By: Anne L. Weismann

Originally appeared in The Hill, July 15th, 2015

The idea that states can compel the federal government to return ownership and control of federal lands may seem far-fetched, but there are some in Western states who claim it is possible. Founded on convoluted and inaccurate interpretations of the Constitution and state Enabling Acts, the laws that paved the way for Western states to join the union, the movement advocating for state laws that transfer public lands to the states has been gaining traction in Western states such as Utah, which passed such a bill in 2012.

Now U.S. Reps. Bob Bishop (R-Utah) and Chris Stewart (R-Utah) are giving the effort congressional support with the launch of the Federal Land Action Group, a new initiative aimed at developing a legislative framework for transferring public lands to local governments. This follows an amendment introduced by U.S. Senate Energy and Natural Resources Committee Chair Lisa Murkowski (R-Alaska) and passed by a vote of 51 to 40 to fund state efforts to seize and sell America’s public lands.

The movement’s recent surge in support is due largely to its self-proclaimed leader – Utah State Representative Ken Ivory (R). Ivory has spent the past few years fast-talking rural and poor Western counties into paying thousands of dollars they can ill afford to join an organization he founded called the American Lands Council (ALC). Ivory’s spiel is deceptively simple: when Western states agreed to join the United States, they retained the right to the return of federal lands. He also argues states would benefit financially from the return, and that contributions to the American Lands Council will help move legislation requiring this land transfer forward.
But Ivory omits any mention of the fact that he and his wife collectively pocket more than half of the funds the American Lands Council takes in. He also never tells the local government officials from whom he seeks donations that his legal theories have been roundly debunked and his promises of economic prosperity are illusionary. The legal scholarship is clear. Under the Enabling Acts, states expressly renounced claims to federal lands forever. Further, the Constitution’s Property Clause, which the Supreme Court has interpreted very broadly, grants the federal government a virtually unchecked right to retain and manage public lands. Even in Utah, the only state to have passed such ill-founded legislation, the state’s Office of Legislative Research and General Counsel said the law has “a high probability of being declared unconstitutional.”

The promise of new money flowing into state treasuries is similarly ridiculous. Studies show turning control of federal lands over to the states would actually result in less state revenue. States would lose the millions of dollars they receive annually under the federal program known as “Payment in Lieu of Taxes,” and would have to bear the additional cost and burden of managing the lands, likely to be in the hundreds of millions of dollars. As one environmentalist in New Mexico pointed out, his state currently lacks the funds to manage the state parks it already has; adding more to its inventory would leave the state scrambling for additional funds.

Some Western governors have recognized the flaws in Ivory’s logic. Former Arizona Governor Jan Brewer (R) warned state legislators considering a transfer of public land bill that the legislation was not reconcilable with the U.S. Constitution and Arizona’s Enabling Act. Montana Governor Steve Bullock (D) vetoed a bill that would have created a task force to study the issue, writing, “Exposing our pocketbook to the costs associated with federal lands management is not sensible.”

Nevertheless, Ivory has earned significant support on the far right, including from the American Legislative Exchange Council (ALEC), the Koch brothers, and the chair of the House Natural Resources Committee. This is in large part because returning mineral-rich lands to the states would give extraction interests a field day. Freed from the restrictions imposed by federal environmental laws such as the National Environmental Protection Act, these lands could be stripped of their natural resources.

Further, states would likely be forced to sell off the transferred lands to pay the newly incurred costs of managing, protecting, and administering the once federal lands, a move likely to enrich extractive energy interests. In a selling point worthy of George Orwell, Ivory frequently points out that passage of land transfer laws will mean fewer forest fires: the increased logging will result in far fewer trees to burn. That’s hardly a sound forest management plan.

With the charisma of a snake oil salesman, Ivory may have engaged in fraud by lining his pockets, persuading unsuspecting county officials to part with taxpayer dollars for an unattainable goal. This Western drama may not seem to merit much attention in the East, but given Ivory’s success in his home state of Utah and the growing support in Washington, D.C. for the land transfer movement, it’s time for lawmakers on Capitol Hill to send a clear message that efforts to obtain a federal land transfer bill are dead on arrival.