S3E25: Utah's Public Lands Lawsuit Sparks Controversy

[Uncorrected Transcript]

0:00:00 - (Chris Clarke): This podcast is made possible by financial support from our listeners. If you're not supporting us yet, check out 90milesfromneedles.com/donate or text the word needles to 53555.

0:00:24 - (Joe Geoffrey): Think the deserts are barren wastelands? Think again. It's time for 90 miles from needles, the Desert Protection podcast.

0:00:44 - (Spencer Cox): Today, after decades of legal analysis, Utah filed a landmark public lands lawsuit asking the United States Supreme Court to address whether the federal government can simply hold unappropriated lands within a state indefinitely. Our legal action is a statewide effort with support from leaders, experts, and advocates, and Utahns all across the state. With this lawsuit, we are asking the Supreme Court to weigh in on a critical question.

0:01:15 - (Spencer Cox): This is a question we and many western states have had for decades. This land matters to our people, to all of us. This is. This is the land of the state of Utah. I can tell you as somebody who grew up as a child recreating on this land with my family, hunting and fishing, herding sheep on this land with my family, it's been a tragedy to see what this administration and past administrations have done to our land.

0:01:42 - (Spencer Cox): Closing down roads have been open for generations. Places where people went to recreate, to spend time with their families are no longer accessible now. I also want to be very clear. We are not trying to take this land away. We're not trying to privatize this land. We're actually trying to manage it in a way that will better help the environment, that will help the people of Utah. If you really like all the smoke coming from big fires in California that have destroyed all the air quality gains that we've made as a country over the past few years, then you should be opposed to what we're trying to do.

0:02:16 - (Chris Clarke): Welcome to 90 miles from Needles, the Desert Protection podcast. This is your host, Chris Clarke. And that was Utah Governor Spencer Cox on August 20 of this year, speaking in Salt Lake City, announcing a lawsuit that the state of Utah is taking to the Supreme Court of the United States in an effort to try to get that court to say that Utah needs to take over many millions of acres of BLM land in the state of Utah.

0:02:40 - (Chris Clarke): It is a spectacularly spurious argument because the state is also on a couple of different fronts, working to undermine protections on those remaining lands, as well as to shrink the size of national monuments. Governor Cox is not speaking in good faith here, but this is what the state of Utah is saying about their attempt to throw a monkey wrench into public land management. On this episode of 90 Miles from Needles, we will be talking to Jonathan Thompson, a longtime public lands journalist and author of a number of wonderful books, as expert as anybody I can think of on the Colorado plateau and its land management history.

0:03:17 - (Chris Clarke): And he's joining us from his other home on a Greek island in order to explain the context in which this lawsuit is taking place. We're really grateful to Jonathan for joining us. But before we do that, this podcast couldn't happen without the support of the people who listen to it. Last week we were happy to announce one new supporter. This week we have no new supporters, though on our Patreon site, NosJMbs has rejoined. We thank you for that, nosjmbs.

0:03:49 - (Chris Clarke): Ive got to say its a little disheartening.

0:03:52 - (Chris Clarke): Each episode we dig back to see.

0:03:55 - (Chris Clarke): Which new financial supporters weve gotten since the last episode so we can thank them. To find out that we have not is demoralizing. I will be honest with you all. Weve been squeaking along on the just barely making it level financially for quite some time, and that has plateaued. And we are going to have to.

0:04:15 - (Chris Clarke): Take a serious look at whether or.

0:04:17 - (Chris Clarke): Not to continue this podcast if this is going to stay the status quo. If you go to 90 milesfromneedles.com, donate and become a new donor to this podcast and to the Desert Advocacy Media network, you can make our decision to keep going with this podcast a lot easier. In the meantime, thank you, thank you. Thank you to the people who do donate. You've made it possible to put out close to 75 episodes of a podcast on desert protection and desert conservation.

0:04:49 - (Chris Clarke): It's the only one like it in the english speaking world, folks. And I think, I think there are some of you out there who find this podcast really valuable and have been meaning to donate and just haven't gotten around to it. Believe me, I know how that works. If you're waiting for a sign, here it is. Now let's head over to our interview room and speak with Jonathan Thompson, author, journalist, contributing editor to high country news, publisher of the Landesk Substack newsletter, and fan of the Colorado Plateau.

0:05:27 - (Chris Clarke): It's a very informative interview, and I think you will enjoy it.

0:06:41 - (Chris Clarke): Jonathan Thompson is a journalist and editor, author of river of lost souls, along with behind the Slickrock Curtain, a novel, and Sagebrush Empire most recently, and editor of the Land Desk, which is a fantastic substack newsletter and contributing editor at High Country News. And Jonathan, thank you for joining us.

0:07:03 - (Jonathan Thompson): Thank you.

0:07:05 - (Chris Clarke): So the state of Utah very recently asked the Supreme Court to rule on whether or not the BLM can hold onto public lands indefinitely with paraphrasing Utah's argument with no particular plan for their use. And you commented on that in a recent issue of the land desk. I wonder if you might want to provide us a little bit of context on what's going on with that lawsuit.

0:07:32 - (Jonathan Thompson): Yeah. So in some ways, this has been a long time coming. Utah has. They were in the forefront of the Sagebrush rebellion back in the 1970s, which was basically a reaction to the BLN becoming a multi use organization rather than just the Bureau of Livestock and Mining, as some people called it. So that included conservation and included recreation, included basically stewarding the land. And it also included not giving away public land anymore via the Homestead act. No longer would they dispose of public land.

0:08:08 - (Jonathan Thompson): And so Utah has been battling them ever since. That was in 1976, and they're finally actually going forward with a lawsuit that would take 18.5 million acres of so called unappropriated land, which is land that is not in national parks or in wilderness areas or in military areas or in tribal nations.

0:08:32 - (Chris Clarke): In the text of the state website explaining the lawsuit, it seems like they are pinning their decision to file suit on the recent public lands rule, in which the BLM, at least in theory, will reorient itself to put conservation on an equal footing with minerals development and grazing and things like that. Do you buy that? Are they using it as a convenient excuse?

0:08:56 - (Jonathan Thompson): Yeah. I mean, maybe it's partially is. They've also sued over that rule. Utah has, and they joined Wyoming to sue the BLM over that rule, which all that rule really does is, in my opinion, is reaffirm what Congress mandated in the federal Land Policy Management act in 1976, which is that there are these multiple uses for this land, and everyone kind of should be on equal level. And one of those uses is conservation, which it seems strange to think of conservation as a use.

0:09:27 - (Jonathan Thompson): I admit that. But the way they're doing it is, of course, creating these conservation leases where an organization, an energy company, or even a rancher could lease a piece of land, a piece of public land to do a restoration project or maybe do a mitigation project to offset the impacts that they are having on the public land somewhere else with, say, a solar installation or something like that. So they're making out to be this kind of draconian thing, like it's going to kick ranchers off the land, it's going to kick energy off the land. But I don't see that as the case. But I.

0:10:05 - (Jonathan Thompson): They are. Their reaction is very. It's a big backlash to it and are using that as an excuse. I think there's other factors in play. One of them is that the Supreme Court is right now pretty conservative. And if ever in the history of the Supreme Court, they would actually rule in favor of Utah, it would be now at this court. And I think they're probably a little bit worried that Trump's going to lose. And if that happens, then the court might get reshuffled and might get reorganized. He might get some more justices on there, and then their chances are blown out of the water.

0:10:44 - (Jonathan Thompson): I think another reason is that, honestly, Spencer Cox, the governor of Utah, he's feeling a little bit sensitive because one of his opponents, Phil Lime, who's a MAGA Republican and a neo sagebrush rebel, has been really hammering on Cox about not being conservative enough and not standing up to the federal government enough. And so Cox is probably trying to prove his kind of conservative credentials, in a way by pursuing this.

0:11:15 - (Chris Clarke): So what concerns come to the surface for you most in looking at this new move by the state? I mean, like you said, it's more possible now that the Supreme Court is gonna look favorably on this suit. But is that uppermost in your concerns, or are you looking at other aspects of this?

0:11:35 - (Jonathan Thompson): Yeah, I mean, I think so. That's, that's the most concerning thing. John Roberts, chief justice, actually invited Utah to challenge the Antiquities act, which is, of course, different. But he did say, hey, you guys should bring some kind of antiquities act case because we might just shoot it down. And so that indicates that maybe they could rule in favor of Utah. In this case, it seems unlikely because Utah's enabling act, which allowed them to become a state, said that they disclaimed any claim to those public links that had not been terminated.

0:12:10 - (Jonathan Thompson): It's very clear. And so constitutionally, as legally, I don't think they have much of a case. But again, the Supreme Court, you never know what they're going to do. So that's a big concern. The other concern is that saying, while we'd like to keep these lands public, like, we just want to, we just want to be in control instead of the federal government, that nothing's going to really change. But we all know that's not true, because the whole reason Utah is doing it is so that they can relax restrictions on energy development, on ohv use and that sort of thing.

0:12:45 - (Jonathan Thompson): And also, they haven't written anything into their law that would say that they can't sell it off or whatever. And they do sell off to developers, to whomever, in order to raise money for their schools.

0:12:57 - (Chris Clarke): It struck me that the people, at least putting together the website are very aware that public land in Utah is incredibly popular the way it is. And so that they had to stress that, no, we're going to be managing it as public land. It's just going to be managed better according to Utah's cultural standards. It seemed pretty clear that they're aware how unpopular this will be, certainly outside of Utah, possibly within Utah as well, right?

0:13:29 - (Jonathan Thompson): Yeah. Yeah. I mean, when you look at polls, even inside Utah, people are in favor of preserving public land. People are. The majority of people are. And it's interesting because in this lawsuit, Utah is saying, hey, don't worry, we're not going to touch the national monuments. We're not going to touch national parks. But at the same time, they have an active lawsuit that's pending that would eviscerate or just get rid of national monuments, bears ears, national monument vapor and staircase in spontaneous, and, of course, Trump shrunk those national monuments, both of them much to the state's delight.

0:14:09 - (Jonathan Thompson): So you have to ask, well, what's going to happen if you win that lawsuit and you win this lawsuit, then you basically are taking away these lands. And it's also interesting because the land that they want, this unappropriated land, that's the land that has the least amount of restrictions on it. I mean, in my opinion, they ride on one thing, which is that the federal government isn't always the best landlord, always the best steward of these lands.

0:14:37 - (Jonathan Thompson): They encourage and allow energy development over grazing is a huge problem, especially in Utah on beyond, and it's also incredibly cheap. I mean, that's another thing that's interesting about all of this is that they talk about it as though they're helping the ranchers, they're helping the energy developers. But the fact is that the federal government, the BLM, still charges ranchers $1.35 per animal unit month to graze on public land. So that's $1.35 for a cow and a calf for an entire month of eating the american public's grass and trampling the land.

0:15:17 - (Jonathan Thompson): Whereas Utah, for state lands, they charge something like $16 to $20 fed AUm. So more than ten times as much. So these guys are getting a great deal on this federal land, and it's not necessarily going to be better for them when the state owns it, and it's especially not going to be better if the state sells it off and then it becomes private land, because then I, who knows what's going to happen with it.

0:15:41 - (Jonathan Thompson): So it's really not in their best interest. I think pragmatically. I think it's more of an ideological kind of thing where they just really value this kind of, this idea of local control, even if it's not really going to benefit them in any meaningful way.

0:16:02 - (Chris Clarke): How would you characterize. I realize you're a little bit away from four corners area at the moment, but you still, I think, have a better finger on the pulse of the popular sentiment in the area than I do being out here in godforsaken California, in the Mojave. I definitely have some folks that I talk to pretty regularly in southern Utah, but they tend to be pretty well siloed, obviously, very much on the enviro side.

0:16:30 - (Chris Clarke): I wonder if you have a sense of if you were running a poll in the field talking about land preservation, that kind of thing, how that would score in southern Utah, especially these days.

0:16:42 - (Jonathan Thompson): That's always hard to say. I mean, with those kinds of polls and those kinds of places. All of it, of course, have to do with how you ask the question.

0:16:48 - (Chris Clarke): Right.

0:16:50 - (Jonathan Thompson): And it's interesting. I haven't seen any poles in southern Utah lately, but I have seen one in western Colorado, right up against the border of Utah for Mesa county and Montrose county, which are up against the border, and it's canyon country, pretty much very similar to Utah in many ways, politically and landscape wise. There was a poll about designating the lower Dolores river, which is a classic desert river that runs into the Colorado upstream from Moab, about designating that as a national monument.

0:17:22 - (Jonathan Thompson): And it was really interesting to see how people responded. I think that the majority of the people in these kind of pretty conservative counties said, no, we don't want a national monument. But then one of the questions was, do you support the efforts to preserve a list of other national monuments that were pretty similar? And they said, yes, we do support. The vast majority said they support it. So there's this kind of weird thing going on where this idea of future designation is scary because they think it's going to stop all of the stuff that might happen or might be happening or whatever.

0:17:59 - (Jonathan Thompson): But after it happens, they look at it and they say, oh, wait, this is actually better for us in many ways. Also, when there was a more general question, which didn't have anything to do with national conservation areas or wilderness areas or national monuments, when there's a general question of do you support preserving this landscape, most people said, yes. I think that you get the same kind of answers in southeastern Denver. Yeah, people are going to say, yeah, we want to protect it. And I think if you were to go back even now into southeast Utah and you were to poll people about bears Ears national monument, I think probably the majority would be.

0:18:44 - (Jonathan Thompson): Yeah, it's not so bad because they're these guys. Like, they pretend like it's going to kill the extractive economy. But the fact is, the extractive economy there was mostly uranium, and uranium mining died a long time ago. So it really hasn't affected at all. So what it has done is helped their tourist economy, which isn't the same, and it's got a lot of downsides to it. But in the end, they've benefited more, I think, from preservation than they would have from not preserving it.

0:19:12 - (Chris Clarke): Yep. Yeah. I think the locals here who are pretty solidly against tourism these days, especially people that have been here for a couple generations, really resenting the influx of gentrivacationers — a word I'm trying to popularize. But I find it hard to imagine that they would prefer a uranium mine.

0:19:32 - (Jonathan Thompson): Right? Yeah. And even if they prefer a uranium mine, they realize that ultimately, if they're running a motel or in a restaurant, which probably a lot of the people are, that uranium mine is going to be more harmful to their long term interests than gentrification.

0:19:52 - (Chris Clarke): Yeah.

0:19:54 - (Jonathan Thompson): So, yeah, I mean, certainly the gentrification is bad, too. I wish that if you could just open a uranium mine or something like that and then end gentrification, that would be great. But it doesn't work that way anymore. I think it might have used to work that way, but now it seems like the gentrifiers don't. The gentrificationers don't really care. And Moab Utah is a great example of that. There's a huge cleanup of a huge superfund site right there.

0:20:23 - (Jonathan Thompson): Right. The bike path goes right past. It's right next to the entrance of Arches National park. And that place is just covered with tourists. And most people have no idea what's going on in Dunkirk.

0:20:35 - (Chris Clarke): Something that occurred to me as we were talking a bit earlier is the relevance of NEPA, the National Environmental Policy act, to the whole concept, turning federal lands over to the state of Utah. And just for listeners who aren't immersed in the jargon the way I am, the National Environmental Policy act is a bedrock environmental law that requires federal agencies to examine the environmental impacts of projects on their land or that they have to approve, or if there's involvement by federal agencies in any way that triggers the whole environmental impact statement process.

0:21:13 - (Chris Clarke): If that all suddenly becomes state land managed by Utah, then there might still be NEPA analysis required if there is something that Utah wants to do in coordination with BLM or the Forest Service or something like that. But it seems like probably 90% or so of the NEPA analyses that would be happening on Utah public lands right now would just go away. I wonder if you have thoughts about that.

0:21:43 - (Jonathan Thompson): Yeah, I mean, there's actually a good case study of that which has happened, which is that. So Bears Ears National Monument was established in 2016. It was shrunk by Trump. It was re established in 2021. It's on 1.36 million acres. I think something about around that. But it's checkerboarded with state trust land, because when Utah became a state, the feds gave them these one, every section or something like that piece of land, and those are still there and within the national monuments. So they're in holdings.

0:22:17 - (Jonathan Thompson): And there was going to be a land swap that would trade those out for actually more lucrative BLM land elsewhere so that it's all consolidated. But the state, being the state of Utah, nixed it, and they said, no, we're not going to do it. So now there's all these in holdings. And right after they. Nixon, right about the same time, this company proposed building a 460 foot telecom tower in the middle of bears ears on one of these state land parcels.

0:22:46 - (Jonathan Thompson): And because our state land, it didn't have to go through NEPA, it didn't have to go through any of these processes, even though they would be visible throughout this national monument. It was right in the middle of it, like, literally in the middle of it. And so, yeah, there was a case where the state could have gotten away with this. Ultimately, the developer pulled out. They said there was so much protest that the developer was like, nevermind. And they pulled out, decided not to do it. But, yeah, if that land did become state land, NEPA would no longer really apply. You know, endangered Species act would, because that's different. But I don't think usually NEPA would, unless it was something like a federal highway going through there or some other project that involved the federal government for oil and gas development or solar wind development or anything like that.

0:23:39 - (Jonathan Thompson): Yeah, there would be no process, so far as I know there would be. Federal government wouldn't have the leverage to require that.

0:23:47 - (Chris Clarke): And in California, we have a law that's actually a little bit stronger in some ways than NEPA, called CEQA. But I'm assuming Utah doesn't have. Have a statewide environmental analysis requirement.

0:24:00 - (Jonathan Thompson): No. I mean, you do have to, I think, apply with the Department of Environmental Quality. I believe it's called, but forward mining and stuff, but it's not the same as NEPA by alias.

0:24:11 - (Chris Clarke): So I am at the end of the questions I had in mind. What should I have asked you that I didn't?

0:24:16 - (Jonathan Thompson): I think we covered most of it, I guess. One other thing I would add about the motivations for this. I mean, I think one of the biggest motivators was not only the public lands rule, which puts conservation apart with these other uses, but Utah has all the BLM in Utah has also released several resource travel management plans for BLM areas in the last year or two. And they did it because they were sued by environmental groups. And what these travel management plans do is basically set up which routes are open to motorized vehicles and which routes are closed to them.

0:24:56 - (Jonathan Thompson): And they close some. Most of them are pretty good compromises if you're a motorized vehicle user, but the state's not happy with any closures. And so I think this is also a reaction which just goes to show what they would do if they were to win. You could expect not only more energy development, not only more. It's crazy and stuff, but I think the big thing that you'd see is more motorized use of the public lanes.

0:25:25 - (Jonathan Thompson): That's a point at which I think Utah has no interest in compromising, because they do see that as they see the off road lobby, they're very powerful. But also they see the off road tourism as like a big. They think it benefits the state a lot more than I think it actually does. But for them, that's a big deal.

0:25:46 - (Chris Clarke): Yeah, it's interesting. A little further west, we've had some success working with off road vehicle groups to advocate for protection of landscapes. That was a huge factor in the establishment of Aviquame national monument, for instance. Once conservation has persuaded the local off roaders that we weren't going to close any of the existing open legal routes that the BLM had maintained, they all got on board, and it was off roaders as much as anyone that really drove electeds in Nevada to be okay with aviquama and similar processes happening with, certainly with Chuckwalla National Monument proposal in southern California, south of Joshua Tree and a couple others, great bend of the Gila, etcetera.

0:26:34 - (Chris Clarke): And it's interesting to speculate whether something like that would be possible in southern Utah, given that at least among the people I've talked to that do off roading, a sizable percentage of them want to get out to essentially unspoiled desert, and they just want to be able to pilot along a tour to get there. And it seems like there's potential for alliance there. And I wonder if that might undercut this general intent of the state of Utah to use off roaders as an excuse to privatize the land.

0:27:14 - (Jonathan Thompson): Yeah, I think it could. I think there's the off road highway lobby and then there's actual users. And I think a lot of the users, if you could reassure them, like, look, your favorite route back to your campsite is not going to close. Just a few of these more remote places that are being shut down. Or a lot of times it's redundant roads. There are routes that are being shut down, ones that go to the same place. It's just that it's a little bit more fun or whatever to drive here side by side.

0:27:43 - (Jonathan Thompson): You're not going to lose access for the most part, unless there's some super fragile area or something like that. But otherwise, you're not going to lose even motorized access totally to a place. I think if people could understand that and get over this fear of what might happen, then, yeah, I think they're right. I think a lot of the users would still support these preservation. I think the problem a lot of times is that these organizations like the Living Coalition, things like that, that they have an agenda and they probably benefit a little bit from conflict.

0:28:22 - (Chris Clarke): Yep. Off road vehicle users are to blue ribbon coalition as .22 rifle hunters are to the NRA, I think.

0:28:31 - (Jonathan Thompson): Exactly.

0:28:32 - (Chris Clarke): Yeah. Well, Jonathan, thank you for. For joining us. Where can people find out more about your work?

0:28:41 - (Jonathan Thompson): They can go to the land desk.org. actually, it's land desk without the. It's on Substack and so they can find it through there, too.

0:28:53 - (Chris Clarke): And I can personally vouch for the value of that newsletter. I subscribe to a bunch of substacks and there are a lot of my friends that have substacks and I am unemployed, so I have to be very careful about which ones I join as a paid subscriber, and yours is one of the very few, so it's extremely valuable. Thank you for the work you're doing and thanks for joining us here at 90 miles from needles.

0:29:19 - (Jonathan Thompson): Well, thank you. It's a pleasure.

0:30:03 - (Chris Clarke):  Well, that wraps up yet another episode.

0:31:47 - (Chris Clarke): Of 90 Miles from needles, the Desert Protection podcast. I want to thank Jonathan Thompson for spending some time with us. Been meaning to talk to him on the pod for a while.

0:31:58 - (Chris Clarke): I'm really glad that we finally were able to do that, and I don't.

0:32:01 - (Chris Clarke): Think it'll be the last time. I also want to thank Joe Geoffrey, our voiceover guy, and Martin Mancha, our podcast artwork creator. Our theme song, moody Western, is by Brightside Studio. This part right here is where I would say your name if you had given to the podcast in the last week.

0:32:23 - (Chris Clarke): There's always next week. 90milesfromneedles.com/donate or text needles to 53555. Please take care of yourselves.

0:32:32 - (Chris Clarke): The desert needs you, and I will.

0:32:34 - (Chris Clarke): See you at the next watering hole.

0:32:36 - (Chris Clarke): Bye now.

0:34:44 - (Joe Geoffrey): 90 miles from Needles is a production of the Desert Advocacy media Network.