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Public lands are not the states’ to “take back,” but they may get them after all

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Originally Published in The Southern Utah Independent 07/09/17

While sitting at a campfire at a friend’s home this last spring, the subject of public lands came up — in particular, the discussion of what the current administration has planned for them. One particularly verbose and self-proclaimed member of the elite “pioneer stock” of Utah seemed a little discontented with the idea that there was even a discussion to be had on the matter.

“We need to take our damn land back.” He said.

This is a more-than-common sentiment on the topic among conservatives and pseudo-scholar constitution lovers. It is espoused as an obvious point of fact and generally accepted to be so with little debate. This is problematic for reasons we’ll discuss, but at the outset here, it is something that very much needs to be understood before taking to the task of preventing states from gaining control of federal lands.

Generalizations duly noted here, it is safe to say that many of the proponents for control of state lands lean towards a fundamentalist conservative worldview. With that in mind, perhaps an analogy of sorts could be drawn from someone they regard highly and authoritative on matters of conscience in an effort to begin a dialogue by first finding some common ground.

C. S. Lewis is perhaps one of the more notable and beloved theologians and advocates of the absoluteness of deity in the eyes of western Christian civilization. He wrote, “Good philosophy must exist, if for no other reason, because bad philosophy needs to be answered.”

By “philosophy,” he presumably meant “theology,” among perhaps other things. But the point is that it was not lost on him that it is imperative to bring to an argument upon matters of consequence, as much of the truth in facts as can be mustered at the time, else the argument itself is pointless. And he presumed in this statement that this precept was a universally transcendent one.

When it comes to the debate over public lands at present, and drawing from the example the boisterous Utah native presents, it should be said that an accurate understanding of history and laws regarding public lands must exist, if for no other reason than because inaccurate and ignorant ones must be answered.

And in this time and place in history, it is as important as ever, because, my friends, that inaccurate and ignorant paradigm may well prevail in a manner not thought possible until now.

Because until now, public lands, national monuments and parks, state trust lands, and environmental regulations and agencies have prevailed largely under the attacks of such ignorance because no matter what salvos of emotional appeal were lobbed at them, the courts were what they ran up against.

Legislators with ties to the extraction industry would rally causes of federal land being ceded to state control with the ardent support of their constituencies but would invariably only gain the loyalty of their supporters for their attempts. It was the courts that would stop them. Espousing without merit that the states are really the constitutional, legal, rightful owners of the U.S. public lands and portraying the ownership of land by the federal government as illegal and unconstitutional, these legislators would spend vast amounts of tax dollars mendaciously pursuing the agenda. And in spite of the failed outcome, which often their own offices of research and legislative councils would advise them of, they would consider it a successful loss. They may not have accomplished the goal, but they satisfied their ill-informed base that they had fought the good fight, often capitalizing on the fact that this very base did not know enough to know that they were being used for a corporate agenda.

It sounds appealing to the average supporter of this agenda that the federal government is out of control and has no right to the land it has taken. To these supporters, the land must be taken back at all costs.

This just simply does not align with facts.

The United States government owns 650 million acres of land. That is about 30 percent of the land area of the country. At one point early in its history, it owned all of the lands west of the original 13 states. Federal land ownership started when the original states ceded their “Western Land claims” in the decade beginning in 1781. Other than these Western lands claims, none of the original public domain was ever owned by states.

These lands cannot be “given back” to the states, because the states never had them in the first place.

U.S. acquisition of federal lands occurred mostly from 1803 to 1867, beginning with the Louisiana Purchase and ending with the purchase of Alaska.

This is covered in the U.S. Constitution by the Property Clause (Article IV, section 3, clause 2), which reads, “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.”

The Antiquities Act of 1906 followed the 1905 and earlier designations of national forests, and the Federal Land Policy and Management Act of 1976 (FLPMA) is likely the most concrete and impenetrable legislation protecting federal lands. FLPMA repealed all land-disposal claims and made it national policy that from then on the general intent was to keep all the public lands. This is where the law regarding public lands sits today.

Likely in response to FLPMA and perhaps an increasing interest by the general public on a national level to regulate grazing and forestry practices on public lands, the Sagebrush Rebellion of 1976 began. Largely lead by ranchers who in some cases rightly felt their lifestyles and livelihoods were being infringed upon, the rebellion was put down in 1984 by the courts.

But its spirit lives on and can be witnessed in recent upsurges such as the standoff in Bunkerville, Nevada by rancher Cliven Bundy, the illegal ATV ride through Recapture Canyon in southeast Utah spearheaded by San Juan County Commissioner Phil Lyman and inflamed by Bundy’s son Ryan, and the illegal takeover of the Malheur Refuge in Oregon by Ryan and Ammon Bundy and accomplices.

In spite of the radical nature of the Bundys’ misaligned defiance, it is understandable on some levels and to varying degrees represents the unrest and dissatisfaction the west has been accumulating with the federal government. American heritage in the west is all but synonymous with the western rancher/cowboy culture as it embodies the rugged individualism of the American ethos.

And it is that ethos and the ill-informed infatuation with it that groups like the American Legislative Exchange Council (ALEC) have aligned with to accomplish corporate interests disguised as the interests of everyday Americans with a stake in public lands.

ALEC is a political vehicle of the Koch Brothers for transforming their ideology and policy preferences into law. Extractive industries, such as mining industries and fossil fuels, as well as real estate developers desire federal lands for development without the environmental regulations, fees, and royalties required by federal land management agencies.

And with the recent election of Donald Trump and a powerful Republican majority, the groundwork is now in place for a real and viable threat to public lands once so ardently protected by legislation enforced by the courts.

Utah Republican Mike Noel presents an example of the not so rhetorical threat to public land. Although he is far from alone in this mindset, his is an ardent and effective approach among conservatives. He works to demonize opposing views, intimidate opponents, and assert incredulous nonsense guised as compassionate conservatism while appearing to have a working agenda consistent with the needs of extractive industries. He refers to people under his charge-the people who live and recreate in Utah that is- who do not agree with him as “bunny lovers, tree huggers, and rock lickers.”

Noel is making a bid to be the head of the Bureau of Land Management, an agency he seems to publicly despise, presumably to either dismantle it or overhaul it to an unrecognizable state.

He perceives advocates for limiting resource extraction to protect Utah’s striking red-rock landscapes, wildlife, rivers, and archaeological resources as enemies to the rural communities of Utah and believes such practices harm the land rather than protect it. He cites no credible sources of information to validate such claims, however, and is an ardent advocate for extractive industries and development.

Noel is an example of what I mean when I say that what was once a mindset held exclusively in small and easily discredited groups, is now gaining the ground it needs to be a viable force and threat to the legislative process that once stopped it in its tracks.

The current atmosphere contains more than veiled threats without teeth to the sanctity of hard-fought-for and won public land policy. It represents a clear and present danger to it because this president and administration are sympathetic to the maligned agendas of the extractive industries and the legislators owned by them. They could very conceivably, and likely with absolute impunity, overturn FLPMA, the Property Clause, and the Antiquities Act for that matter. What was once protected by the courts will no longer be, and the consequences will be grave and real.

That is why it is more important now than it has ever been to become informed and engaged activists and advocates for the land and the environment we all live in. It is not enough to merely vote your conscience, recycle and reuse your waste, and tell the waiter you would like your beverage without a straw.

I was recently approached by a person who asked me what I thought of the whole land debacle and in particular what I thought of the outdoor retailer Patagonia’s proverbial removing of the gloves as it spearheaded a pullout of the Outdoor Retailer Show in Salt Lake City and made know its intent to litigate with the Trump Administration over the attempt to overturn the Bears Ears National Monument designation.

I  began by asking him if he really wanted to know what I thought. When he seemed sincere in his intent to know, I inquired whether he knew of the history of our public lands and the legislation mentioned in this article. He acquiesced that he did not. I then asked him how he could, with such conviction, support a mandate for something he did not understand all sides of. He asked me if I recognized the overreach of the federal government. We both saw valid points to one another’s concerns, and a healthy debate ensued. I hope it continues.

This may be one of the most important discussions of our generation, folks. Please inform yourselves and get involved. You are, whether you choose to be our not.

See you out there.

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Congressional delegates and the public lands insurrection

St. George hearing on congressional subcommittee for public lands January21, 2016. Photo by Dallas Hyland

St. George hearing on congressional subcommittee for public lands January21, 2016. Photo by Dallas Hyland

Originally published in The Southern Utah Independent

Dan Mabbutt of the Independent reported that the United States Congressional Subcommittee on Federal Lands held an official meeting in the Dixie Center on Friday, Jan. 22.

It was interesting to note that the front rows held reserved seats for supporters of the Northern Corridor and that the venue was inadequately placed in one of the smaller conference rooms of the Dixie Center. It is fair to say that the standing-room-only overflow could have easily been accommodated by a room twice the size.

Not surprisingly, at least to some people, the audience was a pretty equal mix of supporters of the Northern Corridor and those perhaps in opposition. The Southern Utah Wilderness Alliance made its presence heavily known with members bearing “Protect Wild Utah” badges and signs.

Oftentimes, what is more glaring in a somewhat contentious environment like this is not so much who is in attendance but who is not. There was an elephant in the room of sorts that was likely in the back of the minds of everyone present. The militia folks who have taken over the Malheur National Wildlife Refuge in Oregon might as well have been there.

The meeting was, in my opinion, pretty typical for the one-party state of Utah. Demonizing the federal government, in particular the Bureau of Land Management, is as much a part of this state’s ethos as the notion of Zionist dominion assumed by the predominant culture here.

But for all the tension that was present at that meeting, one thing stood out so much that even subcommittee chairman Tom McClintock made note of it when he praised the audience for their civility.

Environmentalists and ranchers in the same room getting along and debating opposing ideas and views like Americans. Go figure.

While I have been outspoken about the land issue in the West and can fairly be noted for some disdain for the lawbreakers in Bunkerville, Blanding, and now Oregon, I am not obtuse to the concerns or plights of those who feel somewhat like they have no alternative but to fight. That they feel backed in to a proverbial corner is, at the least, understandable.

But when civility is foregone in the name of any cause, both those who oppose said cause and those who ardently support it suffer.

The men and women currently held up at that refuge in Oregon likely believe they are changing the direction of how federal government operates, but they do not realize why they are actually correct about this. Because of them, it is more likely that more stringent laws will be passed in the long run, and those laws will favor them even less. For instance, the subsidizing of their grazing fees may find itself under scrutiny.

A recent article in the Washington Post reported on the matter:

“In a pair of decisions issued on Friday, the 9th Circuit Court of Appeals ruled the late Wayne Hage of Tonopah and his family were guilty of trespassing cattle on federal land illegally without a grazing permit and should be subject to fines. The appellate court based in San Francisco also determined that U.S. District Judge Robert Clive Jones had no legal basis to find employees of the Bureau of Land Management and Forest Service in contempt of court for doing their jobs.”

The Hage case, was a precursor to the Bundy standoff in 2014. Hage having ties to the Sagebrush rebellion. It was a case, mind you, that set the precedent that will make Utah’s current attempt to revamp that rebellion nearly impossible. That among other things, such as the Property Clause, the Enclave Clause, and even Utah’s own Office of Research and Legislative Council advising that a lawsuit intended to take public land from the federal government is ill advised, lead some to wonder if Utah legislators are simply grandstanding to appease and maintain a majority of their constituency by way of successful failure.

And if that is the case, if a legislator such as Utah State Rep. Mike Noel is not obliging his fiduciary duty to represent the interests of all people, not just the ranchers in his state, he is in fact betraying the trust of the American people. And he is also likely emboldening some of the people who are taking the illegal actions we now see in Oregon and perhaps even falsely assuring them of their imperviousness to the law. Which makes him culpable. Think about that. A standing Utah State Legislator inciting insurrection through violence. It is unconscionable.

The Property Clause and the Enclave Clause are largely the center of debate here and it is possible that both sides of this have it somewhat wrong. While it is true that the government may not necessarily own land, as Ryan Bundy asserts, it is charged with the fiduciary responsibility to manage land in a manner that represents the interests of all people, not just ranchers. Nothing in this mans demeanor or his speak suggests that he is interested in anything other than the interests of his particular group. It is not constitutional constructionism at all but rather constitutional Bundyism.

These laws were enacted and ratified by scholars of law, that is the founders. Men who understood first hand how perilous it was for a monarchist government like the one in England, to have unlimited control over all lands thus all people. These men were seeking to apply some of the jurisprudence of which they experienced to be severely lacking across the Atlantic and create a more fair and equitable system of government.

What was not intended was any sort of free for all and surely not for any state to have power that supersedes the nations laws. The founders were firmly against land dispositions that in any way benefitted one part of our country at the expense of others.

The misnomer on the part of Bundy and those who have taken similar stances is the assertion that the federal government illegally owns the land. The people of this country own the land and the government holds it in trust and manages it for all. When Bundy says “we the people,” it appears what he really means is “we the ranchers.”

The ruling by the 9th Circuit is a tell-tale omen of what is to come. Standoffs in the battle for rights to public land will keep going this way and gain momentum. Unfortunately for those iconic western staples who have history here dating back a century or more, the interest in those lands has broadened significantly since the 1800’s. These people are likely outnumbered hundreds of thousands to one in so far as the weight of their voice in the issue in so much as the land they have had unfettered access to for the better part of one hundred years simply does not belong to them. It never did. What has been the norm, whereby a minority group in this country has had a majority control over the western lands, is changing. That is just the simple fact of the matter.

Taking up arms against the government only serves to exacerbate their plight, however.

Ranchers’ proud legacy in the annals of American history is in grave peril. They could well be remembered and associated more with domestic terrorism than as the rugged individualists who took part in shaping the West.

But it does not have to be this way, and for my own part, I would encourage those on the side opposite the ranchers to not only educate themselves in this debate but to also refrain from obtuseness towards these people. They are not all extremists like the few who make most of the headlines; rather, they are honest, hard-working Americans, and their concerns are valid. Their rights to life, liberty, and pursuit of happiness are as important as anyones.

When Mike Noel spouted off about there being bloodshed on the horizon, while I find the man curiously childish for a fellow of his position and stature, I fear he is right.

Am I alone in saying that this is the last thing any of us want?

And what is even more disconcerting about Noel is that he appears to be spearheading the fight taking in to account only the interests of a sect of his constituency and not the interests of all Americans. If there is bloodshed, much of it may be on his hands.

Something perhaps the Bundy’s and Noel’s of this issue should consider is that while quite literally no where in the Constitution does it state the federal government is required to give land to states, it does explicitly state that in the enumerated powers of congress, they have the power to deal with insurrections. Noel in particular, is treading a fine line between his duty as a congressmen and seditionist.

Cooler heads must prevail here, and honest, rigorous dialogue must begin. The grandstanding of bureaucrats needs to be seen for what it is, and “We the People” need to recognize this and take the debate to a more agrarian level representative of all of us.

See you out there.

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