Will 2015 be the year of the great land grab?

Election results put takers of U.S. public land in a good position?

The 2014 congressional elections put an increased number of supporters and sympathizers of the states taking the public lands of the United States in office. They want the states to take over the national forests, the  BLM lands, maybe the national wildlife refuges, and even some of the national parks.  Even though a 2012 state referendum in Arizona demanding this was voted down two to one, and public opinion surveys show a majority of residents of the Western states (except for Utah residents) are against an ownership change, the political battle is on.

It’s a Republican plan-
Republican office-holders in the interior West say the states should rightfully own these lands. This is a clearly partisan Republican vs. Democrat issue. Transfer of lands to the states was in the Republican platform of several western states. The Republican National Committee also endorsed what Democrats and others are calling “the land grab.” Many of the opponents of the land transfer go on to say  the real goal of the “land grabbers” is not state ownership, but private ownership. They say our public lands are being “seized” and will end up being auctioned off to the “highest bidder” either on purpose or because the states won’t be able to pay to manage these lands.

Historically, public lands have always been federal-
The public lands of the West have always been owned by the United States rather than the states since the time they were purchased from France, taken in war from Mexico, or ceded by Great Britain, ignoring the natives who lived on these lands originally. The politics and history of federal land ownership, past privatizations (under the Homestead Act and other laws), and current management controversies, could fill a lifetime of research. However, the average citizen knows almost nothing about it even though their visits to these lands number about a half billion each year. Public ignorance is fertile ground for making up a false history, one where states got stiffed at statehood.

Statehood and federal land grants to Western states-
Upon statehood, the federal government gave the Western states what many say were generous land grants. In return, the states wrote in their state constitutions that they would not make any further claims for public land. Every state constitution has a disclaimer similar to this one (from Nevada’s): “That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; . . .”

Western states were granted two sections of land per township. That is two square miles out of every 36 square miles (a township). Ironically, Utah, New Mexico, and Arizona, where Republican politicians are the hottest for getting federal land, received four sections per township.

There were restrictions on the use to which the states could put the land grants. Revenue generated was to be devoted  to the support of the public schools.  At the time, public schools were a priority of progressive thinkers. The conservatives of that era were fine with having only elite private schools, commercial private academies, religious institutions, and informal education.. It is important to note that now after 80-90 years where public schools were an unchallenged idea, some conservatives are again turning against public education. They are trying to privatize it.

Land transfer advocates argue that the state constitutions are in fact unconstitutional because the would be states were coerced into putting the disclaimer in their state constitutions as a condition of statehood. Those demanding land transfer also rely on the “equal footing doctrine” that every new state admitted to the United States is given the same legal rights as the states already in the Union. These folks say that the presence of large percentages of U.S. land within the state borders makes that state less than the earlier — Eastern and Midwestern — states. Those defending the historic system of public lands say that large acreages of federal land does not violate equal footing doctrine (first adopted by the Supreme Court in 1842).  Equal footing refers to the legal powers and rights of the states, not land ownership distribution. Defenders of the public lands say that they are a great benefit — providing that the public will have freedom of access that Easterners, Midwesterners and Southerners can only dream of.

Selling off the state lands-
After statehood, the states begin to sell off these state lands. For example, Idaho today only retains 2.5 million acres of school endowment land. It had 3.4 million originally. Utah has 3.4 million acres out of its original 7.5 million. Wyoming has retained 3.5 out of its 4.3 million granted. Nevada, however, sold theirs and now has none, but Arizona and New Mexico retain a whopping 9-million acres each. They were given over 10-million acres. Few citizens of these states know this history, but it is vital that they do because there is very little mass support for selling these lands off even among most of those who think state ownership seems like a good idea.

Groups saying state management is better-
Supporters of taking the lands argue that the states will manage them better than the federal government.  The health and productivity of the land will increase, they say. They point to some federal things that their supporters don’t like such as public land ranchers being subject to grazing rules and environmental standards, and the reductions in timbering during the last 20 years so protect wildlife, watershed and scenery.  Some off-road vehicle groups dislike the federal land “travel plans” because they close some trails and areas to vehicles. Oil and gas interests criticize the federal government for not leasing enough land and for having the wrong kind of rules and royalties. Land transfer advocates say the states will not have so many silly restrictions. One thing all these have in common is they think environmental protection is overdone or not needed.

What is state land management like right now?
Despite claims the states will manage the national forests, etc. better, there is little effort outside of Utah to show examples of good state land management. There are millions of acres of state lands.  Examples are not being presented.

A very common fear from almost all sides is that the public will lose its physical access to the big outdoors under state management. Assurances are made that this is not the case, but current examples point in other directions. For example, take Wyoming. In the Cowboy State the law prohibits public camping on state school lands. The holder of a grazing lease on Wyoming state lands can even determine whether hunters and anglers can use the land.  Idaho has gone out of the way to point out that the state lands, the state school lands, are not public lands in any common sense of the word. Instead they are lands devoted to producing maximum revenue for the public schools. This is legally true for all the western state lands, except for state parks which are in a different category. Maximum revenue generation pits against the land manager’s consideration of the entire spectrum of land uses and users, which federal public land managers must do.

Actual revenue from state lands today-
All of the western states are supposed to general maximum revenue for the public schools, and all of them do indeed usually generate net revenue off the state lands. The revenue comes primarily from timber sales and various kinds of leases, especially oil and gas leases. State land grazing, like federal land grazing, is always a poor revenue performer, contributing little and often coming up a loss. Nonetheless, like federal land, grazing is the most common extensive use of state lands in the West. As with federal land grazing, state land grazing fees are set below the fair market value of the forage, although all of the state’s grazing fees are higher than the mere token $1.35 per AUM (animal unit for a month) that the federal government charges its lucky grazing permittees.

Public land ranching somehow is always subsidized, whether state or federal.

Utah’s attempt to take the federal lands-
Utah is the only state where a public opinion poll has shown a majority (small) in favor of the state’s taking the U.S. public lands.  Utah has tried to get serious about raised more state land revenue by aggressively seeking to consolidate its land holdings into blocks. It has more than quadrupled the amount of state land revenue since the mid 1990s. Serious land management is difficult, however, when most of the lands are isolated one square mile sections of a township.

Two years ago, Utah passed the “Transfer of Public Lands Act.” This is a demand that the United States give up most of the public lands in Utah by the end of 2014.  U. S. public lands are more than half of the land area in Utah. The law came from template legislation created by the American Legislative Exchange Council (ALEC), commonly said to be the one of the Koch Brother’s most important political organizations. Many large large corporations belong to ALEC, especially energy industry companies.  ALEC has a great deal of ready-to-go_right-off-the-shelf already written laws designed to restrict voting rights, reduce worker’s rights, give comfort and aide to polluters, restrict the public’s right to know, and the like.

The just released report-
Aside from demanding the transfer of the lands, this Utah state law saw that a group of  economists from three state universities (University of Utah, Utah State University, and Weber State University) analyze the economic feasibility of state management of these federal lands. After a year-and-a-half they have just released their thick report (more than 700 pages). It is “An Analysis of a Transfer of Federal Lands to the State of Utah”. Download it. The report concludes that Utah government might just do better than break even managing these lands. This is important because critics have argued the transfer would put the state in a deep fiscal hole. The report says this happy conclusion (for the state) is true even when accounting for wildfires. In Utah currently, wildfires are paid for 97% by the federal government, according to the report.  However, the whole state land ownership enterprise would depend on massive revenues from oil and natural gas production. These royalties are now split between the state, federal government, and the tribes. The federal government gets the lion’s share. The federal government would absolutely have to transfer the mineral rights as well as the surface of the U.S. public lands to Utah. Otherwise, there would be no new oil or gas revenues. Finally, because the oil and gas revenue is critical, success or failure depends on the price of oil and gas.

The Salt Lake Tribune newspaper just editorialized on this. Dec. 2. Editorial: Land transfer would tie Utah’s future to oil. The Tribune is skeptical, and asks why take the risk when the federal government makes sure the is no state fiscal risk now?  The answers are probably various, but likely chief among them are based on conservative ideology and the assurance that culturally and politically powerful groups will continue to prevail, e.g., ranchers.

What about other western states?
Assuming the report is accurate and honest, would this route work for other states? Idaho might be an example. Many Idaho state politicians are pumping for Idaho too, to take control of the federal lands. It is easy to see this will not fly fiscally. Over 62 % of Idaho is U.S. public land, but unlike Utah it almost entirely lacks energy minerals.  Worse for those who want to see the state own these lands, Idaho has more expensive wildfires than Utah. These fires are likely to get worse too, except that most conservatives live in a world where they think the climate is not changing. There are some good timber growing sites in northern Idaho, and a few in Western Idaho, but logging will not generate enough revenue to make state management break even. There are just not enough good timber growing sites even though much of the national forest land in Idaho is generally covered with conifers.  The core of the state — central Idaho — is underlain by infertile granite and granite derived soils. The growth rate of these seems almost geologic. The early day great forests of northern Idaho did make much money as they were stripped of the big trees and most valuable species. What remains tends to be lodgepole pine growing slowly out of the rock.  So there is a reason why almost two-thirds of Idaho is U.S. public land today. Most of these public lands are too high, or dry, rough, steep, or cold to generate real money timbering or grazing, although they can be great for outdoor recreation.

Timbering and grazing on the big majority of federal lands in Idaho have long been supported by federal subsidies. Idaho is a state with much congressionally designated wilderness area, but on the other hand, much of the once wild country that got developed in Idaho was also the result of the federal government though subsidization of development that would otherwise not have been undertaken.

What about non energy minerals? There are the vast Eastern Idaho phosphate fields, but capturing these revenues would be a major political feat and legal victory over the current lease-holders. Metallic minerals are, of course, governed by the 1872 mining act. That means they are subject to patent, do not pay royalties, and neither the state nor the federal government gets revenue from this kind of mining activity.

What about America?
Some of the rest of the Western states could conceivably wrest out enough natural resource to avoid too big a loss and maybe make a surplus. Montana, New Mexico, Nevada, Wyoming and Colorado have energy production on public lands. Recreation generates revenue right now. Perhaps under state ownership resorts could be charged heavy fees. All outdoor recreation could be made subject to expensive passes and fees.

However, those favoring the historic way things have done in this country say “why change what we have today?” The public lands are the birthright of every American, and those in Idaho own the Utah red rock canyons just as much as those in Utah. Those in Utah also own the Mojave Desert public lands and the redwoods on the national forests in California. Those in Oregon own Yellowstone Park just as much as those in Wyoming, Idaho, or Montana. Why reduce these joint benefits to only those in the states?

The purpose of having a large and wealthy nation is that all the citizens can share in the largess. What would be gained by dumping federal lands on the Idaho taxpaying citizen? It seems the “benefit” would be to live in federal free poverty and pay a big fee to visit the former public lands of Utah and other states.

Citizens of every state can ask the same about public land transfer and many other proposals to let the states do what are now national programs on their own. Are we the United States assembled for our common domestic good, or do we just pool some resources so we can conduct foreign military operations?

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