Power grab 

Bitterroot considers case for state ownership of public lands

On March 7, 2012, Utah Gov. Gary Herbert signed into law a bill demanding the transfer of more than 20 million acres of federally controlled lands to state ownership. Republicans had pushed House Bill 148 effortlessly through the Utah Legislature, and set a deadline for the government to comply: Dec. 31, 2014. The victory provided HB 148's sponsor, Rep. Ken Ivory, the platform from which to launch an all-out war against federal management of public lands throughout the western United States.

"We look at this as the only solution big enough to better fund education, better care for the lands and the forests, protect access ... and grow state and local economies," Ivory says in support of state ownership.

Ivory founded the nonprofit American Lands Council in the wake of his bill's passage, and has since toured the country promoting "coordinated education, political persuasion, legislation and litigation ... to re-secure local control of issues pertaining to land access, land use and land ownership." One of his next stops is Ravalli County, where he's booked for a Dec. 11 appearance at the Eagles Lodge in downtown Hamilton. County Commissioner Suzy Foss arranged the presentation after attending an ALC event in Park City, Utah, last month. Federal management of public lands "is not working," Foss says, pointing to an ever-lowering U.S. Forest Service budget and skyrocketing costs in wildland fire suppression. Foss adds she isn't "for or against" the ALC, but believes it's time to discuss alternative solutions.

"To me, education is everything," Foss says. "And our citizens and our legislators should have a chance to hear from Rep. Ivory, who wrote the bill and started this American Lands Council to help educate others on why Utah has made the move it's made."

Utah isn't the only state where the ALC has pushed its agenda. Arizona Gov. Jan Brewer vetoed a bill advocating state-owned public lands after it passed through the state legislature with overwhelming support in 2012. The American Legislative Exchange Council, a national nonprofit that connects state legislators with corporations like ExxonMobil and Koch Industries, picked up and approved a model "Transfer of Public Lands" bill based on Ivory's in January 2012. Lawmakers in Colorado and Nevada have introduced similar bills over the past year.

Ivory's case for transferring public lands management into state and local hands stems partly from assertions of rural economic disparity. But the ALC primarily defends its stance based on its perception of a longstanding federal promise. The organization cites a host of historic documents, most pertaining to arguments made in the 1820s by then-western states like Illinois and Indiana, that the federal government wasn't acting swiftly enough in selling newly acquired lands to prospective farmers.

The ALC claims the government's intent to surrender public lands to state ownership is most clearly laid out in the separate enabling acts that created those states, a claim based largely on interpretation. "Your enabling act, our enabling act, it says, 'Five percent of the proceeds of the sale of public lands which shall be sold shall be paid to the state for the support of the common schools,'" Ivory says.

Ivory's emphasis aside, the 1889 provision that established North Dakota, South Dakota, Montana and Washington actually reads, "the people inhabiting said proposed States to agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof ... and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States." Nowhere in the document does Congress definitively indicate any short- or long-term intent to extinguish title to those lands.

The probability of the federal government actually ceding public lands to the states is debatable. Even the Utah Legislature's legal counsel cautioned that HB 148 has "a high probability of being declared unconstitutional" if implemented. Critics have nonetheless voiced concerns over the promulgation of the ALC's agenda and questioned the ability of states to shoulder the financial burden of public lands management. The Colorado College-based State of the Rockies Project polled 2,400 residents of six western states on conservation issues early this year. In Montana, 66 percent opposed selling off public lands to reduce the nation's deficit.

Ivory has found support for his initiative mostly in rural counties scattered throughout Nevada, Utah, New Mexico, Arizona, Oregon and Idaho. The ALC offers paid memberships to cities, counties, states, businesses and individuals designed to cover lobbying and legal fees. Foss says several locals—who she would not name—approached her recently with the prospect of raising $5,000 to add Ravalli County to the list.

But Ivory's Hamilton appearance next month won't be the first time the transfer of public lands concept has been raised in Montana. The legislature this spring passed Joint Resolution 15, a measure requesting an interim study of public lands management in the state. University of Montana forestry professor Martin Nie presented a statement supporting the need for such a study in September. Much of Nie's paper addresses the historic, legal and environmental ridiculousness of the state ownership argument perpetuated by the ALC and its allies.

"It is my professional opinion that the recent spate of resolutions and studies coming from western states will end their journey in the same cul-de-sac as the sagebrush rebellion," Nie wrote, referencing a similar western states-rights movement in the 1970s.

Ivory contests the comparison to the sagebrush rebellion, as well as the allegation that the ALC's end goal is to sell public land into private ownership.

"There's no one arguing that they're sold off to the highest bidder, except perhaps the people that want to scare people into not looking at it seriously and having a fact-based conversation," Ivory says.

Yet, this summer Rep. Jason Chaffetz, R-Utah, introduced a bill to sell 3.3 million acres of public lands to pay off the national debt.


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