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IN THE NEWS: Wilderness is currency as lawmaker stalks 'grand bargain' to end land battles

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Washington, Oct 22, 2013 | comments

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Phil Taylor, E&E reporter

MOAB, Utah -- The Potash Scenic Byway snakes south of town along the muddy Colorado River past ancient rock art, dinosaur tracks and stunning red rock walls.

The road ends at the Intrepid Potash Mine, where brine is pumped into two massive evaporation ponds that shimmer in the desert sun.

Whether the 400-acre brine pools -- vital to producing potash, an ingredient in fertilizer -- befit a "scenic" highway depends on who's looking.

Some who see them from high above on the canyon rim say the turquoise pools look like shiny desert jewels. Others say they're a blight on the pristine landscape.

Utah's claim to more than 12,000 roads across federal lands could radically change the way its scenic deserts and canyon lands are managed. Meanwhile, a Republican congressman is trying to end decades of conflicts over wilderness, motorized recreation and energy exploration in eastern Utah. The result could be the biggest public lands bill in Utah's history.

When Grand County Councilman Lynn Jackson sees the pits, he sees money -- jobs and revenue for his 9,000 constituents. Despite its industrial appearance, he said, the mine -- Grand County's biggest single taxpayer -- hasn't deterred hikers, off-road vehicle riders and thrill seekers who pass it on their way to the popular Shafer Basin.

Jackson is supporting a proposal by American Potash LLC to drill four exploratory wells on a red rock plateau a dozen or so miles west of here, arguing it will help diversify the county's recreation-based economy.

"You don't put all your eggs in one basket," said Jackson, a geologist who worked more than 30 years at the Bureau of Land Management.

But the potash proposal and a similar one in neighboring San Juan County are opposed by conservation groups and the Outdoor Industry Association. They are asking President Obama to designate the area as a national monument.

Potash development -- with its drilling rigs, heavy equipment, sludge pits, tanks, trucks, access roads and processing facilities -- would tarnish the area's wild character, they argue.

The fight is but a skirmish in a war over public lands in eastern Utah. The stakes are high for wilderness advocates, energy developers, motorized recreation groups, sportsmen and politicians.

Rep. Rob Bishop (R-Utah) is crafting a sweeping public lands bill that he calls a "grand bargain" aimed at ending bitter conflict over public lands in six eastern Utah counties covering 18 million acres.

Bishop has held hundreds of meetings with stakeholders this year hoping to hammer out a deal that would accelerate energy development, offer certainty for trail users and designate new wilderness areas.

And not just a patch of wilderness, either. Bishop's measure could easily designate well over a million acres, making it the largest wilderness bill in Utah's history and one of the largest ever for a Republican lawmaker.

Bishop, who has a measly 4 percent lifetime score from the League of Conservation Voters, has been reaching out to environmentalists to gain support for his plan. He's working closely with the Wilderness Society, the Pew Charitable Trusts, the Grand Canyon Trust, the Southern Utah Wilderness Alliance (SUWA) and the Nature Conservancy, among other groups.

The view of the Colorado River canyon from Utah's Dead Horse Point State Park features the evaporation ponds of the Intrepid potash mine. Debate rages over whether mineral development would tarnish outdoor opportunities in eastern Utah. All photos by Phil Taylor.

He's also engaging county commissioners, state lands officials, energy developers, off-road vehicle proponents and Interior Secretary Sally Jewell.

"After observing and participating in the public lands debate for many years, I believe we are on the cusp of a paradigm shift," Bishop wrote in a letter to county commissioners last February when his initiative began in earnest. "I believe we have a unique opportunity to end the gridlock and bring resolution to some of the most challenging land disputes in the state."

But Bishop is trying to cross a political minefield. Consider:

  • County officials want Bishop's bill to promote fossil fuel development -- including unconventional, carbon-intensive fuels like oil shale and oil sands that environmentalists have vigorously opposed over concerns they'll accelerate climate change and sap water from the arid Colorado River Basin.
  • Conservationists, meanwhile, are pressing Obama to declare 1.4 million acres around Canyonlands National Park a national monument, infuriating county officials leery of federal overreach.
  • And Utah's School and Institutional Trust Lands Administration, or SITLA, whose role is to get the biggest economic bang out of Utah's mineral-rich terrain, wants to swap state lands for mineral-rich BLM tracts, a plan that's always been controversial.

"I am the most pessimistic congressman you've ever met until a final deal is satisfied," Bishop said in an interview. "I see all kinds of ways people can walk out of it."

Although his path is treacherous, Bishop's game. He sees big potential payoffs all around. And he said he has a shot with fresh leadership at the Interior Department and six counties signed on -- Uintah, Carbon, Emery, Grand, Wayne and San Juan.

"I still see the opportunity of doing something big," he said. "If I can bring about that finality ... it's going to be worth the effort."

'The land is what it is'

Bishop has long disparaged wilderness protections as putting land under "lock and key." But he's keenly aware of how much it means to conservationists.

So instead of knee-jerk opposition to wilderness designations, Bishop is urging county officials to view them as "currency" that could be traded for "tangible benefits" such as control over roads, energy projects, timber development and acquisition of federal lands for parks or airports.

"Instead of instinctively pushing for as little wilderness as possible, I would hope you would approach it this time with a different mindset," he wrote to the Wayne County Commission. "The more we're willing to designate, the more we can expect on the other side of the ledger."

Utah is the only Western state that received no land designated under the 1964 Wilderness Act. It has less designated wilderness -- 1.1 million acres -- than any Western state except for Hawaii. Even Florida has more wilderness.

Juggling priorities

Rep. Rob Bishop (R-Utah) is working with more than 100 stakeholders on his public lands bill, including Utah Gov. Gary Herbert (R), eastern Utah counties, the Western Energy Alliance, the BlueRibbon Coalition and a bevy of conservation groups.

That's a lot of people to please.

They submitted wish lists to Bishop last summer as he began drafting legislation.

Conservationists are urging Bishop to preserve roadless lands surrounding Canyonlands National Park and designate wilderness in rugged backcountry areas including Desolation Canyon, the Book Cliffs and West Tavaputs Plateau highlands, in addition to the San Rafael Swell, a massive sandstone, shale and limestone uprising bisected by Interstate 70.

Off-highway vehicle advocates say they could support new wilderness if existing motorized trails are guaranteed to stay open. Some have touted Emery County's draft proposal to designate a half-million acres of wilderness surrounding the San Rafael Swell while codifying the motorized routes identified in the Bureau of Land Management's 2008 Price resource management plan.

County commissioners want public lands to be managed for a wide variety of uses including conservation, recreation and energy development. They want certainty that land access won't be blocked by lawsuits, administrative closures or executive decrees.

"We want to give recreation interests some assurances; but for commodities we want to give the same thing," Grand County Councilman Lynn Jackson told a Moab newspaper this summer.

The state's semiautonomous trust lands agency would like to swap hundreds of thousands of acres of state lands within federal conservation areas for mineral-rich lands in the Uinta Basin, Hatch Point and the Lisbon Valley, among other places.

Although most of the proposals don't appear to be mutually exclusive, some areas are emerging battlegrounds between mineral and conservation interests, including Hatch Point and a red rock plateau northwest of Moab.

-- Phil Taylor

Until 2006, when Congress passed Bishop's bill designating roughly 100,000 acres of wilderness in the Cedar Mountains southwest of Salt Lake City -- in part to help block a proposed nuclear waste dump -- there was no Bureau of Land Management wilderness solely in Utah.

Wilderness advocates say there are several millions of acres worth protecting.

"We have a lot left that just about everybody should be able to agree on," said Tim Peterson, Utah wildlands program manager for the Grand Canyon Trust, who called Bishop's effort the best opportunity to pass conservation legislation in Utah in nearly the past two decades.

County officials and some off-highway vehicle proponents agree there are significant landscapes worthy of wilderness, despite its restrictions on motorized access and energy development.

"Wilderness. It's a dirty word" in Utah, said Ray Petersen, public lands director for Emery County, which has proposed that up to 500,000 acres of wilderness be designated on the San Rafael Swell.

"The fact of the matter is, there's wilderness," he added. "It may not be designated yet congressionally, but the land is what it is."

Grand, Emery and San Juan counties are willing to designate up to 2 million acres of wilderness in exchange for assurances that other lands could be developed or conserved with more flexibility, said Jackson, the Grand County councilman.

That's about as much wilderness as was designated in several states in the 2009 Omnibus Public Land Management Act, one of the largest single wilderness bills in the law's nearly 50-year history.

Yet it's still just half the amount of wilderness conservationists argue is worthy of protection in those three counties. SUWA has backed legislation seeking 5.5 million acres of wilderness in all six counties.

Let's make a deal

The effort is also personal for Bishop, a former high school history teacher.

With much of Utah's education funding coming from mineral development, a priority for Bishop is consolidating state school trust lands so they can be drilled and mined with greater efficiency.

In an inconvenient twist of history, Utah, Arizona and New Mexico were granted at statehood a smattering of state lands -- four isolated tracts for every 36 square miles -- with many trapped inside federal conservation areas, stifling their development.

"We pretty much out of necessity find ourselves in the land exchange business," said John Andrews, SITLA's associate director.

By midsummer, SITLA had identified 200,000 acres of state lands -- including inholdings in the San Rafael Swell, the Book Cliffs and Desolation Canyon -- to swap for mineral-rich federal lands in the Uinta Basin, at Hatch Point and the Lisbon Valley in San Juan, and north of Canyonlands.

Andrews argued a trade is in the best interest of Utah, counties, energy developers and wilderness advocates. For example, about a third of SITLA's 3.4 million surface acres is located within SUWA's "America's Red Rock Wilderness Act" and, according to Utah law, should be developed, he said.

An abandoned drill pipe sits on the site of a plugged potash well on state land within BLM's Hatch Point. The area is sought by oil and gas and potash developers, but conservationists would like to include it in a national monument.

Conservationists also support a trade. They worry SITLA lands can be developed with little public oversight, tarnishing the surrounding lands' wilderness value.

Decades ago, for example, a SITLA parcel adjacent to the Grand Gulch Wilderness Study Area was stripped of its old-growth pinyon and juniper trees to make way for agriculture, destroying its wild character, said Peterson of the Grand Canyon Trust.

At Hatch Point, a pinyon-and-juniper plateau overlooking Canyonlands National Park, developer K20 Utah LLC, an Australian company, has recently drilled a few potash wells on SITLA lands within BLM lands designated for recreation.

"These former potash drill sites will never be rehabilitated," Neal Clark, a field attorney for SUWA, said during a recent visit to a K20 drill site, where invasive thistle and cheatgrass grew next to abandoned pipes and a sludge pit.

Hatch Point will be one of the major battlegrounds in Bishop's bill, as it is rich in both minerals and spectacular scenery.

But there's broad consensus in Utah that land swaps can benefit rural communities, schoolchildren and the environment. Bishop held a House Natural Resources subcommittee hearing on the issue last month (E&E Daily, Sept. 11).

"We're talking about state trust lands that are scattered throughout, especially in the West, where we have millions of acres that are locked up in areas where we cannot get to them," Bishop said at the time. "Their value is not as significant as if they were actually blocked up together in a usable pattern."

A drill rig operates on state lands north of Monticello, Utah. Conservationists fear such activity will pressure BLM to approve drilling on surrounding federal lands.

Land swap proponents point to the success of the Utah Schools and Lands Exchange Act of 1998, which swapped 409,000 acres of SITLA lands and minerals within Grand Staircase-Escalante National Monument, national parks and forests, and American Indian reservations for more than 120,000 acres of federal lands.

The monument's rugged plateaus and multihued cliffs were spared from mining and other development, and the state was able to raise $200 million from newly acquired coal and gas lands for Utah students.

But any land swap must be a fair deal to American taxpayers, who could lose fiscally if oil and gas deposits are handed over to the state without sufficient conservation gains.

For example, a proposal in 2003 to trade SITLA lands on the San Rafael Swell for federal lands in the Uinta Basin imploded after an investigation found BLM had badly underestimated the value of oil shale, potentially fleecing federal taxpayers.

"This is something that would have to be picked apart with the finest tweezers possible," said Janine Blaeloch, executive director of the Western Lands Project, a Seattle-based group that scrutinizes federal land exchanges.

Hurdles

Conservationists say they support a land swap in principle but have significant concerns with accelerating oil and gas, potash, oil shale, and oil sands development that is currently tightly regulated by BLM.

"It's not clear what trade-offs will be expected of us," said Scott Groene, executive director of SUWA. But giving up federal lands for mineral development "would be difficult things for the conservation community to accept."

The Grand Canyon Trust in July told Bishop it is "deeply concerned" over the impacts commercial-scale oil shale and oil sands development would have on the Colorado Plateau. "Resulting greenhouse gas emissions would exacerbate those impacts, which include warming, drying, more severe drought, reduced river flow and water availability, diminished snowpacks, and more severe fires," the group said.

Neal Clark and Liz Thomas, of the Southern Utah Wilderness Alliance, navigate a pinyon-and-juniper plateau that could be a battleground in Rep. Rob Bishop's (R-Utah) lands bill.

Paul Spitler, director of wilderness campaigns for the Wilderness Society, said the final bill must offer a "net gain" for conservation, though it's unclear how stakeholders will draw that line.

Conservationists said they'll also need assurances that Bishop's bill will resolve Utah's legal claims to more than 12,000 roads, many of which cross lands eyed for wilderness. Utah's road claims, filed under an obscure 1866 mining law known as R.S. 2477, are the most serious threat to Utah's remaining wildlands, according to conservationists, and could torpedo Bishop's lands initiative (Greenwire, Sept. 3).

"Utah's 20-plus lawsuits against the United States over R.S. 2477 may be the biggest hurdle to overcome in trying to reach agreement here," Groene said.

But county commissioners, off-highway vehicle groups and energy proponents say they also need assurances that any lands deal won't be upended by a future national monument designation.

Before Bishop's initiative, SUWA, the Sierra Club, Grand Canyon Trust and the Outdoor Industry Association began lobbying Obama to designate 1.4 million areas of sandstone spires, red rock buttes and river washes surrounding Canyonlands as a national monument -- a move aimed at blocking new oil and gas and potash development.

Tempers flared in June when Sierra Club Executive Director Michael Brune proclaimed to a pro-monument crowd in Moab that he was "100 percent" sure the Greater Canyonlands area would be protected -- with or without Bishop's bill.

"We need to get some level of assurance that if we in good faith do all this work with all these stakeholders, that we're not going to get a monument slapped on top of us when it's all said and done," Grand County's Jackson said.

That fear is prevalent in eastern Utah, particularly after a leaked Interior Department memo two years ago suggested the Obama administration was considering designating the San Rafael Swell and Cedar Mesa as national monuments.

'Build trust early on'

Bishop is hoping to follow in the footsteps of former Sen. Bob Bennett (R-Utah), who helped pass a sweeping bill in 2009 to designate 256,000 acres of wilderness and promote economic development in Washington County in southwest Utah.

The bill, which was tacked onto the 2009 omnibus package, also designated 165 miles of the Virgin River as wild and scenic, created a 62,000-acre national conservation area, established a new all-terrain vehicle trail, and authorized the sale of up to 9,000 acres of federal lands around St. George and other cities.

The bill required sacrifices by the county, which had hoped to develop far more federal lands, and conservationists, who were forced to accept what SUWA's Groene called "a smattering of wilderness."

"It was not without a lot of pain," said Bill Meadows, who was president of the Wilderness Society at the time and a key negotiator of the bill.

Like Bishop, Bennett was never known as a wilderness advocate. But he developed trust within the conservation community as a fair broker, Meadows said. Conservationists say Bishop is taking a similarly diplomatic approach to his bill.

Bishop's office has met with former Bennett aides in hopes of mimicking what went right -- and wrong -- in Washington County.

"Bishop cannot play an advocacy role," said Michele Straube, director at the Wallace Stegner Center's Environmental Dispute Resolution Program at the University of Utah.

 

The White River flows west to its confluence with the Green River in Uintah County. Elected officials here are promoting oil shale development, which promises thousands of jobs but would use an unknown quantity of water.

Bishop must keep all significant stakeholder interests at the table, she added.

"Build trust early on," Straube said. "That trust can be broken very easily, so it needs to be rebuilt and maintained with every interaction."

While many eastern Utah county commissioners staunchly oppose wilderness, many appear willing to support it in exchange for certainty over where and how the public lands can be developed.

"In one county in the state, at least, 'wilderness' is no longer a fighting word," Bennett, who is now a lobbyist at the D.C. firm Arent Fox, wrote in an op-ed this June in the Deseret News.

With six counties at play, Bishop's bill is considerably more complex -- one former Republican aide called it the Mount Rushmore of lands bills. But the process may have its advantages.

For example, the bill could produce eye-popping wilderness acreage, which could appeal to conservation groups but also garner criticism from Bishop's right flank.

A regional approach also relieves individual county commissioners of the political pressure of getting a deal across the finish line. And there will be more "currency" for stakeholders to bring to the negotiating table.

Most agree that the status quo -- in which the uncertainty of litigation, R.S. 2477 road claims and the president's monument powers hang over every acre -- is unacceptable.

With environmentalists challenging six BLM resource management plans covering nearly 12 million acres in southern Utah, there's no telling which lands will remain open to drill rigs, ATVs, wildlife or quiet recreation.

"People are leery about the tools available to the executive and judicial branches," Bishop said. "If I can stop BLM from always having to pursue new and revised management plans, it's worth it. It's going to be worth the effort even though it's more complex and difficult than I thought."

If successful, Bishop's bill would essentially legislate BLM's resource management plans, something that has never been done at such a scale.

Bishop and Rep. Jason Chaffetz (R-Utah), whose 3rd District includes most of the lands in Bishop's bill, hosted several field trips to eastern Utah over the August recess to visit potash and oil and gas projects northwest of Moab, Hatch Point and the Uinta Basin, among others.

"Now that people have had the opportunity to set forth their priorities, a new view is opening as to what is and what is not possible," Bishop said. "It's more daunting than it was before. But I go from despairing to optimism quite quickly."

 

 

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