2017 WESTERN STATES LEGISLATIVE BRIEF
Nine questions to monitor on public lands and outdoor
recreation in statehouses across the west
By Greg Zimmerman and Jesse Prentice-Dunn
The Center for Western Priorities
As we emerge from an historically divisive election season, elected officials are getting back to work
in state capitols across the Rocky Mountain West this month to carry out the business of legislating
and governing. As state legislative sessions get underway, the Center for Western Priorities will be
monitoring policy proposals concerning public lands and our region’s growing outdoor economy.
Typically the dominion of leaders in the U.S. Congress alongside land managers at the U.S. Forest
Service and the Interior Department, state decision-makers have started to take an increasingly
active interest in the use and preservation of the West’s public lands.
In recent years a lot of ink has been spilled over the political efforts to force the U.S. government to
dispose of public lands, like national forests and wildlife refuges into state and private hands. With
Utah as the lone exception—where state politicians continue actively working to seize Americanowned lands—state legislatures have rejected wholesale public land disposals. Last year alone, only
one out of 16 public land seizure bills passed in Western legislatures outside Utah. That’s a dismal
batting average of .063.
While we expect faltering efforts to seize control of U.S. public lands to return in the upcoming
legislative sessions, state leaders will also be looking for proactive, viable ideas to enhance public
lands, improve access, and bolster the outdoor economy.
For many, tracking the happenings in statehouses across the region can be an insurmountable task.
With this challenge in mind, below is a list of nine questions to monitor on public lands and outdoor
recreation as Western state legislatures gavel open.
1.
Will Utah’s governor and attorney general provide leadership on
public lands?
The state of Utah has some of the most spectacular public lands in the nation, from Canyonlands
and Zion National Parks to the Bears Ears National Monument. Yet, there’s also no state in the
nation where the value of American public lands has come under more sustained attack by its state
legislature.
In 2017 we expect new attacks on public lands by the state’s political class—literally the first
resolution introduced into Utah’s legislative session this year calls for the state to “pursue all means
of legislative and legal efforts” to compel the U.S. government to dispose of American-owned public
lands. It is widely understood that Western states, Utah included, cannot afford to manage the
American public lands within their borders; the result of any large scale “transfer” would be increased
industrial development, land sell-offs, and lost recreation access.
Now Utah Governor Gary Herbert and Attorney
General Sean Reyes must decide whether the
state will pursue a $14 million lawsuit, approved
by the legislature during the 2016 session, to seize
American public lands into state control. Legal
experts—including Attorneys General from states
across the West—are in agreement that any lawsuit
would be a boondoggle with no chance of success.
Governor Herbert and AG Reyes are now faced with a choice: kowtow to legislators and waste Utah
taxpayer dollars, or be the adults in the state and direct legislators to pursue more constructive and
less wasteful policies.
Will Montana’s legislature respect the economic importance of
the outdoors and partner with the governor to form an Office of
Outdoor Recreation?
This session the Montana legislature will consider a proposal to establish an Office of Outdoor
Recreation within the state’s Office of Economic Development.
2.
Across the West, outdoor recreation, from
hunting and fishing to hiking and mountain
biking, is driving economic growth. This is
especially true in Montana, where outdoor
recreation supports 64,000 direct jobs powered by $5.8 billion in consumer spending.
The legislation to establish Montana’s Office of Outdoor Recreation follows a proposal from Governor
Steve Bullock, who was re-elected last fall on a platform to protect and enhance Montana’s outdoor
recreation economy. The office would be tasked with growing the outdoor industry and developing
strategic plans to attract outdoor-related business to locate in the state. Offices of outdoor recreation
have been successful in Colorado, Utah, and Washington. Like Montana, other Western states,
including Wyoming, are looking to establish outdoor recreation offices. As Montana’s legislative
session proceeds, we will watch to see if this proposal makes it across the finish line.
Which lawmakers will introduce carbon copied bills from the
Koch brothers-backed American Legislative Exchange Council?
In recent years, the American Legislative Exchange Council (or ALEC) has been a leading proponent of
efforts to seize and sell American public lands, like national forests, monuments, and wildlife refuges.
Despite its benign sounding name, ALEC’s goals are quite a bit more sinister. The organization writes
cookie cutter bills, which right-wing state legislators just copy, paste, and introduce into legislatures
across the country. The lawmakers who introduce these pieces of legislation are resigning their duties
to the interest groups who craft bill language, which are almost always written to prop-up special
interest groups, like oil and gas companies, without considering the impacts of legislation on local
communities.
Already in recent weeks, ALEC has published new cookie cutter legislation—“Act to Clarify State
Jurisdiction over Public Lands.” Despite virtually every legal expert agreeing that the U.S. government,
not states, have jurisdiction over public lands, ALEC is encouraging state lawmakers to pass clearly
unconstitutional laws. During the 2017 legislative sessions, we’ll be watching which states and which
lawmakers are supporting ALEC’s agenda, rather than their constituents.
3.
Will New Mexicans win back access to their rivers and streams?
This year, New Mexicans will have
an opportunity to win back their
right to access the state’s rivers and
streams. Back in 2015, New Mexico
Governor Susana Martinez signed
a bill into law giving landowners
the right to cut-off access to public
streams, effectively allowing property
owners to privatize public waters
for
fishing,
boating,
and
other
forms of recreation. The bill—which
contradicts the state’s constitution
that grants public access to New
Mexico’s rivers—narrowly passed the legislature on the second to last day of the 2015 legislative
session.
New Mexicans had always had the right to float, fish, wade, and otherwise enjoy the state’s rivers,
even those rivers that abut private property. That right was clarified in a 2014 opinion from New
Mexico’s Attorney General, “The public’s right to use public waters for fishing includes activities that
are incidental and necessary for the effective use of the waters. This includes walking, wading and
standing in a stream in order to fish.”
We’ll be watching to see whether New Mexico’s lawmakers will support robust public access to the
state’s lands and rivers or will double down on special treatment for only the wealthiest landowners.
Can Idaho right a wrong made in 2016 by repealing foolhardy
public lands legislation?
The only piece of land seizure legislation to pass any state legislature outside of Utah in 2016 was the
Idaho “Abatement of Catastrophic Public Nuisance” bill. The piece of legislation, which was drafted
by the American Legislative Exchange Council, is a frivolous law which essentially gives counties
special (and likely unconstitutional) authority to declare public lands a nuisance.
4.
Although the bill became law, the process leading to its passage was an embarrassment for the Idaho
legislature. The bill’s sponsor, Idaho state Senator Sheryl Nuxoll, was unable to explain the purpose of
the bill and she had to retract the original legislation because of inconsistencies. Sen. Nuxoll ended
up paying the ultimate political price when she lost her seat this May in the Republican primary.
In 2017, Idaho has an opportunity to right a wrong and remove this bill from its books. Rather than
passing ideologically-driven bills, Idaho lawmakers should focus on passing legislation to improve
land access and management.
What can a pro-public lands majority accomplish in Nevada?
In the 2016 election, Nevada Democrats regained control of the state legislature, winning majorities
in both the Senate and Assembly. This was part of a statewide trend, as pro-public lands candidates
won seats in the U.S. Senate and U.S. House and candidates supporting Cliven Bundy lost. In the
previous legislative session, several anti-conservation bills were proposed, including a resolution
supporting the transfer of national public lands, which passed both chambers.
With the support of local legislators such as Senator Harry Reid, President Obama has designated
two national monuments in Nevada, Gold Butte and Basin and Range. As pro-public lands majorities
take office, state legislators could bolster those designations by spurring outdoor recreation and
tourism within the state or creating programs to get kids into the outdoors
Will Colorado build upon its public lands legacy?
From Rocky Mountain National Park
to the recently-designated Browns
Canyon National Monument, Colorado
is known for its public lands. Long a
destination for hiking, hunting and fishing,
Governor John Hickenlooper recently
established
the
Colorado
Outdoor
Industry Office to promote the state’s recreation opportunities around the world and to help foster
the growth of local outdoor recreation businesses.
5.
Last year, the Colorado legislature passed bipartisan legislation declaring a day to celebrate national
public lands, becoming the first state in the nation to do so. Beginning this year, the third saturday in May
will be Colorado Public Lands Day. The state legislature enters this session with the same balance of
power, with Republicans holding a narrow majority in the Senate and Democrats controlling the House.
In addition to celebrating the first Colorado Public Lands Day, the legislature could look to strengthen
the state’s public lands legacy by reauthorizing the funding source for Great Outdoors Colorado
(GOCO). Created by voters in 1992, GOCO directs proceeds from the state’s lottery to preserve the
state’s parks and open spaces. To date, the program has directed more than $900 million to land
conservation projects in every Colorado county.
Land transfer attempts have been rejected repeatedly in Arizona.
Will the state’s lawmakers continue pushing the failed policy idea?
Not once, not twice, but on three occasions,
attempts by a small number of Arizona
politicians to force the U.S. government to
dispose of American public lands have failed. In
2012, voters soundly rejected a ballot measure
—Proposition 120—that would have declared
“state sovereignty” over all public lands in Arizona, including the Grand Canyon. The constitutional
amendment was defeated, with 68 percent of voters opposing it and only 32 percent supporting.
What’s more, two Arizona governors have vetoed bills that called for a wholesale transfer of U.S.
public lands into state and private hands. In 2012, Governor Jan Brewer vetoed SB1332, citing
economic concerns and “...the lack of certainty this legislation could create for individuals holding
existing leases on federal lands.” In 2015, Governor Doug Ducey vetoed two bills that tried to compel
the U.S. government to dispose of American-owned lands in Arizona.
The 2017 legislative sessions in Arizona will almost certainly see more attempts to push these failed
policy ideas. We’ll be watching to see if the state’s legislature focuses on other issues this time
around or if the governor once again has to veto land seizure legislation.
6.
Does Wyoming’s legislature choose to ignore its constituents
(and the governor) on public lands and access?
When the Wyoming legislature convenes for the 2017 session, one of the most contentious
debates will center on efforts to transfer national public lands to the state. Despite the state
facing significant budget shortfalls, Republicans on the Select Federal Natural Resource Management
Committee are proposing a controversial constitutional amendment to guide the management of
U.S. public lands that might be disposed of into state hands. The proposed constitutional amendment
faces a high bar, requiring two-thirds majorities in both the Senate and the House, as well as approval
by Wyoming voters on the ballot.
A broad coalition of hunters, anglers, county commissioners and conservation groups have vehemently
opposed the effort, noting that the state could not afford to manage the 25 million acres of national
public land within Wyoming and would likely have to sell tracts of land to pay for management costs,
such as wildfire fighting. At a December public hearing, more than 100 people packed a legislative
hearing, urging lawmakers to drop the amendment, with no member of the public speaking in support
of the effort.
Given strong opposition to this effort, even supporters of the bill within the legislature admit it may
not pass. That result would deal a huge blow to anti-public lands proponents in the Western U.S. and
would be a major victory for sportsman and conservationists.
7.