The Public Lands Debate- A Legal Gamble, or a State’s Right?

 

 

Andy Anderson climbing in Indian Creek, a cherished public lands recreation area. Photo- Tobias MacPhee

Andy Anderson climbing in Indian Creek, a cherished public lands recreation area. Photo- Tobias MacPhee

 

 

Business leaders and advocates for the outdoor recreation and tourism industry are not impressed by the State of Utah’s crusade to wrest control of public lands from the federal government. They say the move is a land grab designed to privatize vast tracts of the public domain and put it into the hands of oil, gas and mineral developers at the expense of what they say is Utah’s greatest resource – an iconic scenic landscape that people travel from around the world to experience.

 

President and CEO of Black Diamond Equipment Peter Metcalf said that “Utah’s efforts to expropriate the Federal lands that exist in this state, but belong to all Americans, is nothing less than an outrageous, ideologically driven, financially risky, ill-thought out, and short term focused land grab that will greatly diminish the state over time.”

Proponents of the transfer argue that a distant and unwieldy bureaucracy plagues public land management by the federal government, and that the state is in a much better position to manage the land for the needs of its local residents.

 

Utah State Representative Ken Ivory, who didn’t respond to repeated requests for comment for this article, is the lead crusader in the fight to take control of the public lands. Ivory is the chief sponsor of HB 148, or the Transfer of Public Lands Act, which demands that the federal government turn over more than 30 million acres of public land to the State of Utah.

 

Ivory has founded the non-profit American Lands Council, from which he and his wife both draw salaries, and he spends much of his time traveling throughout the rural west delivering his message of the inherent right of states to take over ownership of federal lands. He bases his claims on vague language in Utah’s Enabling Act, the document that laid the groundwork for Utah to become a state.

 

Seismic "thumper trucks" in the Moab area. Photo- Kevin Walker

Seismic “thumper trucks” in the Moab area.
Photo- Kevin Walker

Ivory claims through numerous media sources and online webcasts, that the federal government has perpetually mismanaged public lands and unnecessarily hindered the extraction of “trillions of dollars” worth of oil, gas, and mineral resources in the state. He says that if this revenue were allowed to be realized, it would grow Utah’s economy and greatly benefit the underfunded Utah school system.

 

Metcalf says that the focus on resource extraction is short sighted, and that state leaders don’t have a real understanding of the kind of stewardship that is needed in order to support and maintain the fastest growing portion of Utah’s economy.

 

“They clearly do not understand the underlying building blocks of one of Utah’s most vibrant, largest, and fastest growing economic sectors – the recreation economy,” Metcalf said.

 

Outdoor recreation is big business in Utah, and it contributes nearly $6 billion annually to the state’s   economy. The twice annual Outdoor Retailer Show, which Metcalf was instrumental in bringing to SLC, draws roughly 20,000 buyers and sellers to each show and generates nearly $40 million in in state spending.

 

In 2003, Metcalf threatened to pull the Outdoor Retailer Show from Utah, in protest against a backroom deal being brokered by then Utah governor Mike Leavitt, and Secretary of the Interior Gayle Norton, to end litigation over the state’s RS 2477 road claims, and to stop managing over 2 million acres of Wilderness Study Areas as Wilderness. Leavitt backed down saying he hadn’t really understood the importance of protected lands to the industry.

Likewise, Metcalf says, state leaders do not understand the “quality of life” concept that drives businesses such as Goldman-Sachs and Adobe to locate to Utah, bringing with them 1000’s of employees to the area. He says they come here for recreational opportunities and access to open spaces, aspects of life that will be compromised if the state takes control of the public lands.

 

Oil drilling on the Big Flat near the entrance to Canyonlands National Park. Photo courtesy Southern Utah Wilderness Alliance

Oil drilling on the Big Flat near the entrance to Canyonlands National Park. Photo courtesy Southern Utah Wilderness Alliance

Utah Governor Gary Herbert, who signed HB148 into law on March 23, 2012 acknowledges the value of Utah’s scenic landscape, but says that the state’s economic potential is being hindered by the fact that more than 2/3 of its land mass is controlled by the federal government, and that it is “burdened with unwieldy barriers to reasonable access and development.”

“People don’t flock to visit Utah because the lands are federally managed,” Herbert said in an editorial for this publication. “They flock to Utah because Utah lands are unique, precious, and visually—even spiritually—stunning.”

Herbert says that state leaders are working with the Outdoor Industry Association and other recreational stake holders to develop a “balanced and reasonable outdoor recreation vision,” and that he is firmly committed to the future of Utah’s outdoor recreation.

“But it simply makes sense to return control of that future to those who care the most, those that actually live here – Utahans,” he said.

Metcalf says that Herbert is simply paying lip service to the outdoor recreation industry as well as the need to protect Utah’s remarkable landscape. He says that of the past governors he has worked with including John Huntsman and Mike Leavitt, Herbert is the least receptive to the industry’s needs, often disregarding the recommendations of his own advisory committees.

“Herbert speaks from a bully pulpit,” Metcalf says. “He talks about how important these things are, but his policies are lacking.”

Governor Herbert created a special Utah Office of Outdoor Recreation and appointed Brad Petersen as its director. Petersen is a former river guide and climber, as well as a backcountry skier, mountain biker, and off-road motorcyclist.

Sludge pit. Photo Kevin Walker

Sludge pit. Photo Kevin Walker

Petersen says that regardless of who manages the lands, it is imperative that they understand that Utah’s multi-billion dollar brand Life-Elevated, thriving recreation economy, and quality of life are all directly tied to our public lands.

He says that through discussions he has had with members of the recreation community, he has learned that their primary concern is that the land be managed in the interest of the public’s well being. The issue isn’t necessarily who owns the public lands, as much as which entity has the best record for balancing competing interests.

“Proper zoning throughout the state for energy, recreation and other uses is imperative regardless of ownership,” Petersen said.

Petersen says the industry’s current preference is to continue supporting federal ownership with the hope of continually improving local federal management practices even with the associated risks and bureaucracy.

He added however, that last years federal shutdown and initial lack of PILT (payment in-lieu of taxes) funding were devastating to our gateway communities and rural Utah.

“When Congress is dysfunctional, Utah suffers,” he said.

Finally Petersen said that he hasn’t seen a plan outlining how the state would cover the anticipated annual budget deficit (directly correlated to oil prices) from assuming ownership of 30m+ acres. It is generally assumed that the state would have to resort to selling public lands and /or increasing energy development to make up the deficit.

How the state would ensure a fair and equitable process for determining the appropriate and best use of an area is also unclear. He says the state doesn’t yet have a policy to replace the NEPA process, and acknowledges that there are no guarantees that current Wilderness Study Areas, or other conservation areas would be adequately protected for either the short or the long term.

“It’s clear that our public lands need to be managed with a forward-looking mentality,” he said. “A mentality that increasingly understands the nonmarket economic value of an acre of open land.”

Outdoor recreationists and business leaders in the industry aren’t the only ones who are upset by HB 148. At a rally held at the Utah State Capital on Monday, March 2, several hundred Utahans gathered in protest against the land transfer. In attendance, alongside typically left leaning advocates for human powered recreation and environmentalists with yellow “Protect Wild Utah” signs, were camouflage wearing hunters, physicians, and educators.

Salt Lake City school board president Heather Bennett blasted proponents for using school children as an excuse for the land grab, while Tim Wagner, executive director for Physicians for a Healthy Environment said that the whole thing was “just a shell game for the fossil fuel industry.”

 

Lauren DouBrava and Keeto enjoying a desert sunset, Indian Creek. Photo Tobias MacPhee

Lauren DouBrava and Keeto enjoying a desert sunset, Indian Creek. Photo Tobias MacPhee

Bill Christensen, president of the Rocky Mountain Elk Foundation, addressed the crowd saying that he was a “fifth generation conservative Utahan with pioneer roots.” He acknowledged that his organization often had differing views on land management than many of the other groups in attendance but they all agreed, “Utah’s federal land should remain in the ownership of all the people of this great country.”

 

Christensen said that hunters and fisherman generate hundreds of millions of dollars for the State of Utah, and that hunting opportunities in the state were world-renowned. He said that “the transfer of federally held public lands to the state would in no way address or improve the real issues associated with federal land management, habitat stewardship, hunter access, or other significant issues facing these lands.”

 

Alan Matheson, senior environmental adviser to Governor Herbert told the UAJ that if the state of Utah is successful in gaining control of federal lands, that the lands would remain public. He said that the Utah Legislature has created a “Commission on Stewardship of Public Lands,” and that the commission was working with stakeholders to develop the administrative framework and policies to manage those lands.

 

“Utah is recognized nationally as the best managed state,” Matheson said. “We also have a strong record of managing state public lands responsibly.”

 

Matheson said that not only could the state of Utah manage federal lands responsibly, but that they could also generate a net return. He cited a study commissioned by the Pubic Lands Policy Coordinating Office, and carried out by economists from Utah’s three major universities. The study analyzed the economic viability of the land transfer and found that “from a strictly financial perspective, it is likely the state of Utah could take ownership of the lands and cover the costs to manage them.”

 

“We have the will, the resources, and the record to succeed,” Matheson said.

 

The study, entitled An Analysis of a Transfer of Federal Lands to the State of Utah measured the cost benefit analysis of the transfer, and based its success largely on the availability and marketability of natural resources, primarily gas and oil. The study based its findings on an average price of $92 per barrel of oil with a forecasted low price of $62. Shortly after the study was released, the price of oil plummeted to below $50 a barrel.

 

Jason Keith, managing director for Public Land Solutions, says that in order for the state to succeed, they would have to manage the lands on a for-profit model similar to how they manage School Institutional Trust Lands (SITLA). This, he says, would result in a dramatic push to increase oil and gas development, coal mining, and timber harvesting, without the benefit of public comment or review as currently required under federal law.

 

“In short, we can expect a massive industrialization of our recreation assets and wild land resources,” Keith said.

 

He also stressed the risk of basing profitability on something as volatile as oil prices and said that if the state were unable to balance its budget through the sale of natural resources, that the land itself would have to be sold. In addition public access would be threatened because for-profit uses would be favored over recreational use and protection.

 

“With the transfer of federal lands to the state we’ll see more fees, access restrictions, user conflicts, and the degradation of the landscape—all which hurt recreational users and outdoor businesses,” Keith said.

In Grand County, home to Utah’s “adventure capital” of Moab, concern over the fate of public lands runs exceptionally high. Oil wells have been springing up near the entrance to Canyonlands National Park, and in the center of the Magnificent 7 and Gemini Bridges bike trail complex. This has pitted the values of resource extraction and recreation squarely against one another.

Over the past year, Grand County residents have been engaging in a heated exchange over such measures as Rep. Rob Bishop’s Public Lands Initiative, and the BLM’s Master Leasing Plan. In a strong showing for recreation assets and greater protection for public land, voters elected three moderate to progressive candidates to the Grand County Council.

The vote was in direct response to the former council’s stance that promoted resource development over land protection; the construction of a road through the Book Cliffs; and the county’s entrance into the controversial Seven County Infrastructure Coalition which many viewed as nothing more than an enabling body for the oil and gas industry.

Newly elected council member Mary McGann said in an op-ed column for the Salt Lake Tribune that the elections were “a vote for Moab’s economic future, not the past.”

“Today, the bedrock of Moab’s economy is not a drill bit or a bulldozer,” McGann said. “It is a mountain bike on Slickrock Trail, a climber on the red rock wall of Wall Street, or an amazing view into the Needles of Canyonlands National Park.”

McGann told the UAJ that the idea of transferring federal public lands to the state was “foolish,” and that she had no faith in the state’s leaders to manage the lands appropriately. Also a teacher in Grand County for 33 years, McGann says she resents the argument that the transfer would better help fund the public schools.

“State legislators don’t value education,” McGann said. “If they did, they would already be better funding the schools. The State of Utah is doing very well economically and they already have the money. They are using this as an excuse to promote a bad idea.”

Brett Sutteer, a Grand County resident, and owner of Moab Cliffs and Canyons, said that protected public lands are essential to his business and hundreds of others in southern Utah. A native Utahan, Sutteer provides climbing and canyoneering guide services as well as safety rigging and technical expertise for film production. His company has worked on such films as 127 hours and features for the Discovery Channel – all of which relied heavily on southern Utah’s unique and unspoiled landscape.

Sutteer said that he and other outdoor recreation business owners are concerned over how they will continue to provide favorable experiences for their clients when potentially invasive industries compete for lands nearby. He has no faith that the state will effectively manage and zone areas for different uses.

“If the state did have control over the public lands, I think we would see a market price put on those lands and highest bidders would dictate which lands got used for which industry,” Sutteer said. “This would effectively erase decades of stewardship policies created by agencies with a far greater understanding of multiple use resource management.”

A deadline was set by HB 148 for the federal government to turn over the public lands by Dec. 31, 2014. No one, including Ivory, expected the federal government to acquiesce to the demand. Ivory has said that the deadline “was more a goal than a line in the sand.” But now the state has to decide whether or not it will engage in costly litigation with the federal government. It has so far set aside $2 million worth of public funds to do so.

Climbing in Buckhorn Wash, San Rafael Swell. Photo- Lee Cohen

Climbing in Buckhorn Wash, San Rafael Swell. Photo- Lee Cohen

In February, Sen. Jim Dabakis (D) introduced SB 105, or the Public Lands Acts Amendments to try and force the issue in court. The bill, if passed, would require Utah Attorney General Sean Reyes to file a lawsuit with the Supreme Court demanding that the federal government cede the public lands to the state. The bill is an attempt by Dabakis to have the issue legally settled once and for all.

Few expect HB 148 to stand up in court, and many view the entire crusade to be a waste of time and taxpayer money. In June 2014, Assistant Attorney General Tony Rampton advised against filing a lawsuit saying that it was a long shot and that there were too many unknowns.

The Wallace Stegner Center for Land, Resources, and the Environment at the U of U’s S.J. Quinney College of Law, released a paper in October, 2014 that concluded that “Utah has no legal right to the land it demands, and the federal government has the constitutional authority to retain lands in federal ownership.”

Rep. Ivory however, an attorney himself, maintains a sound legal basis for the transfer.

“This is not your father’s sagebrush rebellion,” Ivory has said. “There are very sound, legal basis for doing this.”

Sutteer, for his part, would like to see an end to this “fiasco.”

“The governor and Rep. Ivory, continue to do a major disservice to all Utahans,” he said. “Besides being an utter waste of taxpayers dollars, this crusade has perpetuated the notion that the federal government is bad, creating acrimony towards the many Utahans who work for those agencies, and who are trying to manage the public lands for the good of all Americans.”

 

Moab based journalist Eric Trenbeath, covers land issues in between avalanche forecasting for the La Sal Mountains, and hiking, biking, and boating Utah’s canyon country.

 

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2 Responses to “The Public Lands Debate- A Legal Gamble, or a State’s Right?”

  1. Fantastic article! So well-written.

  2. This is the best synthesis and objective evaluation of the economics of this unfolding crisis that I have read, in the only terms that the Governor and Utah legislators can comprehend,.. given their short-sighted, short term partisan interests and bottom line. These people are clueless about concepts like wilderness protection and conservation of our diminishing resources, not the least of which is fresh water. Well done Eric, for framing this in terms even they can’t ignore. Unfortunately, there is much more at stake for all of us than the debate over how best to over-utilize the land and resources we have. Thank you for this, it should be required reading.

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