Most recreationists who are even slightly aware of land management issues on public lands are familiar with the Bundys and their stand against the government. It is safe to say that most think the Bundys are mistaken in their approach to public lands. It is equally safe to say that none would put themselves in the same category as the Bundys. Recently; however, the House Committee on Natural Resources voted to amend the Wilderness Act to allow bicycles in wilderness areas at the behest of some in the mountain biking community.
Ted Stoll, founder and executive director of the California-based Sustainable Trails Coalition, who is the author of this bill, has been seeking out help from the very representatives actively trying to take public lands – and why wouldn’t he go to the representatives who value wilderness areas the least? While Stoll and his supporters followed the legislative process and did it the legal way, in contrast to how the Bundys have been doing it, their efforts to mine the ground of protected wilderness landscapes, whether they intended it or not, are providing the first in-roads for opportunists seeking similar access with designs of their own.
In 1960 Wallace Stegner wrote what has come to be known as The Wilderness Letter. It was written to the Outdoor Recreation Resources Review Commission regarding recreation in wilderness. In it he states that recreation has no more to do with wilderness than it does with churches or with the “American Dream” and argued against recreation in wilderness areas because the idea of wild places existing was more valuable than peoples’ access to recreational experiences in them.
He went on to explain how the wild landscape of our country built and forged our national character making us who we are, giving us quiet and solitude from the industrial and technological world we created, and that wilderness, however impractical to some, provides blessings of a spiritual kind to those who enter, and can calm those who simply contemplate it.
Our national identity and character is without question linked to the land. The expansion westward shaped the people of this Nation as surely as the Revolution did; it’s in our blood to roam and get caught up in the vast landscape of our country. People not born here but who choose the United States as home can sense it and feel and immerse themselves in it as well.
Stegner said, “The American experience has been the confrontation by old peoples and cultures of a world as new as if it had just risen from the sea. That gave us our hope and our excitement, and the hope and excitement can be passed on to newer Americans, Americans who never saw any phase of the frontier. But only so long as we keep the remainder of our wild as a reserve and a promise–a sort of wilderness bank.”
We should not forget our history or the untamed land from which it grew; and in remembering, we should fight to preserve and protect it.
Our protection should come from a place of gratitude. We enjoy rights, access, and a standard of living built on the experiences and lessons learned from those who came before us. Few of us have lived in a place or time where we could not drink the water, breathe the air, or eat the food. That is a blessing many in the world do not have.
Few of us have witnessed rivers catch on fire due to pollution, or watched thousands die as industrial smog settled over a city, or have had to live with the slow death caused by contamination or living down wind or down river of noxious poisons or toxins. Few of us have seen wildlife die slow and agonizing deaths from lead poisoning or pesticides. This is because people before us learned that “progress” has costs and passed legislation and implemented regulations in order to protect life and a basic standard of living. But that doesn’t mean it will stay this way.
We could be the ones who let it slip away. It is on us now to decide if we will maintain our collective civic conscience that ensures benefits for the good of all of us. Either our hard work or our complicity will shape the lives of those who come after us. As Gifford Pinchot said 100 years ago about our generation, “Our duty is to the future. To ensure that people in 2010 have a country of clean water, healthy forests, and open land will require battle with certain groups, namely the alliance between business and politics.” What will the generation 100 years from now have to say of what we passed on to them?
Today we stand witness to decisions being made by an administration that is undoing much of the hard work done by American pioneers – much of it the manifestation of the alliance between business and politics. We are witnessing a heretofore unseen zeal to slash and burn through historic and unprecedented ethical human progress, progress that revealed our values and character to the world, and it is being done without a care. It is such an overwhelming attack that it will take generations to fix and recover from if we do nothing to stop it – and that work will have to be done by our children and their children.
The policies being dismantled, and the decisions being made today, foretells a future where we might very well live to see access to our public lands disappear. Situations like the water crisis in Flint, Michigan might become the norm. We could see more rivers filled with mine tailings as the EPA is gutted and made inept. We may witness the death of our national forests as climate change moves into fifth gear while we do nothing. Our children’s children may never get the chance to see wild salmon, or hear the howl of a wolf, or experience a starry night because of what we do or do not do right now. We may witness and experience poverty – not just in terms of wealth – the likes of which most of us have never seen, least of which could be the loss of experiencing the last remnants of our wild lands as they were 100 years ago.
According to the Department of Interior, more than 500 million people visit National Parks and Monuments, wildlife refuges, and recreational sites annually. Additionally, the Forest Service statistics shows 173 million visits annually to national forests and 300 million visits to scenic byways and other travel routes near national forest lands. This says nothing of the development around the edges of public lands for people who want to live nearby.
It is safe to say that recreationists are the biggest users of public lands. Because of that, we need to be hyper aware of our impacts on the ephemeral and fragile ideals public lands are founded on and endeavor to protect them. Otherwise, we will be no better than others using public lands for their own selfish ends.
We should also recognize the economic value our public lands provide to our governments, both national and local, and by proxy, the benefits those dollars bring to us. The Outdoor Recreation Association believes it will be the economy of the future. Right now tourism and recreation make up the fourth largest economic sector in the country with $887 billion in consumer spending annually, bringing in $65.3 billion in federal tax revenue, and $59.2 billion in state and local tax revenue. Where do those billions of dollars go? Defense spending? Funding NASA? Roads? Medicaid?
Furthermore, what these numbers do not show is the amount of revenue brought in by international tourists and recreationists. Those dollars are paid by non-citizens who through their spending directly benefit us in terms of tax revenues that we ourselves do not have to pay.
Some in the outdoor industry recognize this, but none are on the forefront of this battle more than Patagonia. If there is a growing movement, they are the tip of the spear. We are witnessing a David and Goliath show-down between Yvon Chouinard’s Patagonia and the Federal Government that has escalated into anti-Patagonia tweets from government officials and even an invitation to Yvon Chouinard to come to Washington by Rob Bishop (R-Utah).
Patagonia was the first to stand up to Utah politicians pursuing their anti-public lands agenda in a real way by pulling out of the Outdoor Retailer (OR) show when it was clear Utah representatives would not stop their crusade, causing many other companies to follow suit – eventually leading the OR show to another state.
Patagonia really committed itself when it publicly supported, funded, and advocated for the protection of Bears Ears National Monument. They did so for the climbing certainly, but they didn’t do it just for that – as is clear from the public statements the company has made. Patagonia is fighting for the continued experiences that can only be found in wild places– because as Stegner said, “If the abstract dream of human liberty and human dignity became, in America, something more than an abstract dream, mark it down at least partially to the fact that we were in subdued ways subdued by what we conquered.”
In other words, they are fighting for an American ideal – a uniquely American feeling, and the renewal that comes from immersing yourself in the land.
Chouinard is a living example of the combination between the American Dream and the American Spirit. He built a successful company out of the recreational sports he loves. He played in our wild places and helped pioneer gear for others to play in those wild places also – and now he is fighting for those places. Fishing, surfing, and climbing shaped the 70 year old man we see today. He is what Wallace Stegner described as, “…an American, insofar as he is new and different at all, is a civilized man who has renewed himself in the wild.”
Patagonia is an interesting paradox to behold because the outdoor retail industry has largely been an affable yet harmless group more interested in color combinations of zippers on puffy jackets than public policy, seemingly taking for granted the fight it took to get access to public lands that fuels much of their business; an industry “incapable of driving large-scale global change.” (The Big Business of Resist) Despite the potential, they hardly garnered a look from political players.
When I attended the OR show in 2015 I went to listen to former Secretary of Interior, Bruce Babbitt. I shook my head as I looked around the room at the roughly 300 people in attendance making up a miniscule fraction of the 10,000 that showed up for the OR show. It represented an embarrassingly shallow lack of substance in an industry built on the substance of such individuals as Bruce Babbitt.
Here was a man who came from a ranching family in Northern Arizona who became a lawyer, a governor, and the Secretary of Interior who tackled some of the most complex and controversial issues in public land management resulting in long overdue reforms to mining, grazing, and endangered species law. A man who used his skills as an effective public advocate and teacher to counter the inevitable criticism from political opponents, and was instrumental in defeating the environmental rollback propositions of the Republican’s 1994 manifesto, Contract with America.
Here was a man who was the first Secretary of Interior to restore fire to its natural role in the wild and to tear down dams, restoring river flow into the Atlantic and the Pacific; a man who was personally involved in demonstrating catch and release programs for endangered trout and salmon to highlight how restoring native fish habitats restores economies; the same man who provided recommendations to President Clinton that led to the creation of 21 new monuments protected under the Antiquities Act that are now being undone by President Trump.
The OR industry turned a deaf ear to this man – until now. Babbitt’s words are reaching once deaf ears like the distant rumble of a long gone train. As if rising from a dead and distant past I can hear him say, “Wake up. Your industry – the $646 billion per year outdoor recreation industry – is a sleeping giant. If you mobilize the full economic and political power of your industry, you can change the debate. The persistent, high-stakes debate about public lands that is.” (Jimmy Tobias, 2015, Outside Magazine)
Patagonia did “wake up” and may finally be garnering Washington’s attention, but they are largely a lone wolf in the outdoor retail industry. Many in the industry are still plugging their ears. Many disagree with Patagonia’s stand, disagreed with pulling out of the OR show, and are playing it safe on the sidelines. Why mess up a good thing?
Many believe that Patagonia will take hard blows and may be destroyed in this fight. Many are shaking their heads at what is surely going to be a long legal battle, wondering if Patagonia has the stamina to go the distance and if the company will end up laying off employees to continue their fight.
Patagonia most certainly has something to lose and it’s more than just retail sales; they have put it all on the line in defense of public lands and therefore, could lose it all. But, as former Secretary of the Interior Sally Jewell said, “If you are not at the table, you are on the menu.” They are clearly at the table now and contrary to high ranking political figures poisoning the well by suggesting that Patagonia is catering to coastal elites, the costs they could incur speaks to the integrity of their fight – a fight we all stand to win or lose.
Wallace Stegner quoted Sherwood Anderson writing to Waldo Frank in his Wilderness letter, “Is it not likely that when the country was new and men were often alone in the fields and the forest they got a sense of bigness outside themselves that has now in some way been lost…. Mystery whispered in the grass, played in the branches of trees overhead, was caught up and blown across the American line in clouds of dust at evening on the prairies…. I am old enough to remember tales that strengthen my belief in a deep semi-religious influence that was formerly at work among our people. The flavor of it hangs over the best work of Mark Twain…. I can remember old fellows in my home town speaking feelingly of an evening spent on the big empty plains. It had taken the shrillness out of them. They had learned the trick of quiet…”
And then said, “We could learn it too, even yet; even our children and grandchildren could learn it. But only if we save, for just such absolutely non-recreational, impractical, and mystical uses as this, all the wild that still remains to us.”
Bruce Babbitt said, “This is the moment to apply the strength of your industry to the defense of America’s public lands.”
One could argue that Patagonia is doing just that. It’s not just about climbing or just about sales, it’s about the idea behind real places that provide intangible spiritual value to people who need and yearn for it. The land is a gift available to us that we neither earned nor deserve, but have. This fight is not just worthy, but according to Bruce Babbitt, doable – but we have to engage in it.
Let’s hope the outdoor retail industry can produce impactful results as well as create compelling stories to sell merchandise. Let’s hope Patagonia is not just the tip of the spear, but the tip of the spear with the entire Outdoor Industry Association (OIA) behind it – however active behind the scenes or slow to act they may be. “REI alone, with a membership of 16 million – more than three times that of the NRA – is theoretically capable of exerting enormous pressure on lawmakers.” What could the Patagoniac tribe, REI members, and the OIA bring to the table as a united front?
We need to decide where we stand else we become the ranchers of tomorrow. What makes mountain bikers who pushed for the wheels in wilderness legislation similar to ranchers like Cliven Bundy is that they are fighting for their own self-interest. They believe that their wants supersede everything else. It is a short-sighted view. We recreationists would be wise to consider our impacts on the land – we far outnumber ranchers – and should acknowledge and respect limits when pursuing activities that we love.
We should also support those fighting a battle that we stand to benefit from. Here’s to Patagonia and the hope that the OIA stands with them – and that they team up with tested and hardened veterans of the public lands battle, the modern day Teddy Roosevelts – the Babbitts and Udalls of the country – and wins, because if Patagonia and others like them persevere, we will all preserve and maintain a little longer our national character that was shaped and forged by a wild and untamed landscape.
We will reveal to the world that our character is built on more than money, that we respect and value the wisdom and gifts our ancestors gave us, and that we fight for our ideals because it’s who we are and who we will continue to be. And maybe, more importantly, we will leave behind for those coming after us the legacy of caring enough about each other to preserve our wild lands as sanctuaries for anyone seeking a momentary reprieve from a hurting and angry man-made world.
Written by Dallas Hyland. First published in The Southern Utah Independent.
It can be reasonably stated — and anyone would be hard-pressed to disagree — that on Sept. 12, 2001, there were no Republicans or Democrats in the United States. In the wake of the worst attack on American soil since Pearl Harbor, the only people you could find in this country were Americans, united in our grief and our resolve to defend not only our country but every single person in it.
While from a historical perspective that unity was somewhat short-lived, it was poignant and something to be remembered. Sometimes, as Americans, we need to set aside lesser differences and keep our eye on the ball together. Our enemies do.
Fifteen years later, America has a new common enemy. But uniting us on that front will be much more difficult than in the wake of an attack, because it is being meticulously carried out by measured and calculated individuals who wish to keep us divided on the matter for the purpose of their success.
There are some individuals who guise themselves as Constitutionalists. But they are in fact proverbial wolves in sheep’s clothing who, if successful in their plans to transfer federally managed lands to individual states’ control, will set into motion an irreversible devastation on our country.
First, it is important to clear something up. While the terminology in the public lands battle varies from “take back” the lands to “transfer control” of the lands, neither has any legal ground whatsoever. The Constitution does not state that the government is under any compunction to comply with these demands, and the legislators and lobbyists who propose so know it.
In fact, as a condition for entering the union, ten states have disclaimed all legal rights and titles to unappropriated public lands. And at least two of the ten, Nevada and Utah, have it in their state constitutions. The other states are Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, Washington, and Wyoming.
So why, for instance, is Utah mounting a taxpayer-funded $14 million lawsuit to transfer control of the land? Is it because it, like the embroiled and possibly justifiably angry ranchers, needs someone to fight the big government bad guys and “defend freedom?”
Sincere and heartfelt empathy for that iconic group of Americans who are in the twilight years of their relevance notwithstanding … ranchers, you are being used. Used to ratchet up the emotion and embolden a cause that, if successful, will leave you even worse off than you are now.
Want to know how that might be true? Just look at what western states have historically done with the “trust lands” awarded to them by the federal government in exchange for relinquishing claims to public property. The lands are by and large utilized for extraction industries, logging, mining, and real estate development.
To be clear, that is what the trust land is for. But there is no indication that the legislators who wish to push this land war are telling ranchers — or any of us, for that matter — that their mandate is to maximize profit. The only way to do that is to sell to the highest bidders, and ranchers simply won’t be at that auction. None of us will.
Ken Ivory, the former executive director of the Americans Lands Council and Republican member of the Utah House of Representatives, recently left his post at the ALC to take his public-lands message to an even larger national audience with the South Carolina-based group Federalism in Action. It’s a group, mind you, that is affiliated with extreme right-winged agendas and organizations funded by the Koch brothers.
The bills and litigation the likes of what Ivory pushes literally have not a chance of succeeding in federal court, but perhaps that is not their intent. Remember that “keep your eye on the ball” thing? Their intent is to rally support in Congress where a majority vote for a proposal — like the one from Sen. Mike Lee that would have, in essence, gutted the Antiquities Act — could aptly be a huge victory for their greedy plan.
Are you following here? The state of Utah is waging a frivolous $14 million lawsuit that it knows it has no chance of winning in the name of something it touts as in the best interest of the public when, in fact, the real agenda is to rally support from its misinformed constituency. It’s called a successful loss, and this is because $14 million is a small price to pay to keep a Republican majority in Utah, one that will be led blindly into the trap of taking over the land, only to see it sold off to extraction companies that will yield trillions for themselves and their bought-and-paid-for politicians.
Who most wants control of these lands? Commodities exploiters.
And if they succeed, the use of these lands that are guaranteed and protected for all Americans will be available to less of them and at a prohibitively higher cost to them than it has ever been under federal management.
The people waging this land war have their eye on the ball for sure. They’re hoping we don’t.
Think about it.
See you out there.
Utah politicians in particular, western lawmakers generally, and Congress as a whole will be in breach of their fiduciary duty to the American people if they allow Utah and other western states to succeed in their illegal land grab for public lands.
It is often claimed that the federal government is “land grabbing” but the only way for that to be true is if the federal government is grabbing state or private lands. The real culprit in the land grab scheme here is the state of Utah and other western states joining their crusade to take public lands.
There are a lot of claims being made about what the Constitution says, how it should be interpreted (strict or loose), and what the intent of the founders was. The Constitution spells things out explicitly and implicitly, but interpreting it isn’t as simple as many claim.
According to Robert G. Natelson, University of Montana School of Law, “Scholars across the political spectrum agree that for purposes of constitutional interpretation, the legally relevant issue regarding a particular clause of the Constitution is not the original intent of the drafters, but the clause’s objective meaning to the ratifying public.”
Furthermore, he goes on to state that “although in its fundamentals eighteenth century English was the same language we use today, there were many subtle difference, and those differences can deceive. One trying to deduce original meaning, therefore, should possess a good eighteenth century dictionary, a working knowledge of Latin, and access to contemporaneous legal materials.”
In other words, it’s not as straightforward as it sounds and even constitutional scholars struggle with it. Justice Stephen Breyer once said that the “general purposes” behind the constitution – the values underlying it – should assist courts in construing the document.
According to the article, “Federal Land Retention and the Constitutions Property Clause (hereafter referred to as “the article”),” federalists and anti-federalists were surprisingly unanimous in the political values they were trying to promote, and wanted a charter that would realize those values. The Constitution was ultimately a political bargain (the grand bargain) between the American public and soon to be federal government.
The political values unanimously agreed upon and which underlie the Constitution include but are not limited to: 1. Republicanism or popular government under the rule of law, 2. Decentralization or limited federal jurisdiction to enumerated powers, and 3. the ideal of fiduciary government, i.e., that public officials were unanimously seen as “guardians, agents, servants, or trustees of the people.”
There are a lot of loud voices making claims about the government’s responsibility to the people and making claims of the government not working for the people. Right now those claims are largely coming from ranchers, militants, and partial politicians who believe the government (meaning actions by the government they don’t like) is not taking care of them, or not doing their bidding.
But this view of government responsibility is flawed, biased, and narrow in a historical and constitutional context which was heavily influenced by the legal concept of fiduciary responsibility. The ideal of fiduciary responsibility was founded in a strong public trust doctrine which at the time of the founding was meant in a legally binding way as a universal responsibility to act as “guardians, agents, servants, and trustees” for the American public as a whole, not for special groups.
As stated in the article, this meant that “officials were to act with care and loyalty, in good faith, within their instructions, for the general good, and impartially.” The article goes on to say, “If, for example, a legislative body passed a law that benefited some citizens at the disproportionate expense of others, that legislative body violated its duty of impartiality.”
In other words, doing that would be a government breach of trust. And serious breaches were considered ultra vires – or in the language of the constitution, they were not proper and were therefore void. Attempting to wrestle public lands for ranching would be such a breach.
The western attempt to grab public land that doesn’t belong to them is a breach of that trust to the American public. Today we are witness to a block of western lawmakers pushing for an agenda that benefits a small minority at the expense of the majority. Those lawmakers, while they do have a duty to the people of their state, also have a larger duty to the nation and the American public as a whole which they are violating.
The claim being made from the lowest to the highest levels that the federal government is not allowed to own large swaths of public land as stipulated under the enclave clause is false. If we take the Constitution at face value, what we find under the Property Clause is that the government explicitly has the duty to manage and dispose of land. Implicitly, this reveals that the government can own land as long as it is managed according to the enumerated powers of Congress.
While the Constitution does not state that the government “must” dispose of the land, the case could be made. During the drafting of the Constitution there was widespread belief that the government would accrue land either by purchase or through treaties and that it would be disposed of for westward expansion via homesteading and for economic development.
Based on that, one could argue that all public lands should be disposed of to the highest bidders, either individuals or industry, and in the 1700s that might have been appropriate. Over time, however, disposal of land for the benefit of the American people expanded to include many purposes.
That being said, no one could make the claim that the land was supposed to be disposed of to the states. It isn’t stated, implied, or hinted at in the Constitution anywhere.
The founding generation of the Constitution sought to build the nation by land privatization, not through state land holdings. According to the article, “The ratification record suggests that gratuitous transfer of lands to state governments would have been seen as a partial act, and therefore a breach of public trust.”
It goes on to say that, “Value was to be derived from land for the benefit of all Americans, not merely those who lived in the vicinity. During the ratification debates no one suggested deeding western land to new state governments.”
In fact, “Participants in the ratification debates took firm stands against any land disposition that would benefit one part of the nation at the expense of other parts.”
Therefore, nowhere in the Constitution does it say that the federal government is required to dispose of land to the states. To suggest otherwise is a gross misinterpretation of the Constitution.
The Property Clause of the Constitution dealt with territories from which all public lands came to be. The Enclave Clause on the other hand deals with property within established states. There is a huge difference between those two classes of land. In terms of public lands in Utah, those lands never belonged to the state. They were in fact territorial lands owned by the federal government before Utah became a state; therefore, the Enclave Clause has no bearing on them.
Furthermore, the territorial lands within Utah’s borders upon entrance into the Union were forever relinquished to the federal government upon statehood under the Enabling Act of the Utah state Constitution.
The ensuing assault by Utah Congressional and Senate members is a gross abdication of their fiduciary duty to the American public, and their proposed bills: The Transfer of Public Lands Act and this year’s Utah Public Lands Initiative Act are both improper under their duty and therefore ultra vires breaches of the public trust.
These Congress members and politicians are not only attempting to steal land from the American public via their power in Congress, they are usurping the federal government’s role to manage those lands as a trustee and in so doing are violating their own duty as standing Congressmen to do their jobs for the American public and the nation at large.
They cannot point their fingers at the federal government as some distinct entity that they don’t belong to. They cannot cite that the government is abusing its power or not listening to the people without pointing their fingers at themselves. Furthermore, it could be argued that the abuse of power within the government is coming from these very people.
Public land was not meant to be held for unenumerated purposes. “The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers.” However, Congress has considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion are respected and supported by the public.
Under Congress’s enumerated powers, they have determined over the years that national objectives include environmental concerns, recreational opportunities, wildlife, scientific purposes, economic benefits, and natural resources and have given power to manage the public’s land to land management agencies. That is consistent with their Constitutional powers.
It is outside of Congress’s enumerated powers, however, to act on behalf of special interests or one group (ranchers for example) over others. Their actions regarding public land must consider all Americans.
The Federal Government has a long history of disposing of public lands which includes attempting to give the lands to the states and to ranchers under President Truman, which both entities declined. Things changed in the 1970s however. Under the Federal Land Policy Management Act (FLPMA), disposal guidelines were explicitly spelled out (see link below), which is legally binding today. Like the Constitution, nowhere under FLPMA does it say land must be disposed of to the states.
Congress passed this law under their enumerated powers listed in the Constitution, which means these lands are being managed Constitutionally and within the scope of our form of governance.
Under Constitutional authority, Congress has continued the tradition of making laws that govern the management of public lands in a way that is consistent with ensuring those lands are used and managed as a trust for the benefit of the American public, the nation, and for future generations.
What Utah politicians are doing, if not in outright cahoots with the Bundys’ militant standoff for public lands, is just a smarter version of it and is just as wrong, if not more so because their positions as standing members of Congress requires a high standard of fiduciary duty to the nation.
Federal Land Policy and Mangement Act , Disposal: http://www.blm.gov/pgdata/etc/medialib/blm/wy/programs/planning/rmps/rawlins/rod/appendix.Par.42703.File.dat/Appendix06_Disposal_Criteria.pdf
Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005), Available at: http://scholarship.law.umt.edu/faculty_lawreviews/73