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The Great Western Land Grab

Photo: U.S. Forest Service

Ken Ivory rubs some people the wrong way. Indeed, some people dislike him enough that they’re willing to elevate a policy disagreement to a legal accusation. In June 2015, a group filed complaints with the attorneys general of Arizona, Montana, and Utah (dismissed in October) charging the Utah state representative with fraud.

Ivory, you see, also heads the American Lands Council (ALC), and a progressive activist group called the Campaign for Accountability (CFA) took exception to ALC’s efforts to shift the federal government’s vast landholdings throughout the West to state governments. Ivory “misleads local officials into supporting an effort to return federal lands to the states that is patently unconstitutional and would impose prohibitively expensive costs on the states,” the group said.

Ivory’s “misleading” crusade has been striking a chord across the West. While the limited polling on the issue finds divided opinions over the specifics of state vs. federal control of territory, they also show that westerners remain overwhelmingly committed to keeping public lands open to the recreational and economic activities that federal agencies have been choking off. Increasing restrictions and resentment of the same have spurred lawmakers in multiple states to adopt Ivory’s approach to confronting D.C.’s practices and power.

That growing popularity may be what actually upset the CFA, a group closely tied to the Democratic activist David Brock’s Citizens for Responsibility and Ethics in Washington (CREW). As the Congressional Research Service pointed out in a 2012 report, the feds own more than 60 percent of Alaska and almost “half of the land in the 11 coterminous western states.” Elsewhere in the U.S., by contrast, the share of land owned by the federal government is just 4 percent.

Western complaints about D.C.’s management of that land and the resources in and under it are often described with the term “Sagebrush Rebellion.” That phrase was coined in the 1970s, when federal wilderness designation threatened to put much western land off-limits to commercial development and to motorized recreational use. In a region where Arizona’s 41 percent federal ownership actually pales in comparison to the 80 percent of Nevada controlled by D.C., putting land and the resources it contains off-limits was seen as the equivalent of a knife to the throat.

Chafing against federal restrictions and management practices, Sagebrush rebels pushed for surrender of those vast stretches of terrain to the westerners that actually lived there. They variously argued for sale of holdings to private owners or else transfer to state and local authorities.

 

Back to the Sagebrush

Western states are rich not just in resources but in scenery. Where the locals saw opportunities for grazing, coal mining, and logging, federal officials saw natural wonders ripe both for postcards and personal exploration. The emphasis on those outdoors destinations, perhaps underappreciated by westerners trying to scratch a living from a region that often only grudgingly obliged, frequently irritated people who felt as if they were being treated more as intruders in a museum than as citizens of states of the union.

The original Sagebrush Rebellion largely sputtered after the election of a seemingly sympathetic president, Ronald Reagan, who proclaimed, “I happen to be one who cheers and supports the Sagebrush Rebellion” while on the campaign trail. But the underlying tensions never disappeared after progress on the issue went no further than that verbal endorsement.

In 2012, with Western land complaints still unresolved, legislators in Utah—63 percent owned by the federal government—fired a legislative warning shot when they passed the Transfer of Public Lands Act, penned by Ivory. The law demanded the surrender of public lands to the state based on a controversial legal argument that the federal government had an obligation to give up the goods. It also threatened outright seizure of the same if the feds didn’t comply.

The American Legislative Exchange Council, a coalition of conservative state lawmakers and like-minded private interests, turned that law into model legislation for other western states. A similar bill failed on an 8–5 committee vote in Colorado, while another was vetoed by Republican Arizona Gov. Jan Brewer the same year. In April 2015, a new Arizona governor—Doug Ducey, also a Republican—vetoed two bills seeking the surrender of public lands but agreed to a study committee on the issue.

In Idaho, Republican Gov. Butch Otter has accused the federal government of badly mishandling the public lands under its control, which constitute 62 percent of the state. “Idahoans and all Americans will continue paying in many ways for the lack of direction—or misguided direction—that federal laws and policies provide public land managers,” he wrote in a 2012 op-ed. Otter called for greater local say to offset “the shortsightedness of absentee federal landlords.”

Otter has since testified to Congress in favor of a pilot program that would let Idaho control a share of the federal lands in the state. The state’s legislature maintains a committee to study “the process for the State of Idaho to acquire title to and control of public lands controlled by the federal government.”

In April 2014, representatives from Utah, Idaho, New Mexico, Arizona, Nevada, Wyoming, Oregon, and Washington met in Salt Lake City to discuss prying land from the federal government, even as the Bundy standoff over grazing rights simmered in national headlines. Nevada rancher Cliven Bundy’s conspiratorial views and racist sentiments vacuumed up much of the national media attention paid to his standoff with the Bureau of Land Management. But the locally based Las Vegas Review-Journal editorialized that the controversy was further evidence that “the federal government owns too much land — more than 80 percent of Nevada — and is completely incapable of managing it.” The newspaper urged federal officials to sell much of their holdings to local people with a stake in how it’s used.

 

Competing Visions

Gov. Otter’s issues with federal land management relate to what he sees as poorly crafted federal policies that increase the risk of wildfires, the bane of life in arid country. Current federal policy, charges Otter, is dominated by people who “want to return our public lands to their most natural state, when the West was populated only by relatively small numbers of native people.”

Set aside the issue of whether the pre-Columbian West was truly “natural.” (Anthropologist Shepard Krech III suggests in his 2000 book The Ecological Indian that people were managing and changing the American landscape, including burning vast acreages, centuries before Europeans set foot on the continent.) The region is now more heavily populated and urbanized than in the past, which means wildfires can have disastrous consequences. In September 2012, over 300,000 acres burned in the lightning-triggered Mustang Complex blaze, forcing the evacuation of hundreds of people in east-central Idaho.

Preventing disaster, argues Otter, requires “active management” that “removes fire-prone fuels” and eases access because “[r]oad systems make it possible for people, engines and bulldozers to respond to fires.”

Federal land managers frequently take an opposing tack. In northern Arizona, the United States Forest Service stirred up a hornet’s nest when, in compliance with a 2005 mandate from D.C. issued to all national forests, it announced a Travel Management Plan that essentially flipped rules about forest use. Previously, motorized travel in the national forest had been permitted where it wasn’t explicitly forbidden; now it was forbidden except on designated roads, areas, and trails. Not only was forest travel now restricted, but so was the popular pastime of dispersed camping, since vehicles were banned from pulling off the road in all but very limited stretches of forest, reducing the area in which such camping was allowed by two-thirds.

Adding interest to the forest restrictions is the Forest Service’s refusal to block or mark closed roads. Travelers are expected to deduce permissible roads from their maps or risk fines.

In a widely distributed letter to policy makers, Coconino County Sheriff Bill Pribil objected: “The Forest Service is converting hundreds of square miles of forest land to ‘wilderness’ status by fiat. They will be closing hundreds of miles of roads in our forests that have been open to the public for decades.” Anticipating widespread defiance of the rules, he added that “the Forest Service will be making criminals out of families that have camped or enjoyed areas of the forest for generations.”

Pribil’s predecessor, Joe Richards, was just as blunt in a letter to the Arizona Daily Sun and other newspapers, criticizing “the federal policy of continual encroachment, closure and restrictions by fiat.” He warned that “the real goal is to drive people off the land and return it to its ‘pre-civilization’ state.”

Richards’s concerns about driving people from the lands might be dismissed as so much paranoia if advocates of forest restrictions weren’t so eager to confirm them. The Center for Biological Diversity, a Tucson-based organization that advocates for restrictive forest rules, including road closures, says on its website, “We work toward a future in which species and ecosystems are finally afforded primacy among public lands priorities.” What that means can be inferred from the list of victories the group claims against human activities, including “prohibiting mining on 3.4 million acres and off-road vehicles on 550,000 acres, and reducing or prohibiting livestock on 2 million acres.”

But what about Butch Otter’s concerns about wildfires? True, the Forest Service’s Travel Management Plan exempts “any fire, military, emergency, or law enforcement vehicle for emergency purposes,” but that carve-out is likely to mean little as years pass and access roads become impassable, making fire suppression more difficult in hard-to-reach areas.

 

And a Clash of Competency

If watching the world go up in flames around them is maddening for westerners, seeing it turned to ash while potential wealth is locked away out of reach is at least as frustrating. The federal government may increasingly labor to keep people out of public lands, but it’s just as determined to confine all potential sources of profitability within those same borders.

“The Forest Service and the Bureau of Land Management lose $2 billion each year managing federal lands,” wrote Shawn Regan in the pages of The Wall Street Journal in April 2015. A former National Park Service Ranger and current research fellow at the Property and Environment Research Center (PERC) based in Bozeman, Montana, Regan added, “For example, the feds are notorious for conducting ‘below-cost’ timber sales, in which they spend more selling the timber than they get in return.”

This is the sort of mismanagement that might put the American Lands Council on the same page as the Center for Biological Diversity in opposition to commercial activity that leaves taxpayers subsidizing somebody else’s profits.

With Holly Fretwell, a professor of economics at Montana State University, Regan co-authored a 2015 report for PERC that found federal “public land managers lack a clear purpose or sense of direction.” Management of resources conflicts with environmental goals which clash with recreational uses—all bound by regulations and eyed by competing constituencies. Without a clear incentive to keep the books on federal turf in the black, the administration of enormous tracts of beautiful and resource-stuffed territory is often a muddled, inefficient proposition for the feds.

By contrast, the states have a track record of managing trust lands, which are specifically designated as income-generating assets, to maximize returns. Trust lands are required to generate revenue to support schools, hospitals, and other uses, and the intended beneficiaries have a legal claim on the proceeds.

To illustrate their case, the authors point to Arizona, where each acre of federal land generates just $1.62 for state and local communities. By contrast, each acre of trust land in Arizona generates $11.40 for state and local communities. The comparable figures are: $4.07 from federal lands in Montana vs. $20.99 from state trust lands; $2.09 from federal lands in Idaho vs. $21.12 from state trust lands, and $19.55 from federal lands in New Mexico vs. $60.85 from state trust lands.

Regan and Fretwell conclude that “States have clearly demonstrated their ability to generate greater returns from land management than the federal government,” and that states had the potential to use transferred federal lands just as efficiently, so long as they managed them as they did their existing trust lands—that is, provided they didn’t emulate federal practice.

There are, it should be noted, examples of federal lands being more carefully and profitably managed than state-owned counterparts. The U.S. Forest Service contracts with private companies to operate campgrounds and recreation areas across the United States. Responsible for their own bottom lines, concessionaires must make sure their properties attract paying visitors and break even on their own merits. A separate 2013 PERC study by Warren Meyer compared the Forest Service’s success with this approach at a park near Sedona, Arizona, with a nearby money-losing operation owned by the state. During a budget crunch, the inefficient state park faced closure while the privately managed federal property remained “open and well-maintained without the need for tax money.”

So there’s nothing inevitably more efficient about state management relative to that based in D.C. – it’s all in the incentives and the execution. But despite its success with the practice, the Forest Service recently canceled some of these concessions at the Tahoe National Forest in California, assumed management itself, and promptly hiked fees while reducing services.

Meyer, president of a company that manages some public parks, frets that “people who are skeptical of private enterprise and more confident in government-led solutions tend to self-select for government jobs” and favor bureaucratic priorities and practices over concerns for efficiency or serving end users. And those people seem disproportionately represented in federal agencies managing public lands.

Regan and Fretwell specifically excludes the cost of managing and suppressing wildfires from their report. But with westerners already dissatisfied with federal policy in that area, and with local control promising greater resources with which to combat wildfires, that may not be an issue.

 

Cultural Divide

But economics and competent management may be almost beside the point in much of the struggle over control of public lands. Picking sides has become something of a cultural marker.

Note that the Travel Management Plan implemented in northern Arizona restricts “motorized” access, which has become a cultural dividing line when it comes to outdoors use. In general terms, on one side are off-roaders, ATV-users, dirt-bikers, and their related commercial interests; on the other side are hikers, backpackers, to a lesser extent mountain-bikers, and their affiliated businesses. (Horseback riders, while culturally closer to the motorized set, seem to occupy a tolerated middle ground.) By and large, the motorized set see themselves as more rural and more traditionally “Western,” and they boast of their connections to the ranching, mining, timber, and energy industries. Aficionados of muscle-driven travel are centered in cities and college towns and tend to be critical of commercial concerns entering into the management of the great outdoors.

But if hikers and backpackers like to wrap themselves in a cloak of environmental rectitude and decry opponents as despoilers of the wilderness, they too have a monetary stake in the conflict. When Utah Gov. Herbert signed his state’s legislative challenge to federal control of public lands, the Outdoor Industry Association complained that “these policies threaten the recreation infrastructure that is fundamental to the outdoor industry.” The group threatened to move its Outdoor Retailer convention, which brings an estimated $40 million to Utah every year, from its traditional home in Salt Lake City in response to the “political climate.” (The group didn’t follow through on the threat.)

Even before the forest travel restrictions were implemented, the stakes had become high—and aggravating for the affected. As Colorado’s White River National Forest prepared its own Travel Management Plan in 2005, the Aspen Times noted that already “nearly one-third of the 2.3 million acres in the White River is designated as wilderness, where motorized and mechanized users are banned and only hiking and backpacking are allowed.”

 

Tombstone

The muscles vs. motors divide isn’t just a cultural indicator. It can have real-world consequences, even spelling life or death for a historic community. In 2011, the Monument Fire torched the 1880s-era pipelines that connected Tombstone, Arizona, to springs in the Huachuca Mountains, leaving the town dependent on a few inadequate wells. Until that fire, the town known best for a vigorous disagreement at the OK Corral had a better water situation than many western settlements. Its pipelines were constructed by the forward-thinking Huachuca Water Company long before the U.S. Forest Service claimed authority over the surrounding landscape, and they kept the stuff of life flowing to the town of 1,500.

The fire and subsequent rain-driven rockslides on denuded slopes destroyed those aging lines and necessitated repairs. But the Forest Service has designated the terrain through which 26 miles of pipeline run as “wilderness” off-limits to anything mechanical or motorized, and it refuses to ease those restrictions. Rangers threatened city workers with arrest when they brought in an excavator. Even the use of wheelbarrows had to be negotiated.

Playing to the stereotype of out-of-touch federal overlords, the Forest Service cited the presence of the Mexican spotted owl as reason to deny authorization for the use of mechanical equipment in pipeline repairs. One of its representatives, James Upchurch, evoked scorn when, in court, he voiced ambivalence over the relative importance of owls and people.

Part in protest and partly to get something done, Tombstone organized a “shovel brigade” of volunteers to make repairs manually. CNN coverage of the brigade’s efforts opened with federal rangers who hiked out to the site of the work observing owls through their binoculars.

Represented by Arizona’s free-market Goldwater Institute, Tombstone challenged the Forest Service in court. So far it has lost most of the legal battles, but won sympathetic press coverage and strong public support.

 

Tilting at Windmills?

Westerners may have real grounds for displeasure with federal control of public lands, but getting the federal government to surrender that turf is another matter. The fraud filings against the American Lands Council call efforts to force the federal government to transfer land to the states “patently unconstitutional”—a charge echoed by the Grand Canyon Trust and the Arizona Republic.

They have a point. The 1894 federal Enabling Act preparing the ground for Utah’s admission as a state said, in addition to banning polygamy, “the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof,” with control resting in the hands of Congress. The equivalent law for Arizona, passed 26 years later, contained nearly identical language, including the feds’ condemnation of “plural marriages.”

Article VI of the U.S. Constitution says, in part: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” This “Supremacy Clause” would seem to settle the matter, mooting the Transfer of Public Lands Act and its counterparts around the angry West.

As Anne Weismann, executive director of the CFA, told me via email that this means Ken Ivory is guilty of fraud. She says he is using “his position as head of American Lands Council to raise money based on claims that have been widely and soundly rejected on legal and factual bases.” Weismann basically accused Ivory of running a scam based on bogus legal arguments, then pocketing the proceeds.

That’s “quite amusing,” Ivory replies. Ivory says that the money he is paid by the American Lands Council is a fraction of that collected and paid out by Weisman’s group and its related organizations. Ivory and his wife together collected $115,000 from the ALC in 2013—half the $230,000 CREW, the parent organization to CFA, paid former executive director Melanie Sloan. (CFA itself was founded only in spring 2015, and Weismann didn’t respond to my question about her salary.)

But you can get lost in the funding charges and countercharges that partisan groups lob at each other. More importantly, are ALC’s legal claims fraudulent?

Ivory, unsurprisingly, says no. His American Land Council (which counters additional controversy over the sale of real estate to private owners who might actually know what to do with it by focusing on state vs. federal control) points out that the Enabling Act language surrendering control of lands to the United States also emphasized that federal control would continue only “until the title thereto shall have been extinguished by the United States,” and says that the federal government implicitly promised to do just that.

He’s not alone. In an analysis of Utah’s Transfer of Public Lands Act published by the Brigham Young University Law Review, Donald Kochan, of Chapman University School of Law, concludes, “There are credible legal arguments supporting Utah’s demand that the federal government extinguish certain public lands within the State. At the very least, it seems clear that the law is not ‘clearly’ unconstitutional as some opponents contend.”

In an email to me, Kochan stressed that he had no personal knowledge about the accusations against ALC, but he stood by his 2013 law review paper. “Individuals should read the analysis and judge for themselves. If they would give it serious consideration, I think they would move beyond the arguments about frivolity.”

A 2013 article in the Michigan Journal of Environmental and Administrative Law came to a similar conclusion. Relying on a contractual reading of the Utah Enabling Act, author Austin Anderson concludes that there’s a good argument that the federal government bound itself to surrender those vast public lands to the states. “The constitutionality of [Utah’s Transfer of Public Lands Act] remains plausible,” he writes.

That’s not to say that anybody sees anything but an uphill battle for western efforts to reclaim those mountains, forests, deserts, and resources. “It remains to be seen whether the executive would enforce a judgment favorable to the states and whether the states could effectively resort to the political process,” notes Anderson. Kochan offers a similar caution: “There is a difference between the assessment of a legal argument’s legitimacy, credibility, or supportability and the probability of a legal argument’s success in light of political, soft-‘precedential,’ or judicial temperament hurdles.”

Which means that this all might be a quixotic battle. But a quixotic battle isn’t a “fraud”—it’s a David and Goliath contest between sincere, if mismatched, opponents.

Then again, CFA’s charges against Ivory and ALC may be an indication that when you step away from the legal arena and enter the realm of bare-knuckles politics, the opponents actually aren’t so mismatched.

Recognizing the issue’s resonance among many Western voters, the current Republican platform includes the sentiment: “Congress should reconsider whether parts of the federal government’s enormous landholdings and control of water in the West could be better used for ranching, mining, or forestry through private ownership.” CFA, whose leadership has close connections to the Democratic Party and the Obama administration, is likely less concerned about arguments over constitutionality than with depriving Republicans and conservatives of a potential weapon for galvanizing western voters.

But political battles rooted in D.C. politics won’t address western concerns one way or another. The dispute is old but the tensions are fresh, renewed by new grievances to add to the litany of long-simmering ones. At its root is a conflict of visions about use of beautiful and unforgiving wide-open spaces, but also about the relationship of the people who inhabit those spaces with a distant and often distrusted federal government.

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