Sagebrush Rebellion Redivivus

William Perry Pendley
President, Mountain States Legal Foundation

The following is adapted from a speech delivered on April 23, 2014, at a Hillsdale College event in Colorado Springs, Colorado.
For many or maybe even most Americans, reports that a rancher in Clark County, Nevada, was at odds with federal land bureaucrats, that scores of federal lawyers were litigating against him, and that SWAT-garbed and heavily armed federal law-enforcement officers had surrounded his place might have come as a surprise.
They might have been even more surprised, in the wake of this standoff—which ended short of deadly escalation thanks in part to negotiations by a local sheriff—to hear that over 50 elected officials from nine Western states had gathered in Utah to discuss a state takeover of a significant portion of federally owned land in the American West. But Westerners—especially rural Westerners who make a living on the federal lands that predominate beyond the hundredth meridian, by logging, mining, ranching, or developing energy resources—were not surprised at all.
What has been most lacking in the reporting on these stories is the background of the disputes. And it should be stated up front, in all fairness, that the Obama administration is not unique in pursuing policies anathema
to Westerners. On that score, it has simply followed the examples of the Carter and Clinton administrations.
In the late 1970s, President Carter’s “War on the West” spawned what came
to be known as the Sagebrush Rebellion, which Ronald Reagan embraced during
his campaign for president in 1980:
“I happen to be one who cheers and supports the Sagebrush Rebellion,” candidate Reagan proclaimed in a
speech in Salt Lake City. “Count me in as a rebel.” The uprising was spurred by the fact that, more than any other region, the American West had been victimized by the environmental policies implemented—utterly regardless of their destructive economic and human consequences—during the previous two decades. Reagan had seen firsthand the transformation of the environmental movement from one of conservation and
stewardship, in which the part played by human beings and technology was vital, to a movement in which humans and technology were understood to be enemies of nature. As articulated by Reagan, opposition to extreme environmentalism represented a return to true environmentalism.
America’s “environment[al] heritage” will not be jeopardized, he promised, while at the same time insisting that “we are going to reaffirm that the economic prosperity of our people is a fundamental part of our environment.”
In terms of the public land issue, Reagan blamed “a tiny minority opposed to economic growth” for locking
up federal lands that hold “probably 70 percent of the potential oil in the United States,” and he vowed to support the use of federal lands to meet America’s energy, economic, and foreign policy needs. As former governor of California, he knew all too well that the federal government owns a third of the land that makes up the United States, the vast majority of this being in the West.
Federal holdings include nearly a third of Colorado, Montana, New Mexico, and Washington; roughly half of Arizona, California, Oregon, and Wyoming; and two-thirds or more of Alaska, Idaho, Nevada, and Utah. By comparison, the three non-Western states with the most federal land are New Hampshire at 14 percent, Florida at 13 percent, and Michigan at ten percent.
Some portion of this federally owned land, of course, consists of parks, which are preserved for public recreation.
Other parts are wilderness areas, where motorized activity is barred. But most of the land controlled
by the Bureau of Land Management and the U.S. Forest Service is open, by law, to “multiple use” activities,
including cattle grazing, recreation, and energy and mineral development.
This is the land where disputes arise over use—and it is in these disputes where the Obama administration
has picked up where the Carter and Clinton administrations left off, adopting the nouse policies promoted
by environmental groups who view all federal lands as off limits to productive human activity.
A typical way these policies get implemented is for environmental interest groups to sue a government agency under either the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA), and for the agency then to settle the lawsuit in the interest group’s favor. Sometimes—as in a 2008 lawsuit filed against the U.S. Forest Service by three environmental groups to prevent oil, gas, and mineral extraction
in Pennsylvania—the government not only settles the lawsuit but also pays the interest groups for their complaints (in that case paying out nearly $20,000).
Just last month, Oklahoma Attorney General Scott Pruitt filed a lawsuit against the Interior Department and
the U.S. Fish and Wildlife Service over such “sue and settle” tactics following an ESA lawsuit by a group called Wild Earth Guardians that sought to restrict land use for agriculture, oil and gas drilling, wind farms, and other activities in a five-state area—Oklahoma, Texas, Colorado, New Mexico, and Kansas—inhabited by the lesser prairie chicken. “These settlements,” Pruitt said in a statement, “impose tougher regulations and shorter timelines than those imposed by Congress,” and thus violate the rule of law. “Oklahoma has indicated its willingness to protect the lesser prairie chicken,” he added, “but it seems increasingly clear this issue isn’t about sound science or saving endangered species.”
Following a recent report by the Government Accountability Office on how NEPA is being used to delay
projects on federal lands, Dan Kish of the Institute for Energy Research characterized NEPA’s effect as “paralysis by analysis,” pointing out that “environmental impact statements, which were expected to take no more than 12 months 30 years ago, now take an estimated 4.6 years to complete.” NEPA’s consequences are wide-ranging: Since its passage in 1969, not a single new oil refinery has been built. Following forest
fires in the West, as reported by the National Forest Association, “[NEPA] regulations . . . [delay] harvests of diseased or burned timber indefinitely.
As such, usable salvage timber wastefully
rots away, resulting in lost government
income . . . and economic privation
for local communities.” And after
Hurricane Katrina devastated New
Orleans, it was too little noted that
twice—in 1977 and in 1996—plans to
build a hurricane barrier and to raise
and strengthen the levees were halted
by environmentalist NEPA lawsuits.
Today the Keystone XL Pipeline—
a decision about which has again been
delayed, until late this year at the earliest—
is only the most publicized of the
promising projects, in terms of both
economic prosperity and national
defense, which are being delayed and/
or prevented by NEPA requirements.
For example, rare earth elements are
critical to today’s high-tech and transportation
industries, telecommunications,
military uses, and clean energy
technology, and China currently has
95 percent of the world’s supply of
these elements—“The Middle East has
oil, China has rare earths,” said former
Chinese Premier Deng Xiaoping.
Despite this, rare earth mines in both
Wyoming and California seem to have
been put on permanent hold. One company
that submitted its operations plan
in 2012 has been told that the NEPA
process will not be completed, at best,
until late 2015.
Executive agencies can also simply
implement the extremist environmental
agenda on their own. This is how
the Obama administration’s “war on
coal” is being waged following the
failure to pass the president’s “cap and
trade” legislation even in the Democratcontrolled
Senate. This January, the
Environmental Protection Agency
(EPA) set limits on how much carbon
dioxide new coal-fired power plants
are allowed to produce—limits that
will require expensive and unproven
technology, severely limiting the likelihood
of new plants being built. This
follows past regulation that will force
the retirement of more than 30,000
megawatts of power capacity by the end
of 2016. Later this year, the EPA plans
to establish limits for already existing
power plants, with devastating implications
for coal-rich Western states such
as Wyoming, which generates more
coal annually than the next six coalproducing
states combined. Senator
Lisa Murkowski of Alaska points out
that “89 percent of the coal electricity
capacity that is due to go offline [due
to regulation] was utilized as backup”
to meet demand for energy during the
harsh winter that just ended. Not only
she and Senator Joe Manchin of West
Virginia, but also liberal Democratic
Senator Al Franken of Minnesota, have
worried that these EPA regulations
will threaten the ability of America’s
power grid to meet future demand.
According to the Congressional
Research Service, from 2009 through
2013, oil and natural gas production on
private land was up 61 percent and 33
percent, respectively; on federal lands,
by contrast, oil production was down
eleven percent and gas production
was down 28 percent. This is no mere
coincidence. The Monterey/Santos oil
field in California is estimated to hold
more than twice the oil of the Bakken
oil field in North Dakota and the Eagle
Ford oil field in west Texas combined,
but its development is on hold because
federal lands are involved.
Apparently wishing to slow production
even further, former Secretary of
the Interior Ken Salazar—ignoring that
hydraulic fracturing has been regulated
successfully by states for 60 years—
proposed new fracking regulations
that will add $345 million in annual
costs to Western energy development.
Regulatory costs as a whole, it should be
noted, are at a record high: Wayne Crews
of the Competitive Enterprise Institute
places the total costs of federal regulations
in the U.S. in 2013 as greater than
the GDPs of either Canada or Mexico.
Salazar’s successor, Sally Jewell, is
not only pressing forward with redundant
hydraulic fracturing rules, but
is threatening the West with the use
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Prophet, Spy and Amazing Grace: William
Wilberforce and the Heroic Campaign to End
Slavery, will be Hillsdale College’s 2014
Commencement speaker.
of President Obama’s power, under
the Antiquities Act of 1906, to prevent
economic activity with massive
national-monument designations. This
was a tactic of the War on the West
that President Clinton raised to an art
form—most famously announcing, in a
speech set against the backdrop of the
Grand Canyon in Arizona, the closure
of 1.8 million acres to economic activity,
including what might have become the
world’s largest high-quality, low-sulfur
coal mine in economically hard-pressed
southern Utah.
In her most egregious move yet, Jewell
signed off on a decision by the EPA to
put a million acres of Wyoming land—
including the entire town of Riverton,
Wyoming, with a population of over
10,000—into the Wind River Indian
Reservation, despite the indisputable
historical fact that this land was ceded
to the U.S. in a 1904 agreement between
the United States and the Tribes, and in
opposition to a unanimous 1998 U.S.
Supreme Court ruling regarding a comparable
situation in South Dakota.
It is difficult to exaggerate the quasireligious
zeal with which the War on
the West is waged. Two years ago, a
video surfaced of a training lecture on
regulatory enforcement by the head of
the EPA’s Region Six office, which oversees
Arkansas, Louisiana, New Mexico,
Oklahoma, and Texas. This senior
administrator, who was appointed by
President Obama in 2009, cited the
Roman Empire as the inspiration for
his mode of operation: “The Romans
used to conquer little villages in the
Mediterranean. They’d go into a little
Turkish town somewhere, they’d find
the first five guys they saw, and they’d
crucify them. And
then you know that
town was really easy
to manage for the
next few years.” The
same year he gave
this talk, his office
charged in an emergency
order that a
Fort Worth-based
drilling company had contaminated
groundwater in Texas’s Parker County
through hydraulic fracturing. A yearand-
a-half later the emergency order was
withdrawn and the case was dismissed
in a federal court, but only after a judge
criticized the agency for seeking penalties
without first investigating the truth
of the charges. A commissioner on the
Texas Railroad Commission, which
regulates oil and gas drilling in the state,
accused EPA’s Region Six office of “fear
mongering [and] gross negligence.”
Recently the EPA issued new regulations
to redefine “wetlands,” the term
of art by which the agency determines
the reach of the Clean Water Act. Under
these regulations, a Wyoming man
named Andy Johnson—a welder who
owns an eight-acre farm—has been
targeted because he and his wife built
a stock pond on their property and
brought in brook and brown trout,
ducks, and geese. The EPA is threatening
civil and criminal penalties—including
a $75,000-a-day fine—because Johnson
failed to receive permission for his pond
from the Army Corps of Engineers.
(His permit from the Wyoming State
Engineer’s office is irrelevant, according
to the EPA.) So far Johnson has defied
an EPA order to hire a consultant to
assess the environmental impact of his
stock pond and to propose a restoration
project to be completed within 60 days
of EPA approval. “This goes a lot further
than a pond,” he is quoted as saying.
“It’s about a person’s rights. I have three
little kids. I am not going to roll over
and let [the EPA] tell me what I can do
on my land.”
It is little wonder that there is talk
of another Sagebrush Rebellion like
that embraced by
Ronald Reagan
in the late 1970s.
Westerners know
they deserve better,
and that they and
their states can be
better stewards of
their land than federal
bureaucrats. ■