'Unranchers' reach for West's state lands
by Ray Ring
Well aware of the irony, conservationists in the West are gearing up for a land grab they can call their own. They're reaching for what have been the most obscure public - or at least semipublic - lands of all. The definition itself is up for grabs.
There are about 40 million such acres, or 61,000 square miles, nearly equal to the area of Washington state, but fragmented and spread across the jurisdictions of nine Western states. For the most part these thousands of parcels of state-owned lands have been scarcely managed and rarely visited, dedicated to a narrow range of users quietly conducting grazing, and to a lesser extent timber, mineral and oil and gas operations.
"Our lands have had a low profile, but the bushel basket has been kicked off and the light is shining on us now," says Paul Cleary, deputy director of state-owned lands in Wyoming.
The scope of change will be determined by administrative responses, court decisions and politics that vary state by state. But conservationists are seeking to insert themselves directly into the management of state lands, by applying what may be an irresistible tool: hard cash money.
The conservationists aren't nonranchers so much as "unranchers." They are willing to pay to retire state parcels from grazing altogether.
"We can't do this on federal lands. We can't go in and say, "The land is in outrageous shape, the (grazing) permittee is an arrogant SOB and we want to get rid of him, so here's some money, now he has to get out of the way," "''''says Jon Marvel, an architect in Hailey, Idaho. Eleven months ago he founded the Idaho Watersheds Project, a non-profit group with the single purpose of outbidding ranchers for Idaho state grazing leases.
"We're willing to pay to have the environment recover (from any grazing impacts)," Marvel says.
In January, Marvel outbid a Challis rancher for rights to lease a 640-acre parcel of state land for the next 10 years. The ensuing controversy has now swept into Idaho district court and to other states.
In Oregon, a conservation group, Rest the West, has bid on a grazing lease; an environmental consultant who says he wants to harvest wild grass seeds for commercial purposes has bid on four leases; and the Oregon Natural Desert Association plans to bid on a major parcel in Owyhee Canyon country. In New Mexico, more than a dozen environmental groups have joined to strongly criticize management of state lands, and the point group, Southwest Environmental Center, based in Las Cruces, says it will raise funds to begin bidding on grazing leases.
Over the years, states have cooperatively leased grazing lands to The Nature Conservancy and other polite non-profits interested in preservation. What's shaping up now is more like a hostile takeover. Ranchers tend to defend their public-lands businesses by quoting principles of free enterprise, but "when it comes to free enterprise affecting their little sacrosanct monopoly, they don't want that," says Marvel.
Every Western state has some formal or informal preference for ranchers holding state leases, to the extent that even bids from competing ranchers are rare. In Idaho, 90 to 95 percent of grazing leases are awarded with no competitive bid; in New Mexico, 99 percent. Bids from unranchers have been basically nonexistent until now. The bid by Marvel and the Idaho Watersheds Project was the first attempt by anyone other than a rancher to acquire a lease on state grazing lands in Idaho, says Don Hobbs, chief of range management for the Idaho Department of Lands.
"We've never encountered this in the past," says Hobbs. "It's always been other grazing interests bidding against (current leaseholders)."
Unranchers are tendering bids amid the most widespread re-examination of state-lands management since the states were born. Utah has gutted its old land-management power structure (see story page 12). Wyoming has declared a two-year moratorium on selling state lands. Court cases in Montana and Idaho are challenging environmental impacts of state timber programs. Colorado and Montana are experimenting with opening their lands to fee-based recreation. But the challenge to grazing leases, which cover 34 million of the 40 million acres of state lands, seems the most innovative.
The bids by unranchers in Oregon were also a first there, and quickly focused attention on how the state's grazing program has operated in limbo. Oregon was caught short: It had never developed written policies spelling out how to conduct competitive bidding on grazing leases. In the past, says John Lilly, assistant director for policy and planning for the Oregon Division of State Lands, "basically, people came to us (seeking to lease state land for grazing) and we signed them up."
"Our plan is to set a major precedent, West-wide," says Bill Marlett, director of the Oregon Natural Desert Association. The group has set up a fund dedicated to leasing 30,000 acres of state grazing land bordered by the middle and south forks of the Owyhee River. The south fork in that stretch is spectacular, a federal and state scenic waterway popular with whitewater rafters. Already, the fund has attracted more than $10,000 in donations.
"We want to lease a major parcel of grazing land for ecological purposes, and do absolutely nothing with it," says Marlett. "Our intended use will be cow-free wilderness."
Open competitive bidding on state leases is a threat, says Polly Owen, executive vice president of the Oregon Cattlemen's Association, which represents 3,000 ranchers. Because many ranches consist of state land patchworked in with federal and private land, taking state land out of production would add conflicting uses and complicated fence lines and, Owen says, "this could drive ranchers out of business."
Many ranchers doubt that bidding will be opened to include unranchers. The Oregon State Land Board, which oversees the professional managers of the division of state lands, "hasn't bowed to pressure yet," Owen says. But in the past few months, the division, working internally and gathering public comment, has drafted a recommendation to open bidding to all comers.
At its July 29 meeting, the Oregon State Land Board will consider the recommendation from its professionals. If the board opens the bidding, Lilly says, the result will be "radical change."
Figuring out what to do with state lands has been a headache, going back more than a hundred years, because most of the lands were originally staked out by rigid math rather than consideration of natural features, resources and ease of management. As each state gained admittance to the union, the federal government turned over some of its holdings, determined solely by survey lines. Most states in the West got two sections (square miles) in each 36-section township, while later admittees - Utah, Arizona and New Mexico - got four sections per township. States were able to consolidate their holdings to a degree, but in general, according to the grid the feds imposed, the states had to deal with square-mile sections that were not contiguous.
Worse, typically the federal government had already staked out for itself the choicest or most apparently valuable lands, in forest reserves and parks, and had deeded the essential railroads their own checkerboard. States were left with lands that seemed less useful and more remote.
Which helps explain why the states tended to put little effort into management. "Many of these parcels defy any type of management, because they're so scattered and small," says Cleary of the Wyoming State Land and Farm Loan office.
Avoiding the hassle of management, early on, California and Nevada sold off most of their state lands. The Rocky Mountain and desert states, and Oregon and Washington, tried to stay in the business - and that's what it was, more so than management of federal lands ever was, because the states were required to make money off the land, somehow. The federal giveaway had a bedrock intent: to provide the states a resource supporting public schools (primarily grades K-12) and smaller institutions such as public hospitals and prisons. The management principle was written into the enabling acts for each state and into each state constitution. In general, state lands were to be managed as a trust, generating income for schools, period.
"Then the question is, are these lands truly public lands?" asks Jon Souder, assistant professor of forest policy at Northern Arizona University, who is a leader in renewing the study of state-lands management. "The answer is flatly, blankly, straightly, no, not in the sense that federal lands are public."
More and more that assertion is being challenged. Even the states themselves have been all over the map declaring their trust lands off limits to the general public, or entirely open, or somewhere in between.
Usually it's hard to tell when you're on state-trust lands in the West. Most of the parcels, even where consolidated into larger acreage, are not posted. They blend in with surrounding federal and private ownership. State lands have been "captive" of surrounding lands, leased for whatever purpose the surrounding lands were used for, says Cleary of the Wyoming land office.
The tendency was to keep overhead low and turn whatever revenues were raised from state lands over to the schools. Around the West it's not uncommon, even today, for a grazing parcel to be visited only once by a field manager during a 10-year lease period, or not at all.
In practice, "we have no field presence," says Cleary.
Shifting around its staff to respond to the recent crisis, the Oregon land department has increased by 50 percent its field presence directed at grazing leases; Oregon now has three agents managing more than 600,000 acres.
Oregon's land managers "have never seen a lot of these lands," says Tom Pringle, the environmental consultant who in February bid on four grazing parcels totaling 11,000 acres in southeast Oregon. Through his Eugene-based business, Emerald Wetland Consulting, Pringle contracts with federal agencies and private landowners to restore degraded wetlands; he says he's trying to acquire state grazing lands so he can harvest grass seeds that are adapted to local conditions and can be used to reseed other lands.
Pringle says that when he surveys a piece of state land, very quickly he ends up knowing more about the array of resources than the managers do. "I'll go into their office and say, "This parcel has a golden eagle nest on it," or, "This parcel has a small population of Sheldon tui chub (a rare native fish)," and they'll say, "Oh, really?" "
In New Mexico, state land managers "still have no idea what plants or animals are out there," says Kevin Bixby, who, from 1991-92 worked as a staff biologist for the State Land Office. An oil or gas leaseholder "can bulldoze a patch of endangered plants to put in a well pad, and no one would ever know or care," says Bixby, who now directs the Southwestern Resource Center, which two months ago led other New Mexico conservation groups to call on the state to inventory its lands for biological resources and study impacts of management.
Zilla Padilla, who handles commercial leasing for the New Mexico State Land Office, concedes, "Compared to the BLM (federal Bureau of Land Management), we're way, way understaffed." The result, says Bixby, is that "state lands have been managed as if they were private holdings of the leaser."
State lease auctions already resemble private enterprise, since there is some element of competition. Federal grazing is decided much differently: under the Taylor Grazing Act, federal grazing permits are not auctioned off. Each federal permit is tied to a base of private property, and the only way to acquire the lease on the public land is to persuade the rancher to sell the ranch. Conservationists can't bid their way in without permission.
The power structure that rules state lands tends to be nearly as obscure and confusing as the lands themselves. Most states have set up a bureaucracy overseen by some version of land board that is more political than professional. Typically the land board is composed of three or more of the state's highest elected officials, such as the governor and secretary of state, none of whom had to show an interest or expertise in state lands to win election. In some states, members of the land board are appointed by the governor.
In New Mexico and Washington, power rests with a state lands commissioner chosen by statewide election. Such statewide races occasionally highlight management of state lands, but they can also be shrugged off.
"Most citizens and schoolchildren, and many specialists in public-land management, are not even aware that school lands exist," according to Souder and co-authors Sally Fairfax and Greta Goldenman in a 1992 law journal article for Lewis and Clark College. Souder, with Fairfax, has researched and written a book on state lands (due out from University of Kansas Press this fall); he says, "Nobody has done anything like this (examining state land management in such detail) since the 1930s."
"I know environmentalists who spend a lot of time scrutinizing how BLM lands are managed," says Bixby, the New Mexico biologist. "And they do nothing about state lands. Yet there's nearly as much state land in New Mexico as BLM land - close to 9 million acres." Bixby says that when voters deal with a ballot that includes the race for lands commissioner, "a lot of people don't know what they're voting for."
There is one way that the public, knowingly or not, has pushed its way into state-lands management. As the West's population grows and open spaces fill in, hikers, campers, hunters, birdwatchers and others are creating anarchy on state lands. In most cases, they are recreating illegally. The laws governing recreation access vary widely from state to state.
Oregon, Washington and Idaho generally have allowed free recreational access to lands leased for grazing.
Montana is in the third year of trying to require recreationists on state land to buy a $5 license. About 30,000 licenses have been sold each year - evidence of a different sort of income that state lands can generate. At the moment, most types of recreation are allowed on state lands in Montana, but campfires are not allowed, and camping is limited to two consecutive days; dogs must be leashed. If you recreate without a license, it's a misdemeanor violation, punishable by any combination of a $500 fine or six months in jail. And next year it'll probably cost you more to stay legal - a study of the licensing system is under way, and the tentative recommendation is that the annual fee be raised to $25 for state residents and $50 for out-of-staters.
In Wyoming, you can hike or hunt on state land for free, but you can't camp overnight.
In New Mexico, you're supposed to buy a $25 permit to tread on state grazing land (mineral, oil and gas and certain other commercial leases remain off limits). But New Mexicans have pretty much rebelled against the idea of having to buy permission to do what they've been doing, without permission, for quite a while. So far this year, New Mexico has sold an unwhopping couple of dozen recreation permits.
Bruce Babbitt, the current U.S. secretary of Interior, ruled when he was attorney general in Arizona that if you hold a valid hunting or fishing license you can hunt or fish in season on state land. But you can't conduct any other form of recreation. Organized groups can apply for a permit to recreate at a specific time and place. Four years ago, the Arizona State Land Department proposed to allow general public access, but ranchers, miners and other commercial leaseholders put up such a fuss that the legislature didn't allow it, says Glendon Collins, deputy land commissioner for Arizona.
Collins echoes what other state- lands managers around the West say, in terms of recreation: "We get a lot of public use that isn't permitted, and we don't have the staff to tell people to get off the land. As long as they don't cause problems, we live and let live, though technically they don't have the right to be there."
In Colorado, you can see how states are struggling to balance revenues against public demand for recreation. Colorado was among the last states where access to a parcel under lease was totally controlled by the leaseholder; two years ago, experimenting with multiple use, the state land board began working with the state Division of Wildlife to identify lands with high recreation potential.
The Division of Wildlife has agreed to lease up to a half-million acres at $1 an acre per year, primarily so people with hunting licenses can have access during hunting season. Management plans are being drawn up for each parcel of land leased by DOW. Some parcels are as small as 40 acres; about 200,000 acres have been leased by DOW so far.
Lucy Black Creighton, one of the state's three appointed land commissioners, acknowledges the limitations of her staffing and budget: "There is some philosophical tension about having management plans that you can't monitor."
In the Colorado experiment, private individuals and local governments can also seek general recreation leases. The recreation leases will merely overlay existing grazing leases, as demand for recreation develops.
Some states have gone further toward consolidating their holdings into manageable tracts and identifying parcels that have special environmental and recreational value. Fragmented or special parcels can be traded for other lands, or simply sold.
"We're trying to put these lands in the hands of the agencies that have the budgets and manpower to manage them," says Cleary of the Wyoming land office.
Washington state has taken the lead in making a portion of its lands genuinely public. The state legislature has allocated and spent more than $200 million in the past four years to buy parcels of land from the state's school trust. Such parcels are turned into parks or conservation areas.
"Once these lands are moved out of the trust, there's no obligation to cut timber on them," says Don Vogt, a planner and asset manager for Washington's Department of Natural Resources, which manages state lands of all types.
An uproar arose in Wyoming over an acceleration of sales to local governments and private-sector sales to ranchers and other buyers. In the past three years, the land office has sold 17,580 acres of trust lands in 16 counties for $9.1 million. Four months ago, the state land board imposed a two-year moratorium on sales, with some exceptions.
In one sale last month that was grandfathered in, Russ Wyant, who runs a utility-construction company in Sheridan, bid $242,000 for 800 acres then under lease for grazing by the Beckton Stock Farm. Wyant was fairly close-mouthed about what he intended to do with the parcel; his secretary says he intended it for his "personal use."
Like most other Western states, Wyoming has a preferential policy, giving leaseholders an advantage at the time of releasing or sale by auction: All the leaseholder has to do is wait for the high bid to be made, and then match it. Beckton Stock Farm met Wyant's bid and bought the parcel it had been leasing. Cam Forbes, whose family had held the lease for more than 50 years, said after the auction, "If the state liquidates a lot of state land, it would tear up a lot of ranching operations."
The state's justification for selling off the Sheridan parcel is hard to argue with: The lease was bringing in about $700 a year. Figuring a return of 8 percent interest, proceeds from the $242,000 sale will earn the state $19,360 a year.
No state "can just sit on a piece of state trust land. The land has to be made productive," says Souder of Northern Arizona University. He says that from a financial perspective, often the states are doing a better job managing their lands than the federal agencies do with federal lands. "States can't shift around the money the way the U.S. Forest Service does on below-cost timber sales."
He points to grazing fees. Last year nearly every Western state charged more per animal unit month than the federal rate of $1.86. Only Arizona, charging $1.43 per AUM, was lower. At the high end, Montana charged $4.03 per AUM, Idaho $4.99, Washington as much as $6.84.
But state leases are more flexible than federal leases. States allow grazing leases to be subleased for a profit; federal leases cannot be subleased. Beyond the most basic limit - how many cows or sheep can be put on a piece of land - some states impose few, if any, conditions. In New Mexico, for instance, ranchers typically renew their leases by paying a formula based on "carrying capacity" of the land, but they can exceed the carrying capacity if they wish.
Also, to reduce impacts from grazing, federal permits tend to prohibit grazing during seasons when the land is most sensitive; state permits tend not to impose seasonal limits. During months when grazing isn't allowed on federal lands, ranchers can move their livestock to state lands. This flexibility makes state lands both more valuable and more susceptible to abuse.
"These lands have been so degraded, they're returning fewer dollars to the state than if they were in good or excellent condition," says Bob Phillips, Oregon state coordinator for Rest the West, which in February bid on a small grazing parcel in Malheur County. Phillips says there has been little improvement since a 1970 study from Oregon State University found 75 percent of state grazing lands were in fair or poor condition.
Any degradation of the resource gives critics of state-land management more leverage. In the mix of constitutional and state law and court decisions, "Everywhere there is a requirement to protect the land," says Souder. "The legal documents between the states, as trustees, and the schools as beneficiaries are really no different than private trusts. The states have to protect the productive capability of the asset. There's a real long-term benefit to good stewardship."
In Idaho, Marvel says that one reason he selected the parcel he bid on was that it contains a riparian area that has been pounded by cattle. Dale Dunn, a retired federal biologist, studied the parcel and photographed and reported "scalped meadow ... frazzled sagebrush, grazed to the ground, few seed heads, few forbs," erosion and trash.
In the auction in January, Marvel bid $30 for grazing rights on the parcel; his was the only bid. The ranchers holding the lease, Will and Vangie Ingram, refused to participate in the auction.
Less than two weeks later, the State Board of Land Commissioners (five statewide elected officials including the governor, the attorney general and the state schools superintendent), rejected Marvel's bid. The result of the one-bid auction was tossed out and the Ingrams were allowed to renew the lease for the same fluctuating rate they had been paying: between $260 and $285 a year. Don Hobbs, the Idaho Department of Lands chief of range management, says, "In my 25 years with the department, this is the first time the Board didn't grant a lease to the highest bidder (at auction)."
Marvel has filed suit in state court trying to make his bid stick. He says he was prepared to bid much higher for the parcel if the ranchers had bid against him instead of falling back on the political process.
On the basis of the auction alone, "clearly the land board was not acting with undivided loyalty to the beneficiary (the schools)," says Souder. In the simplest economic terms, he says, "The beneficiary would be better off if this land was leased to Jon Marvel."
Idaho law allows the land board to reject a bid that conflicts with established uses of a parcel. But Marvel may prevail at one level or another in the courts. Souder and officials at various state land agencies cite a dozen previous court decisions binding the states to manage trust lands for the highest economic return, with no favoritism to anyone except the school systems that are supposed to benefit.
A key 1982 court decision out of Oklahoma, in which a teachers' union challenged preferential grazing policies there, "overturned the state's whole grazing situation," Souder says. "Now leasing is very competitive in Oklahoma. State lands are leased by all sorts of interests - hunters, recreationists, people who just want to lease the land and let it sit there."
"The grazing lands are leased for such a tiny amount that it's a real rip-off of our schoolchildren," Marvel says. "Nearly 2 million acres of state land in Idaho is dedicated solely to livestock interests, producing revenue of about 50 cents an acre." Conservationists, he says, would be willing to pay far more for certain parcels, if they were allowed to. "We're trying to get the word out," Marvel says. "This is a test case."
People like Marvel trying to get into bidding on grazing leases will be "highly disruptive," warns Bob Sears, executive vice president of the Idaho Cattle Association. "Ranchers, to continue, need some assurances that they're going to have reasonable fees that don't drive them off the land."
There's a danger that conservationists don't yet acknowledge. If states are forced to maximize revenues, if the lands are truly opened to the highest bidder, the boom in real estate around the West could expand in a new direction. Why couldn't some of the new recreation leases go to developers of rural subdivisions who are seeking common land they can market as part of their package?
States could begin to sell off the choicest parcels to people who have no interest in conservation, ranching or public access. The deepest pockets would prevail.
Ray Ring recently joined High Country News in Paonia as senior editor. Steve Stuebner contributed to this report, which was paid for by the High Country News Research Fund.
For more information on state lands, contact the Western States Land Commissioners Association, c/o Carol Ford, Oklahoma Land Office, P.O. Box 26910, Oklahoma City, OK 73126. © High Country News