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UM professor urges cooperative effort in managing federal lands

 

Martin Nie, UM Professor of Natural Resources Policy

Martin Nie, UM Professor of Natural Resources Policy

By Michael Howell

Last Monday, December 9, Martin Nie, Professor of Natural Resources Policy at the University of Montana, came to the valley at the request of Bitterrooters for Planning to address the question of the transfer of federal lands to the states. Nie recently testified on the subject before the Montana legislature’s Environmental Quality Council. He was asked to place the legislature’s Joint Resolution No. 15, the Study of Public Land Management in Montana, in its relevant historical, constitutional, and statutory context and to briefly review issues pertaining to the relationship of federal and state governments in the management of federal lands and resources.

In those comments Nie likens the current efforts by several Western states, including Representative Ken Ivory’s efforts in Utah, to the Sagebrush Rebellion of the 1970s. He also believes that the recent movement will hit legal roadblocks just like the previous one.

“It is my professional opinion that the recent spate of resolutions and studies coming from western states will end their journey in the same cul-de sac as the sagebrush rebellion. And like the rebellion before it, the ultimate impact of today’s protests will be more symbolic than substantive in nature. Symbolism has its political virtues, but governing and managing federal land is different than using the issue as a political wedge. Resurrecting arguments from the sagebrush rebellion makes for great political theater but such efforts will not take us very far in solving the most pressing issues in federal land management,” wrote Nie.

Nonetheless, as part of this resurrected movement, in 2010 the Utah legislature authorized the attorney general to commence proceedings to condemn federal government land within the state. In 2012, the Utah legislature enacted the Transfer of Public Lands Act that requires the federal government to relinquish title to all lands within the state by December 31, 2014.

Nie points to the assessments by both the Utah and Wyoming attorney general’s office that the law will be found to be unconstitutional. In a memo from the Wyoming AG’s office, Assistant AG Jeremiah Williamson notes that because the two legal claims being used by the Utah legislature “depend upon a repeatedly rejected reading of the United States Constitution and a strained interpretation of Utah’s statehood act, Utah’s claims will likely fail in court.” Although Wyoming’s Enabling Act is not the same as Utah’s, he expects that a similar attempt in Wyoming would lead to similar results.

According to Nie, the arguments for complete disposal of federal lands are older than the Sagebrush Rebellion and haven’t changed significantly since they were addressed in the 1940s by historian Bernard DeVoto. DeVoto traced the multiple strategies used by what he called the “landgrabbers” who challenged the notion of federal land ownership and control. DeVoto wrote that ‘There are many ways to skin a cat,’ and he detailed how the skinning knife would be used on the U.S. Forest Service (USFS) as an example. ‘The idea was to bring it into disrepute, undermine public confidence in it by every imaginable kind of accusation and propaganda, cut down its authority, and get out of its hands the power to regulate’ such things as grazing on federal lands,” wrote Nie.

But the sagebrush rebel litigation was not successful, from a legal standpoint at least.

“The courts have been consistent in their reading of the U.S. Constitution’s Property Clause which gives Congress proprietary and sovereign powers over its property and the power to delegate decisions regarding federal lands to executive agencies. The Supreme Court has repeatedly observed that this power over federal land is ‘without limitations’,” wrote Nie.

Nie also states there is a strong case for federal law in this field. Several issues facing federal land agencies go beyond state boundaries, authorities, and capabilities. Consider, for example, the multi-state run of salmon or bull trout, the management of endangered species, the downstream impacts related to mining and energy development, and the boundary-spanning watersheds of the West.

Nie suggests that the study of these issues can be fruitful, however, especially if it looks at the advantages of cooperative management between the states and the federal government rather than the all or nothing transfer of the land. He calls it “cooperative federalism” and points out that this is the reason federal laws often include limited language pertaining to “coordination” and “cooperation” in federal planning processes with the states. Furthermore, federal lands can be subject to both federal and state environmental regulations.

“The BLM and USFS have considerable discretion in giving meaning to these statutory provisions, as neither FLPMA or the National Forest Management Act define ‘coordination.’ The provisions are limited insofar as they pertain to state engagement in forest and rangeland planning processes. In no way does such language mean that federal decisions must be consistent with the plans and desires of state and local governments. There is no veto authority by the states. Instead, the provisions simply provide opportunities for coordination. Even if they so wished, federal agencies could not, without explicit congressional action, cede or delegate its decision making powers over federal lands management to state and local governments,” wrote Nie.

“The bottom line is that federal lands in Montana and throughout the West are of national significance,” wrote Nie. “The transboundary and interstate nature of issues like these justify strong federal action in federal lands and resources law.”

The general approach, according to Nie, is to contrast federal lands to how trust lands managed by the states are administered. But the laws and regulations governing federal lands make them fundamentally different than state trust lands that are managed for a clearer set of purposes and beneficiaries, such as raising revenue for local school systems. Any comparison of federal and state forest management must not only include economic productivity and efficiency, which the states will win given their clearer mandates, but also factors related to environmental protection and opportunities for citizen participation, states Nie.

“To hold up school trust lands as an exemplar of managerial effectiveness and efficiency and contrast their management to federal lands misses the point entirely. The federal government is fully capable of efficiently exploiting its resources when it chooses to do so. The history of western water reclamation is a case in point. The USFS and BLM would also have an easier time meeting their multiple national mandates if they were replaced with a dominant use paradigm or a clearer set of purposes or beneficiaries like those characterizing state trust lands. It would also be possible to harvest more timber, for example, if the National Forest System was privatized and administered by a timber corporation with shareholders rather than citizens. Efficiency could also be gained if the national forests, or pieces of the system, were governed by a group of like-minded local stakeholders that were exempted from federal environmental and procedural laws. But that is not what the public or Congress has asked from our federal land,” he wrote.

Nie notes that conservation issues of the future will require actions transcending political jurisdictions and “resurrecting arguments from decades ago over land ownership and control will not help us solve issues pertaining to fire, water, fish and wildlife, restoration, and so many others that require the constructive engagement of federal and state governments.”

“Thankfully, there are efforts going on throughout the western states that are dealing with complex issues facing federal lands. Montana provides multiple examples of federal-state cooperation and problem-solving. I see evidence on my drive from Missoula to Helena. The Blackfoot Challenge, which includes federal-state-and private partners, is exemplary in its achievements conserving the Blackfoot watershed and its communities. I also drove by forest lands that were once scheduled to be developed into real estate by Plum Creek but eventually transferred into public ownership using federal and state resources and intergovernmental cooperation. These examples and others demonstrate that there is an alternative to conflict and acrimony between federal and state governments in the management of federal lands and resources,” concludes Nie.

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