Three Million Acres of Public Lands Are off the Market—For Now

A massive outcry killed a bill that would have sold off millions of acres of public lands—but don't expect that to be the last fight between the Republican Congress and the outdoor industry over their fate

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Land seems permanent, but once it’s gone, it doesn’t tend to come back.    Photo: Bureau of Land Management/ Flickr

The land grabs started more quickly than anticipated. On January 3, 2017, the first day of the 115th United States Congress, the House of Representatives passed a resolution that changed the manner in which the government accounts for America’s vast publicly-owned estate. The provision, championed by Utah Republican Representative Rob Bishop, was part of a larger rules package that didn’t require Senate approval; it stated that “authorizing a conveyance of Federal land to a State, local government, or tribal entity shall not be considered as providing new budget authority, decreasing revenues, increasing mandatory spending, or increasing outlays.” 

Though written in the kind of legislative jargon that seems designed to cure insomnia, the provision was significant. According to House rules, any bill that adds to the federal deficit must include a financial offset. Bishop’s language exempted public-land legislation from such ledger balancing. In essence, it rendered 640 million acres of forests and refuges and parks worthless. Imagine the Cleveland Cavaliers declaring that, should they elect to trade LeBron James, they’d want nothing in return. 

When the rule was enacted, I happened to be in Washington, D.C. Until that moment there had been much speculation about what might happen to America’s wild places under a Trump administration and a GOP-held Congress, but little tangible information. The Republican Party had stated in its official platform that it wished to enable the divestiture of public land to the states—once a fringe notion that has gained a remarkable amount of traction in recent years, most visibly with the Bundy brothers’ armed takeover of Oregon’s Malheur National Wildlife Refuge. Still, Donald Trump’s position remained unclear. During the course of his campaign, he told Field & Stream magazine that he opposed transfer; he told a Colorado newscaster he would look into the matter; a pro-transfer Nevada county commissioner claimed Trump declared allegiance to the cause. Immediately after winning the election, he considered nominating a pro-divestiture Secretary of Interior, but then offered the post to Ryan Zinke, a Republican from Montana who has spoken out against land transfer. 

Still, land advocates were on edge, and Bishop’s rule seemed to confirm their worst fears. When it sailed through the House, I went to the D.C. headquarters of the Wilderness Society, the 82-year-old nonprofit advocacy group co-founded by Bob Marshall and Aldo Leopold. There, in a white hall adorned with 88 original prints of Ansel Adams—once a councilmember—I met with three staffers, including Lydia Weiss, the group’s government-relations director for lands. “The first thing out of the gate is a rule to grease the skids,” said Weiss. “In a million years we never would have considered that one of the first rules of this Congress would be to enable land transfer.” Shortly after leaving I emailed John Leshy, who served as an attorney for the Department of Interior during the Clinton administration, asking about the Bishop rule. “It sure seems to breach longstanding Republican ‘principles’ by preventing consideration of the cost of giving away land we all own,” he replied. “What kind of rational landowner would behave in such a fashion? I hope the American public can grasp how foolish and hypocritical this is.”

For his part, Bishop was unapologetic. He told a reporter that the idea that he was paving the way for selloffs was “bullshit.” He downplayed the provision, saying, “This is not part of a strategy. It was a silly process of an accounting rule.”

But just weeks later, two bills appeared in the House of Representatives that seemed to belie that notion. The legislation was brought by Rep. Jason Chaffetz, of Utah’s 3rd Congressional district, who has partnered with Bishop to author past federal land bills, including the controversial Public Lands Initiative. Though they haven't yet come up for a vote, Chaffetz’s bills sought to remove law-enforcement authority from agents of the Bureau of Land Management and the Forest Service (H.R.622), and to sell off 3.3 million acres of land in ten states to “non-federal entities” (H.R.621). A couple of days later, a third member of the Utah Congressional delegation, Senator Orrin Hatch, suggested to the Washington Post that the 1.35-million-acre Bears Ears National Monument—which President Obama designated for protection under the 1906 Antiquities Act on his way out of office—might soon be overturned. President Trump, said Hatch, was “eager to work with me to address this.”

The next great Western land war, it seems, has only just begun.


Much of the federal estate—the national forests and parks—was set aside between 1890 and 1910, just after the United States government finished wresting control of the last of it from Native Americans. The powerful Utah Senator Reed Smoot, an apostle of the Church of Jesus Christ of Latter Day Saints, was an early supporter of the Forest Service (founded in 1905), the National Park Service (1910), and the notion of publicly held resources. Now, though, his home state has become the incubator for a small but vocal movement questioning federal management of those same lands.
 
In some western ranching and mining communities that are dependent on natural resources, land transfer has become a populist cause. Those in favor—including Bishop, his colleagues in the Utah Congressional delegation and, on the more extreme end of things, the Nevada rancher Cliven Bundy and his sons—frame the idea as a boon to America’s rural working class. They see national monuments protected under the Antiquities Act, which President Obama used 29 times, as an affront.

About 70 million of the federal government’s 640 million acres are preserved in national monuments and parks, which draw in many billions of dollars of tourism revenue each year. The rest of the federal estate is open to drilling, mining, and solar and wind power, not to mention hiking, biking, and hunting. Business here is booming. Though many Westerners like to think of their home turf as a place of rugged self-sufficiency, the region’s economy is more dependent than locals would care to admit. Coal miners, solar investors, oil companies, and ranchers rely on federal subsidies in the form of favorable leases from the Bureau of Land Management. Outdoor- and hunting-gear makers are on the hook, too. Without federal tax money supporting public lands, there would be far less reason to buy Gore-Tex jackets—or hunting rifles. To the $646-billion outdoor industry, land-transfer conjures images of NO TRESPASSING signs and drill rigs at the local fishing hole or hunting spot.   

Herein lies a problem for those pushing divestiture: public lands tend to be extremely popular. A recent Colorado College poll conducted around seven states found that 58 percent of Westerners opposed transfer of lands to the states. The Sagebrush Rebellion of the 1970s and 80s—a populist push to claim the federal estate—struggled to overcome this same challenge. Once Ronald Reagan was elected, Utah ranchers began to worry that land transfer might cost them the favorable grazing rights they held through the Bureau of Land Management. In 1984, just five years after the movement’s peak, the conservative economist Robert H. Nelson wrote a post-mortem on the rebellion. According to Nelson, the Sagebrush leaders could not overcome “the perception in the West that the rebellion would endanger the benefits the West traditionally has received from the rest of the country.” 

The modern iteration of Sagebrushism took off in 2012, when a Utah state legislator named Ken Ivory launched a group called the American Lands Council (ALC). Ivory traveled around the West, soliciting money from local governments for the ALC and promising to help “free” the land. He spoke with a preacher’s zeal about the government’s complicity in causing wildfires, claiming that Westerners needed to log forests in order to prevent blazes. 

In 2012, Ivory introduced the Transfer of Public Lands Act in the Utah legislature, which demanded that the federal government hand over all its 31 million acres in Utah, including Bryce, Zion, and Arches national parks. The state legislature passed the measure, but such action was useless without federal acquiescence, and the Department of Interior gave it all the attention of an overserved guest at a wedding bar. “It’s like passing a resolution saying evolution is a communist plot,” says Leshy. In 2012, the Arizona state legislature passed a similar resolution demanding transfer of federal lands to the state. It was handily voted down in every county, after which then-governor Jan Brewer vetoed the measure. 

But Ivory found a supporter in the American Legislative Exchange Council, or ALEC, a Washington, D.C., nonprofit whose constituents are not often found on cattle drives. A free-market think tank, ALEC functions as a cozy bed for state lawmakers and corporate members, frequently drafting model legislation favorable to the extractive industries. Koch Industries and ExxonMobil are members. Ivory began speaking at ALEC conferences as early as 2011, advocating for the transfer of public lands to the states, and was once named the council’s “Legislator of the Year.” In 2013, ALEC drafted model legislation that resembled Ivory’s Land Transfer Act. Similar measures have since appeared in Alaska, Arizona, Colorado, New Mexico, Oregon, Utah, Washington State, and Wyoming. “ALEC served as a dissemination mechanism for this model legislation that Ivory and others developed,” says Matt Lee Ashley, of the Center for American Progress.  

An ALEC spokeswoman didn’t respond to requests for comment, but a press release on the group’s web site last February read, “ALEC has led on the transfer of western lands issue for many years with model policy supporting the transfer of select federal lands to state control.” In December 2016, just after the election, the group held a conference to promote the land-transfer issue, with Representative Bishop appearing as a speaker. Around the same time, the American Lands Council sent out a note to its supporters, celebrating Trump’s election. “These groups are trying to convince people that they should voluntarily relinquish land that they currently own,” says Brad Brooks, who works on the land transfer issue for the Wilderness Society. “The losers will be the public who are not affluent.  The winners will be people and corporations who can afford to buy land.”

Just who those potential winners would be, though, remains unclear. Some experts note that the oil industry’s current deal with the federal government, under which it leases BLM-managed land, is favorable, and that state-run property could create a more thorny system of bureaucracies. “You haven’t seen Exxon or Chevron jumping on board with the take-back-the-land efforts,” says Robert Keiter, a law professor and director of the Wallace Stegner Center for Land, Resources and the Environment at the University of Utah.  

A leading voice of the oil industry is the Colorado-based Western Energy Alliance. Kathleen Sgamma, the group’s vice president of government affairs, says that the group hasn’t taken a position on the land-transfer movement. She does acknowledge, however, that “It takes decades to operate on federal land, whereas it takes a year and a half on private or state land. There are so many roadblocks on federal land.” 

Recently, a number of Western states and universities have commissioned studies related to land transfer. One in Idaho determined that the state would lose $2 billion over 20 years if it had to manage all of its federal land. One in Wyoming concluded that land transfer would not earn enough revenue “to offset the enormous costs such an endeavor would likely entail.”
 
Keiter, at the University of Utah, told me, “In the absence of substantial mineral wealth, none of this would come close to penciling out.” Translation: the only scenario in which land transfer makes economic sense is one in which the states sell the land off to extractive industries.


It remains to be seen whether land transfer is an issue of national urgency or a Utah grievance receiving a national airing. The Utah delegation has not been subtle about its plans for Bears Ears, a historically significant National Monument, and one in which native tribes are given influence over its resource management plan. Hatch has called it “an affront of epic proportions,” while Bishop called it “alien to the desire of the overwhelming majority of Utahns.”

In February, Ryan Zinke, the yet-unconfirmed Interior Secretary from Montana, plans to visit the monument on the invitation of the Utah delegation. It could be an awkward trip, given that in Zinke’s home state, public land is slightly more popular than children and puppies. In the end, though, any action to overturn the Bears Ears designation would need to come from either Congress or President Trump. Whether or not Trump could repeal the protections via executive order is a matter of debate. Land advocates contend that the president doesn’t have authority to undo a monument, but, according to Leshy, the former counsel to the Interior Department, “it’s never been tested in court.”

The outdoor industry, which sees land-transfer as an existential threat, isn’t waiting to see what happens. This week, at the Montana Capitol, in Helena, 1,000 pro-public-land advocates gathered at a rally organized by the Montana Wilderness Association and Backcountry Hunters and Anglers. At the recent Outdoor Retailer show in Salt Lake City, Patagonia founder Yvon Chouinard penned an open letter suggesting that the industry should consider moving the giant gear convention from Utah. “I’m sure other states will happily compete for the show by promoting public lands conservation,” Chouinard wrote. 

According to Brian O’Donnell, executive director of the Conservation Lands Foundation, Chaffetz’s divestiture bill, the efforts to repeal the Bears Ears designation, and the Bishop rule are interrelated. “There is a long-term agenda that we’ve seen from the Utah delegation to divest the public of its public lands,” says O’Donnell. “They are meeting a buzzsaw of opposition. The hunting and angling industry are motivated; the outdoor industry has started to get involved. But we’re in unprecedented times. The things we’ve taken for granted for decades, we can’t take for granted anymore.”

When news of the Chaffetz bills broke, I was in Missoula, Montana. I went to meet Land Tawney, a fifth-generation Montanan and the executive director of Backcountry Hunters and Anglers. Over burgers, I asked him about the recent bills. He shook his head and said, “It’s the first shot across the bow.” He pointed me to Instagram, where the comedian Joe Rogan had suggested that his more than one million followers start fighting for public lands. Tawney told me, “We don’t have the money, but we have the people.” 

In the week that followed, Tawney’s assessment proved correct. The Wilderness Society hammered Chaffetz; the Guardian published a highly critical article; Men’s Journal pulled up a list of lands his bill might dispose of; a thousand people showed up at BCA’s pro-public lands rally in Helena. The hashtag #keepitpublic zipped around Twitter, and Chaffetz’s Facebook page filled up with criticism, including this comment, from a National Rifle Association supporter: “Rescind H.R. 621 the sale of public lands! It’s not your land to sell. It’s the people’s land. Many people use it for many purposes. Hear and respect our voice.”

One week after introducing the legislation, on the night of February 1, Chaffetz announced that he would withdraw his bill. On Instagram, in a post showing himself in camo, he wrote, “I’m a proud gun owner, hunter and love our public lands. The bill would have disposed of small parcels of lands Pres. Clinton identified as serving no public purpose but groups I support and care about fear it sends the wrong message …. I hear you and HR 621 dies tomorrow.” He signed off with the hashtag #keepitpublic.  

Lydia Weiss, at the Wilderness Society, was ecstatic. So was Tawney. He wrote me, “Sports men and women flexed, democracy still works!” Then he added, “We won this battle but the war is far from over.”  

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