by Michael Howell
In a two to one vote, the Ravalli County Commissioners recently rejected a resolution expressing support for the State of Utah lawsuit before the U. S. Supreme Court asking whether the federal government “can constitutionally hold unappropriated lands within a State indefinitely.” In the lawsuit the state of Utah seeks to gain control over the 18.5 million acres within the state’s boundaries currently owned by the federal government and managed by the Bureau of Land Management (BLM).
The proposed resolution noted that “the scope of Utah’s lawsuit applies only to the federally held land that is ‘unappropriated’, meaning that the United States simply holds the land without any designated purpose.” The resolution also noted that the “unappropriated” land referred to does not include “appropriated” public land designated as national parks, national monuments, wilderness areas, national forests, Tribal lands or military properties.
It also stated, “WHEREAS, although Utah’s lawsuit is specific to the 18.5 million acres of unappropriated land within Utah administered by the United States Bureau of Land Management (BLM), it is imperative that the Court answer the vital legal questions in this case as they inherently apply to all of the 245 million acres of unappropriated land administered by the BLM in 11 Western states, Alaska and Dakotas, and a few Eastern states as well. NOW, THEREFORE, BE IT RESOLVED THAT Ravalli County, in the State of Montana, hereby supports Utah’s legal action as a co-signer of the Amicus Brief to be filed at the U.S. Supreme Court by the American Lands Council.”
Commissioner Greg Chilcott spoke repeatedly in favor of the resolution. In moving to approve the resolution, he said, “Distilled down to the basic question, the question that’s being asked is whether the federal government can hold unappropriated lands. There’s a lot in there, but at the end of the day the question is, can they hold unappropriated land? It has long been argued on both sides as to where state sovereignty falls in this. Can states manage lands? In some cases, I don’t think states can. But these are unappropriated lands… The question is not whether they can be taken out of public ownership. In fact Utah has expressed that it is not their intent to take public lands and make them private… But I think the states in some cases can manage public lands and I believe personally that the best management is management that is closest to home. I think it’s a question that’s been out there for decades and it’s time to put it to bed one way or the other.”
In public comment, Steve Schmidt of Darby, a retired Idaho Fish and Game Supervisor, said he worked a great deal with BLM in eastern Idaho over issues concerning sage grouse, elk winter habitat and public recreation on BLM lands. He expressed strong opposition to the resolution, saying it was based on faulty assumptions, the first being that he doubted that the public would support the transfer of public land to the states out of fear that it would lead to the reduction or loss of public access and harm natural resources in the process.
Schmidt also expressed doubt that the state and local governments could better manage public lands. “That has not been my experience,” he said. “State and local governments do not have the capacity to manage vast amounts of federal land. Even more so, I don’t know why they would want to take on that tremendous expense.”
He said it was also a false assumption that unappropriated BLM land has no purpose.
“Unappropriated land does not mean the land has little or no value,” said Schmidt. “Nor does it mean that the land is not managed for explicit uses. BLM lands in the West contain very important wildlife habitat.” He noted that sagebrush lands are essential habitat for sage grouse and their management is crucial to keeping sage grouse from being placed on the Endangered Species list. BLM lands are also often crucial lands for wintering of elk, mule deer and other wildlife.
Schmidt also noted that the states do not have a valid claim on federal land constitutionally and that the courts have ruled in favor of federal ownership of lands, quoting a few cases and pointing out that Utah relinquished its claim on federal lands as a condition of becoming a state.
“In my opinion this resolution is part of a hopeless endeavor that if pursued will be an expensive legal issue at taxpayer expense,” said Schmidt. “Why in the world would you commit Ravalli County tax dollars to this fool’s errand? If you sign this resolution, you do so at your own peril because you could be identified as anti-public land.”
It was noted by the County Administrator that the dollar amount mentioned in the original resolution in support of the amicus brief had already been removed.
Chilcott noted that the lawsuit was specific to Utah and did not apply to Montana. He said it was simply about a question of whether the federal government can hold on to these lands or not.
“I don’t know why anyone would object to having that question answered by the Supreme Court instead of hanging out there all the time,” said Chilcott. He said that Utah had made it clear that if successful in getting the land transferred their aim was to keep them in public ownership. “I reject completely that this board is anti-public land.”
Carlotta Grandstaff, a former county commissioners, raised the question of how little BLM land there is in Ravalli County and asked how does Ravalli County benefit from getting involved in this issue?
Chilcott said, “It gives us leverage in policy and planning on federal public lands.”
“In Ravalli County?” asked Commissioner Jeff Burrows.
“Potentially, yes,” said Chilcott
“But there is hardly any BLM land at all in Ravalli County, so I don’t know what you are talking about,” said Grandstaff.
“I think states in the east don’t have hardly any federal public lands,” said Chilcott. “But in the West the land was never transferred to the states.” He said we have a disproportionate amount of land under federal control in our jurisdiction. “So anything we can do to get a little more of a seat at the table is a good thing,” he said.
Grandsatff said that she did not believe that the state or local government could provide the kind of consistency in management that the federal government provides. She said if the state had control of all the federal lands it would be a constant debate and struggle over what to do with the land and open the door to privatization.
Burrows said that he was lukewarm over the Utah issue, in part because it was not clear what appropriated and unappropriated or dedicated land really meant. He said he did believe that the public lands issue was one of the biggest issues in Montana right now and that he didn’t know why a state or local government would want to take over federal public land.
“If you gave me a million dollars to take over public land I wouldn’t vote for it,” he said. “I would say that there isn’t any direct benefit to Ravalli County to take over BLM lands.”
“I think Steve is right,” said Grandstaff. “If you pass this, regardless of how much you personally may support public lands, the perception out there will be that you are anti-public lands. This is Utah’s issue, and they have been banging this drum for years. I don’t see how we have any reason to sign on to this at all.”
“I think the only reason I would sign on is just to support those commissioners that we’ve heard from that have been at loggerheads on an issue that would benefit their county, their economic base, their constituency and they have basically been ignored,” said Burrows. “I don’t think it’s a Ravalli County issue and I don’t think it’s a Montana issue for the most part, but we have heard from some commissioners down there who think they may benefit in some way economically, but who have basically just been ignored.”
Skip Kowalski also opposed the resolution and said it has been a longstanding issue from even before the “sagebrush rebellion.” He noted that the American Lands Council whose amicus brief they were considering signing on to is a conservative think tank that has been advocating for the takeover of federal lands for a long time and their policies are echoed in this resolution.
He said the issue is a big one that could lead to the privatization of public land and should get much more publicity and public involvement before moving forward with it.
“I think this is potentially the camel’s nose under the tent,” said Kowalski. He said if you follow what happened in the Sagebrush Rebellion, first they wanted to transfer all of the federal public lands to the states. It brought on a huge negative response from the public. So, they said they would drop the national forest and drop the national parks and talk about it and that also had a negative response. The next move then was to say that if the lands were transferred to the states they would propose state legislation that would guarantee that it would forever remain public.
“My response to that is that the very next legislature could change that,” said Kowalski. “So, I think that this is more than what it appears to be on the resolution.”
Chilcott reiterated that the issue of privatization of land was not the question, the only question was whether the federal government can hold on to unappropriated public land over a state’s objection.
Commission Chair Dan Huls said, “I’m kind of caught in the middle here. I agree with Greg [Chilcott] in that it would be good to have an answer here once and for all so that this issue would be put to bed. But I agree with our public comment in many instances in that how does it affect Ravalli County. It actually has no effect on Ravalli County other than showing support of county commissioners in other areas and we would hope that they would support us if we asked them for support. The collaboration there weighs for me as well. And then there is Jeff’s [Burrows} question of what is the definition of unappropriated land.”
Chilcott brought up past disagreements with the Forest Service in which he felt the commissioners’ opinion had been disregarded. “Anything that can help Ravalli County have more of a say in the management of their public lands and in the economic impact, and wildlife habitat protection and their utilization and resources, I think is a good thing.” He said that anything to keep these decisions close to home was good.
“I’m not a hundred percent convinced that it’s going to be successful in the challenge and I don’t think it’s worth the signature on it given the consequences that may come back,” said Burrows.
In the end, Chilcott voted in favor of the resolution and Burrows and Huls voted against it.