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Blue Collar Progressivism and finding joy in simple pleasures

broken-egg

“Mornings are for coffee and contemplation.” ~Stranger Things

I am a blue collar progressive. It’s kind of exactly how it sounds. Both descriptives represent a paradigm or worldview rather than being literal. By blue collar I mean that I come from humble beginnings and still live in the economic lower to middle class. My parents didn’t make a lot of money. Both were government workers, my dad a city planner and my mom an assistant to the attorney general. It sounds pretty good right?

While my parents were technically white collar professionals, their income more closely resembled that of blue collar workers and so did our home life. We didn’t take fancy vacations, have a swimming pool or nice clothes, or get vehicles when we turned 16. We always knew we weren’t rich and we always knew the people who were.

Education was paramount in our home. Having open minds and thinking forward as well as questioning traditional lines of thought or those in authority was encouraged. A liberal education was a thing of great value. Being able to intelligently discuss ideas and argue logical, well-founded points of view was the currency we bought and traded with. Culture was something to be cherished, preserved, and enjoyed. Civilization was the idea that people working together could create a society that was great for everyone, and everyone mattered. Nature was something to enjoy, respect, and to run to for solitude and prayer. Wilderness was where God lived.

This upbringing inadvertently taught me how to find riches in simple pleasures and it taught me how to become secure in who I was rather than in what I owned. My status resonated from within rather than from without. I lived countless lives and discovered cities and places around the world through books. It is where I learned to love the outdoors whether it was lying in the cool grass in my backyard or fishing from a canoe at Strawberry Reservoir and grilling and eating the fish we caught afterward. My entertainment was humble and inexpensive. It included taking drives through the mountains, hiking, and star gazing.

Now that I am an adult and I have a career and children and make that same lower to middle class income I find that I struggle with the same things I did as a kid: not having enough money to do the things I want to do, not having all the things I’d like to have, and not having the ability to give more to my children than I had growing up. I have limits.

I struggle with finding joy and satisfaction in the life I am living. I teeter between the joyful surprises life offers and longing for a life I don’t have. It is a mentality to be happy with what you have and with where you are in life. It requires having control over your thoughts in what is literally a constant mental exercise. Learning to be happy with what you have requires finding or seeing other types of wealth. I call those things simple pleasures. Mostly for me it boils down to three things: time, people, and nature. We have unfettered access to all three; it’s what we choose to do with them that makes the difference.

We have all heard that time is love or time is money. What this implies is that time is valuable and how we spend it determines the outcome of the budget of time allotted in our life, it determines our state of mind, our successes and regrets, and our overall well-being. Our choices can produce wealth, the lack of wealth, comfort, excitement, an enjoyable job or a miserable career. We can use our time to enjoy life or we can squander it. Time is a choice. Who we choose to spend our time with is another form of currency.

da-girlsPeople can be a blessing or a disease in your life. For me, finding people who are fun, intelligent, and humble to go through life with adds immense value to my life. People are an ingredient so easy to forget and yet so dire when they’re missing. Good people add the substance, support, and spice to life that makes it worth living. They can be the difference between getting through hard times or succumbing to them. The older I get the more aware I become that the idea of rugged individualism, doing things on your own, is a myth and a stupid and detrimental one at that. Life is hard, it’s harder alone. Having community and support can be the difference between a good life and hard and miserable one.

The last thing is nature. It is all around us all the time. It can be comforting and terrifying. It requires nothing of us. Sometimes it infringes on us without our consent, it blesses us always, and it provides nourishment to the soul. You do not have to go to nature to find it or experience it. While I would argue that you get more from it if you get into it and really experience it, I would never say that basking on a lawn chair in your backyard on a sunny afternoon is less than backpacking in Glacier National Park. One’s preference for how to experience nature is as varied as people are.  It’s the value you get out of it that matters.

That being said, I would argue that getting out into open space far from city life is priceless. I harp on the value of public lands a lot and it is because having public lands around you is a treasure not to be taken for granted. There is of course real value in public land and open spaces, just look at trends in real estate around public lands, open spaces, or the ocean to see what I mean – or the politics surrounding what can happen on public lands or whether they should be public at all. But really, the value of public lands is something you can’t quantify.

Going back to my declaration of being a blue collar progressive, what makes public lands and access to them so valuable to me is that those lands offer a place free from economic status. Going into them gives one dignity and equal footing. It is free from shops and trinkets and glittery objects and costs. It is the place where worry and doubt and fear can be shed and the soul can breath and the body and think and the mind can rest. It is where rejuvenation and peace are found. It is a place where you can’t hide from yourself, you can’t compensate with money or house size or bank account, but you can be you. You can escape the charade, the keeping up with others, and unmask yourself. It is the ultimate form of freedom. It doesn’t require a flag, a constitution, or military service. It doesn’t check party affiliation or voting record. You can just be. It is existence free from the weight of the world.

wilderness-access

Public lands make up 30 percent of the land mass of this country. Does that surprise you? It surprised me. We think of public lands as these huge chunks of land mass, but in context, they are really small islands in this country. One could argue that our public lands should not be developed at all but instead should be preserved as they are indefinitely. One could argue that the loss of economic value due to the existence of public lands is not the real loss, but rather the infringement of anymore development on those existing landscapes as they are is. We have plenty of opportunities to make money in cities and on private lands. The real threat is to our public lands.

That threat includes finding solitude 100 yards off a road. It includes the residual effect of remembering how your body felt after a 12 hour hike. It includes the enhanced refreshment of a cold drink after a grueling bike ride. It includes the studied and tested psychological benefits of being away from man-made civilization that nature provides. It includes the memories invoked when you are sitting in your office day dreaming about your next outdoor adventure or trail run or canyon. Just ruminating over it now with my fingers on the keyboard brings a soothing calm to my soul.

So now I’m sitting on my back patio, cold beer in hand, basking in the warm, amber glow of evening. A cool autumn breeze plays with the precariously dangling leaves clinging to the last hand-holds of summer and arouses goosebumps on my skin. Like the leaves in my trees I’m clinging to the quickly fading hues of the day before the purple shades of twilight creep across my yard and swallow it in darkness. It is a maddening practice to try to stop time, to enjoy the moment before it slips through my fingers, but it is the waltz of my life right now, stealing moments of glory in between work and soccer practices.

I take a sip of my IPA and the fresh, citrus flavor explodes on my tongue and sets off a storm on the distant horizon of my mind. The sensory response uplifts a swell of an idea that gains momentum as it breaks into my consciousness. With each gulp I fall from the wave into the iridescent green underworld of sublime imagery that has been lapping at the sandbars of my mind.

ramona-falls-oregonA couple of days ago while researching some detail online I stumbled upon this quote by Henry David Thoreau: “Instead of water we got here a draught of beer…a lumberer’s drink, which would acclimate and naturalize a man at once—which would make him see green, and, if he slept, dream that he heard the wind sough among the pines.”

The imagery of a lumberman’s hard and toilsome work ending with a cold beer in the cool shadows of green light with the sound of the wind in the trees sends my synapses into frenzied motion mixing a concoction of remembered experiences and sensations with an anticipatory longing and desire for more. It’s more than just the words; it’s the knowing. I know exactly what he is talking about and that knowing is what keeps my mind in a state of agitation until I can experience it again.

The juxtaposition of sensory delight and nature has got my mind in a lather. I am intrigued that so often natural phenomenon is used to convey our verbal explanation or description of a sensory experience. But even more is Thoreau’s injection of hard work thrown into the mix insinuating that through it the joy of simple pleasures is enhanced. I would argue that often it is only through toil that we truly understand the subtle joy that simple pleasures hold.

Whether it is toiling under a hot sun with a chainsaw and the reward of 20 foot winds moving through the tree tops or toiling to control my mind and thoughts when life feels like drudgery, the reward is knowing that the balance between culture and nature, between civilization and wilderness, between development and public lands is still there and that despite monetary limitations I still have the options and the ability to live a simple, abundant life.

 

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The BLM, Ranchers, and Domestic Terrorism Part I: United States v. Dwight and Steven Hammond

Beaver Dam 3

Demands for public land use are constantly escalating, and priorities for use of these lands have  shifted significantly in recent years. The changes are most pronounced with respect to lands managed by the Bureau of Land Management.” ~Deborah L. Donahue, The Western Range Revisted

***New Information at the end of the article***

Two Oregon ranchers, a father and son, Dwight and Steven Hammond, were tried and convicted for arson under the Anti-terrorism and Effective Death Penalty Act of 1996 in 2012 after igniting fires without required permits and/or during burn bans that spread to public BLM land in 2001 and 2006.

The mandatory minimum sentence under the anti-terrorism law is five years. On October 30, 2012, U.S. District Judge Michael R. Hogan gave the Hammond’s lesser sentences than the required mandatory minimum under the law because he believed their actions were not consistent with the intent of the law by citing the Eighth Amendment (cruel and unusual punishment) and that to sentence them according to the letter of the law was “grossly disproportionate to the severity of the offenses here (Capitol Press)” and would go against his conscience (see court transcripts). He sentenced Dwight Hammond to three months in prison, Steven Hammond to one year and one day, and fined them $400,000 for damages.

Unfortunately for the Hammonds, changing the sentence was outside of the Judge’s purview and the government lawyers appealed. In February 2014, a three judge panel of the 9th U.S. Circuit Court of Appeals (see Hammond Opinion) ruled in favor of the government saying, “A minimum sentence mandated by the statute is not a suggestion that courts have discretion to disregard,” and stated that the Hammonds must be returned to court for resentencing. That sentencing took place in October 2015.

According to an article on Oregon Live, Judge Stephen J. Murphy III said in his opinion, “Even a fire in a remote area has the potential to spread to more populated areas, threaten local property and residents or endanger the firefighters called to battle the blaze.” He noted that a teenage relative of the Hammonds was nearly burned by the fire and pointed out the damage to grazing land as well.

“Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense,” the opinion states, in sending their cases back to the district court.

The article went on to quote Kelly Zusman, the appellate chief for the U.S. Attorney’s Office, who applauded the decision saying, “The Hammonds’ actions in setting all of those fires and endangering their teen relative and BLM firefighters fell squarely within the type of conduct Congress wanted to see punished with a five-year sentence,” she said. “It’s important that the public know that setting fires to public lands — regardless of whether it’s a building in a city or sagebrush in Eastern Oregon — will result in federal jail time.”

At first blush this case seems ridiculous, but does it signify the increasing value of public lands and that to devalue or destroy them is an act of domestic terrorism?

If this is the direction the government is heading, and hotly contested controversy over a commodity is any indicator, one can reasonably come to the conclusion that land management issues are going to continue to surface and legal action is going to increase. The Bermuda Triangle that is land management, formed by the government, traditional users, and new progressive users, may have just produced a precedent setting case that rather than being ridiculous is indicative.

Land management has always been controversial, but the tide may be shifting on a much more significant level. Whereas the interests controlling land has largely been that of the extractive industries, such as mining, timber harvest, and cattle grazing, the economic driver today is overwhelmingly environmental and recreational tourism. This economic shift is putting power into the hands of new, progressive industries and people, many of whom have an environmental bent or ethic, who are shaping the debate over the use and management of public lands, marked by a growing interest in conservation and ecosystem management, and it reveals itself through changing priorities within land management agencies.

As Deborah L. Donahue states her book, The Western Range Revisited, “Today millions of people use the public lands for recreation; federal grazing permit holders number about 20,000. Recreational users of BLM lands generate hundreds of millions of dollars in taxes and revenues for local businesses and equipment manufacturers and retailers. Livestock are permitted to use more than two-thirds of all public lands, yet those lands contribute but a tiny fraction of national livestock production. Revenues to the federal treasury from fees paid by stockmen fail even to cover the BLM’s costs to administer grazing activities.”

When we look at policies through the American paradigm of providing the greatest good for the greatest number of people, we are now seeing, more than ever before, that a healthy environment, abundant recreational opportunities, and human health and well-being are significant goods, and those goods are driving a huge economic sector. As a result, industry leaders and the public within this growing sector have more clout and support in shaping policy decisions.

Using this case as the litmus, this essay will look at the actions of the Hammonds, the anti-terrorism act as a legal tool for public land managers, and the consistent application of the law across states, specifically in the Cliven Bundy case.

While all land management agencies have to deal with competing interests and conflict, none have to more so, seemingly, than the BLM. One of the reasons for this may be the changing management requirements and priorities of the BLM to include protection.

BLM land is largely rangeland, which refers to lands that are, or have historically been, used by domestic livestock, and that until recent history was undesirable interior land managed for grazing and mineral extraction. Because it wasn’t National Park quality land or forests, the users were small in number and had the land to themselves. The BLM had no real reason to strictly regulate or restrict users because there weren’t a lot of them and there weren’t diverse groups competing for use.

That all changed in the 1970s with the Federal Land Policy and Management Act (FLPMA) and the Public Rangelands Improvement Act, but it really came to a head in 1996 when President Clinton designated Grand Staircase Escalante National Monument, creating the first National Monument managed by the BLM. That designation instituted protection as one of the BLMs managing mandates. He went on to designate 14 more national monuments on BLM land.

All of the above, set forth by Congress or by presidential proclamation, required the BLM to consider the health of the range and manage the land in a manner that would improve the quality of rangelands. But special designations bring not only new users to include environmentalists, recreationists, and scientists, but also increased awareness and scrutiny.

Suddenly those who heretofore had unfettered access to the land had to share with a diverse group of users; furthermore, they were slowly limited in their uses of the land as well. This, not surprisingly, has made many of those traditional users angry, leading them to level charges of government land grabbing and over-reach. But according to the article, Clinton’s National Monuments: A Democrat’s Undemocratic Acts, by Albert C. Lin:

“There was [is] little substance to the “land grab” charges, as the land in question already belonged to the federal government and was therefore subject to disposition under the Property Clause. What such characterizations emphasized, however, was that certain state and local parties were accustomed to using the public lands as their own-and viewed them as such-and that the new land designation had suddenly disrupted their expectations concerning permitted uses of those lands.”

While one can only speculate as to how the Hammond’s viewed the public land their cattle grazed on, their actions are quite revealing and leave little room for doubt. It appears that their troubles came to a head in 1994 when they were arrested for blocking the Fish & Wildlife Service for building a fence that would keep the Hammond’s cattle out of the Malheur Wildlife Refuge. The Hammond’s claimed that they had water rights to the watering hole being fenced out and that they had a right to use the road through the refuge because it was a historic right-of-way. Because they had never been required to have a permit to use it before, they believed they had historic rights to use it.

It appears, however, that prior to this blowup the Refuge managers had had many run-ins with the Hammonds. According to a High Country News article published in 1996, “Hammond allegedly made death threats against previous managers in 1986 and 1988 and against Cameron, the current manager, in 1991 and again this year.” The problems managers at the refuge had with Hammond was that they did not follow the rules and regulations for grazing or moving cattle through the refuge and that because they had repeatedly ignored the FWS’s requests to abide by the rules, the FWS had no choice but to build the fence.

The High Country news article goes on to say, “According to the Fish and Wildlife Service, Dwight Hammond had repeatedly violated a special permit that allowed him to move his cows across the refuge only at specific times. In June, refuge manager Forrest Cameron notified Hammond that his right to graze cattle and grow hay on the lush waterfowl haven south of Burns was revoked. The feds also said they planned to build a fence along the refuge boundary to keep Hammond’s cows out of an irrigation canal.”

When the feds showed up to build the fence the Hammond’s placed their Caterpillar scraper on the boundary line in their way and disabled it. Only after a tow-truck arrived to remove the Caterpillar did Hammond jump in and move it, almost hitting an agent with it, all while yelling obscenities at the federal agents.

Not unlike the situation in Bunkerville, when the Hammonds were arrested, local ranchers rallied to their cause. The High Country News article states that around 500 “incensed” ranchers showed up at a rally in Burns, OR, to protest. Furthermore, the speaker of the American Land Rights Association, formerly the National Inholders Association, Chuck Cushman, “…issued a fax alert urging Hammond’s supporters to flood refuge employees with protest calls. Some employees reported getting threatening calls at home.”

Cushman also planned to print a poster with the names and photos of federal agents and refuge managers involved in the arrest and distribute it nationally. According to the article he said, “We have no way to fight back other than to make them pariahs in their community,” he said. Due to the pressure of these ranchers and groups, nothing much came of the situation.

This leads us to 2001 when Dwight and Steven Hammond lit a fire on their property allegedly to kill invasive species in order to improve the grazing conditions for their cattle. They burned down 139 acres of public BLM land on Steens Mountain next to their property that happened to be a part of their allotment. According to the testimony of grandson and nephew, Dusty Hammond, who was 13 years old at the time and present for the burn, however, Steven handed him matches so as to “light up the whole country on fire.”

According to Dusty’s testimony he walked the fence line dropping matches. When the flames got to be eight to ten feet tall he almost got burned over by the fire and had to seek shelter in a creek. Over lunch Dusty’s grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”

Later, Dusty said that his grandfather flew his Super Cub over the scene to gauge the effect the fire had on juniper there. The burned land was taken out of production for two growing seasons as a result of the fire. A Utah man, Dennis Nelson, testified that he and his son Dusty Nelson met a hunting party, presumably the Hammond party, on the BLM tract that morning. Both men described a clear day marred by smoke that grew heavier as the morning wore on (OPB).

While Dwight and Steven claimed the fire got out of their control and that they intended for the fire to only burn on their property, the account by Dusty not only contradicts them, they clearly had something to gain by burning the adjacent BLM land.  According to range cons working for the BLM, the fire did improve grazing conditions on the land – land mind you that the Hammond’s had grazing permits on.

It must be noted here that there are questions as to the credibility of Dusty’s testimony. According to the Bundy Ranch blog, Dusty had been “suffering with mental problems for years.” They further state that “the Judge noted that Dusty’s memories as a 13 year-old boy were not clear or credible” and claim that the “Hammond family believes he was manipulated and expressed nothing but love for their grandson.”

Dusty lived on the Hammond ranch until he was 15 and then distanced himself from the family.

In 2006, after lightning strikes ignited wild fires on adjacent public land near the Hammond ranch, the Hammond’s back-burned on their property to protect winter feed. They did this during a burn ban and did not give the BLM notice of their intent to burn. They ended up burning an acre of public land on Krumbo Butte. The indictment alleged that the fire threatened to trap four BLM firefighters, one of whom confronted Dwight Hammond at the fire scene.

According to The Oregonian, the U.S. sued the Hammonds and their ranch in July 2011, saying the government spent $600,000 battling the blazes they set, which “endangered individuals, wildlife, structures, equipment and threatened the public health, interest and safety.”

A superseding indictment accused the men of setting fires to interfere with BLM employees and firefighters trying to stop the spread of wildfires. They also were accused of using fire to destroy U.S. property, witness tampering, conspiracy and other charges.

Government court papers suggest the Hammonds’ were displeased that the “BLM ‘takes too long’ to complete the required environmental studies before doing controlled rangeland burning.”

In 2012, after deliberating for several hours, the jury returned a partial verdict. They found the two men guilty of intentionally and maliciously damaging real property of the United States by fire, in violation of  of 18 U.S.C. § 844(f)(1), based on their respective roles in the 2001 Hardie-Hammond Fire near Steens Mountain, where BLM leased grazing rights to them. Steven Hammond was also convicted of arson in the 2006 Krumbo Butte Fire on the Malheur National Wildlife Refuge and Steens Mountain.

The jury also acquitted the Hammonds of some charges and failed to reach a verdict on others, including conspiracy charges brought against Steven and Dwight. The government also dropped other allegations of setting other fires in 2006.

Update 1/11/2016: I decided to look into wildland fire arson cases to compare against the Hammond case. Arson is a real crime with real damages and dangers. According to this article published in 2010, the Hammonds have burned 45,000 acres over 28 years. High Country News, Some notable arson wildfire cases in the west: http://www.hcn.org/issues/42.13/some-notable-arson-wildfires-in-the-west

Update 1/4/2016:

The U.S. Attorney in Oregon wrote a letter to the people of Harney County, OR in regard to the Hammond case. It appears that the Hammond’s illegally slaughtered seven deer before setting fire to the BLM land. Two Utah hunters witnessed it and testified to it. Here is the letter:

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U.S. Attorney Billy Williams explains the circumstances of the prosecution and sentencing of Dwight Hammond Jr. and his son Steven Hammond for arson.
Contributed by: Les Zaitz, The Oregonian

Juniper dreams and stolen plunder

Unknown lands

Unknown lands

There is something rare and notable about spending time in places not transformed by civilization; far out places where you can be alone. I’m not talking about the jewels of the country, a Yosemite or Grand Canyon. I’m talking about the places that some might consider ugly or barren, that don’t draw the crowds, and which more than likely require dirt roads and contingency plans to visit. These places are the ones that most have never heard of and even less will ever see. In a sense, they are secret places held in trust and loved by locals.

There are large swaths of “unremarkable” land that are our last hope for refuge and sanctuary, that are not loved and visited for their majestic peaks and valleys but rather for the blessings they bestow on the visitor. And while going to these places is a physical experience, it is not just the act of being there that is special; it’s the power of the place to seep into your soul that is most salient. All the notes and nuances of such places strum the spectrum of senses and produce a music you can only hear there: the sound of silence below a high wind blowing in the trees, the scent of unspoiled earth and vegetation, the sensation of being alone, but not.  It is those things that stay with you and haunt your dreams long after you are gone and which leave a longing for the impossible: a reversal of time and a repeat of what has passed in order to feel it again.

The good fortune of being able to encounter such places, depending on what happens there, determines the experience of reliving them because they are both wonderful and dangerous, which is what makes them so enticing. I would echo what Gandolf said in The Hobbit but with a twist, “There are no safe paths in this part of the world. Remember you are over the edge of a remote, vast, rugged, and virtually inaccessible wild now. But there are pockets of wonder that exist here which seemingly only exist in literature until you discover them. And you are lucky to be here.”

Juniper dreams

Stolen plunder

I’m not sure if it was fate, destiny, or just plain luck that got me out to such a place, but I found myself in a far-away forest of juniper, pinion, and ponderosa pine high up on a desert plateau. The sound of a dozen chainsaws ripped through the still air and released a fragrance that only mythology can describe. While everyone worked, their minds far away, lost in the physical labor of cutting, I was intoxicated by the scent released from the freshly cut softwood of juniper, my mind grappling with the juxtaposition of the mechanized saws and the natural and surprising scent that followed their roar.

As I worked pulling branches away for my sawyer my mind dove into the pages of literature. I recalled Edward Abbey’s description of burning juniper and argued to myself that if burnt juniper rivaled Dante’s smoking censers in paradise, fresh cut juniper must rival ambrosia of the gods, a divine exhalation of the earth meant for immortals. And of course being mere mortals we must cut it open to get it, plunder to steal for ourselves that which is meant for the gods. Oh the mysteries Prometheus revealed when he stole fire.

I let myself sink into the thick, sweet, and sticky air, nearly drunk from the pungent aroma rising off the trees at my feet. It smelled of birth, of time, and awoke in me the visceral act of inhaling life and being filled by it. It’s a scent that visits you in your sleep and elicits a longing for damp earth and shaded forests. I closed my eyes and thought, everyone should be so lucky.

My stay in the juniper fields ended in a hazy, fire induced sunset that acted like a shade tree cooling off the sultry landscape. The physical ache in my muscles and the smell of juniper stuck to my skin was proof enough that I had really been there. But would I ever smell it again? Perhaps. Perhaps only in slumber. When I zipped into my sleeping bag, exhausted and ready for sleep, I let loose a wish that Morpheus would periodically ride in on the cool breeze and fill my dreams with wind-swept dirt roads, quiet meadows and the scent of juniper.

Sweet dreams

Sweet dreams

Ken Ivory’s Duty to Dispose federal land doesn’t hold water

On March 23, 2012 Governor Gary Herbert singed H.B. 148 into law. The Transfer of Public Lands Act was sponsored by Utah Rep. Ken Ivory, largely unknown until recent events in Bunkerville, Nevada and Blanding, Utah shot him into the limelight. He is the man of the hour for states’ rights proponents. After watching the debate in Salt Lake City about who should manage public lands I wondered if Ivory had a legitimate case and started looking into the arguments in favor of state takeover of public lands. But while Ivory’s argument seemed credible on the surface, after digging into the history and law of public lands, I don’t believe it holds water.

Photo courtesy of Scott Sommerdorf at the Salt Lake Tribune

Ken Ivory, photo courtesy of Scott Sommerdorf at the Salt Lake Tribune

In order to understand the articulate and legal language used by Ken Ivory in his defense of transferring public lands to the state, you have to understand what he is arguing. Ken Ivory believes that the Enabling Act was a compact, whereby both parties were to get and give something, that it was a two way street. This is true, but not the way he is arguing it. He is proposing a legal theory: that the U.S. had a duty to dispose of federal lands (2). To put another way, he states that the U.S. promised to give the land to the states upon entry into the Union. In today’s world, this sounds legitimate, but when you dig into the history, you see that Ivory is ascribing intentions on historical parties that were never there. In other words, he is rewriting history.

Photo courtesy of farm land grab

Photo courtesy of farm land grab

Why would he do this? Because there is great wealth in those lands and he has come up with a novel way to argue for control of them. According to a recent article in The New American, “Utah State Rep. Ken Ivory, one of the summit organizers, noted that there is an estimated $150 trillion in mineral resources “locked up in federal lands” across the West (4).” That’s a big reason to wrest control of those lands. Of course no one knew this in the late 1800s, but if Ivory can make it appear that way, maybe the courts will relent. Surely the people of the Utah territory must have realized those lands would be worth something at some time and would have demanded they eventually be turned over, right? Probably not.

While this might fool Utah constituents, I doubt it will fool the courts.

First, let’s look at the idea of the Enabling Act being a compact between the state of Utah and the U.S. government. There is some truth to that. In order to be admitted into the Union Utah had to comply with conditions required for statehood to demonstrate their loyalty and to show they would become “Americanized.” Because the Utah territory was run by the Mormon Church, their loyalty was in question. The issue of polygamy and Mormon political power could also be seen as an issue of trust and loyalty; as one anti-Mormon advocate wrote in 1869: “It is time to understand whether the authority of the nation or the authority of Brigham Young is the supreme power in Utah.” Critics of the Mormon Church saw it as a potentially disloyal body that could not be trusted with control over a state government (1).

As a territory, they were under the plenary power of Congress which meant Congress could use legislation to suppress polygamy and even the Mormon Church itself, and it did. So in essence, they had no sovereign rights or protections. Statehood would grant Utah constitutional rights, federal protections, and state sovereignty. They applied for statehood in the 1860s and wanted it badly enough that they were willing to accept almost any conditions to have it. There were three main conditions they had to meet: 1. They had to forever revoke polygamy; 2. They were required to provide a public school system free from sectarian (church) control; and 3. The Mormon Church had to give up political power in the state by disbanding its political arm, the People’s Party, and ensure that a fair and republican form of government was established. It took some doing, but roughly 20 years after petitioning the government for statehood the conditions were met and Utah was accepted into the Union with the passing of the Enabling Act in 1896 (1).

Brigham Young, photo courtesy of Wikipedia

Brigham Young, photo courtesy of Wikipedia

Part of the reason it took so long for Utah to gain statehood is because the minority, non-Mormons in Utah vehemently opposed it on grounds that the state would be governed like a theocracy, where the non-Mormon minority would have no voice or rights. Therefore, statehood was largely an issue of equality and of the separation of church and state, not over ownership of lands (See H.R. REP. NO. 50-4156, at 13 (1889) minority report opposing proposal for statehood for Utah stating that Congress should not admit the state until it is “satisfied that within said Territory there is no union of church and State”) (1).

Utah acquiesced to all the demands and did become a state. As for the federal government’s obligation under the Enabling Act, that obligation was constitutional. The obligation of the U.S. government is covered under the Guarantee Clause in the Constitution: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion and domestic violence. There is nothing suggesting a “promise” to transfer land to the states or that the states had any sovereign rights or powers over federal lands.

There is, however, great power given to the U.S. over federally owned lands under the Property Clause of the constitution which states: The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Ken Ivory states that under the equal footing doctrine, the states should have been given all public lands at entry into the Union, but the courts have not seen it that way. They have made the distinction, not by a definition of a compact, but by constitutional powers.

When it comes to questions of state sovereignty verses federal sovereignty, the court has relied on lines that delineate certain areas as “truly national” and certain areas as “truly local (1).” There have been cases where enabling act conditions were overturned because the court saw the conditions as Congress overstepping their bounds. However, “the court has been careful to emphasize that federal powers in regard to federal land came from the constitution, not from the admission compacts or conditions. Even if unequal distribution of federal lands within the states meant that newer states would face an increased burden from the same federal land conditions compared to other states that had little or no federal land, there was no infringement of state equality, even if new states had agreed to substantially different conditions related to those lands (1).”

As a result, conditions related to federal and Indian lands and the grants of lands by the federal government to the new states have been uniformly upheld by the courts as within Congress’s power. In Nevada v. United States, where Nevada, much like Utah, passed legislation demanding public land and sued over it, the court found that, “federal regulation which is otherwise valid is not a violation of the ‘equal footing’ doctrine merely because its impact may differ between various states because of geographic or economic reasons and therefore the large amount of federal land in Nevada can be placed under stringent management restrictions without violating the equal footing doctrine (1).”

Photo courtesy of the Western Nevada Historic Photo Collection

Photo courtesy of the Western Nevada Historic Photo Collection

While Nevada did not sue under a duty to dispose, they did argue under their enabling act which is virtually the same as Utah’s in regard to public land. But all that aside, the federal government has disposed of lands quite extensively and has been since this country was founded. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006. Furthermore, at least one section (1/36th) of every 6-mile square township was given to the states for the maintenance of public schools within the said township (State Trust Land). In total, the federal government has disposed of 1.275 billion acres of the 1.841 billion acres it acquired from state cessions, foreign treaties, and land purchases (3).

In Utah, many of those lands were transferred into private hands, such as the railroad, and through state trust lands, and the federal government is still transferring land, as was seen a week or so ago when an agreement was reached between the state and the BLM (Land Exchange). Funny enough, however, in the past the states were so reckless and unethical with the lands granted to them, the federal government had to come down even harder on them in the form of tougher restrictions and regulations (1), which begs the question: would the states really make better land managers than the federal government?

I would argue that the states would not make better managers of the land. Furthermore, I would suggest that the federal government is under no duty to dispose of public lands, even though they have done so; but rather that it is their prerogative. The truth is, the government has, with respect to its own lands, the rights of an ordinary proprietor or private individual and may sell or withhold from sale, as was found in Canfield v. United States (2).

Parashant National Monument

Parashant National Monument

The bottom line is Ken Ivory and his ilk want the land so they can sell it to industry and extract all the wealth from it. How they will afford to pay for wildland firefighters, environmental degradation and contamination, loss of wildlife and subsequent hunting and angling dollars, or afford to lose any of the $6 billion in recreation and tourism dollars is beyond me. And this says nothing of the inherent danger in privatizing public lands.

While they state they would keep parks and wilderness areas under federal control, how many other pristine and little known spots will suddenly be off limits? And how long before those federally protected places are encroached upon or ruined by private interests? Even though I don’t think Utah will win this fight, all outdoorsmen and women should be alarmed at the thought of a state takeover of public lands. Those lands are our lands and were given to us in trust; ensuring this land ethic and heritage was one of the best and most visionary decisions ever made by our government. What will happen to the great outdoors if new managers take over? I seriously doubt the states will manage better, be as equitable, or continue to promote the priceless values found in those lands. Anything worth having is worth fighting for. We cannot afford to let the states dominate this conversation and bamboozle us into thinking it is good for us.

“Of all the questions which can come before this nation, short of the actual preservation of its existence in a great war, there is none which compares in importance with the great central task of leaving this land even a better land for our descendants than it is for us, and training them into a better race to inhabit the land and pass it on. Conservation is a great moral issue, for it involves the patriotic duty of insuring the safety and continuance of the nation.” ~Teddy Roosevelt

Citations:

(1)    The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union by Eric Biber, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2031&context=facpubs

(2)    A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act by Donald J. Kochan, http://americanlandscouncil.org/myportfolio/a-legal-overview-of-utahs-hb-148-transfer-of-public-lands-act/

(3)    CRS Report for Congress, Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention by Krisina Alexander, http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

(4)    The New American: Western states want Feds to surrender federal land by Alex Newman, http://www.thenewamerican.com/usnews/constitution/item/18104-western-states-want-feds-to-surrender-federal-land

***Ken Ivory, in arguing for federal transfer of public lands, points to Illinois and Florida as examples of states winning public lands from the federal government, but that is like comparing apples and oranges. Both Illinois and Florida were admitted into the Union before the Civil War which was a game changer for admittance into the Union, drastically changing how Congress admitted new states. Furthermore, neither states’ enabling acts had language like that found in Utah’s and other western states’ enabling acts. Florida, admitted in 1845, was required to “never interfere with the primary disposal of the public lands lying within [its borders], nor levy any tax on the same whilst remaining the property of the United States. Illinois, admitted in 1818, was required to be consistent with the Northwest Ordinance, and Illinois was required to not tax lands sold by the United States for five years, and to not tax non-resident property owners at a higher rate than resident property owners (1).***

***The American Lands Council is a non-profit organization started by Ken Ivory to take back public lands. Both he and his wife collect paychecks from it while lobbying western lawmakers to support H.B. 148, Transfer Public Lands Act, which Ivory sponsored. Conflict of interest? Unethical? http://www.sltrib.com/sltrib/politics/57952776-90/ivory-lands-utah-state.html.csp***

 

 

 

 

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