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Decades-Old Lands Debate Flares Up in the West

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BOISE • On Jan. 2, a group of armed anti-government protesters took over the Malheur National Wildlife Refuge, starting a six-week standoff that would bring national attention to an issue that has simmered and flared up in the West for decades: the ownership and management of federal lands.

The standoff might be over, but the debate isn’t going away.

The protest in Burns, Ore., started as a show of support for Dwight and Steven Hammond, who were resentenced to five years in federal prison for setting fires on federal lands after first being sentenced to shorter terms. But the Hammonds disavowed the militants, and the occupiers focused their rhetoric on larger issues of land use, local versus federal control and the constitutionality of the federal government’s ownership of 47 percent of the land between the Rocky Mountains and the Pacific Ocean.

Some more right-wing Western lawmakers, including three from Idaho, visited Burns to meet with the occupiers. Even some elected Republicans who are generally aligned with the party’s more moderate faction, such as Idaho Gov. C.L. “Butch” Otter, expressed sympathy with the protesters’ frustrations while being careful to condemn their tactics.

Malheur might have brought the issue to the forefront for people in Eastern states where the federal government doesn’t own much land, but the issue has been studied and debated, with less drama but perhaps more potential for lasting impact, in state capitols throughout the region. Republican lawmakers in Idaho and other Western states frequently voice dissatisfaction with federal management and a desire for more state control. Many bills have been introduced in the past few years, but in most states, including Idaho, most of these bills have stalled.

In Washington, D.C., several Western-state congressional Republicans, including Idaho’s Raul Labrador, have introduced bills to increase state control, although none of them have gotten close to passing.

Given that most state-control bills have been opposed by Democratic lawmakers and environmental groups, it seems unlikely that a Democratic president would sign them even if they were to pass both houses of Congress. So whether any of these ideas ever become law is going to hinge on the outcome of the presidential election. Of the presidential candidates, only Republican Ted Cruz has come out in favor of transferring large amounts of federal land to state control.

Labrador has endorsed the Texas senator for president, and before he dropped out Labrador backed Kentucky Sen. Rand Paul, who also has called for transferring federal lands to the states. Labrador said that, while that specific issue wasn’t a big factor in his endorsement decisions, their stances fall into an overall philosophy on federal power and state control that he shares.

“I know they’re both big proponents of that,” he said.

In Boise

Two legislative sessions have gone by since the Idaho Legislature’s Federal Lands Interim Committee came out with a report recommending increased state management and collaboration with federal authorities. Several bills to implement the committee’s recommendations were introduced in 2015, but the most significant ones, including one to extend the committee to continue its work and one to create a compact of Western states to work on a transfer, failed to pass.

Late in this year’s session, Rep. Judy Boyle, R-Midvale, introduced three pieces of legislation looking to increase state control; one died in committee, and the other two passed the House but never came up in the Senate.

One bill did pass, though — a measure carried by Sen. Sheryl Nuxoll, R-Cottonwood, to let counties declare a “catastrophic public nuisance” if local officials fear their condition could lead to a big wildfire or other health or safety risks, and demand the federal agencies that administer them take corrective steps.

The bill was modeled on one that passed last year in Utah, the state where lawmakers have gone the furthest in attempts to assert state control, including preparing for a lawsuit to challenge federal land ownership.

Utah’s bill, in turn, was modeled on a draft bill from the American Legislative Exchange Council. The conservative group counts many Republican lawmakers in Idaho and nationwide among its members and supporters and is known for preparing model legislation on many topics and promoting public policy that benefits businesses.

A similar bill was introduced in Arizona this year, too, but was held in committee.

Much of ALEC’s funding and support comes from big corporate interests including oil companies and the Koch brothers, a fact the group’s more liberal opponents often highlight. ALEC put out a report last year making an economic case for state ownership, and report author Karla Jones, head of ALEC’s Task Force on International Relations and Federalism, testified in favor of the idea at a February hearing held by the Federal Lands Action Group, a group of western lawmakers who support state control.

“The paper concluded that the states would serve as superior environmental and economic stewards of select lands within their borders and that America’s own 19th-century experience in transferring land from federal to state control as well as Canada’s experience with territorial devolution serve as positive models for the transfer of lands today,” Jones said.

Supporters and opponents of Idaho’s new “catastrophic public nuisance” law did agree on one thing — that its practical impact won’t be huge.

Fred Birnbaum, vice president of the Idaho Freedom Foundation, a conservative group that favors state control, said during committee testimony that a county can’t force the federal government to cut down a tree. The bill’s value, he said, would be in highlighting problems, setting up a legal structure for counties to lodge their complaints and holding non-responsive federal agencies up for public scrutiny.

Jonathan Oppenheimer, spokesman for the Idaho Conservation League, said the law will start any conversation on land management “from a very adversarial perspective,” and just gives local officials a stick with which to poke the federal government.

“It seems like it is really a solution in search of a problem more than anything,” he said.

The new Idaho law won’t affect the U.S. Forest Service because it doesn’t include a mechanism for a county to try to enforce its demands on the federal government, said Wade Muehlhof, spokesman for the Forest Service’s Intermountain Region. He pointed to the Idaho attorney general’s opinion on the bill, which said it includes no provision “that explicitly purports to authorize a County Official to make a legally enforceable ‘demand’ against a federal agency, nor does the proposed legislation purport to impose any penalties on a federal agency for a failure to comply with a ‘demand.’”

The Idaho AG’s office concluded the bill was constitutional as written but could become unconstitutional as applied if a county were to try to take action against a federal agency.

Garfield and Iron counties, in the Dixie National Forest in southern Utah, tried to pursue a “catastrophic public nuisance” declaration in 2015 after the Utah bill passed, Muehlhof said. Specifically, they were concerned about too many fuels in a watershed near a municipal water source. Dixie officials agreed to include Iron County’s request in the national forest’s planning priorities for the 2017 fiscal year. In Garfield County, Muehlhof said, the Dixie forest is already doing several fuel-reduction projects in concert with the state.

“The bottom line for us,” Muehlhof wrote in an email, “is that we are always trying to establish and maintain positive working relationships with local, state and federal agencies that seek mutually beneficial solutions.”

Legal Challenge

With legislation stalling even in some of the West’s more Republican statehouses, the next front in this debate could be Utah’s lawsuit against the federal government — if that lawsuit is ever filed.

The backdrop for this suit was set in 2012, when Utah passed a law demanding the federal government transfer most of the land it owns in Utah to state hands, setting a deadline of Dec. 31, 2014. The federal government, of course, did not transfer the lands it owns in Utah to the state. In December 2015, a panel of state lawmakers voted to move forward after hearing from their legal consulting team, who told the legislators they were on firm constitutional ground.

“It’s a solid argument, but the court has never thought about it before,” said Ronald Rotunda, a constitutional law expert who is part of the team of lawyers, according to the Associated Press. “That’s what makes it a very dramatic case.”

Whether these theories will get tested in a courtroom depends on the results of the Utah gubernatorial primary on June 28 and the presidential election in November. Incumbent Republican Gov. Gary Herbert said at a debate in April it would be “counterproductive and probably reckless” to file the suit unless a Republican wins the presidential election. His challenger, Jonathan Johnson, has promised to move more aggressively than Herbert if he wins.

In February, the two Utah legislators who head the Utah Commission for the Stewardship of Public Lands visited Boise, along with George Wentz, the lawyer who is leading Utah’s efforts, to make their case to Idaho lawmakers.

Wentz says federal ownership of so much Western land violates the “equal footing” doctrine, which is the legal principle that the states are all equal to each other. Western lawmakers in Washington, D.C., can be blackmailed with payments in lieu of taxes their states depend on, and keeping so much land locked up limits development, keeping the population lower and limiting the Western states’ power, Wentz said.

“Is Idaho weaker than New York because Idaho doesn’t have dominion over all its land?” Wentz said. “Actually, it is.”

Other supporters of a land transfer, including Ammon Bundy, leader of the Malheur standoff, have argued that the Enclave Clause of the U.S. Constitution — which grants the federal government power over Washington, D.C., and the ability to buy and own, with a state’s consent, “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” — means that, because they aren’t included, the federal government isn’t constitutionally authorized to control the vast Western lands that it does.

Some other lawyers and legal experts have taken issue with these arguments. Deputy Idaho Attorney General Steven Strack wrote in his legal opinion on one of Boyle’s bills that the interpretation of the equal footing doctrine Wentz espouses “has no support in law.”

Jerrold Long, a law professor at the University of Idaho, said the Enclave Clause is just about areas where Congress exercises exclusive jurisdiction, and it doesn’t forbid the federal government from owning other lands.

“It’s really kind of a constrained, narrow, bizarre reading that is inconsistent with what anybody else has ever found,” Long said of the land transfer proponents’ legal arguments.

Long said the Constitution’s Property Clause, which gives Congress the power to regulate and dispose of lands it owns in general, and the Fifth Amendment, which says no private property may be taken for public use without just compensation, support the idea that the founders did not intend the Enclave Clause to be a list of the only properties the federal government would be allowed to own.

“It makes no sense to have a specific requirement to pay for land that you’re taking if you’re not allowed to own land,” Long said. “The Fifth Amendment is a clear recognition that the federal government can own land.”

The Fire Question

Rep. Steve Hartgen, R-Twin Falls, who was on the Idaho Legislature’s Federal Lands Interim Committee, expects federal land management to remain an issue unless there are significant improvements to the way federal lands are managed. He pointed to last year’s Soda Fire in Owyhee County, and the tens of millions of dollars the federal government is spending just on reseeding the burned areas.

“We all know that fires are getting worse,” he said. “There’s more fuel. And the management practices need to be changed.”

Hartgen said he supports multiple use, and that he has been following events in Owyhee County, which used to be in his district and where local ranchers have come into conflict with the Bureau of Land Management over grazing permits. Hartgen pointed to the China Mountain wind energy project, a proposed wind farm south of Rogerson that the BLM blocked due to concerns over sage grouse habitat, as an example of federal regulations hurting the local economy and tax base.

“We used to have a broader approach to multiple use,” he said. “And we’ve kind of gotten away from that. And it’s more about recreational use.”

Birnbaum of the Idaho Freedom Foundation, which lobbied for Nuxoll’s and Boyle’s bills this session, said Tuesday at an IFF gathering at Perkins Restaurant and Bakery in Twin Falls that increased logging and mining would lead to more jobs and tax revenue and fewer fires.

“Having hundreds of thousands of acres burn every summer is not good land management,” he said.

The Idaho Conservation League’s Oppenheimer agrees that fires are getting bigger and the fire season longer, but he attributes it to a different primary cause.

“Really,” he said, “climate change is resulting in a change in the way that fire behaves in Idaho, across the West and around the world.”

Oppenheimer said wildfires have always been a fact of life in the West, and continued collaboration with the federal government to identify the most at-risk areas and reduce wildfires through measures such as targeted thinning and better community planning is the more sensible approach.

“In our view,” he said, “a collaborative approach is a far better solution than making demands and legal action to demand a federal response.”

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A map of federally owned lands in Idaho and who manages them. More than 60 percent of the state's land area is owned by the federal government.

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