law purports to deny those

employees the authority to stop, search, cite, arrest, or even investigate persons for violations of

federal law unless the agency has satisfied conditions imposed by state law. And in clear

disregard of the constitutional structure, the law purports to criminalize certain conduct of law

enforcement officers of the BLM and the Forest Service who are acting within the scope of their

employment.

If permitted to take effect on May 14, 2013, the recent amendments will

unconstitutionally subject employees of the federal government to state criminal liability,

including jail time, for the performance of their official duties. The Court should immediately

enjoin the State of Utah and Governor Herbert from enforcing Sections 53-13-106.5 and 76-8-

512(4) against the United States and its officers, employees, and agents. The United States is 1 The text of HB 155, which sets forth the amended text of Sections 53-13-106.5 and 76-8-512(4), is attached as Exhibit 1.


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entitled to this relief because the laws plainly violate the Supremacy Clause of the United States

Constitution, Article VI, Clause 2. A temporary restraining order and preliminary injunction are

necessary because the United States is likely to prevail on the merits of this case and, absent

injunctive relief, the United States will suffer irreparable harm. Enforcement of Sections 53-13-

106.5 and 76-8-512(4) will immediately and irreparably (i) disrupt the constitutional order by

undermining the federal government’s control over federal lands, (ii) risk the safety of the public

and of the officers responsible for the enforcement of law on those lands, and (iii) undermine the

government’s ability to protect federal lands and the persons, property, and natural resources

located thereon. As a matter of law and in the public interest, this Court should enter preliminary

relief to prevent enforcement of the aforementioned provisions of state law.

BACKGROUND

I. FEDERAL STATUTORY AND REGULATORY FRAMEWORK GOVERNING FEDERAL LANDS

The Constitution gives Congress plenary authority over federal lands throughout the

United States. See U.S. Const. art. IV, § 3, cl. 2 (“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.”). The Supreme Court “has ‘repeatedly observed’ that ‘[t]he power over the

public land thus entrusted to Congress is without limitations.’” Cal. Coastal Comm’n v. Granite

Rock Co., 480 U.S. 572, 580 (1987) (quoting Kleppe v. New Mexico, 426 U.S. 529, 539 (1976)).

The fact that certain land may fall within the territory of a particular state does not displace this

federal authority. See Utah Power & Light Co., 243 U.S. at 405 (recognizing that the inclusion

of federal lands within a state “does not take from Congress the power to control their occupancy


4

and use, to protect them from trespass and injury and to prescribe the conditions upon which

others may obtain rights in them”).

Pursuant to this authority, Congress has enacted and refined a statutory framework that

authorizes various agencies – most notably, the Department of the Interior (DOI) and the

Department of Agriculture (USDA) – to manage federal lands. Congress has empowered these

agencies, acting through their various components, to exercise those powers necessary to

administer and protect those lands, and to secure the safety of the persons who use them. These

agencies have, in turn, adopted regulations and administrative guidance in fulfillment of their

statutory responsibilities, and authorized particular employees to enforce federal law on lands

managed by the agencies. Federal law generally permits states to use the lands within their

borders, but the federal government retains the authority to enforce federal law at all times.

A significant portion of the land in Utah is managed by the USDA (through its

component, the U.S. Forest Service) and DOI (through its components, the Bureau of Land

Management (BLM), U.S. Fish and Wildlife Service (FWS), the National Park Service (NPS),

the Bureau of Reclamation (BOR), and the Bureau of Indian Affairs (BIA)). Together, these

agencies manage approximately 60 percent of the land in the State of Utah. While much of their

authority is derived from the Property Clause of the United States Constitution, the applicable

statutory and regulatory framework applicable to each component varies slightly.

A. Bureau of Land Management (BLM)

Through the enactment in 1976 of the Federal Land Policy and Management Act

(FLPMA), Pub. L. 94-579, Congress made it “the policy of the United States that . . . the public

lands be retained in Federal ownership.” 43 U.S.C. § 1701(a). Congress authorized the


5

Secretary of the Interior to “issue regulations necessary to implement the provisions of this Act

with respect to the management, use, and protection of the public lands, including any property

located thereon.” Id. § 1733(a). See also id. § 1733(g) (“The use, occupancy, or development of

any portion of the public lands contrary to any regulation of the Secretary or other responsible

authority, or contrary to any order issued pursuant to any such regulation, is unlawful and

prohibited.”).

Congress also provided that “[t]he Secretary may authorize Federal personnel or

appropriate local officials to carry out his law enforcement responsibilities with respect to the

public lands and their resources.” Id. § 1733(c)(2). By statute, Congress has provided such

personnel with broad authorities:

to carry firearms; execute and serve any warrant or other process issued by a court or officer of competent jurisdiction; make arrests without warrant or process for a misdemeanor he has reasonable grounds to believe is being committed in his presence or view, or for a felony if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; search without warrant or process any person, place, or conveyance according to any Federal law or rule of law; and seize without warrant or process any evidentiary item as provided by Federal law.

Id. § 1733(c)(1).2 BLM is responsible for the administration of approximately 247 million acres of federal

land, including approximately 22 million acres in Utah. See Declaration of Eric Boik, State

Chief Ranger for the BLM Office of Law Enforcement and Security (Ex. 4) ¶¶ 6, 11. To fulfill

its statutory responsibilities for the management of this land, DOI has promulgated various

regulations governing the use of BLM lands and subjecting violators to civil and criminal

2 Section 1733(c)(1) also provides the Secretary with the discretionary authority to enter into contracts with local law enforcement officials “[w]hen the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources.” 43 U.S.C. § 1733(c)(1).


6

penalties. See, e.g., 43 C.F.R. § 2920.1-2(a), (e) (prohibiting the unauthorized use, occupancy, or

development of public lands); id. § 5511.4 (prohibiting the unauthorized taking of timber from

public lands). Certain of those regulations incorporate or adopt standards from the law of the

state in which the land is located. For example, 43 C.F.R. § 8341.1(d) prohibits “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.” Whatever the source of the underlying standards,

such regulations undisputedly represent federal law.

To enforce these regulations, the Secretary of the Interior has assigned the law

enforcement duties granted by Congress to the agency’s law enforcement officers through a

multi-step delegation. The Assistant Secretary – Land and Minerals Management “is authorized

to exercise all of the authority of the Secretary,” see 209 Departmental Manual 7.1, and the

Director of BLM is authorized “to exercise the program authority of the Assistant Secretary –

Land and Minerals Management with respect to the management of the public domain and

acquired lands, including all associated functions that relate thereto,” see 235 Departmental

Manual 1.1(A). The Director has delegated the responsibility “to enforce Federal laws and

regulations relating to the public lands and resources” to BLM law enforcement personnel. See

BLM Manual MS-1203 § 1203.4 & Appendix 1, Subject Code 9260.

B. National Park Service (NPS)

In 1916, Congress enacted the National Park Service Organic Act, 39 Stat. 535, which

established NPS as a component of the Department of the Interior. 16 U.S.C. § 1. Congress

recognized in that law that the “fundamental purpose” of the national parks is “to conserve the

scenery and the natural historic objects and the wild life therein and to provide for the enjoyment


7

of the same in such manner and by such means as will leave them unimpaired for the enjoyment

of future generations.” Id. To fulfill that purpose, Congress charged NPS with “promot[ing] and

regulat[ing] the use of” the National Park System. Id. To exercise this authority, the Secretary

of the Interior is authorized to “make and publish such rules and regulations as he may deem

necessary or proper for the use and management” of lands under the jurisdiction of NPS, and a

violation of such rules is punishable by fine and imprisonment. Id. § 3. Finally, Congress

provided for the enforcement of these rules by authorizing the Secretary “to designate . . . certain

officers or employees of the Department of the Interior who shall maintain law and order and

protect persons and property within areas of the National Park System.” Id. § 1a-6(b). Under

federal statute, such individuals are authorized to carry firearms, execute warrants, and make

arrests. Id.

The National Park System consists of approximately 400 units comprised of 84 million

acres throughout the United States, including 13 individual National Parks, Monuments, and

other NPS units encompassing 2,320,729 acres within the State of Utah. See Declaration of

William Shott, Regional Chief Ranger for the Intermountain Region (Ex. 2) ¶¶ 6, 10. To fulfill

the law enforcement responsibilities assigned by Congress, the Secretary has promulgated

various regulations establishing standards of conduct within the National Park System, including

certain regulations that adopt standards from state law. See, e.g., 36 C.F.R. § 2.2 (protecting

wildlife); id. § 2.4 (restricting the use of weapons and traps); id. § 4.2 (providing that, unless

otherwise specified, “traffic and the use of vehicles within a park area are governed by State

law”). To enforce these provisions of federal law, NPS relies on Park Rangers and Special

Agents, including in the State of Utah. Shott Decl. ¶ 9.


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C. Fish and Wildlife Service (FWS)

Established in 1940, FWS is responsible for the conservation and restoration of fish,

wildlife, plants, and their habitats throughout the country. Rather than limiting its enforcement

efforts on one particular statute, Congress and DOI have given FWS responsibility for a range of

wildlife protection laws, including the Bald and Golden Eagle Prevention Act, the Airborne

Hunting Act, the Endangered Species Act, and the Migratory Bird Treaty Act. See Declaration

of Lisa Mullin, Zone Officer for FWS Refuge Law Enforcement (Ex. 3) ¶ 3. FWS also manages

the 150 million-acre National Wildlife Refuge System (NWRS), comprised of 551 National

Wildlife Refuges and thousands of small wetlands. Id. In the State of Utah, FWS has

responsibility for three National Wildlife Refuges, covering approximately 110,000 acres: the

Bear River Migratory Bird Refuge, the Ouray National Wildlife Refuge, and the Fish Springs

National Wildlife Refuge. Id. ¶ 8.

To fulfill its mission, Congress has authorized the agency to promulgate regulations

governing conduct on lands administered by FWS. See, e.g., 16 U.S.C. §§ 668dd(a)(4), (d)(5)

(requiring the Secretary to “provide for the conservation of fish, wildlife, and plants, and their

habitats within the” NWRS, and authorizing the Secretary “to issue regulations to carry out this

Act”). See also id. § 668dd(f)(1) (providing that a person who violates such regulations shall be

fined or imprisoned, or both). The corresponding regulations include several that apply

standards from state law, such as 50 C.F.R. § 27.31 (use of motor vehicles), 50 C.F.R. § 27.32(b)

(use of boats and watercrafts), and 50 C.F.R. § 27.42(e) (use, possession, and transport of certain

firearms). Of particular importance to the protection of fish and wildlife, FWS also enforces

important regulations governing hunting and fishing on federal lands. See id. §§ 32.2, 32.5.


9

To ensure that such regulations may adequately be enforced, Congress also provided

agency employees designated by the Secretary with the authority to arrest persons who violate

the regulations and to execute search warrants. See 16 U.S.C. § 668dd(g); id. § 1540(e). FWS

has assigned certain law enforcement functions to various agency employees, including Zone

Officers, Federal Wildlife Officers, and Special Agents. Mullin Decl. ¶¶ 5-6. Five such officers

are permanently assigned to the State of Utah, and additional officers regularly work in the state

for special operations or assignments. Id. ¶ 9. Among other job duties, these officers are

responsible for the enforcement of the aforementioned federal regulations.

D. United States Forest Service

A different statutory and regulatory framework applies to the Forest Service’s

management of the national forests, including 9.15 million acres of national forests that are

located totally or partially within the State of Utah. See Declaration of Marlene Finley, Deputy

Regional Forester for the Intermountain Region of the Forest Service (Ex. 5) ¶ 3. The Organic

Act of 1897 provided for the management of national forest reserves by the administration of the

Secretary of the Interior. That authority has since been transferred to the Secretary of

Agriculture. As amended, the Act provides that the Secretary is to protect the national forests

from destruction by fire and other “depredations,” and empowers the Secretary “to make such

rules and regulations” as necessary to regulate the occupancy and use of the national forests, and

to preserve them from destruction. 16 U.S.C. § 551.

To fulfill its statutory responsibilities for the management of the national forests, USDA

has promulgated various regulations governing the use of the national forests, including

regulations that incorporate or adopt standards from the law of the state in which the National


10

Forest System lands are located, and enforce those standards as federal law. 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”); id. § 261.12 (prohibiting vehicle operators from “[v]iolating the load, weight, height,

length, or width limitations prescribed by State law”). Congress has expressly provided that

violations of the rules and regulations governing the national forests shall be a crime under

federal law. 16 U.S.C. § 551. Moreover, Congress has authorized “[a]ll persons employed in the

Forest Service” to perform certain law enforcement functions, including “mak[ing] arrests for the

violation of the laws and regulations relating to the national forests.” 16 U.S.C. § 559. USDA

has, by agency policy, limited such authorities to certain employees, including Special Agents,

Law Enforcement Officers, and Forest Protection Officers. See Forest Service Manual 5304.5,

5304.6; Finley Decl. ¶¶ 10, 14.

E. Bureau of Reclamation (BOR)

Finally, the Bureau of Reclamation is responsible for administering critical water

management projects throughout the Western United States. Since its establishment in 1902,

BOR has been responsible for the construction for more than 600 dams and reservoirs, including

projects that now provide irrigation and power to much of the State of Utah.

Among its responsibilities under federal law is the duty to maintain the safety and

security of BOR projects, the employees responsible for their management, and the members of

the public engaged in recreation on BOR lands. In Public Law 107-69, 115 Stat. 593, § 1(a)

(2001), Congress provided that the Secretary of the Interior “shall issue regulations necessary to

maintain law and order and protect persons and property within Reclamation projects and on


11

Reclamation lands.” See 43 U.S.C. § 373b(a). See also id. § 373b(b) (providing that violations

of such regulations shall be subject to fine and imprisonment).

Under this authority, the Secretary has promulgated various regulations governing

conduct on lands managed by BOR, and several of these regulations apply standards from state

law. See, e.g., 43 C.F.R. § 420.11 (operation of off-road vehicles); id. § 423.29 (destruction of

natural resources); id. § 423.30 (unauthorized use or possession of weapons and explosives); id.

§ 423.38 (operation of vessels). BOR relies in part on agency employees to enforce such

regulations on BOR lands, and the authority of these employees to perform law enforcement

functions is grounded in federal law. By statute, Congress expressly provided the Secretary with

the ability to “authorize law enforcement personnel from the Department of the Interior to act as

law enforcement officers to enforce Federal laws and regulations within a Reclamation project or

on Reclamation lands.” 43 U.S.C. § 373b(c). Congress has also authorized these officers to

carry firearms, make arrests, and execute search warrants. Id. § 373(d).

II. UTAH’S ENACTMENT OF HB 146 (2010) AND HB 155 (2013)

On April 3, 2013, Governor Herbert signed into law HB 155 (Ex. 1). This law modifies

Section 53-13-106.5, a provision enacted in 2010 in HB 146. Section 53-13-106.5, entitled

“State limitations on functions of federal law enforcement officers,” purports to limit the

circumstances in which employees of the federal government can perform law enforcement

functions on land managed by federal agencies. See Utah Code Ann. § 53-13-106.5. The more

recent statute, HB 155, modifies Section 53-13-106.5 in several important respects, and enacts a

new provision, Section 76-8-512(4), which purports to criminalize certain federal employees’

exercise of law enforcement authorities if it does not comport with state law. As enacted by HB


12

146 and amended by HB 155, Sections 53-13-106.5 and 76-8-512(4) purport to impose

numerous restrictions on the federal government’s management of federal land. Unless enjoined

by this Court, HB 155 will take effect on May 14, 2013. See

http://le.utah.gov/~2013/htmdoc/hbillhtm/HB0155.htm (accessed on May 6, 2013). Four

particular provisions of the Utah laws are of note for their direct attempts to restrict federal law

enforcement authority over federal lands.

A. Section 53-13-106.5(2) (Prohibition of Reliance on Federal Regulations)

First, Section 53-13-106.5(2) purports to restrict federal employees in the performance of

their duties on federally managed land by providing that federal employees “may exercise only

law enforcement authority (i) expressly granted by federal statute; and (ii) consistent with the

Constitution of the United States.”3 Utah Code Ann. § 53-13-106.5(2)(b).4 While this provision

does not apply to special agents of agencies such as the Federal Bureau of Investigation, Secret

Service, and Drug Enforcement Administration, see id. § 53-13-106.5(1)(c), the provision

purports to restrict DOI and USDA employees charged with enforcement authority on federal

land in the State of Utah. As explained above, Congress has – consistent with the Property

Clause – authorized and directed DOI and USDA to administer certain federal lands, and those

agencies have in turn promulgated regulations for that purpose, and assigned employees to

exercise law enforcement responsibilities on those federal lands. To the extent that an officer’s 3 Section 53-13-106.5(1)(a) defines “exercise law enforcement authority” as, in part, “to take any action on private land, state-owned land, or federally managed land, to investigate, stop, serve process, search, arrest, cite, book, or incarcerate a person for a violation of a federal, state, or local criminal justice system when the action is based on . . . a federal statute, regulation, or rule.” Utah Code Ann. § 53-13-106.5(1)(a) (emphasis added). 4 Unless otherwise indicated, citations to Sections 53-13-106.5 and 76-8-512(4) refer to the statutory language as amended by HB 155.


13

authority is “expressly granted” by the regulations that implement federal statutes, rather than the

statutes themselves, Section 53-13-106.5(2) purports to prohibit that officer from exercising law

enforcement authority within Utah.

B. Section 53-13-106.5(4) (Restrictions on DOI Employees)

Second, Section 53-13-106.5(4)(a) imposes further restrictions on DOI’s management of

federal lands by purporting to deny DOI employees the authority to exercise 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) (as amended by HB 155). Moreover, this provision

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

county’s 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).” Id. § 53-13-106.5(4)(a)(i) (as amended by HB 155). As explained above, this

provision purports to require the Secretary to take action that Congress has left to her discretion

in 43 U.S.C. § 1733, and thus subordinates federal law enforcement authority on federal land to

law enforcement authority of the State of Utah.

C. Section 53-13-106.5(6) (Restrictions on BLM and Forest Service Employees)

Third, HB 155 enacts Section 53-13-106.5(6), which purports to limit the authority of

BLM and Forest Service employees to enforce provisions of federal law that “assimilate” state

law. Specifically, the law provides that:

The authority of a United States Forest Service employee who is not a trained and certified law enforcement officer and the authority of any employee of the United


14

States Bureau of Land Management to take action based on the Utah Code, Utah Administrative Rules, or county or municipal ordinances, or a federal assimilation of any of these provisions, as a basis to stop, detain, arrest, or cite persons for prosecution in the federal criminal justice system, is not recognized, unless: (a) (i) the authority for the action has been expressly granted by an enacted

federal statute and not by assimilation of any state laws or ordinances; and (ii) is consistent with the Constitution of the United States; or

(b) (i) the offense is an emergency and poses an immediate risk of bodily injury or damage to property; (ii) a state, county, or municipal law enforcement officer is not reasonably available to take action; and (A) the action is within the scope of the employee’s or official’s law enforcement power under a federal law that is enacted and is not an assimilation of a state law or ordinance; and (B) the authorizing federal law is consistent with the Constitution of the United States.

Utah Code Ann. § 53-13-106.5(6).

This provision thus purports to limit the Forest Service to exercising law enforcement

authority through employees who are “trained and certified law enforcement officers” pursuant

to the state’s law. Moreover, the provision purports to limit the federal government’s ability to

enforce regulations that the state believes “assimilate” state law. The Utah law does not appear

to define “assimilation” for purposes of this statute. While the regulations enforced by BLM and

the Forest Service do not assimilate state law as that term is traditionally used, certain agency

regulations adopt or refer to the standards of state law in order to establish standards for conduct

prohibited by federal law. As discussed below, the Utah law purports to deny the agencies the

authority to enforce such federal regulations.

D. Section 76-8-512(4) (Criminalization of Federal Employees’ Conduct)

Finally, but critically, HB 155 modifies the Utah Criminal Code through an amendment

to Section 76-8-512, a provision concerning the unlawful impersonation of an officer. As


15

amended, that section makes it a class B misdemeanor5 if a person “exercises law enforcement

authority in violation of Section 53-13-106.5,” provided that the person is either (1) a USFS

employee who “is not a certified law enforcement officer” or (2) a BLM employee. Utah Code

Ann. § 76-8-512(4). Thus, DOI and USDA agents may be exposed to criminal penalties if they

undertake the federal law enforcement activities that the statute purports to outlaw.

LEGAL STANDARD

The requirements for a temporary restraining order and a preliminary injunction are the

same. See Thomas v. Carson, 30 Fed. Appx. 770, 772 (10th Cir. 2002). Such relief is warranted

where, as here, the movant has established “(1) a likelihood of success on the merits; (2) a

likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3)

that the balance of equities tips in the movant’s favor; and (4) that the injunction is in the

public’s interest.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011); see

also Fed. R. Civ. P. 65.

ARGUMENT

I. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS

The United States is likely to succeed on the merits because Sections 53-13-106.5 and

76-8-512(4) regulate federal agents in the performance of their federal duties, restrict the federal

government’s constitutional authority to use and manage federal land and property, and

otherwise conflict with federal law. By its plain terms, the Utah laws purport to govern the

conduct of federal employees performing duties that are required by federal law. Utah may not

5 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.


16

dictate how the federal government manages federal land, and the federal government is not

obligated to adjust its law enforcement activities on federal lands to comply with state law.

A. The Utah Laws Violate the Doctrine of Intergovernmental Immunity and Are Thus Invalid Under the Supremacy Clause

It is a fundamental principle of the federal constitutional system that “the states have no

power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the

operations of the constitutional laws enacted by Congress to carry into execution the powers

vested in the general government.” McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 436 (1819).

In other words, “‘the activities of the Federal Government are free from regulation by any

state,’” except where Congress expressly provides to the contrary. Hancock v. Train, 426 U.S.

167, 178 (1976) (quoting Mayo v. United States, 319 U.S. 441, 445 (1943)). Thus, “[w]here

enforcement of . . . state law would handicap efforts to carry out the plans of the United States,

the state enactment must . . . give way.” James Stewart & Co. v. Sadrakula, 309 U.S. 94, 103

(1940).

This principle – known as the doctrine of intergovernmental immunity – mandates that a

state or local regulation is invalid if it seeks to regulate the United States directly, or if it

discriminates against the federal government. See North Dakota v. United States, 495 U.S. 423,

434-35 (1990) (plurality opinion). The Supreme Court has adopted “a functional approach to

claims of governmental immunity, accommodating of the full range of each sovereign’s

legislative authority and respectful of the primary role of Congress in resolving conflicts between

National and State Governments.” Id. at 435.

The federal government “can act only through its officers and agents, and they must act

within the States.” Tennessee v. Davis, 100 U.S. 257, 263 (1879). As a result, a law that


17

“constrain[s] the conduct of federal agents and employees,” even when they act within a

particular state, unlawfully seeks to regulate the federal government directly. United States v.

City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010). “[E]ven in the absence of a specific federal

law, federal officers are immune from state interference with acts ‘necessary and proper’ to the

accomplishment of their federal duties.” Abraham v. Hodges, 255 F. Supp. 2d 539, 550 (D.S.C.

2002) (internal quotation omitted). See also Denson v. United States, 574 F.3d 1318, 1347 (11th

Cir. 2009) (“[T]he obligations imposed by federal law are supreme, and where any supposed

right or claim under state law would impede an officer from performing his duties, it must

relent.”).

Under the principles of the Supremacy Clause, the activities of federal officers and agents

carrying out their duties on behalf of the United States are thus free from direct state regulation,

except where Congress has expressly provided otherwise. See, e.g., Goodyear Atomic Corp. v.

Miller, 486 U.S. 174, 180-81 (1988); Hancock, 426 U.S. at 178-79; James Stewart Co., 309 U.S.

at 103-04. Thus, in Sperry v. Florida, 373 U.S. 379 (1963), a state could not prevent an

individual from preparing and prosecuting patent applications before the U.S. Patent Office on

the ground that the individual was engaged in the unauthorized practice of law, because federal

law did not require such an individual to be a member of the bar. And in Mayo v. United States,

319 U.S. 441, 447 (1943), a state could not require USDA to obtain state-required, inspection-fee

stamps on bags of fertilizer distributed as part of a federal program when the federal program

imposed no such requirement. Even if a state imposed requirements that went no further than

federal law, such direct regulation of the federal government cannot stand, because “[a] state or

local law that directly regulates the conduct of the federal government or discriminates against it


18

is invalid, even if it is no more restrictive than federal law.” City of Arcata, 629 F.3d at 991. See

also id. at 992 (recognizing that “there is no exception to the doctrine of intergovernmental

immunity for state statutes consistent with federal law,” and rejecting municipal ordinances

despite the cities’ assurances that they would be enforced only to the extent consistent with

federal law).

Laws that purport to assess state criminal liability for actions taken by federal employees

are of acute concern. A federal officer is immune from state or local prosecution – even

prosecution under a facially neutral law – for actions that the officer may reasonably believe are

necessary to carry out the duties entrusted to him under federal law. This bar on state criminal

liability was recognized in Cunningham v. Neagle, 135 U.S. 1, 62-63 (1890), in which the

Supreme Court held that a state could not prosecute a U.S. Deputy Marshal assigned to protect a

federal judge for shooting and killing a potential attacker. As Justice Holmes later recognized,

“even the most unquestionable and most universally applicable of state laws, such as those

concerning murder, will not be allowed to control the conduct of a marshal of the United States

acting under and in pursuance of the laws of the United States.” Johnson v. Maryland, 254 U.S.

51, 56-57 (1920). Applying that precedent, courts have repeatedly held that federal officers are

immune from state prosecution for actions taken under color of their office. See, e.g., Wyoming

v. Livingston, 443 F.3d 1211 (10th Cir. 2006) (FWS employee immune from state prosecution

for trespass and littering for acts taken in official capacity); New York v. Tanella, 374 F.3d 141,

142 (2d Cir. 2004) (federal agent immune from state prosecution for shooting unarmed suspect);

Clifton v. Cox, 549 F.2d 722, 728 (9th Cir. 1977) (federal agent immune from state murder

prosecution for shooting suspect during drug raid).


19

Sections 53-13-106.5 and 76-8-512(4) of the Utah Code violate these principles by

seeking to regulate and criminalize the activities of certain employees and agents of the federal

government. In particular, Sections 53-13-106.5(2), 53-13-106.5(4), and 53-13-106.5(6) purport

to restrict the ability of certain federal employees to exercise federal law enforcement authority

on federally managed land, while Section 76-8-512(4) makes such actions a criminal

misdemeanor under state law. Far from a facially neutral law or an incidental regulation of the

federal government, these sections are unabashedly directed at and apply only to the federal

government and its employees. Indeed, even the title of Section 53-13-106.5 – “State limitations

on functions of federal law enforcement officers” – targets federal employees. See also, e.g.,

Utah Code Ann. § 53-13-106.5(2) (adopting restrictions on federal employees who are

“performing their duties”). Moreover, the criminalization provision in Section 76-8-512(4)

expressly applies only to BLM and Forest Service employees.

A federal employee who acts in the course of his or her official duties may thus be in

violation of Utah law and, in the case of certain employees, subject to criminal punishment. This

plainly “impede[s], burden[s], or in any manner control[s]” the federal government’s execution

of the law. McCulloch, 17 U.S. (4 Wheat) at 436. Because Sections 53-13-106.5 and 76-8-

512(4) seek to directly regulate the activities of the federal government, these laws violate the

doctrine of intergovernmental immunity.

B. The Utah Laws Are Preempted by Federal Law and Are Thus Invalid Under the Supremacy Clause

In addition to the prohibition on direct or indirect regulation of the federal government

described above, the Supremacy Clause prohibits state or local governments from enacting


20

statutes and enforcing regulations that are preempted by federal law. For the reasons outlined

below, Utah’s law runs afoul of basic principles of preemption, and cannot stand.

1. Relevant Principles of Preemption

The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are

“the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. State and local laws that “interfere

with, or are contrary to,” federal laws are invalid and preempted. Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 211 (1824); see also United States v. Ga. Pub. Serv. Comm’n, 371 U.S. 285, 293

(1963) (“[A] State is without power by reason of the Supremacy Clause to provide the conditions

on which the Federal Government will effectuate its policies. Whether the federal policy is a

wise one is for the Congress and the Chief Executive to determine.”). Federal law may expressly

preempt state law, or it may do so implicitly in at least two ways: where Congress intends federal

law to “occupy the field,” and where state law conflicts with federal law. Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372 (2000). Conflict preemption applies to displace a

state law in cases “where compliance with both federal and state regulations is a physical

impossibility, and those instances where the challenged state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Arizona v.

United States, 132 S. Ct. 2492, 2501 (2012) (internal quotation and citation omitted). “Pre-

emption may result not only from action taken by Congress itself; a federal agency acting within

the scope of its congressionally delegated authority may pre-empt state legislation.” La. Pub.

Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986). See also Fid. Fed. Sav. & Loan Ass’n v. de la

Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no less pre-emptive effect than

federal statutes.”).


21

Here, the federal government’s power is firmly grounded in the Constitution. The power

over public land that is entrusted to Congress by the Property Clause “is without limitations.”

City & Cnty. of San Francisco, 310 U.S. at 29. Indeed, the Property Clause has been interpreted

as creating a federal police power over federal land. See Kleppe, 426 U.S. at 540 (recognizing

that, “even over public land within the [S]tates, ‘[t]he general government doubtless has a power

over its own property analogous to the police power of the several states’”) (quoting Camfield v.

United States, 167 U.S. 518, 525 (1897)). “In short, Congress exercises the powers both of a

proprietor and of a legislature over the public domain.” Id.

States generally may enforce their civil and criminal laws on federal land, but only

insofar as they do not conflict with federal law. As the Supreme Court explained in Kleppe:

Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.

Kleppe, 426 U.S. at 543 (internal citations omitted). See also Graham v. Richardson, 403 U.S.

365, 378 (1971) (states cannot pass laws that conflict with “overriding national policies in an

area constitutionally entrusted to the Federal Government”). As a result, any attempt by state

law to restrict the federal government’s use of federal land must give way to federal law.

2. Sections 53-13-106.5 and 76-8-512(4) Conflict With Federal Law

Under these principles, Sections 53-13-106.5 and 76-8-512(4) conflict with federal law

because they purport to restrict how federal agents and employees perform their duties. Indeed,

that is their express purpose: the law applies to federal employees who are “performing their


22

duties” in the state. See Utah Code Ann. § 53-13-106.5(2). But these restrictions are plainly

inconsistent with the requirements of federal law.

Congress has expressly authorized the Secretaries of the Interior and Agriculture to

exercise broad authority over federal lands. See, e.g., 43 U.S.C. § 1733(a) (authorizing the

Secretary of the Interior to “issue regulations necessary to implement the provisions of this Act

with respect to the management, use, and protection of the public lands, including any property

located thereon”); 16 U.S.C. § 551 (authorizing the Secretary of Agriculture to “make such rules

and regulations” as necessary to regulate the occupancy and use of the forests, and to preserve

them from destruction). Congress has also made it unlawful to violate regulations or orders

adopted by the agencies. See, e.g., 43 U.S.C. § 1733(g); 16 U.S.C. § 551. Because the federal

government “can act only through its officers and agents,” Davis, 100 U.S. at 263, Congress has

provided authority for federal employees to enforce federal law on those lands. See, e.g., 43

U.S.C. § 1733(c)(2) (“The Secretary may authorize Federal personnel or appropriate local

officials to carry out his law enforcement responsibilities with respect to the public lands and

their resources.”); 16 U.S.C. § 559 (“All persons employed in the Forest Service of the United

States shall have authority to make arrests for the violation of the laws and regulations relating to

the national forests.”).

As discussed below, Sections 53-13-106.5 and 76-8-512(4) conflict with and impede

these congressional determinations to authorize federal employees to exercise law enforcement

authority on federally managed lands by purporting to limit the extent to which Utah will

“recognize the authority” of federal agents “to exercise law enforcement powers” over federal

lands – a limitation backed up with the prospect of criminal sanctions. See Utah Code Ann.


23

§ 53-13-106.5(4)(a). By prohibiting agencies from fulfilling the responsibilities assigned to them

by Congress, and by purporting to criminalize DOI and USDA agents’ performance of their job

duties, such state control over federal government regulatory authority plainly would frustrate

Congress’ interest in ensuring the use and protection of federal lands.

a. Section 53-13-106.5(2) Conflicts With Federal Law By Purporting to Prohibit Certain Federal Employees from Performing Duties Required by Federal Regulations

As explained above, Congress has exercised its plenary power over federal land by

enacting various statutes and authorizing federal agencies to promulgate additional regulations

governing the use and occupancy of those lands. Through Section 53-13-106.5(2), Utah purports

to limit the tools by which DOI and USDA may manage the land under their stewardship.

Specifically, Section 53-13-106.5(2) provides that federal 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). Instead, the law provides that

employees “may exercise only law enforcement authority (i) expressly granted by federal statute;

and (ii) consistent with the Constitution of the United States.” Id. § 53-13-106.5(2)(b).6

Through this provision, the Utah law purports to limit the circumstances in which federal

employees may exercise law enforcement authority on federally managed land.

Although many aspects of the enforcement duties of DOI and the Forest Service involve

authority that is expressly provided for by federal statute, see, e.g., 43 U.S.C. § 1733(c); 16

U.S.C. § 559, these agencies also exercise authority under lawfully promulgated regulations.

6 This provision exempts special agents of agencies such as the Federal Bureau of Investigation, Secret Service, and Drug Enforcement Administration, but the provision expressly applies to DOI and USDA employees. See Utah Code Ann. § 53-13-106.5(1)(c).


24

Congress has given the agencies broad authority to promulgate additional regulations governing

the management and use of federal lands. See 43 U.S.C. § 1733(a); 16 U.S.C. § 551. To the

extent that an officer’s authority and responsibility to perform certain job duties is derived from a

federal regulation, rather than being “expressly granted by federal statute,” Section 53-13-

106.5(2) purports to prohibit that officer from performing his or her job functions within Utah

(and Section 76-5-812(4) backs up that prohibition with criminal sanctions).

These provisions are preempted and unconstitutional because allowing a state to dictate

the authority of federal officers over federally managed land would “stand[] as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Capital Cities

Cable, Inc. v. Crisp, 467 U.S. 691, 698-99 (1984). “A state law . . . is pre-empted if it interferes

with the methods by which the federal statute was designed to reach [its] goal.” Int’l Paper Co.

v. Ouellette, 479 U.S. 481, 494 (1987). The broad authorities granted by Congress in 43 U.S.C.

§ 1733(a) and 16 U.S.C. § 551 demonstrate that Congress intended to give the agencies broad

authority and discretion in determining how best to manage and protect federal land. By

criminalizing the exercise of authority granted by federal regulation, Section 53-13-106.5(2) –

alone, and in tandem with Section 76-8-5-12(4) – frustrates Congress’ intent. See Crosby, 530

U.S. at 374, 377 (finding that state law was preempted as an obstacle to congressional intent

because “Congress clearly intended the federal Act to provide the President with flexible and

effective authority,” and the state law’s “unyielding application undermines the President’s

intended statutory authority”).


25

b. Section 53-13-106.5(4) Conflicts With Federal Law By Imposing Unwarranted Restrictions on DOI’s Management of Federal Lands

Next, Utah purports to prohibit DOI from exercising law enforcement authority over

lands managed by DOI unless the agency has first satisfied various criteria established by state

law. See Utah Code Ann. § 53-13-106.5(4). While the state law purports to cite to federal

statutory requirements, Section 53-13-106.5(4) misstates the scope of federal statutes, ignores

other applicable federal laws, and attempts to convert a discretionary authority of the Secretary

of the Interior into a necessary precondition to the exercise of federal authority within the state.

By imposing such restrictions on the agency’s management of federal lands, Utah frustrates

Congress’ purposes in managing and administering federal property, and both of the two prongs

of Section 53-13-106.5(4) are preempted.

First, Section 53-13-106.5(4)(a) purports to convert a discretionary authority that

Congress has granted to the Secretary into a mandatory obligation. The law prohibits DOI’s

employees and agents from exercising law enforcement powers in any county of Utah:

before the United States Secretary of the Interior has achieved the maximum feasible reliance upon the county’s law enforcement officials in enforcing federal laws and regulations for the management, use, and protection of lands managed by the United States Bureau of Land Management, as required under 43 U.S.C. Sec. 1733(c)(2).

Utah Code Ann. § 53-13-106.5(4)(a). This provision seeks to require DOI to rely on local

officials to enforce federal law. However, in imposing such a requirement, the Utah law

misrepresents the applicable federal statute, 43 U.S.C. § 1733(c)(2). In that statute, Congress

provided that:

[w]hen the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a


26

contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations.

Id. § 1733(c)(1) (emphasis added). Nothing in the statute requires the Secretary to contract with

local officials to enforce federal law unless the Secretary determines that such assistance is

necessary. See Pacific Legal Found. v. Watt, 529 F. Supp. 982, 999 (D. Mont. 1981) (finding

that Congress provided the Secretary with discretionary authority in 43 U.S.C. § 1714(e), which

uses similar language in providing that “When the Secretary determines . . . that an emergency

situation exists and that extraordinary measures must be taken to preserve values that would

otherwise be lost, the Secretary shall immediately” take certain action). Yet Utah’s law ignores

the Secretary’s discretionary authority and converts this decision into a mandatory requirement,

which is then backed up with criminal sanctions under Section 76-8-512(4). By requiring the

Secretary to take action that Congress has otherwise left to her discretion, Section 53-13-

106.5(4)(a) would upset the balance Congress struck between federal and state enforcement of

federal law on federal lands, and would frustrate Congress’ objective of allowing the agency to

determine whether, and to what extent, to rely on state and local officials.7

Second, Section 53-13-106.5(4)(a)(ii) purports to deny DOI employees the authority to

exercise law enforcement authority that “goes beyond those powers 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).” This provision misstates the applicable statutory 7 Even if there were a plausible argument that the Secretary had not achieved compliance with certain terms of 43 U.S.C. § 1733(c), a state would still lack authority to prohibit (let alone criminalize) the conduct of federal officers in such circumstances. Congress gave the Secretary broad authority and responsibility in FLPMA, and it is Congress’ prerogative to take further action if necessary to ensure that the Secretary has exercised her authority appropriately.


27

section, which authorizes the Secretary to “issue regulations necessary to implement the

provisions of [the Federal Land Policy and Management] Act with respect to the management,

use, and protection of the public lands, including the property located thereon.” 43 U.S.C.

§ 1733(a). While federal law authorizes the Secretary to enact regulations that she determines

are necessary, Utah purports to prohibit law enforcement powers that the state determines are not

“strictly necessary.” The state’s attempt to impose its own requirements and judgment on the

exercise of federal authority undercuts Congress’ chosen method of managing federal lands,

especially where, as here, that interference is accompanied by criminal penalties.

Moreover, Section 53-13-106.5(4) – through its reliance on 43 U.S.C. § 1733(a) – also

wrongly attempts to limit DOI to exercising the law enforcement authority that was granted by

FLMPA. Congress has also provided the agency with law enforcement authority under other

statutes. See, e.g., Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. § 1338(b);

Statute Authorizing Conservation Programs on Government Lands, 16 U.S.C. § 670j(b)(1);

Federal Lands Recreation Enhancement Act, 16 U.S.C. § 6811. By purporting to prohibit (and

criminalize) DOI’s exercise of authority granted by statutes other than FLMPA, the Utah laws

plainly interfere with the congressional objectives of each law.

c. Section 53-13-106.5(6) Conflicts With Federal Law By Prohibiting the Enforcement of Certain Federal Regulations

In Section 53-13-106.5(6), enacted by HB 155, Utah imposes additional restrictions on

the authority of BLM and Forest Service employees.8 Specifically, the law provides that these

8 This provision applies to all BLM employees and to any “Forest Service employee who is not a trained and certified law enforcement officer.” Utah Code Ann. § 53-13-106.5(6). “Certified” is separately defined by Utah law to mean “recognized and accepted by the [State] division [of Peace Officer Standards and Training] as having successfully met and maintained the standards


28

employees may not “take action based on the Utah Code, Utah Administrative Rules, or county

or municipal ordinances, or a federal assimilation of any of these provisions.” Utah Code Ann.

§ 53-13-106.5(6). While the law does not define “assimilation,” the relevant provisions (and

their legislative history) reveal a clear intent to prohibit BLM and the Forest Service from

enforcing federal regulations that define federal offenses by referring to or incorporating

standards of state law. The legislative history makes clear that the provision targets regulations

that refer to state law in order to establish standards for certain conduct that is prohibited by

federal law (what, under federal law, would traditionally be referred to as “incorporation”). See

Committee Testimony on HB 155 (Feb. 28, 2013), 00:02:39-00:02:529 (remarks of Rep. Noel)

(“[W]e 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 that’s why that’s there.”). And, moreover, the

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). The Forest Service does not require its employees to obtain state certification as contemplated in the law. See Finley Decl. ¶ 15; Declaration of Donald V. Davis, Acting Special Agent in Charge for the Intermountain Region of the Forest Service Law Enforcement Investigations Program (Ex. 6) ¶ 14. In any event, Utah has no authority to require federal officers to be certified in accordance with state law in order to engage in law enforcement activities on federally managed land. See, e.g., Sperry, 373 U.S. at 379 (state could not prevent individual from preparing and prosecuting patent applications before the U.S. Patent Office on the ground that the individual was engaged in the unauthorized practice of law, because federal law did not require such an individual to be a member of the bar); Mayo, 319 U.S. at 447 (state could not require USDA to obtain state-required, inspection-fee stamps on bags of fertilizer distributed as part of a federal program when the federal program imposed no such requirement); United States v. Virginia, 139 F.3d 984, 988 (4th Cir. 1998) (state could not require contractors working for the Federal Bureau of Investigation to comply with licensing and registration requirements for private security services). 9 Audio of the February 28, 2013, session of the House Natural Resources, Agriculture, and Environment Standing Committee is available at http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=2922&meta_id=78952. This memorandum cites to the timing of the audio file as accessed on May 11, 2013.


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remainder of the provision confirms this legislative intent. See, e.g., Utah Code. Ann. § 53-13-

105.6(5) (“Utah does not authorize federal employees to take action based on the Utah Code,

Utah Administrative Rules, or county or municipal ordinances as a basis to stop, detain, arrest, or

cite persons for prosecution in the federal criminal justice system.”).

By prohibiting (and criminalizing) the enforcement of federal regulations, Section 53-13-

106.5(6) (operating alone and in tandem with Section 76-8-512(4)) would severely impede

enforcement of federal law. BLM and the Forest Service have adopted numerous regulations

that protect federal land and the persons and property on that land by adopting or incorporating

standards from state law. For example, BLM regulations prohibit the operation of “an off-road

vehicle on public lands without a valid State operator’s license or learner’s permit where

required by State or Federal law.” 43 C.F.R. § 8341.1(e). Similarly, the Forest Service enforces

a regulation that prohibits the operation on National Forest System roads of motor vehicles that

violate the load, weight, height, length, or width limitations prescribed by state law. 36 C.F.R.

§ 261.12(a).

These regulations were adopted as valid exercises of the authorities granted by Congress.

Congress has assigned the Secretaries of the Interior and Agriculture the authority to promulgate

regulations governing the use of federal lands, see, e.g., 43 U.S.C. § 1733(a); 16 U.S.C. § 551,

and there is little question that federal regulations may properly incorporate state law standards.

See, e.g., United States v. Bohn, 622 F.3d 1129, 1134-35 (9th Cir. 2010) (upholding NPS

regulation, 36 C.F.R. § 4.2, prohibiting violations of state traffic and vehicle use laws within

park areas); United States v. Wakefield, 111 Fed. Appx. 529, 530 (9th Cir. 2004) (upholding

Forest Service’s authority to issue restrictions on the operation of a motor vehicle that


30

incorporate standards from state law); United States v. Pawliuk, No. 2:12-cv-00137, 2012 WL

2498898, at *2 (D. Nev. June 26, 2012) (upholding traffic citation for violation of BLM

supplemental rule which provided that, in the Red Rock National Conservation Area, “the laws

of the State of Nevada shall govern the use and operation of vehicles”); Borrego v. United States,

577 F. Supp. 408, 410-11 (D.N.M. 1983) (upholding Forest Service’s authority to condition

issuance of permits on compliance with rules established by local grazing associations). When a

federal regulation incorporates by referencing standards of conduct from state law, a violation of

the regulation is still a violation of federal law, and the officers charged with enforcing that

regulation are still enforcing provisions of federal law.

If BLM and the Forest Service were prohibited from enforcing these regulations, they

would be unable to fulfill the responsibilities assigned to them by Congress to manage and

protect federal lands. Utah cannot deny the federal government the authority to enforce these

regulations. See Kleppe, 426 U.S. at 543 (“The Federal Government does not assert exclusive

jurisdiction over the public lands in New Mexico, and the State is free to enforce its criminal and

civil laws on those lands. But where those state laws conflict with . . . legislation passed

pursuant to the Property Clause, the law is clear: The state laws must recede.”); Bohn, 622 F.3d

at 1133 (recognizing federal government’s authority to enforce traffic laws on state roads that

pass through federal land, even though the federal government did not have exclusive

jurisdiction over the land). Accordingly, Section 53-13-106.5(6) is preempted by federal law.

d. Section 76-8-512(4) Conflicts With Federal Law By Criminalizing Particular Employees’ Exercise of Their Duties

Finally, HB 155 enacts a new provision that purports to criminalize certain federal

employees’ exercise of the duties assigned to them by federal law. Through an amendment to


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Section 76-8-512, HB 155 will make it a criminal 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).10

This provision will have the effect of criminalizing the routine enforcement of federal

law by BLM and Forest Service employees. In the exercise of their official duties, those

employees are required to enforce applicable federal regulatory standards on land administered

by the agencies, including federal regulations that incorporate or adopt the law of the state in

which the land is located. Thus, Section 76-8-512(4) would put Forest Service and BLM

employees in the position of having either to violate the terms of state law, and thereby risk

criminal prosecution, or to refuse to perform the duties assigned to them by federal law.

By making it a criminal offense for certain federal employees to enforce federal laws,

Sections 53-13-106.5 and 76-8-512(4) run afoul of the Supremacy Clause. As the Supreme

Court has recognized, conflict preemption applies where a state law would subject a person or

party “to criminal prosecution under [state] law as a result of their compliance with federal

regulations.” Capital Cities Cable, Inc., 467 U.S. at 696, 705-06. The Utah laws are plainly

intended to prohibit federal officers from exercising their statutory authority. For example, in

committee testimony about the authority of Forest Service employees who are authorized by

Congress to make arrests in the national forests, the sponsor of HB 155 explained that “every

single person that works for the Forest Service, not law enforcement, every individual under the

federal statute has arrest authority. We’re just going to make sure that those individuals also 10 As explained above, this provision will effectively cover all Forest Service employees, given that the agency does not require its employees to obtain certification from a Utah state agency.


32

cannot arrest you.” See Committee Testimony on HB 155 (Feb. 28, 2013), at audio 00:45:32-

00:45:47 (remarks of Rep. Noel). In short, the very purpose of Section 76-8-512(4) is to impede

federal employees from performing the duties required by their jobs; such a law cannot stand.

II. THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT PRELIMINARY RELIEF

Upon demonstrating a likelihood of success on the merits, a plaintiff must also establish

that, absent preliminary relief, there is a likelihood that the defendant’s conduct will cause

irreparable harm. See Stidham, 640 F.3d at 1157. “To constitute irreparable harm, an injury

must be certain, great, actual and not theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182,

1189 (10th Cir. 2003). Moreover, to satisfy this requirement, a movant “must show that the

injury complained of is of such imminence that there is a clear and present need for equitable

relief to prevent irreparable harm.” Id. (internal quotation omitted). The Tenth Circuit applies a

“sliding scale” test, which provides that “the more likely a movant is to succeed on the merits,

‘the less the balance of irreparable harms need to favor the [movant’s] position.’” O Centro

Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004). (Similarly, a

stronger showing of irreparable harm relaxes the other requirements, such that a movant need

only “show questions going to the merits so serious, substantial, difficult, and doubtful, as to

make them a fair ground for litigation.” See Heideman, 348 F.3d at 1188.)11

11 Courts are divided on whether the “sliding-scale” approach has vitality after the Supreme Court’s decision in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). See Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (collecting cases demonstrating a circuit split). The Tenth Circuit appears not to have spoken to this issue. Cf. Utah Coal. of La Raza v. Herbert, No. 2:11-cv-00401, Dkt. 45 (D. Utah. May 11, 2011) (applying sliding scale and entering temporary restraining order after finding a “substantial question about the constitutionality of” a state law). In any event, even if the Court does not apply a sliding-scale approach, the United States is entitled to preliminary relief because of its strong showing on each required element.


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The United States has submitted, with this motion, declarations from BLM, the Forest

Service, NPS, and FWS showing that if Sections 53-13-106.5 and 76-8-512(4) are not

immediately enjoined, the United States will suffer irreparable harm. See Shott Decl. (Ex. 2);

Mullin Decl. (Ex. 3); Boik Decl. (Ex. 4); Finley Decl. (Ex. 5); Declaration of Donald V. Davis,

Acting Special Agent in Charge for the Intermountain Region of the Forest Service Law

Enforcement Investigations Program (Ex. 6). Specifically, the affected agencies have provided

specific examples of how Sections 53-13-106.5 and 76-8-512(4) would irreparably harm them in

the performance of their statutory and regulatory duties to protect and manage federal land.

First, permitting enforcement of the Utah laws will subject Forest Service and BLM

officers to an imminent risk that they will be criminally charged or arrested for performing their

law enforcement duties. As explained in BLM’s declaration, local law enforcement officials

have expressed an intent to use the Utah laws to arrest federal law enforcement officials for

performing their law enforcement functions. Boik Decl. ¶¶ 21-22. And, of course, the very fact

of passage of this law strongly indicates that the state intends to enforce it – enforcement that, by

definition, will target federal officials. In such circumstances, these federal officials could be

charged with a Class B misdemeanor and face fines or imprisonment. Moreover, the affected

federal agencies are also concerned that citizens of Utah may try to effectuate “citizen arrests” of

federal law enforcement officials who exercise their law enforcement authority. Davis Decl.

¶ 18. See Utah Code Ann. § 77-7-3 (“A private person may arrest another: (1) For a public

offense committed or attempted in his presence.”). By threatening federal officers with the risk

of arrest and prosecution, the Utah laws severely discourage the targeted officers from

performing the duties of their job. Boik Decl. ¶ 20. If the laws take effect, scores of federal


34

officers in Utah would expose themselves to the risk of criminal sanction on a daily basis by

taking actions that are purportedly criminalized by this law. The threat that federal law

enforcement officers will be arrested will irreparably harm the United States by impeding its

ability to enforce federal law. See Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258

(10th Cir. 2003) (explaining that the “irreparable harm requirement is met if a plaintiff

demonstrates a significant risk that he or she will experience harm that cannot be compensated

after the fact by monetary damages”).

Second, the Utah laws irreparably undermine the federal government’s management of

federal lands by denying federal agencies the authority to protect those lands. If HB 155 is

permitted to take effect, the State of Utah will prohibit federal employees from exercising certain

law enforcement authorities within the state. Most notably, the law would severely impede the

United States’ ability to protect members of the public and federal government employees who

use federal lands. Section 53-13-106.5(4)(a)(ii) purports to limit the law enforcement authority

of DOI employees to powers that are “strictly necessary for the management, use, and protection

of federally managed lands, including property located on these lands.” Utah Code. Ann. § 53-

13-106.5(4)(a)(ii). But federal law requires more of certain DOI employees – for example, NPS

officers, who are charged with the responsibility to “maintain law and order and protect persons”

in their use of the National Parks System. See 16 U.S.C. § 1a-6(b). In the performance of their

duties, NPS law enforcement officers take approximately 2600 reportable enforcement actions

each year in the national parks located in Utah. See Shott Decl. ¶ 15. Approximately 2300 of

those actions are taken to protect persons in the National Park System, with roughly 100 due to

felonies that include burglary, aggravated assault, and sexual assault. Id. By purporting to deny


35

NPS officers the authority to exercise law enforcement authority to protect persons, rather than

land and property, the Utah laws would irreparably harm the United States’ ability to protect

persons using federal land.

Third, enforcement of the Utah laws would irreparably harm the United States insofar as

the laws purport to deny federal agencies the ability to enforce particular regulations. Through

Section 53-13-106.5(6), the laws target enforcement of federal regulations that adopt or

incorporate state law standards. If that provision were permitted to bar BLM and the Forest

Service from enforcing these federal regulations, there would be a significant gap in the

protection of federal lands and the people, property, and resources thereon. For example, the

Forest Service enforces 36 C.F.R. § 261.12, which prohibits the operation on National Forest

System roads of motor vehicles that violate the load, weight, height, length, or width limitations

prescribed by state law. See Davis Decl. ¶ 15. If Forest Service employees were subject to

criminal penalties for the enforcement of this regulation, and such a threat dissuaded them from

performing their job, the Utah laws would undermine enforcement of laws designed to protect

the roads and secure the safety of passengers traveling in the National Forest System.

Similarly, BLM officers enforce regulations such as 43 C.F.R. § 8341.1, which prohibits

the use of off-road vehicles without a valid state operator’s license or in other ways that violate

state laws. See Boik Decl. ¶ 16(a). Unauthorized use of off-road vehicles can cause substantial

damage to the public lands. Id. ¶ 17. In 2012, BLM law enforcement officers issued 27 federal

citations and 110 warnings to members of the public that were acting in a potentially unsafe

manner and in violation of that provision. Id. In the law enforcement context, the Supreme

Court recognizes that irreparable harm to the government’s law enforcement and public safety


36

interests occurs when the government is prevented from employing a duly-enacted statute

designed to address those concerns. Maryland v. King, 133 S. Ct. 1, 3-4 (2012). If Utah is

permitted to deny BLM officers the authority to enforce these federal regulations, potential

violators will be unimpeded in their disregard of these rules, to the detriment of public safety and

the federal land and wildlife protected by the BLM. See Greater Yellowstone Coal., 321 F.3d at

1259-61 (irreparable harm found when there was danger of actual death of eagles and destruction

of their breeding grounds if developer were allowed to proceed).

Fourth, the Utah laws will create public confusion regarding the authority of DOI and

USDA law enforcement officials to perform their duties. See. e.g., Boik Decl. ¶¶ 23-25; Mullin

Decl. ¶¶ 11-12; Davis Decl. ¶ 19. This confusion will likely lead members of the public to

challenge the authority of these federal officials in ways that could harm the officers or other

members of the public. See, e.g., Shott Decl. ¶ 12 (“At a minimum, some members of the public

are likely to dispute an NPS LEO’s authority to engage in enforcement actions to maintain order

and protect persons. This poses a risk of a violent confrontation, use of force, and serious

injury.”). These types of confrontations can escalate quickly and are particularly dangerous in

the types of remote areas managed by USDA and DOI, where law enforcement officials may not

have other officers nearby to provide backup or support. Boik Decl. ¶ 28. The danger of

violence and injury this poses to federal officers – clearly an irreparable harm – is exacerbated if

citizens of Utah try to arrest federal officers for supposed violations of the law. Confrontations

between USDA and DOI law enforcement officials and members of the public can also

undermine the confidence members of the public have in those officials and weaken the deterrent

effect that their presence can provide. See id. ¶ 25; Davis Decl. ¶ 19. Because there are


37

hundreds of DOI and USDA law enforcement officials who interact with members of the public

on a regular basis, DOI and USDA have concluded that, if the Utah laws are not enjoined, there

is a high probability that the authority of federal law enforcement officials will be challenged in

ways that threaten their safety. See, e.g., Shott Decl. ¶¶ 15-16; Mullin Decl. ¶¶ 11-12, Boik

Decl. ¶¶ 23-24; Finley Decl. ¶¶ 18, 22-23; Davis Decl. ¶¶ 19-20.

Moreover, the significant amount of media attention focused on the Utah laws thus far

demonstrates the real risk that members of the public will misunderstand the proper scope of

federal authority. For example, an article on February 28, 2013, in the Salt Lake Tribune

reported that HB 155 “could literally handcuff U.S. Forest Service officers and Bureau of Land

Management rangers if they try to pull someone over on a traffic violation.” See Brian Maffly,

Salt Lake Tribune, Bill would limit BLM, Forest Service officers’ authority (Feb. 28, 2013)

(available at http://www.sltrib.com/sltrib/politics/55921992-90/federal-utah-law-

officers.html.csp). The same newspaper then reported on March 15, 2013 that HB 155 “would

bar employees of federal land management agencies from acting in a law-enforcement capacity

except in emergency situations.” See Brian Maffly, Salt Lake Tribune, Public lands legislation

puts federal control in cross hairs (Mar. 15, 2003) (available at

http://www.sltrib.com/sltrib/politics/56005926-90/sltrib-html-http-utah.html.csp). See also

Finley Decl. ¶ 22 & Ex. A (providing additional samples of press coverage). These concerns

about public confusion regarding the law are substantial. In fact, although the recent

amendments to the laws have not yet taken effect, BLM has already received a report of a

member of the public challenging the authority of a BLM law enforcement officer in light of the


38

Utah laws. Boik Decl. ¶ 26. These types of challenges will obstruct the performance of DOI’s

and USDA’s statutory and regulatory duties and irreparably harm the United States.

Fifth, because a significant portion of the federal land in Utah is located in rural areas,

cooperation between USDA and DOI law enforcement officials and local law enforcement

officials is critical. Mullin Decl. ¶¶ 22-23. In many cases, local law enforcement provides

support to USDA and DOI law enforcement officers during law enforcement activities on federal

land. Id. Likewise, USDA and DOI officers provide support to local officers during law

enforcement activities that occur on non-federal land. Id. By restricting the authority of USDA

and DOI, and creating the possibility that local law enforcement officials could arrest USDA and

DOI officers simply for performing their duties, the Utah laws threaten to irreparably harm the

critical relationship between local and federal law enforcement officials. Id. Such damage to

these working relationships constitutes irreparable injury. See generally McDonald’s Corp. v.

Robertson, 147 F.3d 1301, 1309 (11th Cir. 1998) (finding that loss of franchisor’s good will

constituted irreparable harm that favored granting a preliminary injunction); Rent-A-Center, Inc.

v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (“[W]e have

also recognized that intangible injuries, such as damage to ongoing recruitment efforts and

goodwill, qualify as irreparable harm.”). The deterioration of cooperation between local and

federal law enforcement officials would make it more difficult for USDA and DOI to protect and

manage the land and resources in their care and would also have a negative effect on

communities that are located near federal land.

Finally, by violating the Constitution’s structural reservation of authority to the federal

government, Sections 53-13-106.5 and 76-8-512(4) cause ongoing irreparable harm to the


39

constitutional order. Indeed, the Supreme Court has suggested that irreparable harm inherently

results from enforcement of a preempted state law. See New Orleans Pub. Serv., Inc. v. Council

of New Orleans, 491 U.S. 350, 366-67 (1989) (indicating that “irreparable injury may possibly

be established . . . by a showing that the challenged state statute is flagrantly and patently

violative . . . . of the express constitutional prescription of the Supremacy Clause”).

The Utah laws are clearly intended to obstruct USDA and DOI employees from fulfilling

their duties and, if these laws are not enjoined, they will do just that. As the USDA and DOI

declarants attest, implementation and enforcement of these laws are highly likely to disrupt

agency law enforcement activities and irreparably harm the United States.

III. A BALANCING OF THE HARDSHIPS FAVORS THE UNITED STATES AND DEMONSTRATES THAT THE PUBLIC INTEREST WOULD NOT BE DISSERVED BY GRANTING INJUNCTIVE RELIEF

In this action, which seeks to protect the interests of the United States as a whole, the

burdens that will result absent injunctive relief are directly tied to the public benefits that will be

protected if this Court issues the requested injunction. See Scott v. Roberts, 612 F.3d 1279,

1290 (11th Cir. 2010) (noting that where the government is a party, the third and fourth

preliminary injunction considerations are “largely the same”); Nken v. Holder, 556 U.S. 418, 435

(2009) (stating, in the related context of criteria governing stay of removal, that the criteria of

“harm to the opposing party” and “the public interest” “merge when the Government is the

opposing party” because harm to the Government is harm to the public interest). As discussed

throughout this memorandum, a variety of public interests are endangered by the operation of

Sections 53-13-106.5 and 76-8-512(4), and will be promoted by the issuance of the requested

injunction. A temporary restraining order and a preliminary injunction will permit federal


40

agency employees to continue to enforce federal law on federally managed lands in the State of

Utah without the fear of criminal prosecution or state-sanctioned challenges to their legitimate

authority. An injunction would preserve the federal government’s ability to enforce federal laws

that are designed to protect federal land, members of the public and federal employees who use

that land, and the property and natural resources located on that land.

By contrast, a preliminary injunction will not meaningfully burden Utah. Were this

Court ultimately to conclude that Sections 53-13-106.5 and/or 76-8-512(4) do not violate the

Supremacy Clause, Utah would be able to implement the state laws without having suffered any

substantial burden as a result of the delay. In any case, Utah “does not have an interest in

enforcing a law that is likely constitutionally infirm.” Chamber of Commerce of U.S. v.

Edmondson, 594 F.3d 742, 771 (10th Cir. 2010).

CONCLUSION

For the foregoing reasons, the United States respectfully requests that the Court issue a

temporary restraining order and a preliminary injunction prohibiting the implementation and

enforcement of Sections 53-13-106.5 and 76-8-512(4) of the Utah Code.

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 Attorneys ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch


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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: [email protected] Attorneys for the United States * Applications for admission pro hac vice forthcoming


Documents

HB 155 Motion for TRO