JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Martin Nie, PhD

Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests
University of Montana

Four Eras of Federal Land Policy

Martin Nie, PhD, described 4 eras of US Federal lands policy and management. During the first era, at the turn of the 19th century, lands began to be acquired by the Federal government through purchase and treaties, creating complicated patterns of private and public ownership. This patchwork of land ownership became more intricate during the second era throughout the 19th century, when approximately 1.3 billion acres of Federal lands were disposed to private owners such as railroads, settlers, and States. Retention of land characterized the third era, largely under the influence of Theodore Roosevelt, beginning with Yellowstone in 1872 and extending to the 1976 Federal Land Policy and Management Act (FLPMA).

By enacting the FLPMA, Congress recognized the value of the public lands, declaring that these lands would remain in public ownership. The National Forest Service, National Park Service, and now, the Bureau of Land Management, are commissioned in FLPMA to allow a variety of uses on their land while simultaneously trying to preserve the natural resources in them.

During the current fourth era, the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US. Even today, the effects of early purchases and treaties and subsequent dispositions are apparent in the complicated patchwork of private and public land ownership. The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

Portion of each state that is federal land

Controversy over Federal ownership and management of lands has a long history. In the 1970s and 1980s, the Public Lands Transfer Movement tried various legal and political strategies to gain State ownership and control of Federal lands. In 2018, 10 of the 11 Western States will consider legislation that seeks to transfer ownership to the States. However, Dr. Nie said, the discussion should be focused not on “ownership” of the lands but on their management.

Evidence-based Solutions

Dr. Nie was straightforward in presenting his viewpoint. As a scientist, he argued for the importance of relying on evidence to find solutions to specific problems. He advocates that the national interest in public lands should keep the lands public. Rather than getting caught in divisive issues about transfer of ownership, focus the discussion on how to govern the lands: “We should find specific evidence-based solutions to specific problems,” he urged.

Unanswered Questions

Would the lands be well managed? How would transferred lands be managed exactly?

Would they be privatized, blocking public access?

Would transferred lands be managed as state trust lands?  If so, what are the implications (eg, licenses, permits, fees for hunting and recreational access, etc.)?

How will states pay for the costs?

What about pre-existing Federal laws and obligations?

Will transferred lands be subject to State ballot initiatives and balanced budget requirements?

How would non-Western states be compensated for their lost investments in federal lands?

Governance vs Ownership

Dr. Nie pointed out that there have always been diverse values and interests in how Federal lands are managed and used, and enduring disagreement about how to properly balance resource use and protection and national and local interests. In his book, The Governance of Western Public Lands, Dr. Nie argues that these controversies arise from questions about how public lands are governed--the laws, regulations, plans, litigations, and scientific studies that determine how federally owned land can be used, for what purposes, and by whom. According to his research, a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

Moving Forward

A bold step forward would be to resurrect the Public Lands Law Review Commission (PLLRC), Dr. Nie said. The PLLRC, established in 1964 to review Federal public land laws and regulations and to recommend a public land policy, met only 4 times between 1965 and 1969, when it was disbanded. Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

A revived PLLRC could create policies related to consolidating lands that have intermixed ownerships and perhaps address adequate funding for the US Forest Service, whose budget is consumed by fire-fighting activities. A new focus on Federal lands planning could enable experimentation on newly acquired federal lands, including strategies and policies to use lands for rural economic opportunities and security.

Federal payments to local governments provided through the Secure Rural Schools and Community Self-Determination Act (SRS) and Payments in Lieu of Taxes (PILT) Program could be effectively invested to provide greater fiscal certainty for resource-dependent communities with tax-exempt Federal lands, and create policies that guide decisions about value-added industries.

Criticisms and Solutions

Efficient Management

Dr. Nie proposed potential solutions to common criticisms aimed at Federal land management. He observed that advocates for State ownership say that federal lands management is economically inefficient, compared with more efficient management of State trust lands.  He reminded the Forum that State trust lands and Federal public lands have different mandates and are not the same. He proposed that increased Congressional funding would allow the US Forest Service to manage more effectively, reiterating that their budget is consumed in fire-fighting, with little left over for management. One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

States Have a Voice in Federal Land-Use Planning

Dr. Nie pointed out that existing Federal laws and processes offer opportunities for local and State concerns to be addressed. There is now a great window of opportunity for local and State voices to be heard. The States have a privileged seat in land-use planning under the 1970 National Environmental Policy Act (NEPA). The Act requires Federal agencies to assess the local environmental effects of their proposed actions prior to making decisions.

The 1976 Federal Land Policy and Management Act (FLPMA) and the National Forest Management Act (NFMA) also provide access to land-use decision-making for State and local entities. NFMA requires the responsible official to “coordinate land management planning with…the efforts of State and local governments.”

The FLPMA requires that the agency “coordinate the land-use inventory, planning, and management activities of or for such lands… with the land-use planning and management programs of the States and local governments within which the lands are located.”

JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Jennifer Fielder

CEO of the American Lands Council
State Senator (Montana)

The Common Ground

“We all want healthy air, water and wildlife, abundant outdoor recreation, and safe, vibrant communities,” Ms. Jennifer Fielder reminded the Forum. This is the common ground shared by all discussants in the Federal lands debate, but different stakeholders have different visions of how to achieve that goal, she said. As a State Senator in Montana, Ms. Fielder chaired the State Study of Federal Land Management 2013-14.

The Impacts of Land Management

Ms. Fielder pointed out that 50% of the western US is under Federal control, and she showed pictures of forest hillsides that were clearly divided into two sections: the fully forested side was under State management and the denuded side, where the trees were decimated by fire, was Federally managed.

The federal fault line

The Threat of Fire

She argued that Federal lands are undermanaged, and this allows forests to become overgrown and dense, leading to wildfires and the deposition of toxins in air and water, with devastating downstream effects for fish, wildlife, and humans.

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017. As wildfires increase, lost timber sales become a burden on local populations, Ms. Fielder reported.  She observed that, since the passage of the Endangered Species Act and FLMPA, there have been more fires and fewer acres harvested.

Ms. Fielder reported that Montana’s highly trained and well-equipped fire crews are able to put out 90% of fires before they burn more than 10 acres. When a wildfire occurred on Federal lands in her State, Federal land managers prohibited Montana fire fighters from coming to the rescue “because their equipment was not ‘approved’ for Federal fires.” They watched the fires for a few days until they were out of control and led to a $28 million disaster. In addition, Federal rules do not allow burned timber to be harvested. “That’s an example of why Federal jurisdiction doesn’t work,” she declared.

Wildfires in 11 western states (1916–2012)*

A Forest is a Garden Not a Museum

An actively managed forest is like a garden, it needs tending. And it will be healthier, Ms. Fielder said. In a well-managed forest, the trees retain the snow pack which feeds the streams, increases the habitat, and prevents wild fires. the benefits of active management include sustainability, fire resiliency, clean air and water, improved wildlife habitat, abundant wood and agricultural products, multi-use accessibility, jobs, recreation, scenery, and economic and environmental vitality, she stated. For every $1 spent on active vegetation management: $17 can be saved on wildfire suppression costs; and $500 can be saved in total losses, Ms. Fielder claimed.

The Political Problem

Ms. Fielder’s view is that the problem stems from Federally appointed Commissioners, who make decisions about Federal lands without local knowledge of local forests and communities. “They are not local officials and they have no accountability to the State and local citizens,” she stated. “Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?” Ms. Fielder asserted that pro-Federal land interests have tied the hands of Federal land managers so they cannot manage the lands effectively.

Divided Lands

Ms. Fielder referenced the report Divided Lands: State vs. Federal Management in the West, which reports a study comparing the revenues and expenditures associated with Federal land management and with State trust land management in four western States: Montana, Idaho, New Mexico, and Arizona. The report found that the States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

The report attributes these outcomes to the impacts of the different statutory, regulatory, and administrative frameworks that govern State and Federal lands. States have a fiduciary responsibility to generate revenues from State trust lands, while Federal land agencies face overlapping and conflicting regulations and often lack a clear mandate. However, the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

The Constitutionality of Land Transfer

Ms. Fielder said that transferring Federal land to the States does not need to be a divisive or hostile process, citing the example of Canada, which has transferred land-use management control to the Provinces. She referenced the Constitutional basis for such a transfer quoting, “The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

Further support for the constitutionality of transferring Federal land to State control comes from the 74th Congress in 1938, which annotated the Constitution, noting, “The right of every new State to exercise all the powers of government which belong to and may be exercised by the original States must remain unquestioned except so far as they are temporarily deprived of control over the public lands.”

Moving Forward

Ms. Fielder urged that immediate relief be provided through executive action by the President to cut back regulations and allow immediate improved management.

Longer-term solutions will come through judicial actions based on research and the precedent that the States have a right to be treated equally. Ms. Fielder told the Forum that an all-Star legal team was already exploring the Constitutional arguments for transferring Federal land to the States.

Legislative actions could provide an orderly process to divest land to the States, and allow the States and their people to determine how the lands should be managed, whether they should be sold off or not. A legislative process could allow the States to acquire land when they are ready to manage it, requiring the State to identify a specific piece of land and define the specific purposes for which it will be used, such as for schools, multiple use, or as a protected area. This could be a framework that preserves all existing rights and would allow the States and counties to manage the lands, bringing decision-making closer to the ground.

Ms. Fielder concluded by saying that an effective process requires educating people, while shunning those who would polarize the issue.

Senators Eli Bebout (WY), Rich Wardner (ND), and Scott Sales (MT) chatted between sessions. Their States have large tracts of Federal lands, and the Senators were active contributors to the discussion.

Discussion

Sen. Margaret O’Brien (MI): Federal land policies are creating severe economic challenges in the Upper Peninsula, where 50% of the land is owned by tax exempt entities. People cannot find work, the area is steadily losing population, and poverty is rampant. Michigan has a history of successful transfer of public lands to the State since 1895 when Mackinaw Island was transferred to State management.

In some counties, 90% of the land is Federally owned. The government does not sustain local communities. Tourism does not pay the bills to feed a family. Tourism is pointless if no one can afford to live there. Federal rules prevent economic growth. There is no land for economic development.

Dr. Nie: Rural economic problems are not solely due to Federal land management policies. However, lack of tax revenue affects these counties. Some solutions might include reauthorizing bills that drive funding to the counties, such as the Secure Rural Schools Act. We need a long-term solution to the Federal land management, including allowing value-added industry.

Sen. Scott Sales (MT): In the 1970’s, Montana was pristine, with huge elk herds. Now the forest is a sterile wasteland. The canopy has not been allowed to burn. There is no undergrowth. When fires come, they rampage through the forest. Lack of management has led to weed invasion. These policies are devastating the value of the land. Where have the elk gone? They certainly are not on public lands.

Dr. Nie: You have raised several questions. First, Montana’s elk population is very robust, however, they are harboring on private land. This is a problem for the Montana Fish and Wildlife Department.

In terms of wildfire concerns, we need a science-based solution. We are experiencing hotter, dryer seasons due to climate change and a century of wildfire suppression is contributing to the wildfires. The science of wildfires is complex and even experts are ambivalent about the optimal solutions.

The Federal lands planning process that I participate in can be tedious and boring, but it provides a platform for evidence-based solutions that will provide active management of the land, of fires and restoration. We will need considered decisions about which burns should be subject to salvage operations. It is not a one solution fits all.

Tom Finneran (Moderator): Fire is a natural phenomenon. Is there common agreement that fire is healthy and natural? Or is it unhealthy?

Ms. Fielder: The First Peoples used fire to manage the forests. There are differences between severe, intense, forceful fires in a poorly managed area with a lot of fuel, versus a well-managed forest with less fuel, which feeds low intensity fires. We used to clear the area around home to prevent fires from spreading from canopy to canopy. Now with greater development and urban interfaces with forests and watersheds, we need more active fire management to maintain safety.

Dr. Nie: There is agreement that we need specific management policies at the wild/urban interfaces. This is an example of a specific problem that needs a specific solution. On the other hand, some ecosystems are meant to burn, that is part of their life cycle and part of natural landscape restoration.

Sen. Eli Bebout (WY): I respectfully disagree with Dr. Nie. We are facing a failed public policy at the Federal level.  Wyoming had a vibrant timber industry employing 4-5,000 people. We were willing to work together with everyone on how to manage it. We went to all the meetings with the coordinating agencies. But they did not listen to our input. The State could take over and manage those lands effectively. However, the divisive environmental community alleges that “If the State takes over, they’ll take away your hunting.” That’s the kind of divisive politics that hinders progress.

Dr. Nie: In my environmental policy class at the University of Montana, we have a broad spectrum of interested students, from loggers to hikers. One thing they share in common is a love for the idea of public lands. State trust lands are not public lands, they carry constitutional obligations, for example, to raise revenue for schools. Some lands should remain public.

Ms. Fielder: “Keep the lands public” is a false narrative. Transferring management to the States does not mean the States will just sell off the land.  The real question is “Who should make the decisions?” It should be the local officials and people. We can argue on the State and local level to come to agreement, versus having people from Washington, DC, who have no accountability to the local community, make the decisions.

Sen. Wayne Niederhauser (UT): The Utah Senate sponsored a bill to reclaim lands from the Federal government. As an outdoorsman, I want to retain public lands, but there is an inherent distrust of Federal agencies and groups working to keep federal land tied up.  We have seen State-managed land that is vital compared with decimated Federal lands right next to it.  We should study this difference and see what should be done differently.

Distrust of the Federal government is the essential problem. There is too much red tape and bureaucracy. Bureaucratic management of the land policy and administration is the problem. Decisions are made on the Federal level that do not take into account the local impact.  The solution lies in partnership with local involvement.

The Federal government needs an active plan devised with State and local participation. We need all the stakeholders at the table. When people are left out of the discussion, that leads to poor policy-making. We need to manage the lands together. Public lands represent such a large proportion of our State that it is most important to us. I would like to trust that we can have a real partnership. We have a lot of common ground. We need a process to decide on the allocation of our ground.

Speaker Biographies

Martin Nie, PhD

Martin Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests. As appointed by the Secretary of Agriculture, Dr. Nie is currently serving on the U.S. Forest Service’s National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule. In 2015, he received the College's "Druids Outstanding Professor Award." In 2016, he received the University of Montana's Distinguished Teaching Award, a special recognition based on "a history of excellence in classroom teaching" and given to professors who "have demonstrated a quality long-term impact on their students."

Dr. Nie’s research focuses on federal lands and wildlife policy, law, planning, and conflict. Some of his more recent projects examine the National Forest System (conflict, litigation, the rewriting of national forest plans, law reform), the future prospects of the Wilderness Preservation System, and the practice of adaptive management and planning. His latest book is The Governance of Western Public Lands: Mapping Its Present and Future (2008). He also wrote Beyond Wolves: The Politics of Wolf Recovery and Management (2003). His current work examines tensions between federal and state governments in the management of wildlife on federal lands.

He regularly teaches Natural Resources Policy (NRSM 422), Wildlife Policy (WILD 410) and more specialized policy courses at the graduate level. His goal in research and teaching is to provide trusted and relevant information, analysis, and questions to decision makers and students. He cares deeply about federal lands and their future conservation and management.

Dr. Nie grew up in Ontario, Canada and received degrees from the University of Nebraska and Northern Arizona University. He loves to ski as much as possible with his son Joe; float wild rivers; hike, hunt and fish the mountains of Montana; and mess around in his garage listening to vintage country and rock and roll. He also enjoys photography, playing hockey, Irish whiskey, and strong cheese.

Jennifer Fielder

Jennifer Fielder and her husband, Paul, reside near the mountainous little town of Thompson Falls in Northwest Montana. Having won election to the Montana State Senate in 2012 and again in 2016, Ms. Fielder serves as Vice Chair of the Senate Judiciary Committee, Chair of the Senate Fish and Game Committee, and is a member of Senate Natural Resources Committee.

In 2015 she was named CEO of the American Lands Council, a national nonprofit that advocates constitutionally sound solutions for sensible, locally-driven care of our public lands — chiefly through the transfer of certain federally controlled public lands to willing states.

Whether in her capacity as a State Senator, top executive of the ALC, or just an individual citizen, Ms. Fielder is passionate about defending the rights of the people, protecting our environment, and working with citizens to restore the blessings of liberty and self-government that make America great.

She has been awarded Montana Agri-Women’s ‘Keeper of the Tenth’ award for outstanding defense of the rights of the States and the people in accordance with the 10th amendment of the United States Constitution. She will be speaking about the compelling case for transferring federal lands to willing states, and pathways forward for achieving this monumental goal in a manner that is beneficial to the States, the people, the environment, and the nation as a whole.

...the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US.

The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

“We should find specific evidence-based solutions to specific problems,” he urged.

...a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017.

“Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?”

States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

...the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

“The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

Sen. Margaret O’Brien (MI)

Sen. Scott Sales (MT)

Tom Finneran (Moderator)

Sen. Eli Bebout (WY)

Sen. Wayne Niederhauser (UT)

Martin Nie, PhD

Jennifer Fielder

CONTACT

Senate Presidents’ Forum

26 Main Street

Hastings-on-Hudson, NY 10706

 

Tel: 914-693-1818

Copyright © 2017 Senate Presidents' Forum. All rights reserved.

JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Martin Nie, PhD

Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests
University of Montana

Four Eras of Federal Land Policy

Martin Nie, PhD, described 4 eras of US Federal lands policy and management. During the first era, at the turn of the 19th century, lands began to be acquired by the Federal government through purchase and treaties, creating complicated patterns of private and public ownership. This patchwork of land ownership became more intricate during the second era throughout the 19th century, when approximately 1.3 billion acres of Federal lands were disposed to private owners such as railroads, settlers, and States. Retention of land characterized the third era, largely under the influence of Theodore Roosevelt, beginning with Yellowstone in 1872 and extending to the 1976 Federal Land Policy and Management Act (FLPMA).

By enacting the FLPMA, Congress recognized the value of the public lands, declaring that these lands would remain in public ownership. The National Forest Service, National Park Service, and now, the Bureau of Land Management, are commissioned in FLPMA to allow a variety of uses on their land while simultaneously trying to preserve the natural resources in them.

During the current fourth era, the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US. Even today, the effects of early purchases and treaties and subsequent dispositions are apparent in the complicated patchwork of private and public land ownership. The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

...the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US.

The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

Portion of each state that is federal land

Controversy over Federal ownership and management of lands has a long history. In the 1970s and 1980s, the Public Lands Transfer Movement tried various legal and political strategies to gain State ownership and control of Federal lands. In 2018, 10 of the 11 Western States will consider legislation that seeks to transfer ownership to the States. However, Dr. Nie said, the discussion should be focused not on “ownership” of the lands but on their management.

Evidence-based Solutions

Dr. Nie was straightforward in presenting his viewpoint. As a scientist, he argued for the importance of relying on evidence to find solutions to specific problems. He advocates that the national interest in public lands should keep the lands public. Rather than getting caught in divisive issues about transfer of ownership, focus the discussion on how to govern the lands: “We should find specific evidence-based solutions to specific problems,” he urged.

“We should find specific evidence-based solutions to specific problems,” he urged.

Unanswered Questions

Would the lands be well managed? How would transferred lands be managed exactly?

Would they be privatized, blocking public access?

Would transferred lands be managed as state trust lands?  If so, what are the implications (eg, licenses, permits, fees for hunting and recreational access, etc.)?

How will states pay for the costs?

What about pre-existing Federal laws and obligations?

Will transferred lands be subject to State ballot initiatives and balanced budget requirements?

How would non-Western states be compensated for their lost investments in federal lands?

Governance vs Ownership

Dr. Nie pointed out that there have always been diverse values and interests in how Federal lands are managed and used, and enduring disagreement about how to properly balance resource use and protection and national and local interests. In his book, The Governance of Western Public Lands, Dr. Nie argues that these controversies arise from questions about how public lands are governed--the laws, regulations, plans, litigations, and scientific studies that determine how federally owned land can be used, for what purposes, and by whom. According to his research, a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

...a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

Moving Forward

A bold step forward would be to resurrect the Public Lands Law Review Commission (PLLRC), Dr. Nie said. The PLLRC, established in 1964 to review Federal public land laws and regulations and to recommend a public land policy, met only 4 times between 1965 and 1969, when it was disbanded. Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

A revived PLLRC could create policies related to consolidating lands that have intermixed ownerships and perhaps address adequate funding for the US Forest Service, whose budget is consumed by fire-fighting activities. A new focus on Federal lands planning could enable experimentation on newly acquired federal lands, including strategies and policies to use lands for rural economic opportunities and security.

Federal payments to local governments provided through the Secure Rural Schools and Community Self-Determination Act (SRS) and Payments in Lieu of Taxes (PILT) Program could be effectively invested to provide greater fiscal certainty for resource-dependent communities with tax-exempt Federal lands, and create policies that guide decisions about value-added industries.

Criticisms and Solutions

Efficient Management

Dr. Nie proposed potential solutions to common criticisms aimed at Federal land management. He observed that advocates for State ownership say that federal lands management is economically inefficient, compared with more efficient management of State trust lands.  He reminded the Forum that State trust lands and Federal public lands have different mandates and are not the same. He proposed that increased Congressional funding would allow the US Forest Service to manage more effectively, reiterating that their budget is consumed in fire-fighting, with little left over for management. One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

States Have a Voice in Federal Land-Use Planning

Dr. Nie pointed out that existing Federal laws and processes offer opportunities for local and State concerns to be addressed. There is now a great window of opportunity for local and State voices to be heard. The States have a privileged seat in land-use planning under the 1970 National Environmental Policy Act (NEPA). The Act requires Federal agencies to assess the local environmental effects of their proposed actions prior to making decisions.

The 1976 Federal Land Policy and Management Act (FLPMA) and the National Forest Management Act (NFMA) also provide access to land-use decision-making for State and local entities. NFMA requires the responsible official to “coordinate land management planning with…the efforts of State and local governments.”

The FLPMA requires that the agency “coordinate the land-use inventory, planning, and management activities of or for such lands… with the land-use planning and management programs of the States and local governments within which the lands are located.”

JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Jennifer Fielder

CEO of the American Lands Council
State Senator (Montana)

The Common Ground

“We all want healthy air, water and wildlife, abundant outdoor recreation, and safe, vibrant communities,” Ms. Jennifer Fielder reminded the Forum. This is the common ground shared by all discussants in the Federal lands debate, but different stakeholders have different visions of how to achieve that goal, she said. As a State Senator in Montana, Ms. Fielder chaired the State Study of Federal Land Management 2013-14.

The Impacts of Land Management

Ms. Fielder pointed out that 50% of the western US is under Federal control, and she showed pictures of forest hillsides that were clearly divided into two sections: the fully forested side was under State management and the denuded side, where the trees were decimated by fire, was Federally managed.

The federal fault line

The Threat of Fire

She argued that Federal lands are undermanaged, and this allows forests to become overgrown and dense, leading to wildfires and the deposition of toxins in air and water, with devastating downstream effects for fish, wildlife, and humans.

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017. As wildfires increase, lost timber sales become a burden on local populations, Ms. Fielder reported.  She observed that, since the passage of the Endangered Species Act and FLMPA, there have been more fires and fewer acres harvested.

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017.

Ms. Fielder reported that Montana’s highly trained and well-equipped fire crews are able to put out 90% of fires before they burn more than 10 acres. When a wildfire occurred on Federal lands in her State, Federal land managers prohibited Montana fire fighters from coming to the rescue “because their equipment was not ‘approved’ for Federal fires.” They watched the fires for a few days until they were out of control and led to a $28 million disaster. In addition, Federal rules do not allow burned timber to be harvested. “That’s an example of why Federal jurisdiction doesn’t work,” she declared.

Wildfires in 11 western states (1916–2012)*

A Forest is a Garden Not a Museum

An actively managed forest is like a garden, it needs tending. And it will be healthier, Ms. Fielder said. In a well-managed forest, the trees retain the snow pack which feeds the streams, increases the habitat, and prevents wild fires. the benefits of active management include sustainability, fire resiliency, clean air and water, improved wildlife habitat, abundant wood and agricultural products, multi-use accessibility, jobs, recreation, scenery, and economic and environmental vitality, she stated. For every $1 spent on active vegetation management: $17 can be saved on wildfire suppression costs; and $500 can be saved in total losses, Ms. Fielder claimed.

The Political Problem

Ms. Fielder’s view is that the problem stems from Federally appointed Commissioners, who make decisions about Federal lands without local knowledge of local forests and communities. “They are not local officials and they have no accountability to the State and local citizens,” she stated. “Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?” Ms. Fielder asserted that pro-Federal land interests have tied the hands of Federal land managers so they cannot manage the lands effectively.

“Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?”

Divided Lands

Ms. Fielder referenced the report Divided Lands: State vs. Federal Management in the West, which reports a study comparing the revenues and expenditures associated with Federal land management and with State trust land management in four western States: Montana, Idaho, New Mexico, and Arizona. The report found that the States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

The report attributes these outcomes to the impacts of the different statutory, regulatory, and administrative frameworks that govern State and Federal lands. States have a fiduciary responsibility to generate revenues from State trust lands, while Federal land agencies face overlapping and conflicting regulations and often lack a clear mandate. However, the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

...the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

The Constitutionality of Land Transfer

Ms. Fielder said that transferring Federal land to the States does not need to be a divisive or hostile process, citing the example of Canada, which has transferred land-use management control to the Provinces. She referenced the Constitutional basis for such a transfer quoting, “The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

“The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

Further support for the constitutionality of transferring Federal land to State control comes from the 74th Congress in 1938, which annotated the Constitution, noting, “The right of every new State to exercise all the powers of government which belong to and may be exercised by the original States must remain unquestioned except so far as they are temporarily deprived of control over the public lands.”

Moving Forward

Ms. Fielder urged that immediate relief be provided through executive action by the President to cut back regulations and allow immediate improved management.

Longer-term solutions will come through judicial actions based on research and the precedent that the States have a right to be treated equally. Ms. Fielder told the Forum that an all-Star legal team was already exploring the Constitutional arguments for transferring Federal land to the States.

Legislative actions could provide an orderly process to divest land to the States, and allow the States and their people to determine how the lands should be managed, whether they should be sold off or not. A legislative process could allow the States to acquire land when they are ready to manage it, requiring the State to identify a specific piece of land and define the specific purposes for which it will be used, such as for schools, multiple use, or as a protected area. This could be a framework that preserves all existing rights and would allow the States and counties to manage the lands, bringing decision-making closer to the ground.

Ms. Fielder concluded by saying that an effective process requires educating people, while shunning those who would polarize the issue.

Senators Eli Bebout (WY), Rich Wardner (ND), and Scott Sales (MT) chatted between sessions. Their States have large tracts of Federal lands, and the Senators were active contributors to the discussion.

Discussion

Sen. Margaret O’Brien (MI): Federal land policies are creating severe economic challenges in the Upper Peninsula, where 50% of the land is owned by tax exempt entities. People cannot find work, the area is steadily losing population, and poverty is rampant. Michigan has a history of successful transfer of public lands to the State since 1895 when Mackinaw Island was transferred to State management.

In some counties, 90% of the land is Federally owned. The government does not sustain local communities. Tourism does not pay the bills to feed a family. Tourism is pointless if no one can afford to live there. Federal rules prevent economic growth. There is no land for economic development.

Dr. Nie: Rural economic problems are not solely due to Federal land management policies. However, lack of tax revenue affects these counties. Some solutions might include reauthorizing bills that drive funding to the counties, such as the Secure Rural Schools Act. We need a long-term solution to the Federal land management, including allowing value-added industry.

Sen. Scott Sales (MT): In the 1970’s, Montana was pristine, with huge elk herds. Now the forest is a sterile wasteland. The canopy has not been allowed to burn. There is no undergrowth. When fires come, they rampage through the forest. Lack of management has led to weed invasion. These policies are devastating the value of the land. Where have the elk gone? They certainly are not on public lands.

Dr. Nie: You have raised several questions. First, Montana’s elk population is very robust, however, they are harboring on private land. This is a problem for the Montana Fish and Wildlife Department.

In terms of wildfire concerns, we need a science-based solution. We are experiencing hotter, dryer seasons due to climate change and a century of wildfire suppression is contributing to the wildfires. The science of wildfires is complex and even experts are ambivalent about the optimal solutions.

The Federal lands planning process that I participate in can be tedious and boring, but it provides a platform for evidence-based solutions that will provide active management of the land, of fires and restoration. We will need considered decisions about which burns should be subject to salvage operations. It is not a one solution fits all.

Tom Finneran (Moderator): Fire is a natural phenomenon. Is there common agreement that fire is healthy and natural? Or is it unhealthy?

Ms. Fielder: The First Peoples used fire to manage the forests. There are differences between severe, intense, forceful fires in a poorly managed area with a lot of fuel, versus a well-managed forest with less fuel, which feeds low intensity fires. We used to clear the area around home to prevent fires from spreading from canopy to canopy. Now with greater development and urban interfaces with forests and watersheds, we need more active fire management to maintain safety.

Dr. Nie: There is agreement that we need specific management policies at the wild/urban interfaces. This is an example of a specific problem that needs a specific solution. On the other hand, some ecosystems are meant to burn, that is part of their life cycle and part of natural landscape restoration.

Sen. Eli Bebout (WY): I respectfully disagree with Dr. Nie. We are facing a failed public policy at the Federal level.  Wyoming had a vibrant timber industry employing 4-5,000 people. We were willing to work together with everyone on how to manage it. We went to all the meetings with the coordinating agencies. But they did not listen to our input. The State could take over and manage those lands effectively. However, the divisive environmental community alleges that “If the State takes over, they’ll take away your hunting.” That’s the kind of divisive politics that hinders progress.

Dr. Nie: In my environmental policy class at the University of Montana, we have a broad spectrum of interested students, from loggers to hikers. One thing they share in common is a love for the idea of public lands. State trust lands are not public lands, they carry constitutional obligations, for example, to raise revenue for schools. Some lands should remain public.

Ms. Fielder: “Keep the lands public” is a false narrative. Transferring management to the States does not mean the States will just sell off the land.  The real question is “Who should make the decisions?” It should be the local officials and people. We can argue on the State and local level to come to agreement, versus having people from Washington, DC, who have no accountability to the local community, make the decisions.

Sen. Wayne Niederhauser (UT): The Utah Senate sponsored a bill to reclaim lands from the Federal government. As an outdoorsman, I want to retain public lands, but there is an inherent distrust of Federal agencies and groups working to keep federal land tied up.  We have seen State-managed land that is vital compared with decimated Federal lands right next to it.  We should study this difference and see what should be done differently.

Distrust of the Federal government is the essential problem. There is too much red tape and bureaucracy. Bureaucratic management of the land policy and administration is the problem. Decisions are made on the Federal level that do not take into account the local impact.  The solution lies in partnership with local involvement.

The Federal government needs an active plan devised with State and local participation. We need all the stakeholders at the table. When people are left out of the discussion, that leads to poor policy-making. We need to manage the lands together. Public lands represent such a large proportion of our State that it is most important to us. I would like to trust that we can have a real partnership. We have a lot of common ground. We need a process to decide on the allocation of our ground.

Speaker Biographies

Martin Nie, PhD

Martin Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests. As appointed by the Secretary of Agriculture, Dr. Nie is currently serving on the U.S. Forest Service’s National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule. In 2015, he received the College's "Druids Outstanding Professor Award." In 2016, he received the University of Montana's Distinguished Teaching Award, a special recognition based on "a history of excellence in classroom teaching" and given to professors who "have demonstrated a quality long-term impact on their students."

Dr. Nie’s research focuses on federal lands and wildlife policy, law, planning, and conflict. Some of his more recent projects examine the National Forest System (conflict, litigation, the rewriting of national forest plans, law reform), the future prospects of the Wilderness Preservation System, and the practice of adaptive management and planning. His latest book is The Governance of Western Public Lands: Mapping Its Present and Future (2008). He also wrote Beyond Wolves: The Politics of Wolf Recovery and Management (2003). His current work examines tensions between federal and state governments in the management of wildlife on federal lands.

He regularly teaches Natural Resources Policy (NRSM 422), Wildlife Policy (WILD 410) and more specialized policy courses at the graduate level. His goal in research and teaching is to provide trusted and relevant information, analysis, and questions to decision makers and students. He cares deeply about federal lands and their future conservation and management.

Dr. Nie grew up in Ontario, Canada and received degrees from the University of Nebraska and Northern Arizona University. He loves to ski as much as possible with his son Joe; float wild rivers; hike, hunt and fish the mountains of Montana; and mess around in his garage listening to vintage country and rock and roll. He also enjoys photography, playing hockey, Irish whiskey, and strong cheese.

Jennifer Fielder

Jennifer Fielder and her husband, Paul, reside near the mountainous little town of Thompson Falls in Northwest Montana. Having won election to the Montana State Senate in 2012 and again in 2016, Ms. Fielder serves as Vice Chair of the Senate Judiciary Committee, Chair of the Senate Fish and Game Committee, and is a member of Senate Natural Resources Committee.

In 2015 she was named CEO of the American Lands Council, a national nonprofit that advocates constitutionally sound solutions for sensible, locally-driven care of our public lands — chiefly through the transfer of certain federally controlled public lands to willing states.

Whether in her capacity as a State Senator, top executive of the ALC, or just an individual citizen, Ms. Fielder is passionate about defending the rights of the people, protecting our environment, and working with citizens to restore the blessings of liberty and self-government that make America great.

She has been awarded Montana Agri-Women’s ‘Keeper of the Tenth’ award for outstanding defense of the rights of the States and the people in accordance with the 10th amendment of the United States Constitution. She will be speaking about the compelling case for transferring federal lands to willing states, and pathways forward for achieving this monumental goal in a manner that is beneficial to the States, the people, the environment, and the nation as a whole.

JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Martin Nie, PhD

Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests
University of Montana

Four Eras of Federal Land Policy

Martin Nie, PhD, described 4 eras of US Federal lands policy and management. During the first era, at the turn of the 19th century, lands began to be acquired by the Federal government through purchase and treaties, creating complicated patterns of private and public ownership. This patchwork of land ownership became more intricate during the second era throughout the 19th century, when approximately 1.3 billion acres of Federal lands were disposed to private owners such as railroads, settlers, and States. Retention of land characterized the third era, largely under the influence of Theodore Roosevelt, beginning with Yellowstone in 1872 and extending to the 1976 Federal Land Policy and Management Act (FLPMA).

By enacting the FLPMA, Congress recognized the value of the public lands, declaring that these lands would remain in public ownership. The National Forest Service, National Park Service, and now, the Bureau of Land Management, are commissioned in FLPMA to allow a variety of uses on their land while simultaneously trying to preserve the natural resources in them.

During the current fourth era, the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US. Even today, the effects of early purchases and treaties and subsequent dispositions are apparent in the complicated patchwork of private and public land ownership. The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

...the Federal government manages approximately 640 million acres of land (28%) of the 2.27 billion acres of land in the US.

The historical patchwork ownership of the lands has been the source of tensions and conflicts between public and private interests.

Portion of each state that is federal land

Controversy over Federal ownership and management of lands has a long history. In the 1970s and 1980s, the Public Lands Transfer Movement tried various legal and political strategies to gain State ownership and control of Federal lands. In 2018, 10 of the 11 Western States will consider legislation that seeks to transfer ownership to the States. However, Dr. Nie said, the discussion should be focused not on “ownership” of the lands but on their management.

Evidence-based Solutions

Dr. Nie was straightforward in presenting his viewpoint. As a scientist, he argued for the importance of relying on evidence to find solutions to specific problems. He advocates that the national interest in public lands should keep the lands public. Rather than getting caught in divisive issues about transfer of ownership, focus the discussion on how to govern the lands: “We should find specific evidence-based solutions to specific problems,” he urged.

“We should find specific evidence-based solutions to specific problems,” he urged.

Unanswered Questions

Would the lands be well managed? How would transferred lands be managed exactly?

Would they be privatized, blocking public access?

Would transferred lands be managed as state trust lands?  If so, what are the implications (eg, licenses, permits, fees for hunting and recreational access, etc.)?

How will states pay for the costs?

What about pre-existing Federal laws and obligations?

Will transferred lands be subject to State ballot initiatives and balanced budget requirements?

How would non-Western states be compensated for their lost investments in federal lands?

Governance vs Ownership

Dr. Nie pointed out that there have always been diverse values and interests in how Federal lands are managed and used, and enduring disagreement about how to properly balance resource use and protection and national and local interests. In his book, The Governance of Western Public Lands, Dr. Nie argues that these controversies arise from questions about how public lands are governed--the laws, regulations, plans, litigations, and scientific studies that determine how federally owned land can be used, for what purposes, and by whom. According to his research, a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

...a mixture of factors that include scarcity, distrust, intermixed ownership of Federal, State, tribal, and private land, budgets, public land law, political strategies, and the desires of people who live close to the lands have produced conflicts that cannot be resolved with a single solution.

Moving Forward

A bold step forward would be to resurrect the Public Lands Law Review Commission (PLLRC), Dr. Nie said. The PLLRC, established in 1964 to review Federal public land laws and regulations and to recommend a public land policy, met only 4 times between 1965 and 1969, when it was disbanded. Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

Dr. Nie urged the importance of convening another Public Lands Law Review Commission to examine systematically Federal lands law.

A revived PLLRC could create policies related to consolidating lands that have intermixed ownerships and perhaps address adequate funding for the US Forest Service, whose budget is consumed by fire-fighting activities. A new focus on Federal lands planning could enable experimentation on newly acquired federal lands, including strategies and policies to use lands for rural economic opportunities and security.

Federal payments to local governments provided through the Secure Rural Schools and Community Self-Determination Act (SRS) and Payments in Lieu of Taxes (PILT) Program could be effectively invested to provide greater fiscal certainty for resource-dependent communities with tax-exempt Federal lands, and create policies that guide decisions about value-added industries.

Criticisms and Solutions

Efficient Management

Dr. Nie proposed potential solutions to common criticisms aimed at Federal land management. He observed that advocates for State ownership say that federal lands management is economically inefficient, compared with more efficient management of State trust lands.  He reminded the Forum that State trust lands and Federal public lands have different mandates and are not the same. He proposed that increased Congressional funding would allow the US Forest Service to manage more effectively, reiterating that their budget is consumed in fire-fighting, with little left over for management. One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

One way to address the forest funding shortage is to increase market rates and user fees, such as oil and gas royalty rates, new hard-rock mining royalties, or the livestock grazing fee, which is currently $1.87 per animal unit month (AUM).

States Have a Voice in Federal Land-Use Planning

Dr. Nie pointed out that existing Federal laws and processes offer opportunities for local and State concerns to be addressed. There is now a great window of opportunity for local and State voices to be heard. The States have a privileged seat in land-use planning under the 1970 National Environmental Policy Act (NEPA). The Act requires Federal agencies to assess the local environmental effects of their proposed actions prior to making decisions.

The 1976 Federal Land Policy and Management Act (FLPMA) and the National Forest Management Act (NFMA) also provide access to land-use decision-making for State and local entities. NFMA requires the responsible official to “coordinate land management planning with…the efforts of State and local governments.”

The FLPMA requires that the agency “coordinate the land-use inventory, planning, and management activities of or for such lands… with the land-use planning and management programs of the States and local governments within which the lands are located.”

JANUARY 11–14, 2018

Federal Land Policy and States’ Rights

Jennifer Fielder

CEO of the American Lands Council
State Senator (Montana)

The Common Ground

“We all want healthy air, water and wildlife, abundant outdoor recreation, and safe, vibrant communities,” Ms. Jennifer Fielder reminded the Forum. This is the common ground shared by all discussants in the Federal lands debate, but different stakeholders have different visions of how to achieve that goal, she said. As a State Senator in Montana, Ms. Fielder chaired the State Study of Federal Land Management 2013-14.

The Impacts of Land Management

Ms. Fielder pointed out that 50% of the western US is under Federal control, and she showed pictures of forest hillsides that were clearly divided into two sections: the fully forested side was under State management and the denuded side, where the trees were decimated by fire, was Federally managed.

The federal fault line

The Threat of Fire

She argued that Federal lands are undermanaged, and this allows forests to become overgrown and dense, leading to wildfires and the deposition of toxins in air and water, with devastating downstream effects for fish, wildlife, and humans.

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017. As wildfires increase, lost timber sales become a burden on local populations, Ms. Fielder reported.  She observed that, since the passage of the Endangered Species Act and FLMPA, there have been more fires and fewer acres harvested.

“One lightning strike can ignite a devastating wildfire in a poorly managed forest,” she said. Wildfires consumed 9.7 million acres in the US in 2017.

Ms. Fielder reported that Montana’s highly trained and well-equipped fire crews are able to put out 90% of fires before they burn more than 10 acres. When a wildfire occurred on Federal lands in her State, Federal land managers prohibited Montana fire fighters from coming to the rescue “because their equipment was not ‘approved’ for Federal fires.” They watched the fires for a few days until they were out of control and led to a $28 million disaster. In addition, Federal rules do not allow burned timber to be harvested. “That’s an example of why Federal jurisdiction doesn’t work,” she declared.

Wildfires in 11 western states (1916–2012)*

A Forest is a Garden Not a Museum

An actively managed forest is like a garden, it needs tending. And it will be healthier, Ms. Fielder said. In a well-managed forest, the trees retain the snow pack which feeds the streams, increases the habitat, and prevents wild fires. the benefits of active management include sustainability, fire resiliency, clean air and water, improved wildlife habitat, abundant wood and agricultural products, multi-use accessibility, jobs, recreation, scenery, and economic and environmental vitality, she stated. For every $1 spent on active vegetation management: $17 can be saved on wildfire suppression costs; and $500 can be saved in total losses, Ms. Fielder claimed.

The Political Problem

Ms. Fielder’s view is that the problem stems from Federally appointed Commissioners, who make decisions about Federal lands without local knowledge of local forests and communities. “They are not local officials and they have no accountability to the State and local citizens,” she stated. “Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?” Ms. Fielder asserted that pro-Federal land interests have tied the hands of Federal land managers so they cannot manage the lands effectively.

“Who would be the best gardener? A local gardener? A local biologist? Or someone who flies in from Washington, DC?”

Divided Lands

Ms. Fielder referenced the report Divided Lands: State vs. Federal Management in the West, which reports a study comparing the revenues and expenditures associated with Federal land management and with State trust land management in four western States: Montana, Idaho, New Mexico, and Arizona. The report found that the States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

States earn an average of $14.51 for every dollar they spend, while Federal managers lose 27 cents of every dollar spent.

The report attributes these outcomes to the impacts of the different statutory, regulatory, and administrative frameworks that govern State and Federal lands. States have a fiduciary responsibility to generate revenues from State trust lands, while Federal land agencies face overlapping and conflicting regulations and often lack a clear mandate. However, the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

...the report cautions that transfer proponents must consider how land management would have to change in order to generate revenues under State control.

The Constitutionality of Land Transfer

Ms. Fielder said that transferring Federal land to the States does not need to be a divisive or hostile process, citing the example of Canada, which has transferred land-use management control to the Provinces. She referenced the Constitutional basis for such a transfer quoting, “The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

“The Congress shall have Power to dispose of… the Territory or other property belonging to the United States.” Article IV, Section 3, Cl 2 of the US Constitution.

Further support for the constitutionality of transferring Federal land to State control comes from the 74th Congress in 1938, which annotated the Constitution, noting, “The right of every new State to exercise all the powers of government which belong to and may be exercised by the original States must remain unquestioned except so far as they are temporarily deprived of control over the public lands.”

Moving Forward

Ms. Fielder urged that immediate relief be provided through executive action by the President to cut back regulations and allow immediate improved management.

Longer-term solutions will come through judicial actions based on research and the precedent that the States have a right to be treated equally. Ms. Fielder told the Forum that an all-Star legal team was already exploring the Constitutional arguments for transferring Federal land to the States.

Legislative actions could provide an orderly process to divest land to the States, and allow the States and their people to determine how the lands should be managed, whether they should be sold off or not. A legislative process could allow the States to acquire land when they are ready to manage it, requiring the State to identify a specific piece of land and define the specific purposes for which it will be used, such as for schools, multiple use, or as a protected area. This could be a framework that preserves all existing rights and would allow the States and counties to manage the lands, bringing decision-making closer to the ground.

Ms. Fielder concluded by saying that an effective process requires educating people, while shunning those who would polarize the issue.

Senators Eli Bebout (WY), Rich Wardner (ND), and Scott Sales (MT) chatted between sessions. Their States have large tracts of Federal lands, and the Senators were active contributors to the discussion.

Discussion

Sen. Margaret O’Brien (MI): Federal land policies are creating severe economic challenges in the Upper Peninsula, where 50% of the land is owned by tax exempt entities. People cannot find work, the area is steadily losing population, and poverty is rampant. Michigan has a history of successful transfer of public lands to the State since 1895 when Mackinaw Island was transferred to State management.

In some counties, 90% of the land is Federally owned. The government does not sustain local communities. Tourism does not pay the bills to feed a family. Tourism is pointless if no one can afford to live there. Federal rules prevent economic growth. There is no land for economic development.

Dr. Nie: Rural economic problems are not solely due to Federal land management policies. However, lack of tax revenue affects these counties. Some solutions might include reauthorizing bills that drive funding to the counties, such as the Secure Rural Schools Act. We need a long-term solution to the Federal land management, including allowing value-added industry.

Sen. Scott Sales (MT): In the 1970’s, Montana was pristine, with huge elk herds. Now the forest is a sterile wasteland. The canopy has not been allowed to burn. There is no undergrowth. When fires come, they rampage through the forest. Lack of management has led to weed invasion. These policies are devastating the value of the land. Where have the elk gone? They certainly are not on public lands.

Dr. Nie: You have raised several questions. First, Montana’s elk population is very robust, however, they are harboring on private land. This is a problem for the Montana Fish and Wildlife Department.

In terms of wildfire concerns, we need a science-based solution. We are experiencing hotter, dryer seasons due to climate change and a century of wildfire suppression is contributing to the wildfires. The science of wildfires is complex and even experts are ambivalent about the optimal solutions.

The Federal lands planning process that I participate in can be tedious and boring, but it provides a platform for evidence-based solutions that will provide active management of the land, of fires and restoration. We will need considered decisions about which burns should be subject to salvage operations. It is not a one solution fits all.

Tom Finneran (Moderator): Fire is a natural phenomenon. Is there common agreement that fire is healthy and natural? Or is it unhealthy?

Ms. Fielder: The First Peoples used fire to manage the forests. There are differences between severe, intense, forceful fires in a poorly managed area with a lot of fuel, versus a well-managed forest with less fuel, which feeds low intensity fires. We used to clear the area around home to prevent fires from spreading from canopy to canopy. Now with greater development and urban interfaces with forests and watersheds, we need more active fire management to maintain safety.

Dr. Nie: There is agreement that we need specific management policies at the wild/urban interfaces. This is an example of a specific problem that needs a specific solution. On the other hand, some ecosystems are meant to burn, that is part of their life cycle and part of natural landscape restoration.

Sen. Eli Bebout (WY): I respectfully disagree with Dr. Nie. We are facing a failed public policy at the Federal level.  Wyoming had a vibrant timber industry employing 4-5,000 people. We were willing to work together with everyone on how to manage it. We went to all the meetings with the coordinating agencies. But they did not listen to our input. The State could take over and manage those lands effectively. However, the divisive environmental community alleges that “If the State takes over, they’ll take away your hunting.” That’s the kind of divisive politics that hinders progress.

Dr. Nie: In my environmental policy class at the University of Montana, we have a broad spectrum of interested students, from loggers to hikers. One thing they share in common is a love for the idea of public lands. State trust lands are not public lands, they carry constitutional obligations, for example, to raise revenue for schools. Some lands should remain public.

Ms. Fielder: “Keep the lands public” is a false narrative. Transferring management to the States does not mean the States will just sell off the land.  The real question is “Who should make the decisions?” It should be the local officials and people. We can argue on the State and local level to come to agreement, versus having people from Washington, DC, who have no accountability to the local community, make the decisions.

Sen. Wayne Niederhauser (UT): The Utah Senate sponsored a bill to reclaim lands from the Federal government. As an outdoorsman, I want to retain public lands, but there is an inherent distrust of Federal agencies and groups working to keep federal land tied up.  We have seen State-managed land that is vital compared with decimated Federal lands right next to it.  We should study this difference and see what should be done differently.

Distrust of the Federal government is the essential problem. There is too much red tape and bureaucracy. Bureaucratic management of the land policy and administration is the problem. Decisions are made on the Federal level that do not take into account the local impact.  The solution lies in partnership with local involvement.

The Federal government needs an active plan devised with State and local participation. We need all the stakeholders at the table. When people are left out of the discussion, that leads to poor policy-making. We need to manage the lands together. Public lands represent such a large proportion of our State that it is most important to us. I would like to trust that we can have a real partnership. We have a lot of common ground. We need a process to decide on the allocation of our ground.

Speaker Biographies

Martin Nie, PhD

Martin Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests. As appointed by the Secretary of Agriculture, Dr. Nie is currently serving on the U.S. Forest Service’s National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule. In 2015, he received the College's "Druids Outstanding Professor Award." In 2016, he received the University of Montana's Distinguished Teaching Award, a special recognition based on "a history of excellence in classroom teaching" and given to professors who "have demonstrated a quality long-term impact on their students."

Dr. Nie’s research focuses on federal lands and wildlife policy, law, planning, and conflict. Some of his more recent projects examine the National Forest System (conflict, litigation, the rewriting of national forest plans, law reform), the future prospects of the Wilderness Preservation System, and the practice of adaptive management and planning. His latest book is The Governance of Western Public Lands: Mapping Its Present and Future (2008). He also wrote Beyond Wolves: The Politics of Wolf Recovery and Management (2003). His current work examines tensions between federal and state governments in the management of wildlife on federal lands.

He regularly teaches Natural Resources Policy (NRSM 422), Wildlife Policy (WILD 410) and more specialized policy courses at the graduate level. His goal in research and teaching is to provide trusted and relevant information, analysis, and questions to decision makers and students. He cares deeply about federal lands and their future conservation and management.

Dr. Nie grew up in Ontario, Canada and received degrees from the University of Nebraska and Northern Arizona University. He loves to ski as much as possible with his son Joe; float wild rivers; hike, hunt and fish the mountains of Montana; and mess around in his garage listening to vintage country and rock and roll. He also enjoys photography, playing hockey, Irish whiskey, and strong cheese.

Jennifer Fielder

Jennifer Fielder and her husband, Paul, reside near the mountainous little town of Thompson Falls in Northwest Montana. Having won election to the Montana State Senate in 2012 and again in 2016, Ms. Fielder serves as Vice Chair of the Senate Judiciary Committee, Chair of the Senate Fish and Game Committee, and is a member of Senate Natural Resources Committee.

In 2015 she was named CEO of the American Lands Council, a national nonprofit that advocates constitutionally sound solutions for sensible, locally-driven care of our public lands — chiefly through the transfer of certain federally controlled public lands to willing states.

Whether in her capacity as a State Senator, top executive of the ALC, or just an individual citizen, Ms. Fielder is passionate about defending the rights of the people, protecting our environment, and working with citizens to restore the blessings of liberty and self-government that make America great.

She has been awarded Montana Agri-Women’s ‘Keeper of the Tenth’ award for outstanding defense of the rights of the States and the people in accordance with the 10th amendment of the United States Constitution. She will be speaking about the compelling case for transferring federal lands to willing states, and pathways forward for achieving this monumental goal in a manner that is beneficial to the States, the people, the environment, and the nation as a whole.