The grand compromise: The search for a public lands resolution

A possible solution to the bickering over land use in a big chunk of Utah is being negotiated with all varieties of groups at the table under an effort shepherded by Rep. Rob Bishop, R-Utah. Despite the challenges, he and others remain optimistic.

The moon sets in Desolation Canyon Thursday, July 1, 2010, on the Green River. (Tom Smart, Deseret News)

By Amy Joi O'Donoghue
Deseret News

SALT LAKE CITY — Imagine Rob Bishop with his head under the hood of a car and a line of people behind him telling him the best way to fix it.

That's the scenario for the Utah congressman, the "car" in this case the delicate issue of federal lands oversight in Utah, and few would dispute the current system is a junker, rife with lawsuits, stalemates and uncertainty.

Bishop, a Republican, has spent the past 20 months as the fixer mechanic, brokering a public lands initiative process that attempts to meld a legislative solution to land use issues in seven Utah counties.

"Everybody is going to get something, but not everything they demand," he said. "That is the beauty of doing it big."

Bishop's bill will propose solutions for some 18 million acres in the extreme eastern part of Utah, with possible wilderness designations that number in the millions of acres. At the same time, it would carve out certainty for recreationers, the oil and gas industry, coal mining interests, potash extraction and more.

This is no minor tune-up.

Wednesday Bishop met with Interior Secretary Sally Jewell at her request. He said she wanted to know how his "grand bargain" legislative effort was coming along.

"It was positive," he said. "She wanted a quick update of where we were in the process...We did go through in detail over the kind of things we would be putting on the table. She actually seemed very positive about it going forward."

Positive and optimistic

"Positive" is the key word that swirls around any discussions on Bishop's public lands initiative. It is the oil that keeps this engine running, even in the face of such disparate interests.

"It's quite encouraging to see the stakeholders still hitched," said Kim Christy, deputy director of Utah's School and Institutional Trust Lands Administration (SITLA), which manages lands conveyed at statehood and held in trust for financial benefit of school children.

"I am the first to admit it is a long shot." But it is a shot.

The stakes are high for Utah.

Bishop's bill, which he hopes to ready to be introduced in January, involves land swaps — it could be SITLA's largest in its history — and would mean it could trade out high-value cultural or wilderness quality lands in exchange for acreage with potential for development.

It leaves the Grand Staircase Escalante National Monument off the table and it attempts to solve disputes in this swath of Utah that arise over oil and gas development, endangered species, off-roading, grazing and more.

Bishop believes faith in the continuing negotiations is helping to keep a possible monument designation in Utah by President Obama at bay, although no outright promises have been made.

"What they have said is they are positive about the process and as long as we seem to be making progress toward the solution that this would be the preferable solution where everyone is involved, as opposed to the president making a political statement," he said.

Bishop said each side can gain something and the threat of losing everything keeps everyone involved in the process.

"What we are seeing is everyone sees a potential win out of this process and that encourages them to continue on," he said. "It is important to say that unlike maybe a few years ago, when other people were less successful in trying this same kind of stuff, that everyone also views the potential of defeat."

Strange bedfellows

He said, "There have been times...that there was one side or the other who thought they had the guaranteed, safe upper hand as it was and if they stood pat, and stuck with the status quo, they would come out OK." He said now the threat of losing something provides a healthy détente.

This lands process, as a concept, has forged like positions for two unlikely bedfellows — Emery County and the Southern Utah Wilderness Alliance (SUWA).

Representatives of both say they prefer a wilderness bill to a monument designation.

"The impetus for us doing this is to have some local control for what gets designated as wilderness," said Ray Petersen, Emery County's public lands coordinator. "SUWA's Red Rock Wilderness deal or a monument designation is totally out of control, so if we can maintain some input, and some control in this process, why would we not want to do that?"

And from Scott Groene, SUWA's executive director: "I would rather we reach agreement on wilderness legislation. It would affect a much larger amount of wilderness and there could be greater certainty with legislation. We could resolve more issues."

Working the deal

Bishop is working with each of the seven counties to come up with individual public lands management proposals that contemplate wilderness designations and zones where oil and gas development, mining and recreation occur. It could be that all seven counties are part of the final package. It could be that all are not.

"All of them are just looking for certainty," Bishop said, who is still months out from having maps that detail what that proposal ultimately will look like.

Emery County is farther along in the process than the others, having submitted its plan to Bishop two years ago.

"We have negotiated a compromise over time, since this latest effort, going back a couple of decades," Petersen said.

When the Bureau of Land Management abolished cross-country motorized travel and instead designated only specific routes where it was allowed, Petersen said it was a rancorous and dramatic change for residents.

"It was the most painful process, a big change. For some of the users, it was nearly the end of the world to have to be confined to ride on trails."

The decision closed hundreds of miles of trails and was not well received, Petersen said. But within a couple of years the locals decided they could live with it.

"It took a lot of time to go through that. The end result is that we have better management of the resources."

Park expansion?

He said that same idea is at play with the idea of expanding Goblin Valley State Park by 136,000 acres. Such a move involves a transfer of BLM-managed lands and could be accomplished through Bishop's bill.

"The east side of those canyons, day in and day out, are the busiest slots on the swell. It is the farthest away from the BLM's Price field office and it really needs management now; the BLM acknowledges that."

So how is it accomplished?

"My advice is to start 15 years ago," Petersen said. "It takes time. You have to be committed to it. You cannot do it quickly and it is not going to be easy. You have to commit to collaborate, understanding that you are not going to get everything you want."

Groene said his group is waiting to see what the individual county plans look like and what ultimately is laid out on the bargaining table.

"We have said all along the only way we will reach agreement is everyone will have to make concessions, including ourselves."

Reaching agreement on a sensitive environmental issue in which industry and advocates have to compromise is not without precedent in Utah.

SUWA, the state of Utah, Bill Barrett Corp., and a host of others forged concessions in a programmatic agreement in 2010 hailed by then-Interior Secretary Ken Salazar as historic for what it gave up, and for what it allowed in the Nine Mile Canyon area.

Then, as in the process unfolding now, no one got what they wanted, but they got enough.

Petersen said ideally, public lands planning involves looking beyond one's own hood ornament as you're traveling toward your destination.

"There is plenty of resource, but every resource will not be used for every reason," Petersen said. "The big picture is we have to make land use decisions about what is best for the land, and sometimes that is not what is best for me, and I am not always going to get what I want."

Time to throw the Antiquities Act into the recycling bin of history

Grand Staircase Escalante National Monument, Utah

OPINION

By RON ARNOLD
The Examiner

Two words — national monument — conjure Images of the Lincoln Memorial or the Statue of Liberty, but probably not the Virgin Islands Coral Reef or the Alibates Flint Quarries near Amarillo, Texas.

Only one of those is not on the list of America’s 103 national monuments: the Lincoln Memorial, which was authorized by Congress in 1910.

Congress has rarely authorized a national monument, although it has the power to do so at any time. Overwhelmingly, a president of the United States has created our national monuments, and did it by merely writing and signing a proclamation – a form of executive order – empowered by the controversial and politicized Antiquities Act of 1906.

Originally spurred by looting of Southwest Indian ruins for artifacts - dubbed “antiquities” by anthropologists - in such places as Colorado's Mesa Verde, Congress empowered the president to protect by proclamation, "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest," on federal lands, and to “reserve” (read “take”) private property for the purpose.

At the time, nobody worried about giving the president power like a Roman emperor, to swiftly proclaim protection for government property (and coveted private property) without waiting for an unconcerned Congress to act.

Today, a lot of Americans fear and loathe that power and that law, because it has become a political weapon to devastate the fossil-fuel industry.

As an example, President Clinton unilaterally proclaimed the 1.9 million-acre Grand Staircase-Escalante National Monument in Utah, thereby depriving the energy-using public of an estimated 62 billion tons of clean-burning, low-sulfur coal, five billion barrels of oil, and four trillion cubic feet of natural gas.

Clinton's decree also wiped out dozens of tax-base school land tracts of the state of Utah.

Compounding the problem, four agencies manage 101 of the monuments: the National Park Service (79), the Bureau of Land Management (19), the U.S. Forest Service (7) and the Fish and Wildlife Service (7).

Some monuments are co-managed by two agencies, so overlap complicates dealing with them. Two other agencies co-manage one monument each.

The Antiquities Act is a poster child for mission creep, that contagious federal “we-want-more” disease. We have 22 national monuments associated with Native American sites, 28 with historic sites and 57 with nature sites.

Among these sites was added with a 2009 proclamation was the 9,500 square mile, 6.8-mile deep Marianas Trench Marine National Monument, protecting the deepest place in the world’s oceans, with regional headquarters in Hawaii and no tour buses to the trench. Go figure.

National monuments have a nasty habit of developing mission creep once established, especially against public access.

The motorized recreation community is particularly burned by the hikers-only purists who relentlessly push for controls, then road and trail closures, then selective bans, and finally lockouts.

I asked Duane Taylor, director of federal affairs with the Motorcycle Industry Council, about his organization’s experience.

He told me, “Unfortunately, motorized recreation is far too often shut out of national monument areas. The blanket designation of lands as a national monument, along with the almost-certain restrictions that come along with designation, could effectively mean that much of the total economic contribution of recreation to the area will be forfeited,” he said.

That became an issue in Congress this week with a “briefing on benefits of the Antiquities Act to local economies, communities, and national treasures.”

The briefing featured panelists from the Sierra Club, League of Conservation Voters, Pew Charitable Trusts, Wilderness Society, Outdoor Industry Association and others.

Panelists cited a study showing that outdoor recreation generated $646 billion in national sales and services in 2011 and supported 6.1 million jobs. I asked Taylor for his response.

“They’re telling only part of the story,” he said. “The same study shows that approximately $257 billion or nearly 40 percent of the total $646 billion in economic contribution comes from motorized recreation.”

The power of the Antiquities Act needs to be throttled. It’s not impossible. Congress has reduced presidential powers under the act twice, first in 1950, requiring congressional consent for any future proclamation or enlargement of national monuments in Wyoming; second, requiring congressional consent in Alaska for proclamations of greater than 5,000 acres.

We may hope that the third time is the charm.

RON ARNOLD, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.

Federal gift of land to schools went awry

Jill Tucker
San Francisco Chronicle

There was a time when California's schools were financially set for life - holding the rights to any profit and proceeds from 5.5 million acres, or 6 percent of the entire state.

The land was given in trust by Congress when California joined the union to support the education of children, then and forever more. Other states received similar "sacred, irrevocable" trusts for their schools.

In California, a state blessed with bountiful agricultural potential, veins of gold, power-producing rivers, a coastline full of commercial possibility and so much more, the school trust acreage should have produced riches beyond every teacher's wildest dreams.

It didn't.

As was the case in many states, most of the land was quickly sold off, mismanaged, used as chess pieces in backroom deals or neglected, according to Utah researchers who recently released the first analysis of school trust lands in more than 100 years.

"As you can imagine, there was probably a lot of good-old-boy stuff going on," said Margaret Bird, a school land trust specialist at the Utah State Office of Education. "It's money that belonged to someone else, namely schoolchildren, and it was just stolen."

There were 134 million total acres granted nationwide to support public education by 1959, with about a third currently remaining in the hands of state agencies to benefit schools.

Of the original California school trust land, less than 500,000 acres remain, generating about $6 million in royalties and revenue each year, with all proceeds deposited into the state teachers' pension fund.

Pot of cash raided

In addition, about $60 million was set aside from the trust's profit to be used for further investment. But that small pot of cash was raided to nearly nothing by Gov. Jerry Brown to help balance the budget.

The state must pay back $59 million to the trust by 2016.

Nearly two dozen states have nothing left of their school land trust.

"While we point sometimes at California - and to be honest there is, on the part of some people, snickering - California at least has some lands left," said Richard West, executive director of the Center for the School of the Future at Utah State University, author of the report.

Profits in other states

Other states, however, have a lot to show for the land.

Arizona, for example, still has all of the mineral and/or surface rights over its original 928,000 acres as well as $440 million in the bank. New Mexico has most of its initial 8.7 million acres and $10.7 billion in its fund.

As in other states, the land sold off in California was gone even before the start of the 20th century.

"In the old days, they sold off everything anybody wanted," said Jim Porter, public land management specialist in the California State Lands Commission.

A lot of what's left in California is in the desert.

Still, the Utah report questioned the ongoing management of the land and funds across the country, noting that some states, for example, don't make market rate on some leases or royalties.

In California, the school trust is overseen by the State Lands Commission, which comprises the lieutenant governor, state controller and finance director. West argues that education officials should be part of the conversation about how to use the trust.

Across the country, much of the revenue from state trust lands come from mineral, oil and gas rights; timber production; agriculture; and commercial or residential leasing.

Geothermal leases

In California, the vast majority of revenue is generated from geothermal leases at the Geysers along the border of Sonoma and Lake counties. A bit of oil, gold and other minerals also generate some revenue.

In a weird historical twist, California is still owed about 51,000 acres from the federal government for the land trust because some of the initial parcels designated for education support were already occupied. The federal program allowed for that, guaranteeing replacement land to make up for property already in use, but California has yet to receive that land.

The State Lands Commission is working with other states to pursue legislation that would push federal officials to fulfill their pledge to California and any other states owed acreage.

In the meantime, Porter said, the commission wants to expand solar and wind efforts, which could produce significantly more revenue for the school land trust.

But given current law, the money wouldn't make it into classrooms.

Teacher pensions

While other states use the land trust proceeds for libraries, technology, schools and other programs, California deposits all revenue into the teacher pension fund, as directed by the Legislature in the mid-1980s.

Why support the pension fund rather than schools directly?

"My guess is political muscle," Porter said, noting the pension fund needed financial help from the state. "You've got to get the money from somewhere."

The Utah researchers questioned California's use of the money and whether it met the intent of the Continental Congress when they established the school land trust.

"A retired teacher does not help the school at all," Bird said. "If I lived in California I'd be out right now looking for an attorney ... because somebody needs to speak up for the children."