Maria E. Tussing | Underwood, S.D.

Utah leads efforts to give states control of fed lands

For more than a hundred years there has been a cycle of rebellion and pacification over state and federal land ownership in the West. The Sagebrush Rebellion, a grassroots effort to affect this change in the 1970s and ’80s, was the last time the topic was raised.

More recently, the move to transfer federally-owned public lands to state ownership was started on a higher level—in state capitols across the West.

In April, representatives from nine states in the West—the states where federal land accounts for anywhere from 29 percent 81 percent of the total area—met to discuss the possibilities and necessary measures for taking state control of federal lands.

The effort is led by Utah, which passed the Transfer of Public Lands Act in 2012 with bipartisan support. The act demands the return of federal lands to Utah by the end of 2014. Five other states have created commissions or committees to study the costs and benefits of such legislation.

Utah Representative Ken Ivory sponsored Utah’s bill. Ivory is also an attorney and mediator, and has been in the Utah House of Representatives since 2011. He said right now they are focusing on implementation of the act.

“We’ve been told for years that we gave up the right to that land for the privilege of becoming a state. In the enabling acts that granted statehood to these western states, the federal government promised to dispose of this land, not keep it forever,” Ivory said.

“Understanding the history of how we got to where we got is important,” said Frank Falen, an attorney from Cheyenne, Wyo. who deals with private and federal lands issues. “I think Utah’s basis, historically, is absolutely correct. It was not the intent, agreement or understanding that western states would have permanently a large amount of public land. It wasn’t what states expected when they came into the union.”

Falen says the federal government took over the lands in the West initially to encourage homesteading. “The only reason the federal government controlled homesteading in the first place was they wanted to make sure it was homesteaded by U.S. citizens.”

According to Falen, the original intent of the founding fathers was to privatize all lands in the United States, except what is spelled out in the Constitution and navigable waters and lakes—those were given to the states. “In the 1840s the Department of Interior gave a report every year regarding its progress in privatizing the public domain. President Polk said we have to get these lands privatized. If we can’t get them homesteaded, we need to turn them over to the states,” Falen said. That started changing around the beginning of the 20th century. A series of acts has gradually changed the intent, culminating in the 1970s with the Federal Lands Management Policy Act of 1976 as amended, which says, “the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”

“Part of the argument in FLPMA is that retention is a form of disposal,” Falen said. “I would hope that argument wouldn’t prevail but federal power has been expanded through very strained logic in the past.”

One of the major issues in federal lands management is defining what the national interest is, and what action will most benefit it.

According to Ivory, giving the states control of federal lands is in the national interest. “The urgency is much more apparent now, economically and environmentally. The federal government is trillions of dollars in debt. The single largest line item in states’ budgets is federal funding,” he said, adding that it’s time for the states to use their own land to support themselves. “There is federal forest policy that manages forests for maximum combustibility, it seems. The federal government has no money and they’re managing by litigation.”

Opponents of the move agree to some of those points. Tim Wagner, national staff with the Sierra Club in Salt Lake City says, “There clearly has been a concerted effort by Congress to reduce the federal land management agency’s budgets. It makes it easier to show that they’re doing a lousy job to make the case for a move like this.” But he says the state doesn’t have the resources to manage 30 million acres. “This is a state that can’t find the resources to manage state parks. Where are we going to find the resources to manage 30 million acres of public lands? This leads us to believe this is a smoke-and-mirrors attempt to push control into private hands.”

Wagner says much of the push for the transfer has been from large energy interests who are looking for a way to lessen the government oversight and regulations, providing more opportunity for development.

Wagner says currently there is minimal management of the state trust lands, giving corporations free reign to do whatever they want. “The management of federal lands is done under the guise of several pieces of federal legislation that has set up ways to manage the lands that allows for public oversight. States aren’t required to do that. There needs to be more transparency.”

Falen said that right now the federal government has the right to sell or otherwise privatize lands, and transferring ownership to the states doesn’t mean they will be privatized.

Janine Blaeloch is the founder and director of the Seattle-based Western Lands Project. The goal of WLP is “to keep public lands public.”

“Its not so much a legal question as we believe firmly in the value of having federal lands. I think the public at large is very supportive of having public lands,” Blaeloch said.

Ivory said much of the effort for regaining local control of those lands is being driven by officials on a county level—the people who are dealing with the management issues on the ground.

However, proximity to the land shouldn’t give more weight to the input, said Blaeloch. “I have as much a right to a say in how those public lands are managed as someone who lives in that state. I wouldn’t want someone who lives near public lands in Idaho to have the sole say in how those lands are managed.”

“There’s a lot of public sentiment exactly like that,” Falen said. “The idea that someone who has never been there has as much control as someone who lives there flies in the very face of democracy. Self-determination is what our forefathers fought for. The land belonged to the Crown and the people in England had as much say as the people who lived here. You don’t have any say when the person making the decisions is appointed by someone 3,000 miles away. Someone you didn’t get to vote for makes the rules that you have to live by. When you can be governed in your existence by someone arbitrarily appointed who doesn’t have to stand for election, that is not democratic.”

Falen said some counter that view by pointing out that ultimately the federal agencies are controlled by Congress, which is subject to election. However, he says most Western states have so little representation and Congress is so far removed from the actual management that it’s not very realistic to say that’s effective representation on these issues.

“I think a lot of the controversy that gets stirred up and the rhetoric that gets thrown around, is something politicians believe is going to appeal to their constituency,” Blaeloch said. “It’s easy to get people into a lather about the federal government. They will refer to the federal lands as something the federal government is holding. Those lands belong to every citizen in the United States.”

Falen, whose family runs a large ranch in northern Nevada that includes federal land leases, said from a rancher’s perspective, not all the change could be for the better. “I think the guys in Utah are legally correct. Whether or not our system has changed too much to recognize that is another question. The land in private hands is more valuable and more productive, but there will be some painful adjustments that will put ranchers out of business if they lose the lands they graze on. If the federal land we lease came up for sale we couldn’t buy it all.”

Falen said that ranchers in states like Washington, Oregon and California could actually end up in a worse situation if the state government, which is unfamiliar with and far-removed from practical experience on the ground, were to take over management of the land. “In those states with huge, pretty liberal populations, having a ranching operation with a grazing preference right that you’re dependent on that’s managed or regulated by the state government isn’t necessarily going to be an improvement,” he said.

Wagner agreed that ranchers should be concerned. “If I was a livestock operator and grazing livestock on public lands, I’d be very, very concerned about this. The state wouldn’t have the leniency in accepting the deficit that the federal government does. The state would be obligated to raise grazing fees. The state couldn’t afford to lose the money that the federal government can. It would mean my cost of operation would go up dramatically.”

Falen said in the short-term there could be some painful adjustments. In the long-term, though, he said, “We’d be better off because the land would be more productive and the federal government wouldn’t spend hundreds of millions of dollars to substantially mismanage it.” ❖


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The Fence Post Updated Jun 16, 2014 11:21AM Published May 27, 2014 03:36PM Copyright 2014 The Fence Post. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.