Public Lands Initiative in the Works — Contrasting Recent Experiences

Screen Shot 2015-09-10 at 6.49.09 AM SALT LAKE CITY — Public lands in eastern Utah are at a crossroads. Ahead lies a field of options that range from oil and gas development to wilderness designation, the highest level of land preservation afforded by U.S. law.

Just weeks ago, similar situations existed for lands in Idaho and Nevada that ended with completely different outcomes — one played out in the public eye, the other quietly and ending in sudden bewilderment for those nearby.

And if there’s anything the experience of Utah’s neighbors can tell, it’s that either outcome could unfold for the places Utahns want to protect. Eventually, the state will join others in shouldering the consequences — good or bad — of what is decided in Washington, D.C.

“That’s what makes the West’s public lands issues interesting is you have three sovereign powers: You’ve got tribes, states and the federal government. And getting them all aligned in their interests or negotiating between all those interests is not without its difficulties,” said Joanna Endter-Wada, professor and program director for the National Environmental Policy Act graduate certificate program at Utah State University.

“It all has a history,” she said.

In the next few weeks, Rep. Rob Bishop, R-Utah, who is chairman of the U.S. House Committee on Natural Resources, plans to finish drafting his public lands initiative and bring it to the House floor. It’s a bill that represents three years of negotiation for a monument designation, wilderness, conservation areas and sites for oil and gas development.

At the same time, tribal leaders from the area are calling on federal executives to enact a higher protection for an area in San Juan County known as the Bears Ears, about 1.9 million acres of what they say are culturally “sacred” lands deserving of a national monument designation under the Antiquities Act.

Those tribes say they’ve had little or no opportunity to weigh in on the public lands initiative, but Bishop said the “threat” of a monument designation by President Barack Obama could unravel the larger plan for the preservation and use of millions of acres in other areas.

It’s a threat Utah isn’t alone in facing.

Basin and range

It was about two weeks between the time that Adam Katschke started hearing rumors of actions by the White House and the day Obama announced he was establishing the Basin and Range National Monument in Lincoln and Nye counties in Nevada.

It was one of three monuments Obama designated last month and 19 total during his seven years in office.

But as commissioner of Lincoln County, Katschke is still unsure what to tell his constituents, many of them worried about losing grazing rights, and what the new 700,000-acre monument now means for the county.

“It was signed with no transparency to us. It was signed, and right after it was signed was when we heard about it,” Katschke said. “They don’t give us any information until after the fact. We hear little rumors of what may be happening, and then it happens and we hear about it.”

The county collects tax revenue to maintain hundreds of miles of roads, some of which go through federal land. But now that as much as one-fifth of the county’s roads lie within the boundaries of the monument, it’s unclear how they’ll be maintained, Katschke said.

“The one positive thing,” he said, is that county officials and other locals will have a seat at the table with local federal officials in creating a management plan for the site. That could include grazing rights, recreation and other prescriptive uses of the area.

“It’s always been preserved. Ranchers have been there for hundreds of years, so it’s still in great shape. They’ve always preserved it and taken care of it. And that’s our concern,” Katschke said. “Just the way it was done seemed a little underhanded and surprising.

“I’m not sure why it was even designated,” he said.

Katschke’s is an account that stands at odds with what Interior Secretary Sally Jewell told the Deseret News early this month — that designations aren’t done under the “cloak of darkness.”

“There hasn’t been any monument designation that President Obama has done that hasn’t had a pretty open, public process,” Jewell said. “It is an open, transparent process we have been engaged in all along.”

When designating a monument, the president is not bound by the confines of the National Environmental Policy Act, or NEPA, which, in some cases, calls for public involvement in land management decisions, according to Endter-Wada. Even if the president consults other agencies or members of the public, he is not required to go through a public process before creating a monument, she said.

Endter-Wada doesn’t see that as an indictment of the Antiquities Act.

“I think it’s an action that’s taken with some need for urgency, but I don’t think that these are unilateral actions,” she said. “I think particularly because they’re highly politicized that presidents aren’t acting indiscriminately in doing so on their own. They have a whole lot of people working for them, and they’re briefed on all this stuff.”

But the controversial impacts of the Antiquities Act and the ability of the president to use the law independent of the public has some worried that Utah could face a similar fate as Nevada, where the implications of Basin and Range are not yet fully known.

“It would screw up all the effort that all the stakeholders have had over these years. Everything to try and get people to work together would not happen,” Bishop said. “Without that kind of public input, you don’t get the details worked out.”

Last year, Bishop sponsored a bill that would require the president to adhere to NEPA whenever the Antiquities Act is used. It passed the House but failed in the Senate.

Some see the Antiquities Act as a potential answer to preserving cultural resources in the Bears Ears. Leaders of several tribes in southern Utah have met with Jewell and her staff, and in a letter to Utah’s congressional delegation, they called for more involvement in Bishop’s legislation.

The letter requested the site’s designation as a national monument to preserve its “irreplaceable cultural resources as the primary purpose, and include strong conservation standards, including a full mineral withdrawal while allowing Native American traditional uses to continue.”

Boulder-White Clouds

Early this month, a decades-old effort in central Idaho came to a close as the president signed a bill passed by Congress that designated 275,000 acres as the Boulder-White Clouds Wilderness in Blaine and Custer counties.

It was a cause that Rep. Mike Simpson, R-Idaho, was involved in for 15 years. But early this year, something sparked stakeholders to come together and push the initiative across the finish line in six months.

“Frankly, probably the impetus to get it done right now was the threat of a national monument designation by the administration,” Simpson said.

In this case, the prospect of a monument designation was more widely known. Simpson said he spoke “several times” with Jewell and the Council on Environmental Quality, or CEQ, which advises the president, about the would-be 571,000-acre designation.

Even locally, Blaine and Custer counties formed a joint commission and held “numerous” public meetings on the issue, and county leaders traveled to Washington, D.C., to talk about the prospect with lawmakers, according to Blaine County commissioner Larry Schoen.

Most residents favored creating wilderness in the area but feared a monument designation could come first, Schoen said.

“There was a certain dynamic that if Congress doesn’t act to designate this area as wilderness, the president will act to create a monument,” Schoen said. Details of what the monument would look like were scant, he said, and “that was a problem for a lot of people.”

“I feel that as a county, we were very engaged,” he said. “We will never know exactly what the administration would have been willing to do in terms of coming to Idaho and meeting with us here and listening to stakeholders here. But we had ample opportunity to travel to Washington to express our views.”

After his bill passed, Simpson said he felt that Jewell, the CEQ, the Department of Agriculture and the Obama Administration “would rather see local solutions than a national monument.”

As for Bishop’s still-to-come bill, it’s unclear how it will fare in Congress and whether Obama will endorse the initiative. Aside from a quiet meeting last month between federal administrators and tribal leaders at the Bears Ears, officials in Washington haven’t given Bishop an ultimatum to pass his public lands initiative as they did with Simpson.

Repeated requests for comment from the CEQ on Bishop’s bill and the possibility of a monument in Utah were declined by the White House.

Bishop’s bill missed its original delivery date of March 27, and it is still being drafted. But Simpson said he’s confident that Bishop can present a solution that lawmakers will be amenable to passing.

“It’s my impression that if Rob can get a deal done with the stakeholders that’s pretty universally supported,” Simpson said, “I don’t think the White House would go against that. But that doesn’t mean that they still wouldn’t put pressure on, of the threat of a national monument or that they wouldn’t do it if he can’t get it done.

“I would be disappointed if they surprised him with it,” he said. “I would hope very sincerely that they give him the time to complete his efforts and see if he can bring the people together. Because if there’s anybody who could do it, Rob could do it.”