The ‘H’ Word

ATV protest in Blanding Utah

Nobody likes a hypocrite; but not just any hypocrite, as we have all been one at one time or another and tend to recognize and forgive it as a common human fault. It’s the preachy hypocrites we don’t like. The ones who condemn others with righteous indignation, and then turn around and do the very things they have held others in judgment over, are the ones who garner a lot of attention and earn the ire and wrath of others. It is these people who set themselves apart from the rest.

Al Gore and Cliven Bundy are two of the more famous ones. Al Gore for promoting an environmentally sound agenda while living an energy consumptive and lavish lifestyle; Cliven Bundy for condemning federal management of public lands and for federal handouts while illegally feeding his cattle for free on federal lands – and now there is Phil Lyman.

Phil Lyman, if you do not know, is the County Commissioner in Blanding, Utah, who rode on the coattails of Cliven Bundy to get attention for his illegal ATV ride through Recapture Canyon in protest against the federal government for closing the canyon to OHV use. The federal government closed the trail to protect American Indian archeological sites. He held a press conference condemning Federal over-reach and control of public lands, stating that the Federal Government is trying to control everything and then rode his ATV, along with a train of others behind him, through the closed off canyon as an act of protest, and broke the law.

Now he and a few others are facing charges. When Lyman gave his speech in Blanding he said that he was willing to break the law and accept the consequences for doing so because he believed in what he was doing. Not everyone there was willing to ride illegally through the canyon, however, but did want to peacefully protest the canyon closure and stated as much. So while recognizing that some in attendance were not willing to go as far as he, Lyman let everyone know that he was willing because he believed his cause to be just and spear-headed the ride.

Phil Lyman

Now that charges have been brought against him, is he “accepting” the natural consequences of his actions? Well, not without trying to get his legal fees and federal defense paid for by the American taxpayers. You’ve got that right; this anti-federal government county commissioner wants a free federal defender to make his legal defense. The hypocrisy of this is off the charts and only mitigated a little bit by the fact that the judge isn’t allowing him to get away with it. You see, along with being a county commissioner, Lyman is also an accountant who makes more than enough money to cover his own legal defense.

But what really bothers me about this whole thing is not Phil Lyman’s weasely attempt to make everyone pay for his legal defense; it is that he has been charged within a reasonable time for his crimes while Cliven Bundy has not been charged or arrested after 20 years for his. How is anyone supposed to respect the rule of law when it is not applied equally?

Both men should be charged, given their day in court, and penalized for their crimes. Furthermore, anyone else who broke the law by riding illegally through Recapture Canyon or aiming riffles at law enforcement officers in Bunkerville should also be brought up on charges. Like say, Ryan Bundy who happened to be at both incidents.

It was Ryan Bundy who was a major instigator in the Bunkerville standoff and who was also the wild card at the Blanding protest who stated emphatically that he had come to open a road and threatened to go home if they didn’t go through with it. Has Ryan Bundy been charged along with Phil Lyman, for defiantly taking his entire family through Recapture Canyon on ATVs? Or is he perhaps a figure that is too politically hot to touch – kind of like his dad?

That looks a lot like a double standard, another thing no one likes. Whether it is the BLM, the Justice Department, the State of Utah, the police, or any other law enforcement entity, justice must be served equally and across the board. And in this case, it appears that it has not been.

I’m no fan of Phil Lyman or his ilk, but it irks me that he is has been charged when the likes of the Bundy’s have not – and for much worse offenses. Both Lyman and Bundy deserve to wear a big ‘H’ on their chest for condemning the federal government while taking from it and they both deserve to pay the consequences for breaking the law.

But even more, the American public deserves to see justice served, if for nothing else, than to have a little faith restored in the rule of law, the administration of justice, and in those who mete it out. Without that, there will be continued angst and unrest for the majority who do get charged and who do pay for their crimes.

Recapture Canyon Hostage to ATV Renegades

“As for San Juan County’s claims over the land: They have no special rights. Public, BLM lands belong to you and your children, to fishermen in Florida or anyone in New York or San Francisco as much as they do residents of Blanding. We white settlers in the West often conveniently forget that we were not the first to own the land; we merely got it from others who stole it from people who never claimed to own it in the beginning.” ~Doug Peacock

Mini Mesa Verde, Recapture Canyon. Photo courtesy of E&E Publishing, LLC.

Government Overreach, a ruse of Utah Politicians, originally published in the Southern Utah Independent

San Juan County Commissioner, Phil Lyman, is planning an ATV ride through Recapture Canyon on May 10^th to “to champion local jurisdiction over Utah’s public lands” in defiance of the road being closed to OHV use by the BLM. I would like to say this is due to Cliven Bundy’s stunt in Bunkerville, but sadly, it is not. It is just another act of defiance in a long line of such acts by Republican leaders. Of course since the Bunkerville fiasco, most state politicians are being tactical in how they support Phil Lyman, stating they don’t support illegal activities (which it is), but they do support his stance on “government overreach.”

Let’s explore this idea of government overreach over public lands that has become such a cash cow for Utah politicians. First, it is a ruse to gain political clout, and the constituents who buy it are being duped; but the dividends pay so well that the politicians won’t let it go anytime soon. Second, this Sagebrush crusade is unconstitutional. Utah politicians do not have the facts, the law, or the constitution on their side.

They claim that the government has no right to own land. According to the constitution, it does. It is in the Property Clause which judges have stated is “without limit.” That means Congress has unlimited power to own and use public land as they see fit.

They claim that under the equal footing doctrine, they should be given the land back. Yet, the equal footing doctrine (and enabling act in the state constitution) means the states would have equal constitutional footing with other states, not equal economic footing – which is what the states are bitterly complaining about: money.

They claim the government hasn’t given any land back, but it has and lots of it. Right now Utah has 3.3 million acres of land in trust from the government that they can use for development. In fact, when Grand Staircase Escalante National Monument was designated, the land the federal government gave Utah in exchange was some of the most profitable land (oil, gas, and coal potential) the state owns. So profitable in fact, that Governor Herbert has allocated the first $1 million earned from this land each year to go into a legal fund to sue the government; the very government that gave Utah the land. Does that seem unethical to you or is it just me?

Furthermore, the legislative council has stated that what Utah is doing is unconstitutional and has virtually no chance at winning.

So while we all may be able to laugh off Cliven Bundy, he represents the prevailing mentality in Utah held by Utah politicians. Why are they doing this? Maybe for money. The State Institutional Trust Lands Administration (SITLA) actually runs like a business and charges market value prices. For example, the going rate for grazing on state land is $16 – $20. If Cliven Bundy was grazing on state land he would pay up to 16 times what he pays on federal lands. SITLA, aside from making money, does exactly what the BLM does.

So while politicians are carefully supporting social deviants like Cliven Bundy and Phil Lyman in their rally cry against the government, what are they going to do when Utah citizens cease to recognize their authority? What will they do when regular citizens follow their lead and start breaking laws they don’t like? Will Utah leaders accept responsibility for setting the stage for such lawlessness? I suppose it depends where you fall politically as we saw with Tim DeChristopher, an environmentalist, that the penalties for upsetting an oil and gas auction are stiff. But why didn’t they rally behind him?

The reason is that they don’t want to have to consider environmental science, concerns, or ethics and they sure as hell don’t want to deal with tree hugging environmentalists who think they are above the law. Double standard? You bet, but it’s a mentality steeped in history.

When the Federal Land Policy and Management Act (FLPMA) was passed in 1976, along with a host of other environmental laws, it ended federal disposal of land and left all remaining land in federal ownership.

Funny enough, the beginning to the end was the Taylor Grazing Act, instituted by Congress at the behest of western ranchers. But what happened in the 1970s is a whole new segment of the population started to have interests in the land too. Suddenly rural people along with local and state politicians had to consider the rights and interests of others. In other words, they had to share, and they didn’t like it.

Ranchers and their representatives sought to stifle the effects of the 1970s federal legislation increasing environmental restrictions on and competition for the use of the public lands and are still doing it to this day. That’s what it boils down to. In 1955 the western commentator, Bernard DeVoto, summed it up as “home rule” which means basically that they want federal help without federal regulation.

Utah sure doesn’t want to lose its federal protections or funding, but it doesn’t want to be held to any rules or laws either. It’s commonly said as, “I want my cake and I want to eat it too.” If this mentality were played out in an individual, you would find them repugnant. And it is repugnant.

Phil Lyman, photo courtesy of San Juan County

What Phil Lyman wants to do is the equivalent of scribbling all over a masterpiece without being held accountable for ruining a priceless piece of art. Like Cliven Bundy, Representative Noel, and a host of other renegades before him, he thinks that his wishes supersede everyone else’s, that his desire to ride an OHV through a canyon closed to OHV use is more important than anything or anyone else. It is an arrogant, elitist, and selfish mentality and it is rampant in this state.

But, it’s even worse than that. What this day was meant to commemorate was the ancient burial site grave looting committed by Blanding residents shut down by the federal government in the early 2000s. These people were digging up archeological sites for ancient artifacts that they could sell on the black market. When the federal government came in and busted them, they claimed the government used unnecessary lethal force and infringed on their rights (2). Their rights to break the law apparently. Sound familiar? One need only look to Nevada to find a similar situation and mentality.

But it’s not just found in small rural western towns, it’s rampant in Washington County as the biggest government overreach cheerleader, Senator Mike Lee, has let go of his natural resource adviser, Victor Iverson, to come and run on none other than government overreach for county commission. This is who we want handling our lands and working with the BLM? Not just no, but hell no.

It is time to call this behavior out for what it is: illegal buffoonery. What’s worse, it puts BLM employees on the front line of local vigilantism. These people should be arrested and charged to the fullest extent of the law. Furthermore, if Utah politicians are going to continue supporting a mentality that does not recognize the federal government, perhaps the government should withhold federal dollars until they do. Utah, it appears, needs the same reality check that Bundy does.

Please also see Doug’s article:

(1) Westerners Fear Public Land Grab by County Commissioner by Doug Peacock: http://www.dougpeacock.net/blog/westerners-fear-public-land-grab-by-county-commissioner.html#.U2bfKOzzZ3c.facebook

(2) 18 months after Utah raid, do artifact laws stop theft? Brandon Loomis, the Salt Lake Tribune: http://www.sltrib.com/sltrib/home/50909888-76/blanding-probation-utah-artifacts.html.csp

The Mendacious Myth: States’ Rights Lies and Those who Peddle Them

“The sagebrush rebels may have peddled legal theories based on a mendacious myth about the Constitution and federal power. But myths exert great power over the way people understand the world and its conflicts (1).” ~ Fischman & Williamson

Photo courtesy of Weber County Forum

What is the lie-laden myth that Utah and many western politicians like Governor Herbert, Senator Lee, Washington County Commission hopeful Victor Iverson, Utah Representative Noel, and pretty much the entire Republican Party are peddling? It is many things but they all fall under the ‘government overreach’ umbrella. The rally cry comes in many forms which includes but is not limited to:

The federal government cannot own property	5. States would use the land differently and better
The federal government promised to give all federal land back to the states	6. The fight to take back federal lands is for the people
States aren’t benefiting from federal land	7. The ‘equal footing doctrine’ means equal economic footing
The government never gave states any lands	8. Local or state governments have no say or control over land management decisions

Left to right, top to bottom: Gov. Herbert, Sen. Lee, Victor Iverson, & Rep. Noel

Some argue that the issue of states’ rights and government over-reach is not about fact but about principle (the assumption being that somewhere along the way something unconstitutional happened). That’s possible, but what this statement over-looks, is that laws represent the concrete reality of principles – and the law and supporting facts can be examined.

For example, some claim that if you only look at the legality of the Cliven Bundy case, then yes, he is in the wrong; but, if you look at the principles, then you will see that the federal government is wrong. They state that the federal government “shouldn’t” have passed environmental laws to begin with (this points us back to the underlying assumption). Others assert that Bundy has neither the law nor principle on his side. The question is: Can one be legally wrong but principally right? We all know that laws can be unconstitutional, as can behavior, so how does one determine which is right and which is wrong when the issue is as convoluted at state verses federal power? Thankfully for us, some things can be known.

Since a principle is a primary source or ingredient that forms the basis of something, in this case, what is constitutional, and behavior is limited by law (which upholds constitutional principles), then we have two options to explore: The constitutionality of the law and the constitutionality of the individual, the group, or the state. Since the constitution is used as the ‘source’ or foundation for law in the U.S., let’s start there.

Photo courtesy of The Liberty Beacon

Federal land ownership began when the original 13 states ceded their “western” lands (between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Substantial land acquisition in North America via treaties and purchases began with the Louisiana Purchase in 1803 and culminated with the purchase of Alaska in 1867. In total, the federal government acquired 1.8 billion acres in North America.

The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation (2).”

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Two court cases, Kleppe v. New Mexico and the Sagebruch Rebellion case waged by Nevada, Nev. ex rel. Nev. State Bd. of Agric. v. United States, were both beaten by the Property Clause of the Constitution. But not only that, the ‘equal footing’ doctrine, which is touted as a reason the states should get public lands back on economic grounds, was explained:

“The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. The policy question of whether to acquire more, or to dispose of any or all, federal lands is left to Congress to decide. The doctrine means that equality of constitutional right and power is the condition of all States of the Union, old and new. It does not mean that physical or economic situations among states must be the same (2).”

As for the U.S. government promising they would give all federal lands back to the states; that was never the case, though it may have been the states’ understanding, or standing interpretation. “The initial federal policy generally was to transfer ownership of many federal lands to private and state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.275 billion acres. However, from the earliest times, Congress also provided for reserving lands for federal purposes, and over time has reserved or withdrawn areas for such entities as national parks, national forests, and wildlife refuges (2).

Tuweap Ranger Station, Federal Land

Believe it or not, the first direct authority for federal management of these lands, and implicit shift toward ending disposals and retaining lands in federal ownership, was the Taylor Grazing Act, enacted by Congress at the behest of western ranchers. The end of disposals came a few decades later following two laws that were passed in 1964: the Public Land Law Review Commission (PLLRC) and the Classification and Multiple Use Act, which directed BLM to classify lands for retention or for disposal and to manage the lands for multiple purposes, whose recommendations culminated in the Federal Land Policy and Management Act (FLPMA).

FLPMA was passed in 1976 wherein Congress formally declared,

“It is the policy of the United States that the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”

FLPMA also, however, required more cooperation between federal and local and state governments in regard to land use decisions. In other words, the local and state governments are allowed in the decision making process. This is the right and legal way for local and state officials to address land use plans. It may not win them any political points, but it is the best avenue available. That being said, Congress and the states exercise concurrent, not mutually exclusive, jurisdiction over the public domain. To the extent that the laws of each conflict, federal law is supreme and preempts inconsistent state law.

Back to the divestiture of land by the Federal Government to the states, it began in 1800 in the state of Ohio which led to the establishment of the General Land Office created in 1812 to administer the disposal of federal lands (which as has been stated in previous posts, led to the creation of the BLM).

Congress enacted numerous laws to grant, sell, or otherwise transfer federal lands into private ownership, including the Homestead Act of 1862 and the General Mining Law of 1872. Grants to railroads in the 1870s gave them incentives to create much of the nation’s transportation system. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006.

The federal government also granted 328 million acres to the states, the largest tract given to Alaska. As can be seen, much of the public domain was given back to the states. One of the biggest land grants came in the form of state trust lands, meant to provide funding for schools via revenues made from land development.

Map of state trust land, photo courtesy of earth and science education

State trust land managers lease and sell these lands to generate revenue for current and future designated beneficiaries. Predominantly found in the western United States, 46 million acres of land are currently designated as trust lands and the proceeds from the lease and sale of these lands are distributed into a state’s permanent fund and used for many purposes. In Utah these lands are managed by the State and Institutional Trust Lands Administration (SITLA). From the SITLA website:

“Starting in 1785, the Founding Fathers created a plan whereby territories were granted land before statehood to support schools. In 1894, shortly before Utah became a state, Congress created a land trust including one-ninth of the land of the state to support our public schools. Today, schools still have 3.3 million acres scattered around the state. If these scattered parcels were combined, it would make a parcel of land about the size of the state of Connecticut. These lands are held by the state as trustee for our public schools, which are the beneficiaries (or those that benefit from the proceeds from the trust). The lands are managed by the School and Institutional Trust Lands Administration (SITLA). All net revenue is saved in the permanent State School Fund, which is now over $1 billion. Since 1995, when SITLA was created by the legislature, net revenue has increased from $15 million to about $80 million annually through prudent and profitable management of the lands (3).”

SITLA is very similar to the BLM except in one way (Use of Trust Lands): it is run like a business. In other words, they manage lands for virtually the same purposes, but charge fair market value. For example, fair market value for grazing is $16-$20 a head of cattle on state land, whereas the federal price is roughly $1.30. Politics are what keep the prices at pre-1930s rates on federal land. If Cliven Bundy really had his way, and the lands he grazed were state land, he would be paying upward of 16 times what the government charges. In Utah, SITLA just recently voted to raise grazing prices.

As one author asked, “Why would the commodity interests—ranchers, loggers, et al.—want to own federal lands that already offered such a bounty of subsidies?” The reality is that ranchers did not really want to own the federal lands. Instead, ranchers and their representatives sought to stifle the effects of the 1970s federal legislation increasing environmental restrictions on and competition for the use of the public lands (7). In other words, they didn’t want to share. They did not want equal rights afforded to other stakeholders with interests in the land.

Furthermore, the state of Utah claims it is unfairly being cheated out of economic benefits due to federal lands, but when Grand Staircase Escalante National Monument was designated, the land exchange greatly benefited the state. In fact, one oil and gas parcel acquired by the state in this exchange provided 60% of all state trust land oil and gas revenue in 2006.  Furthermore, the United States essentially wrote Utah’s school kids a $50 million check. (4). While the designation at first appeared to be devastating for the state, it turns out, it has been incredibly profitable.

Governor of Utah Gary Herbert, Photo Courtesy of utahpoliticalcapital.com

So profitable in fact, that the governor is skimming the first $1 million off the top annually to go into a legal account to sue the federal government for control of federal lands (5). To be clear, $1 million annually is going into a fund to sue the federal government, from profits gained via land the federal government gave to the state of Utah. All of this despite the legislative council stating it is a frivolous and wasteful endeavor. In other words, the legislature’s and governor’s own legal team has advised them that they have a slim to no chance of winning.

So based on this history, and current state of land management, is the federal government acting unconstitutionally? I think not. The dishonest players are the states and local politicians. They know that if they keep peddling this mendacious myth, they will continue to keep their base and continue to gain political points. It is manipulative and dishonest.

But a `states’ rights, un-cooperative federalism, Sagebrush Rebellion, and anti-environmental’ rhetoric certainly pays dividends at the polls, just ask Senator Mike Lee. Mike Lee represented Kane County in their legal battle over road closures and then ran on getting public lands back, and as a result, beat Senator Bennett. Now his natural resource adviser, Victor Iverson, is using the same tactics running for Washington County Commission. It is such a political lottery ticket that federal overreach was the primary theme at the Utah Republican Convention (6). Clearly there is a political incentive to continue these tactics, but let’s not suggest it benefits the citizens.

Mike Lee and Victor Iverson, Photo courtesy STGnews

While we can certainly question the constitutionality of laws and argue constitutional principles, it should not be aimed solely at the federal government. In light of the facts, it appears that not only do the states’ right activists not have the law, the facts, or the constitution on their side, they do not even have the foundational principles they lay claim to. It is time to turn a critical eye toward state and local politicians who are peddling lies, wasting money, and who amount to little more than used car salesmen pushing a sour deal. Their shenanigans are helping no one but themselves.

This is not to say that states should not keep the federal government in check, because they should.  But in doing so, their attempts should be justifiable, feasible, and reasonable. Furthermore, they should publicly note and acknowledge current law and legal standing in an act of good faith and honesty. They owe that not just to their constituencies, but to all citizens of all political persuasions who deserve to know the truth. That way the citizenry can be informed and possibly support the state when it deserves it. As of yet, all of the above mentioned seems to be lacking from the Sagebrush rebels’ battle with the federal government.

In the end, it may be time for the federal government to take a cue from such institutions as Utah’s SITLA and allow the market to set prices on land deals and uses. Allowing the market to work may be more equitable for all parties, and may even put money back into the pockets of tax payers via the discontinued use of subsidies. Who knows, maybe then our public lands will make a profit rather than continue to incur a deficit.

***May 10th a Utah county commissioner in Blanding, Phil Lyman, is going to illegally lead an OHV ride through Recapture Canyon in defiance of government overreach. http://www.sltrib.com/sltrib/politics/57890003-90/blm-canyon-ride-lyman.html.csp ****

Sources:

(1) Mendacious:

1. not telling the truth; lying.

“mendacious propaganda”

“politicians and their mendacious spin doctors”

2. Synonyms: lying, untruthful, dishonest, deceitful, false, dissembling, insincere, disingenuous, hypocritical, fraudulent, double-dealing, two-faced, two-timing, duplicitous, fictitious, falsified, fabricated, fallacious, invented.
3. Antonym: truthful

(2) Federal Land Ownership: http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

(3) School Land Trust: http://www.schoollandtrust.org/school-trust/school-lands/

(4) Governor Herbert got it wrong: http://suwa.typepad.com/blog/2011/03/governor-herbert-got-it-wrong-protecting-wilderness-helps-utah-school-children.html

(5) Land Exchange Distribution Account: http://le.utah.gov/lfa/reports/cobi2014/fundinfo/fund_1335.pdf

(6) Combatting federal overreach primary theme at Utah Republican Convention: http://www.stgeorgeutah.com/news/archive/2014/04/27/mgk-combatting-federal-overreach-primary-theme-utah-republican-convention/#.U2PSkld435c

(7) The Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub