Utah Legislator presents on Utah's Transfer of Public Lands Act

Ken Ivory, American Lands Council,
presents to a joint committee

meeting Monday

Earlier this month, House Speaker Scott Bedke said he supported his predecessor's interest in exploring an Idaho version of the Utah Transfer of Public Lands Act, which would shift management of acres of federal lands to the states.

Utah and Arizona have passed legislation demanding the federal government turn over control of millions of acres of public acreage in those states. Utah's governor signed the bill, while Arizona's was vetoed by Gov. Jan Brewer. On Monday, Ken Ivory, President of the American Lands Council and the Utah legislator who led passage of that state's bill urged Idaho lawmakers take the same step toward managing public land in its borders. The Utah bill sets a 2014 deadline for the federal government to yield control of nearly 30 million acres. That total does not include national parks and monuments and wilderness.

About 64 percent of Idaho's 53 million acres is in federal control, 31 percent is in private hands and 5 percent is owned by the state, mostly for endowments for schools and other beneficiaries. Ivory sees this transfer as a possible solution that is big enough to take care of the nation's fiscal problems, free up resources for the state, and allow local representation, management and taxation, benefitting the environment, local economies and schools.

Ivory's assertion is based on Article 4 of the constitution, which he says the federal government has misread to claim they can do whatever they want with federal lands. In reality, he says, congress has an obligation to honor an earlier obligation to dispose of the property once the need to hold it in trust for the states to fund the Revolutionary War was no longer relevant. Their continued hold on what should be state property impinges upon states rights.

"Taxing the soil is an attribute of sovereignty, if you don’t have the right as a state to tax your property within your boarders you don’t have sovereignty," he said.

But, assuming Utah is successful in it's efforts to control public lands, will they be able to do so? Ivory says all of the relevant parties have gathered together and agreed that such a transfer of management would be possible, with some adjustments.

"There is definitely going to be a transition," he said. "No one pretends we can flip a switch."

New Legislators Change the Tempo of Normally Routine Rule-Making Process

The House Resources and Conservation Committee continued with the process of rule making last week, with several agencies presenting edits to existing rules having spent the summer collaborating on the shape of those possible changes.

The Idaho Department of Lands presented several rule changes, which were approved:

- Changes to the Idaho Forest Practices Act were precipitated by the Department's response to the Idaho Department of Environmental Quality following regular water quality assessments. The rule language was changed to provide flexibility for private landowners for timber sales after a wildfire or infestation, and revised the definition of "clearcut" to align with the scientifically accepted term.

- Grazing, Farming, Conservation, Noncommercial Recreation and Communication Leases - Proposed changes stipulated leasees must submit a grazing management plan, and clarified language for farming and grazing. The Department collaborated on these changes with members of a task force that included representatives from Simplot, Idaho Farm Bureau and Western Watersheds.

- The Issuance of Geothermal Resource Leases - These regarded leases for all state lands and focused on issues regarding shutdowns in the case of public safety, environmental concerns or fire; sampling by a leasee, use of byproducts by a third party, and a modification to the lease assignment section. Ben Otto with the Idaho Conservation League spoke in favor of the rule modifications.

Jake Howard of Idaho Outfitters and Guides presented a rule change regarding wolf trapping which sets guidelines on what outfitters and guides can and cannot do trapping for wolves. The rule has no impact on what the public can do without a guide, and was approved by the committee.

On Monday, the committee will meet for a joint senate/house presentation from the American Lands Council.

The House Environment, Energy & Technology Committee met on Wednesday afternoon to review a rule on public drinking water and three rules on control of air pollution.  Seven of the 17 committee members are newly elected legislators.  The questions were many and the discussion was lively.  The drinking water rule included a section on incorporation by reference adopting changes in federal regulations so that Idaho’s rule is consistent with the federal rule.  While this is usually a pretty standard procedure, some committee members asked why the section of the federal rule wasn’t included with the material they received so they could see exactly what they were being asked to approve.  A motion to adopt the rule failed by one vote. The chairman asked the DEQ staff to come back next week with copies of the federal changes that are to be incorporated so the committee has a complete picture.

Then came the three air pollution rules.  The first rulemaking was to make various “housekeeping” revisions such as updates for consistency with federal regulations, clarification, and typographical corrections to certain air quality permitting rule sections, related definitions, and the toxic air pollutant sections.  Again there were a lot of questions and discussion.  The rule was rejected.

The second rule included some changes to the auto emissions inspection rule – which resulted from the passage of a law in 2008 requiring emissions testing in both Ada and Canyon counties.  In discussion on this particular rule, some members asked if they could reject just the proposed changes or would they have to reject the entire rule—even those parts already in effect that were not changed.  More lively discussion ensued before the committee approved the proposed rule changes.

The final rule was to incorporate by reference so Idaho’s regulations would be consistent with the federal rule for regulation of green house gases.  It was approved by the committee.

Governor's 2013 budget to include increases to education

The Governor, in his State of the State address Monday called for a 3.1 percent increase in General Fund spending, reflecting what he says is a slow, but steady growth in the economy. Some of the highlights:

Education

His requests include increased funding for K-12 education, although he stressed that he does not seek to “simply revisit issues” related to the recently overturned Students Come First measures.

Instead, he’s asking the State Board of Education to seek input from a broad cross-section of stakeholders and identify elements of school improvement on which there is broad agreement.

Economy:

The Governor sited a falling unemployment rate over the last 17 months as evidence of a slowly improving economy. Idaho’s first reduction in unemployment insurance rates in several years will result in about $50 million in savings to Idaho employers in 2013.

LINE Commission:

The governor commended work done by his Leadership in Nuclear Energy or LINE Commission in 2012, saying their work is not about making Idaho “the nation’s nuclear dumping ground,” but about focusing efforts on options for securing, enhancing and leveraging work being done at the Idaho National Laboratory and the Center for Advanced Energy Studies. He pointed out his commitment to enforcing the terms of the 1995 agreement with the federal government to get all nuclear waste out of Idaho by 2035, acknowledging that the path toward that end is unclear now that the Yucca Mountain facility is not planned to open.

Personal Property Tax:

The governor sited the elimination of personal property tax as an area where there is consensus, acknowledging the tax represents for some counties a significant part of how they pay for public services. His budget sets aside $20 million for easing this transition for those counties.

Heath Exchange:

In addressing Idaho’s impending Health Insurance Exchange under the tenants of the Affordable Health Care act, the governor noted that taking advantage of this alternative is better what he says would be “an unresponsive, one-size-fits-all federal exchange wreaking havoc on some of America’s most reasonable costs of coverage,” and preserves the option for Idaho citizens to have a voice in how one element of that law is implemented.

Medicaid:

Rather than following the advice of the Medicaid work group he assembled last summer, which included Health and Welfare Director Dick Armstrong, Representative Fred Wood, Senator Patti Anne Lodge and Senator Dan Schmidt, the governor said he is asking Director Armstrong to lead an effort to flesh out a plan for changing Idaho’s system with an eye toward the potential costs, savings and economic impact. This is a process he hopes will pay off with a specific proposal in 2014.

Physicians:

Idaho has the sixth-oldest physician workforce in America, and we rank 49th in the nation for doctors per capita, a formula the governor says will be trouble unless we step up efforts to get beyond the 20 medical school seats available for Idaho students each year. This is the same number of seats available to us since 1972, when Idaho’s population was less than half what it is today.

To this end, his budget proposal includes two facets:

-       Funding rural rotation training for the residency program at the Boise VA Medical Center,

-       Funding five additional seats in the WWAMI collaborative medical school program at the University of Washington, the extra seats slated for students in the Targeted Rural and Under-Served Track or TRUST program for Idaho students

Inmates:

The Governor noted his support of the Department of Correction’s request for permission to issue $70 million in bonds for a 579-bed secure mental health facility at the prison complex south of Boise, siting the more than one in four inmates dealing with some form of mental illness. This is a revamp of an earlier request by Correction Director Reinke, that had been approved by the legislature.

Wildfire:

This past year, wildfire suppression costs approached a cost of a quarter-billion dollars as well as impacts on the environment, public health, property, and the unrealized benefits of healthy, actively managed forests and rangeland. The Governor’s budget includes a request for $400,000 to help create four more volunteer fire protection associations like one formed by Mountain Home-area ranchers last summer.

“Nonprofit groups like theirs can assist the BLM, Idaho Department of Lands and rural fire districts in fighting and maybe even preventing catastrophic wildfires on the nearly two-thirds of Idaho land ‘managed’ by the federal government,” he said

State Water Plan:

The Governor sited the newly revised State Water Plan being submitted this session as another example of our Idaho preference for actively managing our natural resources. This plan represents the first update since 1996, and it reflects use of the latest technology in better evaluating our needs and the status of our water supplies.

He noted that for the first time includes includes strategies and milestones for executing management policies and evaluating their effectiveness.

ICIE's Earth Day Art Contest to honor award winners Thursday

ICIE's 2012 Idaho Earth Day encouraged students to examine how the many opportunities we have within our urban environment to interact with nature.  On Thursday, the winners for 2012 will be announced at a special ceremony at the Foothills Learning Center, 3188 Sunset Peak Road, at the end of the 8th Street extension in Boise

Through this project, junior high and high school students learned that nature is not limited to places we visit outside our cities and towns.  People in cities surround themselves with parks, trees and gardens.  Cities develop and maintain parks, walking paths, street trees.  Businesses landscape with plants and trees.  Within the urban environment, we have numerous opportunities to interact with nature, students were challenged to represent their favorite locations within their neighborhood, city or town where they are surrounded by nature.

The purpose of ICIE's annual art contest is to encourage students to think about environmental issues beyond the rhetoric and express that using art and language.  Winners will receive gift certificates to local art supply shops.

Listen to Elemental Idaho, our new environmental public policy show, Mondays at noon on 89.9 KRBX.  This week we'll feature interviews with art contest winners.

When It Reigns It Pours! Federal courts reign in EPA's Clean Water Act authority – a Recap of an Idaho Environmental Forum on April 5, 2012

When John Iani came to Idaho as the Environmental Protection Agency’s (EPA) administrator for Region 10, his first experience was a meeting with then governor Dirk Kempthorne about his agency’s presence in the Silver Valley.  Iani said the meeting was confrontational and illustrative of a common dilemma the regulated community faces when Congress passes laws and leaves them to agencies to implement as best they can.

When Congress doesn’t give enough direction, he said, the impact is felt by the communities and the courts are left to resolve issues.

The Clean Water Act (CWA) is an example of this problem.  The act calls out “water bodies of the United States,” without clearly defining them.  Certainly lakes, rivers, navigable waters would be considered such, but what about tributaries or bodies of water not connected to others?

The Sacketts are a couple who bought a .63-acre piece of property in a platted subdivision, with water and sewer hookups 500 feet west of Priest Lake in North Idaho.  They obtained all the necessary building permits, and had just started work on the house when EPA told them their land was considered a wetland.  The EPA issued an administrative compliance order saying the Sacketts were in violation of the CWA, and that they needed to restore the area to the way it was, and seek a permit to build their house.  They were fined $37,500 for every day that passed where they failed to do so. 

The Sacketts filed an action in federal district court to dispute the order, and lost.  They appealed to the 9^th Circuit Court, who agreed with the district court.  They then went to the Supreme Court which came to the unanimous decision that the compliance order was a final action and should have been open to judicial review.  The Court held that the Sackets were entitled to challenge the compliance order in court.  U.S. Supreme Court Justice Alito wrote a concurring opinion - rejecting the position that private property rights are at the mercy of EPA employees. 

Ultimately, Iani said, Congress needs to step up and clarify what is and is not a water body of the US.  Failing to do so will always leave the agency scratching its heads over what to do next.

Another example of EPA overreach is the case of Mingo Logan Coal.  A project seeking to deposit fill in a water body of the US needs to seek permission under the CWA, Section 404, sub-section C  which says "the Administrator is allowed to deny or restrict the use of any defined area as a disposal site whenever he determines that such deposits will have an adverse impact on water or populations.”  There are no regulations, nor process specified, but it's powerful and rarely used language, allowing the EPA to reverse a decision about a previously approved landfill site at any time.

In the Mingo Logan case, the Army Corps of Engineers issued a permit for the fill of two mines to be deposited into two river-beds.  Three years later, EPA decided it would, for the 13th time in its history, revoke the permit.  A court found against the EPA, where in all 12 previous court cases the court had ruled in favor of them.

"The EPA claimed that the status of a permit is not ever really final,” Iani said, “but what would be the point in requesting a permit if it isn't worth the paper it's printed on and commerce can be interrupted at any point?"

There is another major issue before EPA right now—a mining project in Alaska.  Groups opposed to the project have asked the EPA to allow no mining in that entire area forever.

Bad facts make bad law, Iani said. If the EPA continues to make mistakes under the 404 C clause, Congress will need to look at the CWA to clarify issues.

“I think EPA’s authority on the CWA is being looked at very carefully by the courts. It might be time for Congress to look at it, but that’s not likely now with the current gridlock we see Congress. 

Legislators assert states rights, encourage Sage Grouse Task Force as session winds down

Two other items of interest as this session of the legislature works toward adjourning sine die:

Senate Joint Memorial 105 has passed both houses.  It calls on Congress to reclaim its Constitutional role over the management of species and public lands. The memorial asks “that Congress re-examine, reform and reauthorize the Endangered Species Act, the National Environmental Policy Act, the Equal Access to Justice Act, and any other federal law that disrespects the role of states and local governments in land management decisions and leads to costly and frivolous lawsuits that strip authority from Congress and place it in the hands of the judiciary.”  It was adopted on a voice vote by the Senate and by a vote of 57-10-3 in the House.

Senate Concurrent Resolution 125 was introduced in the Senate on March 1st and adopted by voice vote on March 5^th.  The resolution endorses and encourages the Governor in his efforts “moving forward with the Governor’s Sage Grouse Task Force.”  It moved on to the House and on March 23^rd it was adopted there on a voice vote.

Agriculture, grazing bills, take circuitous routes through legislature

Some bills start the legislative session as a concept that is discussed and revised in the first weeks until the draft is introduced.  Success for these early concepts is not always guaranteed.

H606, the Agriculture Value Added Income Tax Credit, was such a bill.

H606 was introduced on February 29.  The bill will act as incentive for farmers and ranchers to invest in additional facilities which would add value to agriculture in Idaho through additional processing.  For example: encouraging a dairyman to process his milk into cheese that can be sold, rather than send the milk out of state for processing.  This is a means of increasing jobs in rural areas as well as the amount of Idaho commodities being processed.  The bill provides a tax credit of up to 30% of the investment to build a plant or value added process, capping the amount of the credit at $500,000.  This credit may be utilized annually until the cap is reached or for 14 years.  The legislation has a sunset of 2017.

The concept was revised several times before its introduction.  It was introduced in the House and sent the Revenue & Taxation Committee which sent it to General Orders on the floor for amendment.  On March 30, it was passed as amended by a vote of 62-6-2.

It was sent to the Senate and assigned to the Local Government Committee on March 22.  It has not yet been scheduled for a hearing.

Other bills are printed earlier in the session but do not get heard in committee until later in the session, such as S1271, which deals with management plans for grazing leases.  The bill adds a new section to Idaho Code that requires applicants for grazing leases to submit a grazing management proposal as part of the application.  This lets the Department of Lands evaluate whether the proposal is consistent with the Department’s resource objectives and management expectations for those lands.  If the lease is granted, the proposal becomes the management plan for that lease.

S1271 was introduced on January 30^th and sent to the Senate Resources and Environment Committee.  It was not until March 6^th that committee sent it to the Senate floor where it was passed on a vote of 31-0-4.  The next day it was sent to the House and assigned to the Resources and Conservation Committee.  It was sent to the House floor with a do-pass recommendation.  On March 21^st, almost two months later, it passed and is on its way to the Governor.