The problems with the state movement to take federal land

The Utah Legislature had an ultimatum for the federal government: Turn over 31 million acres of public land by the end of 2014, or we’ll sue.

The New Year rolled around, and the federal government didn’t budge. Nor has Utah filed a lawsuit. But rather than killing the idea, the lack of action has inspired a handful of legislators across Western states to push even harder for local control and the lucrative mining and drilling that likely would follow.

In the first two months of 2015, a flurry of bills in state legislatures across the West has added to the small-government push to turn vast stretches of public land over to individual states.

The movement, which is cast as one of self-governance and economic development, faces more problems than the federal government’s intransigence.

The Utah legislator leading the push has come under fire for profiting off of it. Plus, polling shows that most people don’t want the federal government to turn over its land to the states, and most states can’t afford the new job. The only way the transfer makes sense financially is if the states substantially increase the amount of mining and drilling on these public lands.

There’s reason to believe that will happen. The Utah office in charge of public land policy openly advocates for it.

Known as the Public Lands Policy Coordinating Office, it says federal rules keep revenue from flowing to the state government and residents. If the state took control of the land, it would “increase Utah’s ability to access and responsibly develop its energy resources.”

In Utah’s bill, legislators said the federal government could keep all of its national parks and monuments except the Grand Staircase-Escalante National Monument.

The monument sits atop a trove of oil and coal deposits valued at hundreds of billions of dollars.

This year, I’ve been closely following mining and resource extraction on public land. Here’s a rundown of what’s at play, and some of the more interesting side stories, as the Western states go for the land grab.

The man behind the transfer

Utah state Rep. Ken Ivory is one of the leaders of the land transfer movement and the author of the state's 2012 Transfer of Public Lands Act. — Utah state Rep. Ken Ivory is one of the leaders of the land transfer movement and the author of the state’s 2012 Transfer of Public Lands Act. Credit: Rick Bowmer/AP file Credit: Rick Bowmer/AP file

Today’s movement stems from Utah’s Transfer of Public Lands Act, which was written by state Rep. Ken Ivory.

Ivory has come under criticism in his home state for turning the publicity around his bill into a business. Since it gained steam, Ivory has formed a nonprofit and gotten paid to give presentations to conferences and other lawmakers.

From The Salt Lake Tribune:

Ivory, an attorney, has mostly boarded up his legal practice and has traveled the country, speaking to county commissions, school boards, tea-party groups, television hosts, state legislators and members of Congress advocating for his goal.

He earned $95,000 from his nonprofit, American Lands Council, in 2013 and lists it as his primary source of income. His wife also earned almost $20,000 as the group’s communications director, according to the organization’s 2013 tax filings.

The organization’s main source of income is membership fees from individuals, businesses, county commissions and other organizations. Top-tier memberships cost as much as $25,000. In the case of county commissions, membership fees are paid with taxpayer money.

From the Tribune, again:

Supporters say this is the kind of focus and energy the issue demands — and they praise Ivory and his backers for making strides.But opponents question the ethics of a lawmaker becoming a one-issue advocate whose livelihood is squarely hitched to his cause. Even some conservatives are grumbling behind the scenes, saying the nonprofit organization he has created thrives on fueling controversy to marshal support and raise money — a criticism they usually aim at environmental groups.

David Irvine, a lawyer and former legislator who used to work for Utahns for Ethical Government, told the Tribune that Ivory’s position raises questions about whether his allegiance is with his organization or his constituents.

The Ivorys appear to be replicating their model. They’ve created a new nonprofit to educate the public and legislators about sexual abuse in schools, according to Utah Political Capitol. The organization, which is raising money on its website, trumpets that it has three bills before the Utah Legislature.

All three were sponsored by Ivory the legislator.

For his part, Ivory doesn’t think it is a problem. He spoke to Utah Political Capitol:

“I don’t see a conflict,” Representative Ivory told Utah Political Capitol in a phone interview. “My wife is a constituent, just like how several of my other constituents have organizations or businesses working on problems. My job is simply to solve the problems.” According to Representative Ivory, it makes no difference whether or not he and his family benefit financially from the issue.

American Legislative Exchange Council picks up the charge

Before he put it before the Utah Congress, Ivory presented it at a 2011 conference of the American Legislative Exchange Council, a nonprofit that drives conservative policy and whose members include Koch Industries, ExxonMobil and other energy companies and associations. ALEC produces model policies and bills that members can adapt and introduce to their state legislatures.

Some of ALEC’s more famous model bills include “stand your ground” laws, voter ID laws and the Arizona law requiring police to detain people they suspect are living in the country illegally.

Ivory’s bill went before ALEC’s Energy, Environment and Agriculture Task Force for discussion. That task force includes companies that stand to profit from the success of his bill. Representatives from Peabody Energy, a major coal company, and the American Gas Association held voting seats at the time, Christopher Ketcham reported in the progressive magazine The American Prospect.

Coal companies, such as Peabody, and oil and gas companies stand to benefit from land transfers since some states have signaled a desire to open public lands to more mining and drilling.

ALEC lists eight model resolutions and bills, including Ivory’s, related to land transfers on its website. This year alone, Alaska, Arizona, Colorado, Montana, New Mexico, Washington and Wyoming introduced bills that lay the groundwork for land transfers.

Ivory was ALEC’s legislator of the year in 2014.

Why federal land is important

The federal government owns lots of land in the West.

The United States government manages more than 630 million acres of public land, mostly in the West. Its vast holdings stem from the Louisiana Purchase, the Mexican-American War and other land acquisitions. During the 19th century, the government attempted to encourage miners, ranchers, homesteaders and others to settle the West, but the federal government ended up managing lots of land settlers never claimed.

Today, the federal government oversees everything that happens on these lands: recreation, habitat and wildlife conservation, mining, logging, grazing and oil and gas drilling. It also foots the bill for managing them all, from compliance with environmental regulations to putting up signposts.

Some uses create profit, some provide entertainment and some protect the environment. By law, the federal government must balance all of these uses.

Land transfer bills, on the other hand, are motivated primarily by profit. Supporters decry the fact that federal regulations prevent them from taking full advantage of the natural resources on public lands and say that these lands need to be used to grow the economy and provide a bigger tax base.

The federal government manages more than 630 million acres of public land, much of it in the West.Credit: U.S. Government Accountability Office Credit: U.S. Government Accountability Office

The only way it makes sense financially is to open the land up

States cannot afford to manage this much public land unless they open more of it to natural resource extraction. This is what a report commissioned as part of Utah’s land transfer law found: For Utah to be able to generate the money it needs to manage 31 million more acres, it would have to increase drilling and mining. And it would need to demand 100 percent of the royalties from extraction (Utah currently splits mineral royalties 50-50 with the federal government). And even then, oil and gas prices would need to remain stable and high.

An Idaho study found that in 8 of 9 scenarios, the state couldn’t afford a land transfer at all. In the one scenario where the state could make money, the timber industry would have to be having an extraordinary year.

The states probably can’t win in court anyway

The Utah Legislature’s own lawyers concluded that if the Transfer of Public Lands Act went before the court, it likely would be found unconstitutional. Most other legal analyses came to the same conclusion. The Constitution is clear that Congress has the authority to manage public lands however it wants. A state law can’t override that.

The majority of Western voters oppose land transfers, according to a poll commissioned by the progressive Center for American Progress and performed by nonpartisan pollsters. Of the eight states surveyed, Utah was the only state where a majority of voters supported land transfers (52 percent).

Land transfer supporters also argue that these lands belong to each individual state’s residents, not all Americans. But most Westerners don’t believe that, according to a new poll from Colorado College. It found two-thirds of Western voters believe public lands belong to all Americans, not just state residents.

This story was edited by Andrew Donohue and copy edited by Sheela Kamath.

Rachael Bale can be reached at rbale@revealnews.org. Follow her on Twitter: @Rachael_Bale.