Bills aiming to curb federal clout in Utah are gaining momentum
Agents in tactical gear and armed with assault weapons asking for your fishing license. Others appearing in camp at night to peer into your cooler, pulling you over for trivial traffic infractions, and arresting you for maintaining a trail.
Confrontations such as these, instigated by federal employees with minimal law-enforcement training and accountability, are common on Utah's public lands, according to testimony given last week in the Legislature's latest installment of an anti-federal campaign that appears to be gaining momentum.
Three southern Utah sheriffs leveled these allegations in support of HB155, sponsored by Rep. Mike Noel, R-Kanab, which would bar U.S. Forest Service officers and Bureau of Land Management rangers from enforcing the law in Utah except in emergencies or when a sheriff has given prior approval under cooperative agreements.
Limiting federal influence • HB155, which cleared the House on Monday, is just one of several pieces of legislation this session aimed at limiting or mitigating federal influence in the management of public land, natural resources and endangered species in Utah.
"We are the decider. We have to act like it," Rep. Ken Ivory, the West Jordan Republican championing the transfer of federal lands to the states, told colleagues on the committee last week in debating HB155.
At a previous meeting, he yoked the legacy of Frederick Douglass to his cause, quoting the early civil rights leader's pronouncement that the federal government rarely cedes authority without a demand.
Last week, Ivory and his allies unveiled two new demands in House resolutions, which do not carry the force of law, but express the Legislature's position.
One resolution, HJR14 sponsored by Ivory, says federal agencies cannot claim water rights. The other, HJR15 sponsored by Rep. Marc Roberts, R-Santaquin, and passed out of committee Monday on its way to the full House, says they have so badly managed forests they now pose a "public nuisance and safety issue."
Both resolutions cite the recent U.S. Supreme Court decision on the Affordable Care Act, aka Obamacare, stating that the states are "separate and independent sovereigns."
And both resolutions amount to indictments against the Forest Service, alleging the agency has botched its duty to safeguard the public from wildfire, to treat forests that have burned and to take care of the land.
Ivory's water-rights bill, which the House natural resources committee is to consider Tuesday, asserts the Forest Service is pressuring grazing-allotment holders to sign over their water rights in a clear abuse of state sovereignty. It also alleges the agency has messed up forest hydrology by restricting grazing and logging, which has resulted in dangerous fuel loads and "inordinate water absorption for unhealthy vegetation densities."
That committee on Monday endorsed Roberts' HJR15 and its sister bill, HB164, which would enable local government officials to "mitigate" situations on federal land that they deem "may adversely affect the health, safety or welfare of the people of the municipality or county."
Legislation by anecdote? • One legal observer wonders whether Utah lawmakers are crafting "legislation by anecdote," rather than on facts or sound legal reasoning. Public lands have long been used as a vehicle for asserting states' rights, according to University of Utah law professor Robert Keiter.
"This push emerges more often when Democrats [hold power in Washington] and recedes when Republicans are in office," said Keiter, a constitutional law scholar who directs the Wallace Stegner Center for Land, Resources and the Environment. "There's more political currency behind these initiatives than there is legal currency."
He believes both Ivory's land-transfer bill, enacted last year, and Noel's HB155 are built on "shaky" legal footing, thanks to the Supremacy Clause, which holds the U.S. Constitution and federal statutes represent "the supreme law of the land" in the name of national unity.
Other resolutions cruising through this session express support for Iron County, instead of a federal agency, to manage the threatened Utah prairie dog population and urges U.S. Fish and Wildlife to not designate private land as critical habitat for the Gunnison sage grouse.
Meanwhile, a Democratic-backed resolution calling on protecting the Greater Canyonlands region went nowhere after a hostile committee reception in which senators vented about the hardships federal land-use policies impose on rural counties.
One-sided view • These various measures are considered with virtually no input from the federal agencies accused of gross malpractice.
"Isn't there always two sides to the story? It looks like a turf war here," said Rep. Larry Wiley, D-West Valley City, at last week's hearing, wondering why the BLM or Forest Service did not send a representative.
Noel, the natural resources committee chairman and a former BLM staffer, said these agencies' bosses in Washington, D.C., do not permit their staff to testify in state legislatures.
Utah-based officials with these agencies, however, said they were not invited to testify.
Both agencies stressed they prefer collaborating with local law enforcement.
"The strong law enforcement partnerships BLM-Utah personnel have established and maintain with local law enforcement throughout Utah," BLM spokeswoman Megan Crandall said, "make it possible every day to patrol millions of acres, keep visitors safe, and protect the natural and cultural resources that make Utah's public lands so unique."
But it was clear from last week's testimony that sheriffs are frustrated that federal agencies are not only enforcing traffic and fishing regulations, but also cracking down on things people have been doing on public land for years.
San Juan County Sheriff Rick Eldredge, for example, described an incident in which two off-roaders were fined $36,000 for "maintaining" a motorized trail across BLM land. The men had installed a culvert and cut a fence post to construct a bridge across a ditch when federal officers confronted them.
"They were accused of parking on an Anasazi ruin that they didn't know was there," Eldredge said. "It devastated one of these men and to this day he doesn't know what he did wrong. It was a felony for cutting down a fence post."
Had BLM staffers been invited to speak, the committee would have heard a much different version of this pair's illegal trail-building at Recapture Canyon, where authorities estimated damage to archaeological sites at $300,000.
Garfield County Sheriff James Perkins said he reported problems with heavy-handed police tactics on Boulder Mountain to the Forest Service's regional office in Ogden.
"I got nothing but stonewalled," Perkins said. "I was lied to many times."
Added Don Peay of Sportsmen for Fish and Wildlife: "There is more and more intrusion by federal agents clear into the wilderness, hassling hunters. It would be a great place to start the budget-cutting process."
HB155 was brought at the behest of the Utah Association of Counties, which is concerned that the federal government "assimilates" local and state laws to extend its reach into concerns that are best left to county sheriffs.
"This is a statement that Utah does not recognize [federal] exercise of law enforcement authority to enforce state laws or local laws," said Mark Ward, the association's policy analyst. Under this legislation, a federal employee trying to enforce a state or local law would be guilty of impersonating a peace officer, a class B misdemeanor.
Sticking it to the feds
Legislation this session aimed at limiting or mitigating federal influence in the natural resource arena include:
HB68 • Would limit the reach of the public trust doctrine.
HB155 • Would limit some federal officers' police authority.
HB164 • Would enable local government officials to perform work on federal land to fix what they deem a threat to public safety.
HB382 • Would create the Escalante Region Grazing Zone on mostly federal land.
HCR7 • Would urge the U.S. Fish and Wildlife Service to exempt private land from designation as critical habitat for the Gunnison sage grouse.
HJR14 • Would declare that Forest Service claims on state waters undermine state sovereignty.
HJR15 • Would declare state jurisdiction over forests mismanaged by federal agencies.
SCR3 • Would seek local management over the Utah prairie dog.
SJR13 • Would urge Utah leaders and congressional delegation to lean on federal authorities to cede public lands to the state.