In a revival of a long-standing feud with federal regulators over control of natural resources in the public domain—a fight as old as the settlement of the American West—the Utah Legislature has demanded a handover of all federal public lands within state borders. The Transfer of Public Lands Act (TPLA), passed in 2012 and signed by Gov. Gary Herbert, an enthusiastic backer, mandates that the Forest Service, with 15 percent of Utah land, and the Bureau of Land Management, with about 42 percent, relinquish their domain to the statehouse no later than 2015.
The bill’s backers say they want to use federal public lands to generate revenue for the state. So far, the U.S. government has not ceded an acre. “If Utah is successful in its quest, the real losers will be the public,” says David Garbett, a staff lawyer with the nonprofit Southern Utah Wilderness Alliance. “The only way the Utah legislature can generate money from the public lands is to ramp up development and hold a fire sale to clear inventory. That means that the places the public has come to know and love will be sold to the highest bidder and barricaded with ‘No Trespassing’ signs.” Similar bills are proliferating in other Western states where most of the land is managed by a federal agency.
Yet the federal public land that Utah is claiming for itself is owned by every American – all 300-plus million of us. It is a peculiar property right we each have to this commons, as we acquire it simply by dint of citizenship, and what we own is spectacular. The marvel of the federal public-lands system is that it exists at all. During the 19th century and into the early 20th, much of the land was leased and sold off in a frenzy of corrupt dealings. Railroads, corporations, land speculators, mining interests, and livestock barons gorged on the public domain, helped along by the spectacularly pliable General Land Office, which from 1812 until its closure in 1946 privatized more than one billion acres, roughly half the landmass of the nation. The corruption was such that by 1885, The New York Times’ editorial page had denounced the “land pirates” whose “fraud and force” had excluded the citizen settler—the farmer, the homesteader, the cowboy—from “enormous areas of public domain” and “robb[ed] him of the heritage to which he was entitled.”
Utah’s Transfer of Public Lands Act is an updating of that old land-grabbing con game that has characterized the West. And it has powerful corporate backers. The legislation first made an appearance in a 2011 meeting of the conservative American Legislative Exchange Council, which works with state lawmakers to draft “model legislation.” Lisa Graves, the executive director of the Center for Media and Democracy, which runs an ALEC watchdog unit, describes the group as a “corporate and partisan lobby masquerading as a charity, allowing some of the most powerful corporations and richest CEOs to get their legislative wish lists in the hands of politicians eager to please special interests.” ALEC’s agenda, befitting the concerns of its chief funders, the archconservative energy magnates Charles and David Koch, is to bolster corporations’ interests without publicly disclosing those corporations’ influence on the bills ALEC task forces produce. Graves describes this as “legislation laundering.”
According to the records of its 2011 meeting, which took place in Scottsdale, Arizona, Ken Ivory, the Republican state representative from Utah’s district 47, sponsored the public-lands transfer bill—then titled the Disposal and Taxation of Public Lands Act—for a review and vote in ALEC’s Energy, Environment, and Agriculture Task Force, whose voting members at the time included representatives from Peabody Energy, the American Gas Association, and the American Chemistry Council. Ivory says he envisioned state control of public lands as a means for funding local schools, health care, and infrastructure. “We have to educate our kids, we have to take care of sick people, we have to take care of our roads,” Ivory told me. “Let’s responsibly unleash the energy resources in Utah.”
“Ken Ivory got the ALEC stamp of approval before introducing the bill in his own state, which is really a stamp of approval from industry,” says Nick Surgey, director of research at the Center for Media and Democracy.
The legislature’s own legal counsel has warned that the Transfer of Public Lands Act is probably unconstitutional and will not survive a lawsuit. Representative Ivory says the legislative counsel “got it wrong. Litigation”—suing the federal government to implement the land-transfer law—“is one avenue we’re considering.”
Even without the state government attempting to claim federal land, the BLM in Utah has been an unprincipled and devious steward – mostly due to the heavy influence that industry brings to bear on local managers. I talked with a half-dozen former bureau employees in Utah who told me their working environment was one of constant harassment and pressure from oil, gas, mining, and grazing interests along with the legislatures and county officials who answer to extractive industry.
“There is pressure to not regulate, to not do your job,” Dennis Willis, a retired BLM range conservationist and recreation manager in Price. For example, the Utah BLM, according to Willis, has failed to properly regulate operations at oil and gas wells. On some oil and gas fields, he told me, there was no monitoring for groundwater and surface-water contamination. The BLM had in many instances failed to probe for subsoil leakage from oil and gas drill sites; had failed to provide enough “sniffer trucks” to look for contamination of the air; and, in his view, hadn’t conducted the proper environmental assessments of roads that had fragmented the habitat for wildlife.
Stan Olmstead, who worked as an environmental scientist and natural resource specialist with the National Park Service and the U.S. Forest Service before joining the BLM, told me that the standard procedure in the state was to fast-track energy development. “I never once saw an oil and gas well denied in Utah BLM,” Olmstead says. “BLM was always more interested in permitting the drilling than cleaning up afterward..”
When I called up retired BLM archaeologist Blaine Miller, who worked in the Price office as a specialist in Native American rock art, he told me he had been punished for opposing energy development in the Price area. He had warned as early as 2002 about the probability of dust and vibration from oil and gas traffic ruining thousand-year-old petroglyphs in Nine Mile Canyon, a gorge near Price sometimes called the world’s longest art gallery. Miller told me that he had drafted “letters of consultation” to be added to the environmental assessments his bosses in Price required for the approval of energy leases in and around Nine Mile Canyon. “Those letters never left the office,” Miller says. “They were thrown away. My boss called me in and said he was told that the state office is going to lease these parcels no matter what, and you’re going to rewrite your analysis so they can do that. The environmental assessment had to reflect that decision. I told him I can’t do that and I won’t do that.” Miller claims his Utah BLM managers engaged in “criminal fraud” when they falsely signed his name to a report showing no effects from energy development on the archaeological finds in Nine Mile Canyon. He says he was subsequently removed from commenting on any development project in the area.
Willis, Miller, and Olmstead told me they repeatedly heard Utah BLM bosses in agency meetings say that their sole task, in Willis’s words, was “to produce hydrocarbons.” According to Willis, Kent Hoffman, the assistant state director for minerals, explained to the Price office staff, in a meeting Willis attended, that it is “not BLM’s job to protect resources—it is our job to lease these lands for oil and gas.” Miller, who was also present at the meeting, confirmed this account. (Hoffman calls it a “fabricated misquote.”)
Both Willis and Miller participated in the drafting of the resource management plan (RMP) for the Price region, completed in 2008 as part of a wider effort to produce a master plan for the federal public lands in Utah. They say that the plan for the Price region stated unofficially—a tacit agreement—that any area with a potential for oil and gas revenue would be off-limits to wilderness protection. “This was a rule created and used internally,” Willis says, though the rule was not in the administrative record. According to Miller, “there wasn’t allowed any option for high potential oil and gas areas to be closed off because of wilderness potential. I never saw this in print. In the team meetings while writing the management plan, we were told by the state office that certain areas were going to be leased. There was no other alternative.”
Stan Olmstead, who served 38 years in public service, left the BLM in 2012. He wrote a parting memo that conveyed his disgust at the failure of the Utah BLM to protect the public domain. “Our elected, appointed, and agency administrators ask us to focus on commodities and economics as opposed to environmental health,” he wrote in the memo. “Protection of healthy soils, vegetation, clean air & water and a natural fauna are the true products.” The BLM, wrote Olmstead, was “breaking the land,” with “little thought for the future.”