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Legal scholars predict Utah land transfer takes the public out of public lands

First Published      Last Updated Jul 07 2015 05:19 pm

Report » U. Stegner Center raises questions about subsequent accountability, costs and access; Interior spokeswoman says transfer won’t happen.

Be careful what you wish for, Utah.

Acquiring title to 31 million acres of public lands could lead to less public access, less public involvement in land-use decisions and perhaps a better chance that imperiled plants and animals win federal protection under the Endangered Species Act.

Those and other unintended consequences could await Utahns if state leaders succeed in their fight to wrest control of federal lands, according to a new report by the University of Utah law school's Wallace Stegner Center for Land, Resources and the Environment.

"The public would have less, not more, input into land management, and all who utilize what are now public lands — industry and recreation interests alike — would likely see the cost of access increase substantially," said co-author John Ruple, who served in the Utah Public Lands Policy Coordinating Office under former Gov. Jon Huntsman. "In short, the public would suffer from this misguided effort."




State leaders agreed Friday the Stegner scholars identified critical gaps in how Utah would manage the lands in play, but disputed their conclusion that state control would lead to rampant drilling and strip mining and diminished public access.

"One of the largest economic drivers [in Utah] is tourism and recreation. It is in the state's interest to preserve, protect and promote that activity, just as much as mineral development," said Tony Rampton, the Utah attorney general's section chief for public lands. "It's all about balance."

And balance is exactly what is missing from federal management, local and state leaders complain. They say conflicting mandates and regulations promote over-analysis and pointless lawsuits.

Coming on the heels of its analysis disputing the legal basis for Utah's 2012 Transfer of Public Land Act, the center's latest report is a direct challenge to the controversial law's champions, who frame state control as a panacea for problems afflicting the rural West. County leaders allege years of federal mismanagement have choked economic development, excluded motorized access and turned national forests into vast tinder boxes.

Utah's law orders the federal government to hand over most acreage administered by the U.S. Forest Service and the Bureau of Land Management. But current Utah law does nothing to ensure that the public continues to enjoy the same level of access and involvement in decision-making as guaranteed under federal law, the Stegner report concludes.

Ruple and his co-author, center director Bob Keiter, recommend the Legislature establish management priorities and mandate resource inventories for transferred lands and enact a state version of the National Environmental Policy Act, or NEPA.

"Enactment of such statutes in states seeking to take over public lands would send a much-needed message about transparency, accountability and commitment to the public interest," they write.

Rampton agrees Utah should enact laws addressing land management, but crafting them takes thought and time.

"This is a complicated situation, but the answer isn't to say, 'This is a problem, be scared, don't do it,'" he said. "The better answer is, 'This is a problem that needs to be addressed. Address it.'"

But the last thing the state wants to do is replicate NEPA, the landmark 1969 federal law that requires analysis and disclosure of impacts for projects on public lands.

"The review is so drawn-out and provides no certainty, but rather extenuates uncertainty," Rampton said. "The feds can't act quickly because they have to deal with this process and when they finish the process, they have to deal with litigation."

The Stegner scholars linked their conclusions to the recent 800-page economic analysis of the land transfer. Utah would have to substantially increase energy production to cover the costs of managing the lands and to protect the revenue stream counties currently enjoy from federal royalties, which amounted to more than $180 million in 2013, Ruple said.

"Instead of a potential surplus, we see a potential deficit," he said "The only realistic option is more development.

"If the state manages the land with an idea toward economic efficiency, that puts us in a box," Ruple added. "We need clarification of what the state intends to do and we need to have a debate where we understand the implications of those management choices. We aren't there yet."

The report warned that the state, pressed to generate an economic return, could impose fees on hunting and fishing or force wildlife agencies to buy prized habitat at a premium, just as state trust land managers do now. The result could be restricted access for sportsmen.

"That's just wrong," Rampton responded.

If anything, sportsmen's access would be enhanced under state control, he said, noting Utah has long fought to keep open thousands of roads crossing BLM land.

Utah's deadline for the feds to relinquish the land passed at the end of last year. The U.S. Interior Department, BLM's parent agency, has no plans to comply, according to spokeswoman Jessica Kershaw.

"The Secretary [Sally Jewell] has been clear on this. It is a waste of time and resources for Utah to debate the state's takeover of pubic lands," Kershaw said. "At the same time, a more constructive discussion should focus on how state and federal partners can work together on management of public lands."

Utah officials, meanwhile, are doubling-down on the transfer. They plan to spend $2 million on outside lawyers to "educate" member of Congress and craft a legal strategy that many expect will involve litigation.

In their previous report released in October, the Stegner scholars argued the state has no legal case.

Ken Ivory, the West Jordan lawmaker leading the land transfer movement, argued that analysis ignored the "stubborn facts" that the federal government has treated Western states differently despite identical language among states' enabling acts.

The federal government released its hold on most land in states east of Colorado, while much of the land from the Rockies west remains federal.

That disparate treatment is proof of a legally binding "promise" the feds have reneged on, he argues.

bmaffly@sltrib.com

Twitter: @brianmaffly

 

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