Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 407 (2024GS)

Sponsor

Rep. Bolinder, B.

Final action

Governor Signed 3/18/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• addresses when eminent domain related to mining is prohibited; and
• makes technical and conforming amendments.

Every vote on this bill

Bill text

This document includes House Committee Amendments incorporated into the bill on Thu, Feb 8, 2024 at 11:29 AM by housengrossing.
EMINENT DOMAIN MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Bridger Bolinder
Senate Sponsor: 
 Scott D. Sandall
LONG TITLE
General Description:
This bill addresses eminent domain.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ addresses when eminent domain related to mining is prohibited; and
▸ makes technical and conforming amendments.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78B-6-501
, as last amended by Laws of Utah 2023, Chapter 34
78B-6-502
, as renumbered and amended by Laws of Utah 2008, Chapter 3
78B-6-503
, as renumbered and amended by Laws of Utah 2008, Chapter 3
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-6-501
 is amended to read:
78B-6-501.
Eminent domain -- Uses for which right may be exercised --
Limitations on eminent domain.
(1) As used in this section[
, "century
]
:
(a) "Century
 farm" means real property that is:
[
(a)
] 
(i)
 assessed under Title 59, Chapter 2, Part 5, Farmland Assessment Act; and
[
(b)
] 
(ii)
 owned or held by the same family for a continuous period of 100 years or
more.
(b) (i) "Mining use" means:
(A) the full range of permitted or active activities, from prospecting and exploration to
reclamation and closure, associated with the exploitation of a mineral deposit; and
(B) the use of the surface, subsurface, groundwater, and surface water of an area in
connection with the activities described in Subsection (1)(b)(i)(A) that have been, are being, or
will be conducted.
(ii) "Mining use" includes, whether conducted on-site or off-site:
(A) sampling, staking, surveying, exploration, or development activity;
(B) drilling, blasting, excavating, or tunneling;
(C) the removal, transport, treatment, deposition, and reclamation of overburden,
development rock, tailings, and other waste material;
(D) the recovery of sand and gravel;
(E) removal, transportation, extraction, beneficiation, or processing of ore;
(F) use of solar evaporation ponds and other facilities for the recovery of minerals in
solution;
(G) smelting, refining, autoclaving, or other primary or secondary processing
operation;
(H) the recovery of any mineral left in residue from a previous extraction or processing
operation;
(I) a mining activity that is identified in a work plan or permitting document;
(J) the use, operation, maintenance, repair, replacement, construction, or alteration of a
building, structure, facility, equipment, machine, tool, or other material or property that results
from or is used in a surface or subsurface mining operation or activity;
(K) an accessory, incidental, or ancillary activity or use, both active and passive,
including a utility, private way or road, pipeline, land excavation, working, embankment, pond,
gravel excavation, mining waste, conveyor, power line, trackage, storage, reserve, passive use
area, buffer zone, and power production facility;
(L) the construction of a storage, factory, processing, or maintenance facility; and
(M) an activity described in Subsection 
40-8-4
(17)(a).
(2) Except as provided in Subsections (3) [
and
]
,
 (4)
, and (5)
 and subject to the
provisions of this part, the right of eminent domain may be exercised on behalf of the following
public uses:
(a) all public uses authorized by the federal government;
(b) public buildings and grounds for the use of the state, and all other public uses
authorized by the Legislature;
(c) (i) public buildings and grounds for the use of any county, city, town, or board of
education;
(ii) reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water or
sewage, including to or from a development, for the use of the inhabitants of any county, city,
or town, or for the draining of any county, city, or town;
(iii) the raising of the banks of streams, removing obstructions from streams, and
widening, deepening, or straightening their channels;
(iv) bicycle paths and sidewalks adjacent to paved roads;
(v) roads, byroads, streets, and alleys for public vehicular use, including for access to a
development; and
(vi) all other public uses for the benefit of any county, city, or town, or its inhabitants;
(d) wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank
and turnpike roads, roads for transportation by traction engines or road locomotives, roads for
logging or lumbering purposes, and railroads and street railways for public transportation;
(e) reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes
for the supplying of persons, mines, mills, smelters or other works for the reduction of ores,
with water for domestic or other uses, or for irrigation purposes, or for the draining and
reclaiming of lands, or for solar evaporation ponds and other facilities for the recovery of
minerals in solution;
(f) (i) roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places
to access or facilitate the milling, smelting, or other reduction of ores, or the working of mines,
quarries, coal mines, or mineral deposits including oil, gas, and minerals in solution;
(ii) outlets, natural or otherwise, for the deposit or conduct of tailings, refuse or water
from mills, smelters or other works for the reduction of ores, or from mines, quarries, coal
mines or mineral deposits including minerals in solution;
(iii) mill dams;
(iv) gas, oil or coal pipelines, tanks or reservoirs, including any subsurface stratum or
formation in any land for the underground storage of natural gas, and in connection with that,
any other interests in property which may be required to adequately examine, prepare,
maintain, and operate underground natural gas storage facilities;
(v) solar evaporation ponds and other facilities for the recovery of minerals in solution;
and
(vi) any occupancy in common by the owners or possessors of different mines,
quarries, coal mines, mineral deposits, mills, smelters, or other places for the reduction of ores,
or any place for the flow, deposit or conduct of tailings or refuse matter;
(g) byroads leading from a highway to:
(i) a residence; or
(ii) a farm;
(h) telecommunications, electric light and electric power lines, sites for electric light
and power plants, or sites for the transmission of broadcast signals from a station licensed by
the Federal Communications Commission in accordance with 47 C.F.R. Part 73 and that
provides emergency broadcast services;
(i) sewage service for:
(i) a city, a town, or any settlement of not fewer than 10 families;
(ii) a public building belonging to the state; or
(iii) a college or university;
(j) canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and
storing water for the operation of machinery for the purpose of generating and transmitting
electricity for power, light or heat;
(k) cemeteries and public parks; and
(l) sites for mills, smelters or other works for the reduction of ores and necessary to
their successful operation, including the right to take lands for the discharge and natural
distribution of smoke, fumes, and dust, produced by the operation of works, provided that the
powers granted by this section may not be exercised in any county where the population
exceeds 20,000, or within one mile of the limits of any city or incorporated town nor unless the
proposed condemner has the right to operate by purchase, option to purchase or easement, at
least 75% in value of land acreage owned by persons or corporations situated within a radius of
four miles from the mill, smelter or other works for the reduction of ores; nor beyond the limits
of the four-mile radius; nor as to lands covered by contracts, easements, or agreements existing
between the condemner and the owner of land within the limit and providing for the operation
of such mill, smelter, or other works for the reduction of ores; nor until an action shall have
been commenced to restrain the operation of such mill, smelter, or other works for the
reduction of ores.
(3) The right of eminent domain may not be exercised on behalf of the following uses:
(a) except as provided in Subsection (2)(c)(iv), trails, paths, or other ways for walking,
hiking, bicycling, equestrian use, or other recreational uses, or whose primary purpose is as a
foot path, equestrian trail, bicycle path, or walkway;
(b) (i) a public park whose primary purpose is:
(A) as a trail, path, or other way for walking, hiking, bicycling, or equestrian use; or
(B) to connect other trails, paths, or other ways for walking, hiking, bicycling, or
equestrian use; or
(ii) a public park established on real property that is:
(A) a century farm; and
(B) located in a county of the first class.
(4) (a) The right of eminent domain may not be exercised within a migratory bird
production area created on or before December 31, 2020, under Title 23A, Chapter 13,
Migratory Bird Production Area, except as follows:
(i) subject to Subsection (4)(b), an electric utility may condemn land within a migratory
bird production area located in a county of the first class only for the purpose of installing
buried power lines;
(ii) an electric utility may condemn land within a migratory bird production area in a
county other than a county of the first class to install:
(A) buried power lines; or
(B) a new overhead transmission line that is parallel to and abutting an existing
overhead transmission line or collocated within an existing overhead transmission line right of
way; or
(iii) the Department of Transportation may exercise eminent domain for the purpose of
the construction of the West Davis Highway.
(b) Before exercising the right of eminent domain under Subsection (4)(a)(i), the
electric utility shall demonstrate that:
(i) the proposed condemnation would not have an unreasonable adverse effect on the
preservation, use, and enhancement of the migratory bird production area; and
(ii) there is no reasonable alternative to constructing the power line within the
boundaries of a migratory bird production area.
(5) If the intended public purpose is for a mining use, a
Ĥ→ 
private
 ←Ĥ
person may not
163a 
exercise the
power of eminent domain over property, or an interest in property, that is already used for a
mining use within the boundary of:
(a) a permit area, as defined in Section 
40-8-4
;
(b) an area for which a permit has been issued by the Division of Water Quality, as part
of the underground injection control program, under rules made by the Water Quality Board in
accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(c) private property; or
(d) an area under a state or federal lease.
Section 2. Section 
78B-6-502
 is amended to read:
78B-6-502.
Estates and rights that may be taken.
[
The
] 
Except as provided in Subsection 
78B-6-501
(3), (4), or (5), the
 following estates
and rights in lands are subject to being taken for public use:
(1) a fee simple, when taken for:
(a) public buildings or grounds;
(b) permanent buildings;
(c) reservoirs and dams, and permanent flooding occasioned by them;
(d) any permanent flood control structure affixed to the land;
(e) an outlet for a flow, a place for the deposit of debris or tailings of a mine, mill,
smelter, or other place for the reduction of ores; and
(f) solar evaporation ponds and other facilities for the recovery of minerals in solution,
except when the surface ground is underlaid with minerals, coal, or other deposits sufficiently
valuable to justify extraction, only a perpetual easement may be taken over the surface ground
over the deposits;
(2) an easement, when taken for any other use; and
(3) the right of entry upon and occupation of lands, with the right to take from those
lands earth, gravel, stones, trees, and timber as necessary for a public use.
Section 3. Section 
78B-6-503
 is amended to read:
78B-6-503.
Private property which may be taken.
[
Private property which
] 
Except as provided in Subsection 
78B-6-501
(3), (4), or (5),
private property that
 may be taken under this part includes:
(1) all real property belonging to any person;
(2) lands belonging to the state, or to any county, city or incorporated town, not
appropriated to some public use;
(3) property appropriated to public use[
; provided
]
, except
 that the property may not be
taken unless for a more necessary public use than that to which [
it
] 
the property
 has already
been appropriated;
(4) franchises for toll roads, toll bridges, ferries, and all other franchises[
; provided
]
,
except
 that the franchises may not be taken unless for free highways, railroads, or other more
necessary public use;
(5) all rights of way for any and all purposes mentioned in Section 
78B-6-501
 [
hereof
],
and any and all structures and improvements on the property, and the lands held or used in
connection with the property, [
shall be
] 
except that:
(a) the property is
 subject to be connected with, crossed, or intersected by any other
right of way or improvement or structure; [
they shall also be
]
(b) the property is
 subject to a limited use in common with the owners, when
necessary; [
but
] 
and
(c)
 uses of crossings, intersections, and connections shall be made in the manner most
compatible with the greatest public benefit and the least private injury; and
(6) all classes of private property not enumerated if the taking is authorized by law.
Section 4. 
Effective date.
This bill takes effect on May 1, 2024.