Western legislatures grab for control of public lands

  • Wallowa County, Oregon, billboard

    Wallowa County Stockgrowers Association

In late April, Arizona's Legislature approved a bill demanding that Washington, D.C., give the state control over most of its federal land. Utah Gov. Gary Herbert signed a similar measure in March. These bills are, of course, highly unlikely to result in any actual transfer of land; most legal experts think they'll prove unconstitutional, and decades of Supreme Court decisions firmly support federal oversight of certain lands.

The rhetoric behind the measures is all about states' rights, but they would also boost corporate access to Western natural resources. "This push is driven by the fossil fuel industry," says Pete Maysmith, executive director of Colorado Conservation Voters, "and it's been fascinating to see ALEC and its agenda and funders more exposed."

ALEC –– the American Legislative Exchange Council –– is funded by major corporations, such as Koch Industries, ExxonMobil and Shell Oil Co. Nationwide, about 2,000 state legislators are members of the conservative policy group, which furnishes them with model bills, including the template for the current measures. ALEC also supplied language for an unsuccessful 1995 federal Sagebrush Rebellion Act that sought to transfer 422,200 square miles to the states.

The first land-transfer efforts began much earlier, in 1929-'30, spurred by anger over grazing fee hikes. Later Sagebrush Rebellion skirmishes, in 1979-'80 and in 1995-'97, forced federal agencies to collaborate more with locals on land management. Now, the Arizona Legislature demands that the feds relinquish some 48,000 square miles, roughly the area of Pennsylvania, by 2014, while Utah asserts ownership of about 47,000 square miles. (At press time, Gov. Jan Brewer had yet to sign or veto the Arizona bill.) In Colorado, a bill seeking control of 36,000 square miles recently failed. The bills exclude national parks, Indian reservations and military bases. A handful of other states are said to be contemplating similar measures for next year. "What we envision," says state Sen. Al Melvin, R-Tucson, the primary sponsor of Arizona's bill, "is all of the Western states going before the Supreme Court to force this issue."

Supporters say that the federal government hasn't kept a promise, made at statehood, to grant Western states ownership of their public lands. They claim that vast Bureau of Land Management and Forest Service holdings -- ranging from 22 percent of Washington to 76 percent of Nevada -- put those states at a competitive and tax disadvantage compared with Eastern states, which have mostly private land. They also complain that federal over-regulation has hurt state economies and increased fire danger. "Over the last 30 years," says Melvin, "mining, lumbering and grazing have come to a screeching halt, snuffed out by the so-called environmental practices of the Forest Service and BLM."

But in each previous round of the Sagebrush Rebellion, states have ultimately backed off. Many Westerners value their right to hunt, fish and recreate on federal lands, and they worry about watershed protections. "These bills miss the mark so badly about how much Westerners value their public lands," says Maysmith. Nor are states necessarily ready to give up federal benefits like firefighting services, Payments in Lieu of Taxes, grazing subsidies and mineral royalties. The national treasury also gains from those royalties and other revenues, notes Gregg Cawley, professor of political science at the University of Wyoming and author of Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics. Furthermore, federal lands are owned on behalf of all citizens, and Eastern and Midwestern congressional representatives aren't eager to give those lands to Western states.

The land-transfer bills, when paired with recent bills regulating oil and gas development, also point to serious internal conflicts over "local control." State lawmakers tout the importance of giving locals a strong voice in how land is managed, rather than handing down federal dictates. Yet, because they also want to make it easy for industry to operate, they're often reluctant to cede authority down to the city and county level.

Idaho Gov. Butch Otter, a Republican who often talks about "local control" over natural resources, signed a law in March preventing counties and cities from banning or even regulating oil and gas drilling. While local governments retain some say in zoning and planning, the state's Oil and Gas Conservation Commission has final authority. Colorado has taken a similar stance; two counties tried to pass their own drilling regulations this spring, only to receive a warning letter from the state's attorney general and its oil and gas commission stating that "responsible government requires uniform regulation" at the state level. Counties can hire their own well inspectors and exercise some limited influence over surface impacts like dust and noise, but can't prohibit drilling or set rules for "downhole" activities like hydraulic fracturing. Colorado lawmakers are also now considering a bill to punish local governments that "restrict or delay" oil or gas production, by preventing them from receiving their share of severance taxes.

"Legislators say we need one-size-fits-all regulation for oil and gas development at the state level," says Bruce Baizel, senior staff attorney at Earthworks. "Then they turn that same argument against the federal government and say, ‘One size doesn't fit all.' " Baizel predicts lawsuits from local governments: "These states have taken away people's basic right to say ‘no.' "

If Republicans take the Senate and the White House this November, the Sagebrush Rebellion is likely to benefit. The 2011 Disposal of Excess Federal Lands Act, introduced last year by Rep. Jason Chaffetz, R-Utah, would force the sale of more than 3 million acres. Former Republican presidential hopefuls Ron Paul and Rick Santorum have also called for federal land sell-offs, while presumptive nominee Mitt Romney has said he doesn't know the purpose of public lands.

If that transfer ever does occur, the old adage "Be careful what you wish for" might apply. Cash-strapped states would have trouble covering even minimal management of former federal land. (It's hard to know just what the impact on states would be, but if Colorado's bill had passed, for example, lawmakers thought about 350 more employees might be needed. The BLM and Forest Service spend roughly $260 million annually on the lands they manage in the state.) "The idea would be to sell most of this land," says Melvin, "and remit 95 percent of the proceeds to the federal government." However, there aren't ready buyers for these millions of acres. "(These bills) seem very agenda-driven and not rooted in the reality of the world we live in," says Maysmith. "They don't recognize how essential these lands are to who we are as Westerners."

Craig Jones
Craig Jones Subscriber
May 15, 2012 12:06 PM
"Over the last 30 years," says Melvin, "mining, lumbering and grazing have come to a screeching halt, snuffed out by the so-called environmental practices of the Forest Service and BLM."

Really? Is there any chance that reality could enter into this? (the first 10 of those 30 years are in the Reagan-Bush years, hardly the great slowdown in resource use). How about some numbers, Sen. Melvin? For instance, from 1985-2005, Nevada alone yielded more than 130,000 oz of gold, more than three times the total of the California gold rush and a huge increase on previous years. Perhaps he was thinking of the poor declining copper industry in Arizona? While those mines suffer from intense international competition, in 1980 Arizona produced 757,000 metric tons of copper; in 2010 it produced 797,000 tons. Hardly a screeching halt. Overall lumber production in the west is down some, but closer examination shows it has been a wild ride <http://www.fpl.fs.fed.us/[…]/fplrp615.pdf> with multiple causes (not least competition from a growing industry in the South). And certainly oil and gas drilling has been unleashed throughout the west (though more in the Rockies than more western states). Grazing? Maybe that's down, I gave up searching on those numbers, but even if it is down (as is likely), grazing was an activity that seemed to fill the space you couldn't use any other way, so it was bound to get crowded out by urbanization and agriculture expanding into more marginal lands; you'd want to pick apart the causes.

Is there any chance we will see a return to conservative voices actually connected to facts on the ground? We need dialog to work through to the best solutions, but arguing about a fantasy world is pointless.
Douglas Tooley
Douglas Tooley
May 15, 2012 04:41 PM
This debate is a regional reiteration of national Tea Party politics, blaming the Feds for current problems. But on the national level we also have the 'Occupy' movement blaming Wall Street, for exactly the same problems.

Access to Federal Land is a critical issue and I'd hope the established editorial voice of HCN could transcend at least some of that partisan bickering - consider for example HCN Blogger Jen Jackson and the issues of road access and camping/housing in Moab.



I was camping in Moab myself just one November weekend before Officer Brodie was shot - and was both the victim of Federal Law enforcement harassment and a witness to another likely incident of same. As a foreclosure victim I share with the Sagebrush governors a very strong concern about our Federal Government.

But even with the long history of using Federal resources to address economic problems starting with Homesteading leading to depression era projects ranging from national park trails to Hoover Dam such an intelligent solution is likely not to occur if Western politics stays as divisive as the national.

Perhaps the Earth Firster's are right, the best solution is to let our civilization destroy itself, as quickly as possible.
Walt Foutz
Walt Foutz
May 22, 2012 04:05 PM
One of the very best things about the West is the availability of public land for all kinds of outdoor recreation. Conversely, a major shortcoming of the East is the lack of same. Unfortunately, some of the very best public land has been misused and abused for decades by grazing, drilling, mining and logging. If the the long-shot effort to privatize public land actual happens some day, the recreating public will be the big loosers while corporate interests including big private landowners will be the big winners. I believe public land grazing, drilling, mining and logging should always be challenged because the land belongs to all of us, not the privileged few. And nearly every time these extractive and exploitive activities occur on public land, the land is depreciated, sometimes severely so, and frequently requires extensive remediation at public expense. Privatizing public land would be an enormously expensive mistake that we and our descendants would have to pay for in cash and lost opportunity.
William V McConnell
William V McConnell Subscriber
Jun 04, 2012 12:59 PM
Let's face it. The feds are managing their lands very poorly, especially National Forests and BLM lands(see http://www.wvmcconnell.net/?page_id=545). The solution may lie in converting the surface estate of selected federal lands to trust management. This approach is now being considered by the Congress (see http://www.wvmcconnell.net/?page_id=591).
Dean Nyffeler
Dean Nyffeler Subscriber
Feb 26, 2016 09:54 PM
Wow comments on both sides of the issues I am impressed. But no one mentioned the change in Federal policy by the passage of FLPMA that created BLM out of the General Land Office or NEPA which started the slide toward environmentalism instead of Conservation. Yes, I know they were passed during the Nixon Administration but no one ever expects the unforeseen consequences of good ideas.