7.26.2016

This land is your land. Until it’s not

In the spring of 2015, I wrote a piece for The Drake magazine on the “transfer movement” in Utah – an effort to take federal lands and put them under state control for maximum economic benefit -- and how it might affect anglers and other outdoors-minded folks. In every interview, I heard the same refrain which amounted to “this will never happen, but holy shit if it does.” At the time, oil prices were sky high, a fact that gave supporters additional courage and energy. 

As oil prices dropped, however, the transfer movement shifted from an economic conversation to a political ideology. Sen. Ted Cruz got noisy about his support for transferring public land ownership to the states last spring, in an effort to differentiate himself from the other front-runner. And then, last week in Cleveland, the Republican National Committee included their own support for transfer in their 2016 platform (along with ending federal funding for international climate change efforts, killing the Endangered Species Act and downgrading the Clean Air and Clean Water acts. LINK). Apparently, Cruz and the RNC-nominated candidate do agree on many things, after all. 

For the glass half-full folks, a former newspaper editor in Utah told me this: “There’s always 10% on each side that gets involved, and an 80% in the middle that just doesn’t care. But now it’s changing. People are starting to get involved, and showing that they care. It’s a weird world, but there’s the possibility that people will be rejuvenated in the public lands discussion by this effort.” However, for those who see things as darker, the same editor in the same conversation also said that the transfer of public lands for Utah “could also be the end of the world.”

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Utah can be a funny place. Funny like a short story by Kurt Vonnegut, in that it can be simultaneously beautiful, strange, poignant and almost laughable if it wasn’t so serious. 


Last January, I was in Utah doing indoor business at an outdoor trade show. But I squeezed in a few hours to attend a meeting about a new Utah state law called the Transfer of Public Lands Act (TPLA).  Depending on who you ask, the law is either a dinner party conversation gone on way too long or the first step toward environmental Armageddon. 


Signed by Gov. Gary Herbert, the TPLA demands the return of more than 30 million acres of Federal public land to State control. The backbone of the TPLA is a fresh interpretation of the 1894 law that made Utah a state (the “Enabling Act”), which essentially says that the Feds were never planning to hang on to Utah public lands forever, so they should just give ‘em back.

What the TPLA “wants back” includes lands run by the Bureau of Land Management (22.8 million acres), the US Forest Service (8.1 million acres), the US Fish and Wildlife Service (112,696 acres), as well as the Utah portion of Glen Canyon Recreation Area (1.2 million acres), otherwise known as Lake Powell. Step one in the TPLA began by setting a deadline -- New Year’s Eve, 2014 -- for all those lands to be wrapped up with a bow and handed over. The expected step two – since the Feds didn’t RSVP by Dec. 31 – is the traditional American two-step of public relations and litigation. While the lawsuit party hasn’t started yet, the PR part definitely has, in meetings like the one I attended, which have been going on throughout the winter and spring in various Utah communities.

To be clear, the TPLA is very real. This is not a theoretical badminton match with no real winners and no real losers. Inside Utah, backers of the idea are dead serious and moving forward. And outside Utah, the TPLA has inspired similar initiatives in Colorado, New Mexico, Arizona, Nevada, Oregon, Montana and Wyoming.

While there’s some disagreement about the he-said-she-said interpretation of the 1894 Enabling Act, there’s no disagreement from anybody on any side what this is about. The TPLA is saying, straight up, that the State of Utah wants more oil and gas money, and they want it now.

“Wouldn’t it be great to believe that this effort to transfer public lands from the feds to the states is some altruistic grassroots idea meant to manage those lands in a way that works better for everyone?” asked writer Tyler Hansen, in a recent piece on the subject for Hatch magazine. “Sadly, that’s just not the case. This isn’t a Sagebrush Rebellion, it’s a corporate bait-and-switch scheme meant to open America’s natural resources to immediate extraction.”

Take a spin around your Utah rolodex, and you’d be hard pressed to find a local who truly believes that the TPLA has a snowball’s chance in Kennecott Copper Mine of actually becoming a reality. It doesn’t take a 900 buck-an-hour lawyer to see that the thing has serious and significant legal, financial and political obstacles to overcome, not the least of which is basic unconstitutionality. That notion of impossibility is a popular one, and is cited as the primary line of defense by just about everybody who opposes the idea.

" If this ... concept somehow gains traction, and it spreads to other fishy states, it doesn’t take much imagination to envision the massive environmental wrecking ball right behind it."

But those same people who are up on the issue, who recognize the massive hurdles faced by the TPLA , and who would rather bet on Karl Malone coming out of retirement than any land ever exchanging hands are also totally freaked out by this tiny sliver of light underneath an otherwise impenetrable door.  Part of the anxiety is because, well, this is Utah we’re talking about. And in this wildly unpredictable political arena, there’s no such thing as a surprise. The other reason is that if this TPLA concept somehow gains traction, and it spreads to other fishy states, it doesn’t take much imagination to envision the massive environmental wrecking ball right behind it.

If you cast TPLA as Maverick from “Top Gun,” then Goose is undoubtedly a state-sponsored, 784-page, 10-pound bass of an economic study called “An Analysis of a Transfer of Federal Lands to the State of Utah”. The job of the wingman has always been to make it happen for its bro, and this Study is an excellent wingman.

The Study doesn’t worry itself with the idea of quality, or subjective questions of who’ll do the “best” job of managing public lands. Instead, the report centers on dollars and cents. Specifically, it asks three questions: 1) How much would it cost to run the lands? 2) How much money could be made from more drilling and more resource extraction? And 3) Which entity (State or Feds) would be better at providing direct economic benefit to local communities from the use of that land?

One essential takeaway is the estimate of how much it would cost to manage Utah’s public lands, which is set at $280 million/year. The other big one is a roulette wheel of income projections, with numerous variations based on the number of new wells drilled, the amount of royalties that the State would get from those wells, and the possible stratospheric price of oil in the future. Those income figures range from a high end of $763 million/year to the low mark of $169 million/year. (Not surprisingly, the word “gamble” is used in the introduction to this chart).

The TPLA and its wingman doesn’t officially covet wilderness areas, but they definitely flirt with them a lot. Utah has only 1.1 million acres of designated wilderness, the least of any Western state and less even than Florida. But it has 3.2 million acres of Wilderness Study Areas – including the fishy Fremont Gorge – easily the most of any state (Oregon is the second with 2.6 million acres). The bad news is that the Study spends more than 60 pages breaking down those WSAs, mineral by mineral, gas by gas, and rating them on “Hot or Not” scale for future development.

While the Study doesn’t know exactly how it would actually manage 30 million acres of new public land, it definitely knows that if Utah takes over those public lands -- it will have carte blanche to do whatever it feels like doing in them. New roads, new wells, new coal mines, new resource extraction, new fees and no burdensome Federal paperwork. You can safely bet that would also include hefty cost increases for anglers and other users, in the same way you can bet on having less (or zero) input on how the land gets managed because old Federal laws would no longer apply.

"Some might say that the Study automatically stacks the deck in favor of the TPLA, as it ignores the question of who would actually be the best steward of the land, focusing instead on the best way to make the most money. And those people would be right."

“Making it work” for Utah could also mean selling that land. Since that “Enabling Act” in 1894, Utah has sold 50% of its public lands to private owners. Other Western states like Nevada have gone even further in this area, selling off more than 97% of their public lands. The TPLA Study and its presenters have certianly made it clear that it’s feasible for Utah to take over its public lands, but there’s a difference between feasible and advisable. It’s feasible for me to dig my own septic system in my backyard. That doesn’t make it advisable.

Some might say that the Study automatically stacks the deck in favor of the TPLA, as it ignores the question of who would actually be the best steward of the land, focusing instead on the best way to make the most money. And those people would be right.

In estimating the cash impact of a day of fishing, the crucial term is “market valuation,” which is pretty much an accumulation of anything that can give you a receipt -- licenses, beer, drift boats, shuttles, rods and reels, beer, tippet and flies, sandwiches, more beer and so on. That’s pretty easy to figure out. The money either gets spent, or it doesn’t.

The second big thing that’s starting to slip into the conversation is “non-market valuation.” NMV’s are a little squishy, but still relevant. They value things that aren’t sold at a market (like spectacular scenery, or a fishing experience), and they help formulate the process used to create a $532 million number for the value of freshwater fishing in Utah. It’s important to note that the very idea of an NMV bugs the shit out of some economists. As one of the Study presenters the Salt Lake City meeting said: "it's hard to convince people NMVs are real.”

And then there’s “non-use valuations”, which are things that hippies like to talk about but econ geeks like to ignore. This is when you try to put a value on the idea of fishing for people who aren’t fishing. How much is it worth to a guy sitting at his desk in Tribeca to know that the Green is still pristine and full of midge-sipping rainbows? Maybe a lot, but with no receipts, it has no home in this conversation.

Politically, the mention of giving Utah (or any state, for that matter) control of Federal lands is enough to make a sportsman’s head pop off. Coincidentally, it creates the same reaction among treehuggers. More than 6 out of 10 people prefer the Feds to the State when it comes to managing public lands. In part, because people prefer the dentist they know over the one they don’t.

Admittedly, 60 percent is hardly a slam dunk, especially since we’re talking about the U.S. Federal Government– an organization that isn’t on the top of anybody’s list to run a laundromat, let alone our
national lands.

" The more you underfund stuff at the Federal level, the crappier of a job you end up doing executing on the local level, and the easier it becomes to consider other alternatives. In other words, when you lower expectations far enough, it doesn’t seem like that big of a jump to shift public lands from Federal knuckleheads to State knuckleheads with no plans other than to drill the shit out it."

One thing the Feds have done extremely well in the last two decades is to serially and systematically underfund our public lands, which in turn has helped lead to the sort of climate where the TPLA can bloom. The more you underfund stuff at the Federal level, the crappier of a job you end up doing executing on the local level, and the easier it becomes to consider other alternatives. In other words, when you lower expectations far enough, it doesn’t seem like that big of a jump to shift public lands from Federal knuckleheads to State knuckleheads with no plans other than to drill the shit out it.

But if you’re concerned with the long-term health of the land, with fishing or backcountry hiking or other outdoor pursuits, then the Feds have the upper hand because they have a track record -- a consistent plan from coast to coast that’s already on the record, and a longstanding national commitment to the idea that these lands are a national resource, not a local one.

In contrast, local economics are obviously the meat of the TPLA and the supporting Study. Other than the price for oil and gas and other resources, the Study doesn’t consider impacts or events from outside of Utah’s borders, like how a growing population and over development of neighboring states might change the value of a pristine Utah backcountry experience. Or how the value of the Utah brand to the national or international travel markets might decline as a result of hitching the State’s land legacy the price at the pump.

People with wet boots in Utah are already on edge about their rivers, as they should be. Decades of back-and-forth Stream Access bills have been exhausting and occasionally contentious, with tales of hostile exchanges between landowners and anglers, as well as a dead skunk or two. And while stream access debates have tangled up the status quo on private land, the primary threat of the TPLA is that it would do the same with waters on public lands – adding hurdles, increasing fees, or taking them off the table entirely.

When it comes to water that flows over private lands, fishing in Utah is an increasingly crowded place. One estimate puts the current fishable miles in Utah at 3,700 -- about one tenth of the available rivers in Idaho and Montana. That means that the idea of taking some water – any water – off the table for anglers makes some people very upset. “Things are already totally jammed,” says Steve Schmidt, owner of Western Rivers Flyfisher in Salt Lake. “We’re supposed to be growing the sport, and I can barely find a place to put people.”

The fishing discussion gets even bleaker when broader water issues are considered, especially with Utah sitting in the top five fastest growing states in the country. There’s already a proposed $32 billion water pipeline for Lake Powell, which apparently would be considered a good start by Todd Adams, deputy director for the Utah Division of Water Resources. “It’s necessary to put dams on all rivers in Utah,” Adams recently told columnist Mark Saal, of the Ogden Standard-Examiner.

“Seriously. Where else are they building dams?” Schmidt asked. “In this state, given how out of balance things are, with less than 30 percent of Utahans voting in last election, a lot of people are just no longer paying attention. Honestly, the implications are horrifying.”

-- The article "This Land is Your Land, Until It's Not" originally appeared in the spring 2015 edition of The Drake