[NOTE: Versions of this article appeared in the Las Vegas Review-Journal and the Salt Lake Tribune.]

April 30, 1997

ESCALATING THE WAR OVER ESCALANTE

by James V. DeLong

Just before the election, President Clinton went to the Grand Canyon in Arizona to designate 1.7 million acres of the Escalante area of Utah as a National Monument.

Staying out of Utah showed solid instinct for politics, since the citizens there were not pleased with the decision. The votes he was harvesting were several time zones away in the cities of the two coasts, where people like the abstract idea like of wilderness in the West and assume that they personally will bear none of the consequences.

The President was flanked by Robert Redford, movie star and strong wilderness advocate. Redford is also a Utah land baron, with almost ten square miles in his Sundance Resort. The Utah legislature noted his presence, and its House retaliated with a resolution to study the possible designation of part of his land as wilderness. The effort is a bit tongue-in-cheek, and the Christian Science Monitor quotes its sponsor as admitting that his primary goal is to make a moral point: "So many people want to set aside land for environmental purposes, but they want someone else to make the sacrifice. The resolution allows [him] to put his money where his mouth is."

Redford is not amused, or converted. He defends the monument designation as giving Escalante "back to those who own it: The American people." As for the idea that Sundance would make a nice wilderness, Redford's people dismiss it with the comment that the resort contributes a lot of taxes and jobs to the community.

Who's Owns This Land?

Redford's response is perfect because it frames the issues so neatly. Just who does own this land, anyway? And how do we reconcile ownership, wilderness preservation, and economics? Environmentalists may find these questions easy, but in fact they are hard, with a lot of history behind them. In the early 19th Century, almost the entire nation was public land. Until the Civil War this domain was steadily sold off to private parties, the timber was cleared, and settlement marched on. During the 1860's, things changed. Congress decided that 160 acres was a good size for a farm, and that the public domain west of the Mississippi should go to homesteaders in blocks of that size. This worked, sort of, for the territory up to the100th meridian (about two-thirds of the way through Kansas), where enough rain fell to make farming possible. West of this line, the Homestead Act was a disaster. You could not make a living on 160 acres or on 20 times that much, and few people were foolish enough to try. But the government had no mechanism for selling off the land in blocks that made economic sense, and as a result the land could not be disposed of at all.

A "National Commons"

After half a century of turmoil, the West emerged with a bastardized system of land tenure, quite different from the system of private property that prevails in the East. The federal government retained ownership of half the land of the ten western states, including 62% of Utah. To make up for its refusal to sell its land in viable pieces, the government guaranteed the people of the region, and of the U.S. generally, reasonable access to use the public domain for productive purposes, including grazing, mining, and timbering to feed the industrial revolution of the East. The preservationists got a share, in the form of national parks and other reservations, and over the years recreational users have asserted a growing claim. As a matter of history, the public domain does not belong to a baron called the federal government which has the right to do whatever it wants on its own property. The public lands are a National Commons to which all of us, but especially the people of the region, have a claim, and it is supposed to be administered by the federal government as a trustee, with fair regard for the economic patterns that this history imposed on the West.

The portion of the Commons called Escalante is worthless for farming and has little timber. It is not much good for grazing. Some of the scenery is spectacular, but most of it is mediocre and for the most part it is not pleasant hiking country. The one thing it has is fossil fuels, in the form of coal and oil. The current battle, since the basic monument designation is now a fact, is whether exploitation of coal and oil resources should proceed. The energy companies are actually by standers in this fight. Conoco, which has the oil leases, would much prefer to drill -- it is, after all, in the oil business, and the fields are potentially huge -- but if this is forbidden the company will get paid off. The legal term of art is that the government must recognize "valid existing rights," which means the oil leases cannot be terminated without payment.

The Real Stakeholders

The real stakeholders in the fight include the school children of Utah, since several sections of every township were given to the state to use the revenues to support schools. They need Conoco's royalty payments. Other stakeholders include all of us who use oil. It is a little hard to go out and drill your own well and refine your own gasoline, so if you want your share of this National Commons you must rely on an oil company as your intermediary. They also include the residents of Utah, who have long relied on jobs generated by economic activity on federal land. All of these groups claim that oil, at least, can be extracted with little environmental effect. The energy resources are not in the scenic part, and, in any event, modern techniques substantially diminish the footprint of oil production. Many landowners in many places, including the Audubon Society in Louisiana, are happily combining environmental protection with oil revenues. Thus there is no irreconcilable conflict between environmental protection and energy extraction, except to the most hard-shell wilderness purist.

In the end, yes, wilderness devotees also have a claim to some share of the National Commons. But this constituency, overwhelmingly rich, urban, male, white, young, and fit, does not qualify as "the American people," and can hardly claim a right to exclude everyone else. In the end, their efforts look a lot like another tradition of the Old West, the land grab, in which someone with raw power simply took a portion of the public lands for himself, driving others off with barbed wire and pistols. The methods change. The morals remain the same.

JAMES V. DeLONG

Washington