Western legislatures grab for control of public lands
by Jodi Peterson
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."