02-11 18:05 2nd Sub. (Salmon) S.B. 139
Ronald M. Winterton proposes the following substitute bill:
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Mineral Rights Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ronald M. Winterton
House Sponsor: Kay J. Christofferson
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LONG TITLE
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General Description:
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This bill modifies provisions relating to eminent domain used to take a mineral estate in
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land.
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Highlighted Provisions:
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This bill:
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▸ describes information about eminent domain and mineral rights that must be provided on
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the Office of the Property Rights Ombudsman's website;
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▸ requires separate payment of just compensation for a mineral estate taken through
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eminent domain;
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▸ clarifies that fee simple title to land may not be taken by eminent domain unless the
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taking is for a certain purpose; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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13-43-203, as last amended by Laws of Utah 2018, Chapter 215
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78B-6-501, as last amended by Laws of Utah 2024, Chapters 25, 350
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78B-6-502, as last amended by Laws of Utah 2024, Chapters 25, 350
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 13-43-203 is amended to read:
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13-43-203 . Office of the Property Rights Ombudsman -- Duties.
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(1) The Office of the Property Rights Ombudsman shall:
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(a) develop and maintain expertise in and understanding of takings, eminent domain, and
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land use law;
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(b) clearly identify the specific information that is prepared for distribution to property
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owners whose land is being acquired under the provisions of Section 78B-6-505;
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(c) assist state agencies and local governments in developing the guidelines required by
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Title 63L, Chapter 4, Constitutional Takings Issues Act;
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(d) at the request of a state agency or local government, assist the state agency or local
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government, in analyzing actions with potential takings implications or other land use
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issues;
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(e) advise real property owners who:
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(i) have a legitimate potential or actual takings claim against a state or local
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government entity or have questions about takings, eminent domain, and land use
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law; or
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(ii) own a parcel of property that is landlocked, as to the owner's rights and options
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with respect to obtaining access to a public street;
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(f) identify state or local government actions that have potential takings implications
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and, if appropriate, advise those state or local government entities about those
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implications;
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(g) provide information to private citizens, civic groups, government entities, and other
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interested parties about takings, eminent domain, and land use law and their rights,
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including a right to just compensation, and responsibilities under the takings, eminent
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domain, or land use laws through seminars and publications, and by other appropriate
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means;
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(h)(i) [provide the information described in Section 78B-6-505 on the Office of the
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Property Rights Ombudsman's website in a form that is easily accessible; and]
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provide, in a form that is easily accessible, the following information on the
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Office of the Property Rights Ombudsman's website:
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(A) the information described in Section 78B-6-505;
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(B) a definition and explanation of the term, "fee simple title";
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(C) an explanation of the implications for a property owner when fee simple title
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is taken through eminent domain;
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(D) a notification that eminent domain may include taking a recorded interest held
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in real property, including a mineral right;
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(E) a notification that a property owner may be compensated for a recorded
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interest in real property, including a mineral right; and
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(F) a notification that a property owner can request a separate valuation for a
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recorded interest in real property; and
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(ii) ensure that the information described in Subsection (1)(h)(i) is current; and
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(i)(i) provide education and training regarding:
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(A) the drafting and application of land use laws and regulations; and
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(B) land use dispute resolution; and
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(ii) use any money transmitted in accordance with Subsection 15A-1-209(5) to pay
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for any expenses required to provide the education and training described in
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Subsection (1)(i)(i), including grants to a land use training organization that:
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(A) the Land Use and Eminent Domain Advisory Board, created in Section
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13-43-202, selects and proposes; and
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(B) the property rights ombudsman and the executive director of the Department
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of Commerce jointly approve.
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(2)(a) Neither the Office of the Property Rights Ombudsman nor its individual attorneys
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may represent private parties, state agencies, local governments, or any other
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individual or entity in a legal action that arises from or relates to a matter addressed
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in this chapter.
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(b) An action by an attorney employed by the Office of the Property Rights
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Ombudsman, by a neutral third party acting as mediator or arbitrator under Section
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13-43-204, or by a neutral third party rendering an advisory opinion under Section
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13-43-205 or 13-43-206, taken within the scope of the duties set forth in this chapter,
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does not create an attorney-client relationship between the Office of the Property
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Rights Ombudsman, or the office's attorneys or appointees, and an individual or
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entity.
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(3) No member of the Office of the Property Rights Ombudsman nor a neutral third party
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rendering an advisory opinion under Section 13-43-205 or 13-43-206, may be compelled
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to testify in a civil action filed concerning the subject matter of any review, mediation,
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or arbitration by, or arranged through, the office.
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(4)(a) Except as provided in Subsection (4)(b), evidence of a review by the Office of the
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Property Rights Ombudsman and the opinions, writings, findings, and determinations
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of the Office of the Property Rights Ombudsman are not admissible as evidence in a
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judicial action.
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(b) Subsection (4)(a) does not apply to:
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(i) actions brought under authority of Title 78A, Chapter 8, Small Claims Courts;
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(ii) a judicial confirmation or review of the arbitration itself as authorized in Title
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78B, Chapter 11, Utah Uniform Arbitration Act;
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(iii) actions for de novo review of an arbitration award or issue brought under the
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authority of Subsection 13-43-204(3)(a)(i); or
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(iv) advisory opinions provided for in Sections 13-43-205 and 13-43-206.
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Section 2. Section 78B-6-501 is amended to read:
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78B-6-501 . Eminent domain -- Uses for which right may be exercised --
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Limitations on eminent domain.
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(1) As used in this section:
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(a) "Century farm" means real property that is:
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(i) assessed under Title 59, Chapter 2, Part 5, Farmland Assessment Act; and
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(ii) owned or held by the same family for a continuous period of 100 years or more.
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(b) "Mineral or element" means the same as that term is defined in Section 65A-17-101.
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(c)(i) "Mining use" means:
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(A) the full range of permitted or active activities, from prospecting and
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exploration to reclamation and closure, associated with the exploitation of a
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mineral deposit; and
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(B) the use of the surface, subsurface, groundwater, and surface water of an area
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in connection with the activities described in Subsection (1)(c)(i)(A) that have
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been, are being, or will be conducted.
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(ii) "Mining use" includes, whether conducted on-site or off-site:
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(A) sampling, staking, surveying, exploration, or development activity;
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(B) drilling, blasting, excavating, or tunneling;
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(C) the removal, transport, treatment, deposition, and reclamation of overburden,
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development rock, tailings, and other waste material;
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(D) the recovery of sand and gravel;
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(E) removal, transportation, extraction, beneficiation, or processing of ore;
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(F) use of solar evaporation ponds and other facilities for the recovery of minerals
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in solution;
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(G) smelting, refining, autoclaving, or other primary or secondary processing
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operation;
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(H) the recovery of any mineral left in residue from a previous extraction or
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processing operation;
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(I) a mining activity that is identified in a work plan or permitting document;
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(J) the use, operation, maintenance, repair, replacement, construction, or alteration
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of a building, structure, facility, equipment, machine, tool, or other material or
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property that results from or is used in a surface or subsurface mining operation
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or activity;
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(K) an accessory, incidental, or ancillary activity or use, both active and passive,
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including a utility, private way or road, pipeline, land excavation, working,
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embankment, pond, gravel excavation, mining waste, conveyor, power line,
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trackage, storage, reserve, passive use area, buffer zone, and power production
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facility;
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(L) the construction of a storage, factory, processing, or maintenance facility; and
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(M) an activity described in Subsection 40-8-4(17)(a).
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(2) Except as provided in Subsections (3), (4), and (5) and subject to the provisions of this
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part, the right of eminent domain may be exercised on behalf of the following public
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uses:
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(a) all public uses authorized by the federal government;
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(b) public buildings and grounds for the use of the state, and all other public uses
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authorized by the Legislature;
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(c)(i) public buildings and grounds for the use of any county, city, town, or board of
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education;
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(ii) reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water or
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sewage, including to or from a development, for the use of the inhabitants of any
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county, city, or town, or for the draining of any county, city, or town;
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(iii) the raising of the banks of streams, removing obstructions from streams, and
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widening, deepening, or straightening their channels;
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(iv) bicycle paths and sidewalks adjacent to paved roads;
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(v) roads, byroads, streets, and alleys for public vehicular use, including for access to
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a development; and
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(vi) all other public uses for the benefit of any county, city, or town, or its inhabitants;
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(d) wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and
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turnpike roads, roads for transportation by traction engines or road locomotives,
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roads for logging or lumbering purposes, and railroads and street railways for public
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transportation;
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(e) reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes for
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the supplying of persons, mines, mills, smelters or other works for the reduction of
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ores, with water for domestic or other uses, or for irrigation purposes, or for the
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draining and reclaiming of lands, or for solar evaporation ponds and other facilities
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for the recovery of minerals or elements in solution;
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(f)(i) roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places
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to access or facilitate the milling, smelting, or other reduction of ores, or the
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working of mines, quarries, coal mines, or mineral deposits including oil, gas, and
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minerals or elements in solution;
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(ii) outlets, natural or otherwise, for the deposit or conduct of tailings, refuse or water
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from mills, smelters or other works for the reduction of ores, or from mines,
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quarries, coal mines or mineral deposits including minerals or elements in solution;
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(iii) mill dams;
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(iv) gas, oil or coal pipelines, tanks or reservoirs, including any subsurface stratum or
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formation in any land for the underground storage of natural gas, and in
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connection with that, any other interests in property which may be required to
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adequately examine, prepare, maintain, and operate underground natural gas
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storage facilities;
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(v) subject to Subsection (6), solar evaporation ponds and other facilities for the
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recovery of minerals in solution; and
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(vi) any occupancy in common by the owners or possessors of different mines,
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quarries, coal mines, mineral deposits, mills, smelters, or other places for the
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reduction of ores, or any place for the flow, deposit or conduct of tailings or refuse
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matter;
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(g) byroads leading from a highway to:
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(i) a residence; or
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(ii) a farm;
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(h) telecommunications, electric light and electric power lines, sites for electric light and
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power plants, or sites for the transmission of broadcast signals from a station licensed
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by the Federal Communications Commission in accordance with 47 C.F.R. Part 73
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and that provides emergency broadcast services;
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(i) sewage service for:
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(i) a city, a town, or any settlement of not fewer than 10 families;
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(ii) a public building belonging to the state; or
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(iii) a college or university;
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(j) canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and
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storing water for the operation of machinery for the purpose of generating and
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transmitting electricity for power, light or heat;
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(k) cemeteries and public parks; and
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(l) sites for mills, smelters or other works for the reduction of ores and necessary to their
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successful operation, including the right to take lands for the discharge and natural
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distribution of smoke, fumes, and dust, produced by the operation of works, provided
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that the powers granted by this section may not be exercised in any county where the
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population exceeds 20,000, or within one mile of the limits of any city or
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incorporated town nor unless the proposed condemner has the right to operate by
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purchase, option to purchase or easement, at least 75% in value of land acreage
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owned by persons or corporations situated within a radius of four miles from the mill,
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smelter or other works for the reduction of ores; nor beyond the limits of the
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four-mile radius; nor as to lands covered by contracts, easements, or agreements
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existing between the condemner and the owner of land within the limit and providing
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for the operation of such mill, smelter, or other works for the reduction of ores; nor
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until an action shall have been commenced to restrain the operation of such mill,
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smelter, or other works for the reduction of ores.
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(3) The right of eminent domain may not be exercised on behalf of the following uses:
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(a) except as provided in Subsection (2)(c)(iv), trails, paths, or other ways for walking,
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hiking, bicycling, equestrian use, or other recreational uses, or whose primary
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purpose is as a foot path, equestrian trail, bicycle path, or walkway; or
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(b)(i) a public park whose primary purpose is:
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(A) as a trail, path, or other way for walking, hiking, bicycling, or equestrian use;
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or
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(B) to connect other trails, paths, or other ways for walking, hiking, bicycling, or
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equestrian use; or
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(ii) a public park established on real property that is:
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(A) a century farm; and
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(B) located in a county of the first class.
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(4)(a) The right of eminent domain may not be exercised within a migratory bird
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production area created on or before December 31, 2020, under Title 23A, Chapter
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13, Migratory Bird Production Area, except as follows:
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(i) subject to Subsection (4)(b), an electric utility may condemn land within a
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migratory bird production area located in a county of the first class only for the
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purpose of installing buried power lines;
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(ii) an electric utility may condemn land within a migratory bird production area in a
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county other than a county of the first class to install:
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(A) buried power lines; or
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(B) a new overhead transmission line that is parallel to and abutting an existing
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overhead transmission line or collocated within an existing overhead
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transmission line right of way; or
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(iii) the Department of Transportation may exercise eminent domain for the purpose
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of the construction of the West Davis Highway.
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(b) Before exercising the right of eminent domain under Subsection (4)(a)(i), the electric
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utility shall demonstrate that:
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(i) the proposed condemnation would not have an unreasonable adverse effect on the
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preservation, use, and enhancement of the migratory bird production area; and
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(ii) there is no reasonable alternative to constructing the power line within the
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boundaries of a migratory bird production area.
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(5) If the intended public purpose is for a mining use, a private person may not exercise the
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power of eminent domain over property, or an interest in property, that is already used
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for a mining use within the boundary of:
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(a) a permit area, as defined in Section 40-8-4;
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(b) an area for which a permit has been issued by the Division of Water Quality, as part
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of the underground injection control program, under rules made by the Water Quality
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Board in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
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(c) private property; or
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(d) an area under a state or federal lease.
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(6)(a) For the purpose of solar evaporation ponds and other facilities for the recovery of
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minerals in solution on or from the Great Salt Lake, a public use includes removal or
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extinguishment, by a state entity, in whole or in part, on Great Salt Lake Sovereign
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lands of:
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(i) a solar evaporation pond;
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(ii) improvements, property, easements, or rights-of-way appurtenant to a solar
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evaporation pond, including a lease hold; or
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(iii) other facilities for the recovery of minerals or elements in solution.
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(b) The public use under this Subsection (6) is in the furtherance of the benefits to public
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trust assets attributable to the Great Salt Lake under Section 65A-1-1.
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(7)(a) If fee simple title to land is taken through eminent domain, in accordance with
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Section 78B-6-502, the taking and the resulting title shall explicitly identify the
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owner's interest in the mineral estate associated with the land, in accordance with
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Subsection (7)(b).
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(b) If the mineral estate associated with the land is acquired by eminent domain:
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(i) each interest in the mineral estate shall be identified and valued separately from all
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other estates, rights, and interests in the land; and
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(ii) each owner with an interest in the mineral estate is entitled to separately receive
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just compensation for the owner's interest in the mineral estate.
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Section 3. Section 78B-6-502 is amended to read:
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78B-6-502 . Estates and rights that may be taken.
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(1) Except as provided in Subsection 78B-6-501(3), (4), or (5), the following estates
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and rights in lands are subject to being taken for public use:
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[(1)] (a) a fee simple, when taken for:
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[(a)] (i) public buildings or grounds;
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[(b)] (ii) permanent buildings;
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[(c)] (iii) reservoirs and dams, and permanent flooding occasioned by them;
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[(d)] (iv) any permanent flood control structure affixed to the land;
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[(e)] (v) an outlet for a flow, a place for the deposit of debris or tailings of a mine,
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mill, smelter, or other place for the reduction of ores; and
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[(f)] (vi) subject to Subsection 78B-6-501(6), solar evaporation ponds and other
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facilities for the recovery of minerals in solution, except when the surface ground
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is underlaid with minerals, coal, or other deposits sufficiently valuable to justify
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extraction, only a perpetual easement may be taken over the surface ground over
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the deposits;
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[(2)] (b) an easement, when taken for any other use; and
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[(3)] (c) the right of entry upon and occupation of lands, with the right to take from those
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lands earth, gravel, stones, trees, and timber as necessary for a public use.
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(2) Fee simple title to land may not be taken by eminent domain unless the taking is for a
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purpose described in Subsection (1)(a).
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Section 4. Effective Date.
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This bill takes effect on May 7, 2025.
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