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Federal land ownership battle heads for court

A standoff orchestrated by a group of ranchers at a federal wildlife refuge in Oregon has raised awareness about efforts among Western states to force the federal government to turn federal lands over to state control.
John O’Connell

Capital Press

Published on February 11, 2016 8:27AM

John O’Connell/Capital Press
Utah state Rep. Ken Ivory poses outside the Pocatello field office for the U.S. Forest Service and Bureau of Land Management. Ivory is leading the effort to force the federal government to turn over its public lands to state control.

John O’Connell/Capital Press Utah state Rep. Ken Ivory poses outside the Pocatello field office for the U.S. Forest Service and Bureau of Land Management. Ivory is leading the effort to force the federal government to turn over its public lands to state control.

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SALT LAKE CITY — Utah Rep. Ken Ivory is on the front line of an approaching legal battle to wrestle millions of acres of land from federal control, and legislators in other Western states are intently watching his progress.

The Utah Republican says Western economies have long been held hostage by the federal government — roughly 47 percent of the land in the 11 Western states and 61 percent of Alaska are under federal control, compared with 4 percent in the other states. Sixty-five percent of Utah is federal land.

“We have an opportunity that is akin to a modern-day Louisiana Purchase,” said Ivory, founder of the American Lands Council, which aims to sue the U.S. government seeking the transfer of federal lands to state control. “We’re prepared to do whatever it takes.”

Ivory wants to take Utah’s legal case to the U.S. Supreme Court before the end of this year.

He said the ongoing armed occupation of Eastern Oregon’s Malheur National Wildlife Refuge demonstrated the level of discontent with current federal land management and the need for change. Protesters occupied the facility on Jan. 2 demanding that federal lands be turned over to local control. Though four protesters remaining at the refuge were surrendering Feb. 11, 16 others have been arrested and charged with conspiracy.

Discontent with federal ownership of land in the West may be widespread, but uncertainty remains about just what to do about it. Ivory believes that Utah’s coming legal battle could provide the key to a solution, but others say alternatives are already available that give state and local governments more say in how federal land is managed.

Lawmakers in Idaho and other states say they plan to let Utah “test the waters” in court and to move forward with a similar lawsuit if their neighbor prevails.

Utah’s fight

In March of 2012, the Utah Legislature passed Ivory’s Transfer of Public Lands Act, which set a Dec. 31, 2014, deadline for the federal government to turn over 20 million acres of federal land to the state. Congress ignored Utah’s demands, prompting the state to form a Legal Consulting Services team to analyze the legal landscape.

The team published a report in December outlining the major arguments the state will use in court.

The report concluded, “Legitimate legal theories exist to pursue litigation in an effort to gain ownership or control of the public lands.”

The authors also warned that litigation is costly and the outcome is uncertain, and sure to be vigorously opposed by the federal government. The report estimates the state will require nearly $14 million for the legal battle.

But skeptics abound.

One of them, University of Utah associate law professor John Ruple, has co-authored three papers on the topic, all concluding the state’s planned lawsuit has virtually no chance of success.

Ruple said the 11 Western states have disclaimer clauses in their enabling acts, promising to forever give up federal lands.

Ruple initially brushed off Utah’s strategy as inconsequential, until it began “spawning a movement.”

“The fact that it was getting legs and traction when it was so legally suspect had to be pointed out,” Ruple said. “Somebody needed to say, ‘The emperor has no clothes.’”

Some Western lawmakers consider Ivory a trailblazer, putting his foot down against policies that have rendered their states “second-class citizens.”

Ivory isn’t ruling out a congressional remedy, having found strong support for his cause from a Republican presidential candidate.

That candidate, Republican Sen. Ted Cruz of Texas, introduced legislation prohibiting the federal government from owning more than half of the land in any state.

“I’ve been working with him to make it 50 percent in any county,” Ivory said.

The history

As the national debt continues to snowball, Ivory emphasizes the federal government loses 27 cents for every dollar it spends on managing public lands, while states average $14.51 in profits per acre on the public lands they own.

“If you have a garden outside your back door, are you going to be more effective at managing that garden, or is someone who is 2,000 miles away and has a book?” Ivory asked.

Current land ownership distribution dates back to colonial times, when the original colonies reluctantly ceded land to a centralized federal government under the Articles of Confederation. In the mid- to late 1880s, Congress passed several laws, such as the Homestead Act, to encourage settlement of the West.

In the 20th century, the nation’s emphasis shifted from disposal of public lands to retention and management. Congress declared in the Federal Land Policy and Management Act of 1976 that the remaining federal lands would generally stay in federal ownership.

Ivory and his backers believe they’re picking up the mantle of Thomas Hart Benton, a U.S. senator from Missouri who opposed federal ownership of 90 percent of his home state. He started a campaign in 1823 to get federally owned public land transfered to the states of Missouri, Illinois, Arkansas, Louisiana and Florida.

“They’ve already done the exact same thing as we’re doing today and won,” Ivory said, though Ruple points out they achieved their goals by winning over Congress.

According to a Congressional Research Service report, the government has remained active both in land acquisition and disposal, reducing its total land holdings by 3.6 percent between 1990 and 2013.

The legal argument

Utah’s team of experts will rely on three main legal principles in the state’s case.

First, the U.S. Constitution mandates that states be equal in sovereignty. The team argues Utah isn’t treated equally given that it has no control over nearly two-thirds of its land, thereby limiting the state’s economic potential.

Second, under the Constitution’s Equal Footing Doctrine, the team notes newly admitted states to the Union were guaranteed “all incidents of sovereignty enjoyed by the 13 original states.”

“Dominion over land has historically been viewed as a key incident of sovereignty, and denial of that dominion negatively impacts sovereignty in a variety of ways,” the team’s report reads.

Third, they argue under the “compact theory” that the timely disposal of federal lands within the state’s borders was implicit in the compact establishing Utah.

They further argue that the intent of the Constitution’s Property Clause was to dispose of public lands. The clause reads, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

The legal team believes the U.S. Supreme Court would have original jurisdiction over the case, meaning it could go directly to the high court.

Ruple, the law professor, said the Supreme Court would have the discretion to pass on the case. He suspects it will ultimately be filed in federal district court for the state of Utah to build the legal arguments that the Supreme Court would require for evaluation.

As for Utah’s legal arguments, Ruple said the Supreme Court has ruled the concepts of equal footing and sovereignty apply to a state’s political rights — such as electing senators and the governor — but not economic conditions, such as land ownership.

Ruple contends Utah’s positions are bound to “get people fired up, but they don’t hold up to the most cursory of legal arguments.”

Ruple’s next paper will offer alternatives to a lawsuit. He emphasized that both Federal Land Policy and Management Act and the National Environmental Policy Act include mechanisms for state and local governments to be partners in federal land management. He suggests investing Utah’s resources in such collaborations.

Stalled efforts

Lawmakers in every Western state except California have introduced legislation pertaining to a federal land transfer.

In Washington state, Sen. Kirk Pearson, R-Monroe, introduced Senate Bill 5405, calling for a task force of lawmakers and stakeholders to evaluate the costs and benefits of transferring certain federal lands to state or local ownership. The bill was suggested by the Washington State Association of Counties.

Pearson said federal Payments in Lieu of Taxes, which offset the monetary impacts of federal lands on a county’s tax base, have steadily declined.

“The intent of the bill was to bring parties together,” Pearson said.

The bill has stalled in Washington’s Legislature, but Pearson plans to organize a federal lands work session, believing public dialogue is a powerful tool to address land management challenges such as wildfires.

In 2015, Oregon Rep. Carl Wilson, R-Grants Pass, also proposed a task force to evaluate a federal land transfer to his state. It died without a hearing.

Wilson resides in Josephine County, which is 68 percent federal land, and laments that PILT and Secure Rural Schools funding to assist his struggling county have both diminished.

“That leaves counties like mine poverty stricken,” Wilson said.

Wilson plans to continue introducing bills pertaining to land transfer, but has no hope that they’ll pass as long as Democrats control the Legislature. Liberal lawmakers have told Wilson they’re concerned about lost public access and the potential for the state to sell some of its newly acquired holdings to cover management costs.

Based on what he’s seen with Utah state lands, Ruple believes the concern is valid. In one case, Utah put popular recreational land along the Green River up for auction, and the state’s Division of Wildlife had to pay for the right to maintain public access.

Idaho’s progress

Under former Idaho House Speaker Lawrence Denney’s leadership, the Legislature passed a resolution in the spring of 2013 demanding the federal government turn over millions of acres of public land to state management.

The state also formed a committee, chaired by Denney, to evaluate the impacts of such a transfer. In early 2015, the committee published a report calling for the state to invest at least $750,000 to continue laying the groundwork for a transfer.

At the same time, Idaho Attorney General Lawrence Wasden warned that the state would be unlikely to win a court battle to forcibly take land.

The report indicated Idaho manages healthier public lands, which generate a return of $23 per acre. It also included estimates by the University of Idaho’s Policy Analysis Group that the state would incur between $111 million in annual losses and $24 million in profits through a complete land transfer, contingent on the number and size of timber sales that are ultimately offered.

“The fire seasons in the last couple of years have highlighted the results of poor forest management by the federal government,” said Denney, currently Idaho’s secretary of state. “Basically, they’re not managing the resources at all.”

Ivory’s prediction is that Western states will “secure the same outcome as Florida and Missouri and Illinois did in their day.”

But Denney is less optimistic. Yet he’s confident “shining a light on the issue” will lead to more state and local influence on federal land-management decisions.

“The federal government is not listening to us, and this (occupation) in Oregon is just a reflection of that,” Denney said.

Not everyone in the Legislature agrees with the move toward transferring federal land to the state.

Idaho Senate Minority Leader Michelle Stennett, D-Ketchum, has been a vocal opponent of her state’s drive toward taking over federal lands. She hosted a rally Feb. 12, 2015, in a Boise park against pursuing a transfer, after the committee released its report.

“If the state were to take over grazing of federal land, and this came up in the task force, it would cost those with grazing rights far more money than the feds are charging,” Stennett said. “The state has to make a profit on land.”

Stennett believes Idaho relinquished its claim to federal lands in its state constitution. She agrees with others that the clear path forward now is land-management collaboratives. She said Idaho has eight such collaboratives, in which participants cooperate to leverage funding from a variety of sources to improve the landscape.

“I don’t think one entity can do as efficient of a job as a group working toward the same goal,” Stennett said.

Idaho Sen. Jim Guthrie, R-McCammon, a cattle rancher, supports a focus on changing land-management policies. He’s convinced that if federal lands were managed better, there would be less interest in who owns them.

Federal perspective

As regional manager for the U.S. Forest Service’s largest grazing region — covering Utah, Idaho, Wyoming and parts of Colorado — Terry Padilla empathizes with the frustrations of Westerners who depend on federal lands.

Padilla explained grazing occupancy in his Intermountain Region has dropped by roughly 67 percent since the early 1980s. The trend, he said, was driven by declining demand due to low beef prices. But Padilla acknowledged his agency hasn’t been increasing the number of its permits now that prices are higher.

He said the agency faces new burdens, such as increased recreational demand, species conservation issues and the crippling effects of incessant litigation. His region commonly faces up to 50 active lawsuits at any given time, diverting funding from land management to attorneys.

He agrees a land transfer would come at the expense of public access.

“You’re not going to meet some of the aims they’re talking about without some level of development,” Padilla said.

In Padilla’s view, litigation is divisive, and solutions to federal land challenges will be achieved only through collaboration.

“We need the public to come to the table and set aside agendas and find common ground and work toward solutions,” Padilla said. “There are a lot of collaborative opportunities we feel could reduce appeals and litigation and garner more of a consensus of support toward these programs.”

Toward that end, his regional forester has been hosting community meetings during the past three years, and she helped form the Utah Partnership Program. The Forest Service provided the partnership seed money and participating entities have worked to leverage additional dollars toward priority restoration projects.

“The development of that public will, that’s the solution,” Padilla said. “Litigation is rarely the solution.”


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