BOZEMAN — The forester surveyed his handiwork from a timbered rise, a can of paint still clutched in his hand. The lodgepole pines had been his canvas and, like a minimalist painter, he had left flashes of orange on only those trees that met his discerning eye.
He had spent the day choosing which parts of the woods should go and which should stay to foster the forest of the future.
Soon, loggers would fell the marked trees and bundle them for shipment to sawmills.
But in the Custer Gallatin National Forest, the orange marks are beginning to fade on trees that are still standing.
The Custer forest currently has eight projects involving logging, and all are being challenged in court, said forest spokeswoman Marna Daley.
“We are the most litigated forest in all of Region 1, and we have to pay those court costs,” Daley said.
While the plaintiffs argue they wouldn’t sue if agencies simply followed the law, logging lawsuits cost the U.S. Forest Service, which is already struggling financially due to burgeoning wildfire costs and congressional budget cuts.
Lawsuits and regulations also frustrate Montana’s logging industry, which has seen its jobs and revenue dwindle, and counties that used to reap the tax benefits of a thriving logging economy.
That frustration bubbles up at public meetings, and complaints echo in the ears of politicians.
Those complaints are amplified when wildfires flare up, torching the economic potential.
But some Montanans see forests as more than a cash crop and are still wary of the environmental degradation brought on in previous decades by prolific clear-cutting.
The two sides clash as policy and court rulings swing back and forth, causing some to forget there is middle ground.
“There is no silver bullet to resolving the issue of increasing pace and scale of restoration projects on federal land,” said Gordon Sanders, resource manager of the Pyramid Mountain Lumber, a family-owned company in northwest Montana.
But some think they’ve found a silver bullet.
Over the past few years, some in the West have begun pushing for state takeover of federal lands, arguing that states can manage their land better than people in Washington, D.C.
The idea isn’t new. It has its roots in the Sagebrush Rebellion, which rose in the 1970s under the same states-rights philosophy.
But now, in the age of the Internet, proponents of the idea are more organized and can spread their ideas to eager listeners who have grown weary of an ineffective Congress.
Those ideas prompted Sen. Jennifer Fielder, R-Thompson Falls, to run for office in 2012.
Fielder has met regularly with other Western politicians through a Utah-based group called the American Lands Council, which is dedicated to the transfer of federal lands.
“Up in northwest Montana, we are surrounded by millions of acres of federally controlled lands that are at catastrophic wildfire condition levels right now. That affects our lives,” Fielder told the Bozeman Daily Chronicle. “I think we have bipartisan interest in correcting the problems with federal land management — there are just differences of opinion in how we go about it.”
That difference of opinion exists within the Montana Republican Party, even though a plank in the party platform authored by Fielder endorses federal land transfer.
Since the platform was approved, Rep. Pat Connell, R-Hamilton, former Secretary of State Bob Brown and others have spoken against it.
Fielder and at least two other GOP legislators — fellow Thompson Falls legislator Rep. Bob Brown and Rep. Theresa Manzella of Hamilton — have requested about three dozen bills dealing with federal land management.
The bill subjects range from simply continuing to study federal land transfer to calling on Congress to transfer lands to Montana.
Fielder herself has requested 20 of those bills.
“We have so many serious problems, so I’m working on every tool in the tool box,” Fielder said. “Hopefully, we can find a few significant areas where we actually agree in terms of getting things done.”
Those opposed to federal-lands transfers say even seemingly innocuous bills lead down the same path by building more justification.
“Some of these things, such as empowering local soil conservation districts to be equal to the state in forest-planning processes, are just designed to gum up the process and make federal forest planning not work so it’s self-fulfilling prophesy: ‘See, the federal government can’t manage the forest.’ They’re being somewhat strategic in terms of taking small bites of the apple that when taken in sum add up to ineffective forest management,” said Clayton Elliott of the Montana Wilderness Association.
The arguments against transferring federal land cover a number of issues, but just like the arguments in favor, a main one is economic.
Just studying the issue costs a lot.
Utah, the state leading the states-rights charge, sunk $500,000 into its study of a federal-land transfer. Wyoming legislators just introduced a bill to appropriate $100,000 for a study.
Under a full-transfer scenario, Montana would become responsible for an additional 25 million acres — national parks, reservations and wilderness areas are exempt.
State Commissioner for Securities and Insurance Monica Lindeen, who sits on the State Land Board, said Montana couldn’t afford the $500 million a year that would be required to manage that much additional land, according to the Department of Natural Resources and Conservation estimates.
The biggest portion of that would go to fighting wildfires.
Fielder said the state wouldn’t need that much money if the federal government were required to pitch in.
“This catastrophic wildfire condition has grown on their watch. So keeping the federal government on the hook for helping with fire suppression is something we ought to look at,” Fielder said. “If you look at the model of the Northwest Territories of Canada, they completed a full transfer of responsibility last April. They’re managing the land with federal funds, and when they produce revenues, they split it with the federal government.”
Renewing funding for the interim federal-lands study group created in 2013 would allow a deeper look at the costs and find possible funding, Fielder said.
“It’s more waste of Montanans’ money,” said Land Tawney, Backcountry Hunters and Anglers executive director. “They’ve not come up with a plan on how they’d manage public lands in Montana. If we go with her path, it means more taxes and less access. They haven’t talked to economists about how this might affect Montana’s $6 billion outdoor industry.”
Worried that the effects would be costly, Business for Montana Outdoors, which represents more than 100 business owners, opposes federal land transfer.
“The state should find more productive ways to work with our federal government rather than make a colossal mistake, which would threaten emerging markets that rely on Montana’s true competitive advantage in the presence and access to our public lands,” BMO said in a statement.
Other states have already delved into the costs, and the totals are boggling.
In December, a University of Idaho study found that turning 16.4 million acres over to Idaho would cost the state at least $111 million annually. That’s based on an average wildfire year and doesn’t include the estimated $2 billion required during the transition period.
Economists calculated that the only way Idaho could stay solvent was if logging was ramped up to record levels – a billion board-feet a year – and if the timber could be sold for at least $250 per 1,000 board-feet.
The average timber price during 2014 was $100 more than that, but it wouldn’t stay that high if all the Western states were to try to ramp up their logging to pay for land management.
Utah’s study concluded that oil and gas revenue could pay its $280 million a year, but only if gas prices remained high. Currently, they are not high enough.
Relying on boom-and-bust resources is risky. If the states can’t afford to manage the land, many assume they would sell to private landowners.
Fielder said safeguards could be built into the transfer language to discourage states from selling. Utah state Rep. Ken Ivory included such language in his bill that set a Dec. 31 deadline for the federal government to transfer lands to Utah control.
The federal government still holds those lands, verifying what many have already said.
“It’s an unconstitutional thing. But even though it’s legally untenable, it’s still costing states a lot of money,” Elliot said.
Ivory founded the American Lands Council two years ago and gained Fielder’s respect. She brought him in to testify before an interim environmental committee.
“The American Lands Council is leading the charge on this. I’m not a member, but I do appreciate that they’re helping elected officials get better educated on this,” Fielder said.
The ALC website has published copies of federal lands bills that have been introduced in several states.
Some of those bills closely resemble the eight public lands bills such as the “Resolution Demanding that Congress Convey Title of Federal Public Lands to the States,” posted on the website of the American Legislative Exchange Council or ALEC, a secretive organization that gives corporations access to legislators.
Two of Fielder’s bills are titled “Resolution calling on Congress to transfer certain federal lands to the state,” but since they’re still being drafted, the language is not available for comparison to the ALC or ALEC bills.
Fielder said she drafted most of the bills herself.
“I’m either getting my ideas from constituents or developing it on my own with my colleagues,” Fielder said.
ALC bases much of its justification for lands transfer on sections in the Western states’ Enabling Acts that say the federal government “is obligated to extinguish title to additional lands.”
But a University of Utah legal analysis published in October found that phrase applied only to Indian lands, not public lands. The analysis also outlined several laws and Supreme Court decisions that firmly establish federal control of public lands.
“As the owner of public lands, the United States holds the public lands ‘in trust for the people of the whole country,’ not solely for the benefit of adjacent landowners,” the report said.
A number of state attorneys general have balked at suing the federal government based on their legal reviews.
Montana Attorney General Tim Fox is part of a public lands subcommittee of the Conference of Western Attorneys General studying the legal viability of federal lands transfers.
All this time and effort is going toward exploring an idea that at least 60 percent of Montanans don’t support, according to a Center for American Progress poll released in September.
Meanwhile, some Montanans are already overcoming some land-management obstacles by participating in one of the 37 collaborative efforts that have popped up across the state.
Place-based solutions that work within Forest Service regulations are beginning to appear, and some of the orange-splashed trees are being removed, although it demands compromise.
But Fielder dismissed collaboratives as ineffective.
“Citizens have very little chance to get their objectives inserted in federal land management plans because paid lobbyists are there at every meeting. They pretty much drown out the local community’s voice,” Fielder said.
However, even those in the timber industry prefer the collaborative approach.
Sanders thinks it’s taught the Forest Service to listen better.
“I think in the long term the solution to the delays is more related to the rules and direction that Congress has provided over the years,” Sanders said. “I’m not a big supporter of efforts that are not likely to go any direction. Supporting efforts just to make a statement . I’d rather we stay focused on issues that are doable.”