Utah Congressman Rob Bishop Promises to Release Public Lands Initiative Bill

For the past several years Congressman Rob Bishop (R), representing Utah’s 1st Congressional District, has been promising to reveal a bill encapsulating what he calls the “Utah Public Lands Initiative.” His ambitious plan involves bringing together key state and national stakeholder groups, the Utah Congressional Delegation, Utah Governor Gary Herbert and state and local leaders to create a collaborative and comprehensive process for managing public lands in Utah. Bishop’s initiative has garnered support, albeit cautious, from industry as well as conservation groups. The process included the heavy involvement of counties and is somewhat unique nationally for that reason. The bill promises to support wilderness designations in exchange for measures ensuring continued access to lands for resource development. Additionally, the bill will facilitate Utah school trust land (SITLA) swaps and transfer management of some roads and federal lands to local authorities. As chair of the House Natural Resources Committee, Bishop is well positioned to advance the bill through the legislative process.

In a recent address to the Energy, Natural Resources and Environmental Law section of the Utah Bar Association, Congressman Bishop said that he would “slit his wrists” and those of his staffer if the bill has not been released by the end of 2015. He later stated that he would probably not actually slit his own wrists, but left no such ambiguity regarding the fate of his Legislative Assistant.

Congressman Bishop has declared that the bill, if passed, will provide certainty to public land managers and users. He prognosticates an end to the bitter fighting and distrust that has grown up around Utah public land use decisions in recent decades. It remains to be seen whether the actual proposed legislation can live up to the congressman’s ambitions. Its chances for success are particularly difficult to gauge given that no one has seen what the bill actually says. In any event, for our edification and for the personal safety of certain congressional aides, we are hoping to see the initial version of the bill introduced in the next few months.

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Massive New National Monument Proposed in Southern Utah

A coalition of environmental, recreational, political and business groups has come together to support the establishment of a 1.8 million acre national monument in the Colorado Plateau region of Southern Utah. The proposed Monument, covering an area larger than Delaware, would include areas surrounding Canyonlands National Park, Glen Canyon National Recreation Area and the Manti-La Sal National Forest. As stated on the Coalition’s website, there is an urgent need to protect this area from “[i]ncreasing pressure from oil and gas development, potash and uranium mining, and even tar sands development [which] threaten the archeological, biological, and recreational values of this unique region — not to mention threatening the source of the Southwest’s most critical watershed.” Not surprisingly, this initiative has been opposed by those in the extractive industries. The proposed monument is also being actively opposed by Utah’s Congressional delegation and Utah Governor Gary Herbert.

For the time being, President Obama has said that there will be no designation of the proposed Greater Canyonlands Monument. However, earlier this month, the President announced the creation of three new national monuments, including the 704,000 acre Basin and Range National Monument in neighboring Nevada. This action nearly doubled the amount of land protected by the President under the Antiquities Act during his administration. Those concerned about the formation of the Greater Canyonlands National Monument are left to wonder whether this move by the President is signaling a shift in policy that may lead to the Monument’s eventual formation. Only time will tell.

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United States Senate Passes Amendment “Supporting” Transfer of Public Lands to States

Last week, the United States Senate passed a largely symbolic budget amendment sponsored by Alaska Senator Lisa Murkowski (chair of the Senate Energy and Natural Resources Committee) that “supports” the idea of selling, transferring or trading federally-managed public lands to the states. The idea of western states “taking back” public lands has been around since the Sagebrush Rebellion of the 1970’s, but in recent years has been gaining new momentum.   In the last 5 years, 8 states, including Utah, Wyoming, Montana, Idaho and Nevada have “studied” the feasibility of “taking back” or somehow acquiring title to the millions of acres of federally-managed public lands that were reserved to the Union at the time of statehood.

The amendment, S. A. 838 to Senate Resolution 11, is described as “establish[ing] a spending-neutral reserve fund relating to the disposal of certain Federal land,” and conveys no actual authority to transfer lands and does not cover any specific parcels or identify any states by name. Instead, the purpose of the amendment is to demonstrate that “considering such bills is a priority of the Congress” says Robert Dillon, communications director for the Senate Energy and Natural Resource Committee, as reported by High Country News.   Under the Senate authorization, the chamber’s “support” applies generally to “initiatives to sell or transfer to, or exchange with, a State or local government any Federal land that is not within the boundaries of a National Park, National Preserve, or National Monument.” Voting on the measure was largely split down party lines, with Senator Cory Gardner of Colorado as the lone Western Republican to vote no, joining all of the Western Democrats.

While the idea of states taking title to federally-managed public lands (whether through voluntary transfer or litigation) has been widely viewed as, at best, an unlikely and costly proposition, the idea has gained considerable traction in Western states with large percentages of federally-managed public lands. Utah has taken the idea the farthest, passing a law in 2012 demanding the transfer of approximately 20 million acres of federal land. In each fiscal year since 2012, the Utah legislature has allocated taxpayer money to study the issue and devise legal strategies. Most recently, in the 2015 Utah legislative session, the state passed a law allocating considerable funds to pay outside legal counsel to help devise a legal strategy and, potentially, bring litigation against the federal government. The state has recently issued an RFP soliciting bids for this work.

The issue has raised considerable debate in Utah and across the West, with most casual observers wondering about the legality and feasibility of the proposal. While the State of Utah staunchly defends the basic legality of its law authorizing the “take-back” of federal lands, most scholars disagree. According to John Ruple of the University of Utah College of Law, “The [United States] Constitution gives the federal government the authority to retain and manage that land.” Proponents of “taking back” federal lands argue that state enabling acts require federal transfer of public lands to the states. However, as stated by Mr. Ruple, states’ enabling acts do not create an obligation to “return” lands to state management; instead, in the enabling acts, “the state is disclaiming any future claims to federal lands.”

The Senate’s recent action in approving Amendment 838 does not affect the fundamental Constitutional question of state assumption of federal land. It does, however, signal a willingness on the part of the legislative branch to dive into what has, until recently, been a debate largely confined to Western state houses.

High Country News has an excellent series of articles covering the full range of the public land transfer debate:

https://www.hcn.org/articles/utah-bill-would-push-land-transfer-debate-to-federal-court

https://www.hcn.org/articles/western-states-trying-to-take-back-federal-lands-get-a-boost-from-the-u-s-senate

For the State of Utah’s position on its federal land transfer law, see:

http://publiclands.utah.gov/current-projects/transfer-of-public-lands-act/

The University of Utah College of Law’s analysis, authored by John Ruple, can be found at:

http://content.lib.utah.edu:81/cdm4/item_viewer.php?CISOROOT=/utlawrev&CISOPTR=9160

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UT Governor Herbert Signs Executive Order on the Greater Sage Grouse to Short Circuit Federal Listing

On Tuesday, February 10, 2015, Utah Governor Gary Herbert signed an executive order directing state agencies to implement additional state-level protection measures aimed heading off a potential federal listing of the sage grouse as “threatened” or “endangered” under the Endangered Species Act. Under a settlement reached in 2012, the U.S. Fish and Wildlife Services have until September 2015 to decide whether the sage grouse should be listed under the ESA. Referring to the consequences of such a designation as potentially “devastating,” Governor Herbert’s executive order requires that all state agencies minimize the impact of activities on sage grouse, consult with the Utah Division of Wildlife Resources on decisions that could affect sage grouse habitat, and incorporate directives from the Utah Conservation Plan into state operations.

While the executive order requires consideration of sage grouse protections in agency decision-making, it does not impose the level of regulation or constraints on private property and federal lands that would be imposed if the sage grouse is listed under the ESA. According to Governor Herbert, "The concern we have here in Utah that in doing so [a federal listing], it will have a significantly devastating impact on our economy," particularly on farmers, ranchers and those involved in natural resource extraction.

The executive order implements a number of proposals contained in the Utah Sage Grouse Conservation Plan, which was completed in April 2013 and contained recommendations for habitat preservation. While many of the recommendations contained in the Conservation Plan have been informally implemented by state agencies, the executive order seeks to make the Plan’s recommendations mandatory. According to Utah’s Public Lands Policy Coordinating Office, informal implementation of the Conservation Plan and other localized habitat preservation efforts have already led to an increase in sage grouse populations throughout the state.

In conjunction with the executive order, Utah lawmakers are seeking a $2 million appropriation to preserve sage grouse habitat. These protections would include projects on state and private lands to improve sage grouse habitat, such as removing pinyon-juniper stands which encroach onto sage brush. According to Senator Kevin Van Tassell, who proposed the appropriation, the executive order and the state habitat preservation projects are intended to show the FWS that state-level management of the species is working and that federal intervention through the ESA is unnecessary.

Governor Herbert’s executive order comes almost five years after former Wyoming Governor Freudenthal’s executive order on Sage Grease Core Area Strategy and is intended to promote the same goal: prevention of an ESA listing. Wyoming has been a leader in this movement, and implementation of its conservation plan—which includes a prohibition on surface disturbing activities in areas designated as core habitat—have proven successful.

It remains to be seen whether these state-level efforts will be sufficient to forestall a federal listing of the Greater sage grouse or whether Utah’s response will prove to be too little too late.

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