WASHINGTON, D.C. – Now that government has become show business, one must classify political activities not according to ideology, party or faction but by genre. Is the senator (president, governor, whatever) wearing the smiling comedy face today, or the gloomier mask of the drama?
Sometimes, though, there’s little doubt, as is the case with the Utah congressional delegation’s continuing fulminations over last year’s declaration of the Grand Staircase-Escalante National Monument. This is comedy.
Nor are the congressmen alone. The delegation has a partner – the Utah Association of Counties, whose first lawsuit challenging the monument failed because papers were not served on the defendants in time. Probably they couldn’t find where the president of the United States worked.
Undeterred, the association re-filed a suit almost certain to fail. This might not strike everyone in Utah as amusing. It’s their money.
That’s the trouble with comedy. It has this tendency to degenerate into farce, and to dance close to the line of bad taste. Furthermore, comedy sometimes prevents the audience from seeing that the performers might have something serious to say.
The Utah House delegation has responded to the president’s designation of 1.7 million acres under the Antiquities Act with three pieces of legislation. Rep. James Hansen introduced a bill which would limit all future designations to 5,000 acres. That would gut the act, but this is a measure filed for home-folk consumption, not for enactment into law.
The second proposal is a repeat of the minimalist version of a Utah wilderness bill that couldn’t pass the last Congress. The sponsor here is Utah’s new Republican congressman, Chris Cannon, who rode to victory last November on local opposition to the monument.
At a hearing on the bill, the comedy went sour. Among those testifying in opposition was Heidi McIntosh, the staff attorney for the Southern Utah Wilderness Alliance, and as he began to question her, Cannon asked not only her qualifications but also, “What is your religion?”
Restraining herself, Ms. McIntosh listed her qualifications and ignored the objectionable question, one which no one around Capitol Hill could remember being asked before, perhaps because even most congressmen have read the Constitution.
Well, Cannon is a newcomer, everyone is entitled to a mistake, and the next day he apologized to Ms. McIntosh. Whether the apology was inspired by the generally negative reaction at home provoked by a tape of the question being shown on Salt Lake City television is almost beside the point.
The delegation’s show-stopper is Hansen’s Eastern Wilderness Bill, which would require the government to inventory all parcels of land in the East – federal, state or private – larger than 500 acres for possible inclusion in a wilderness system. This’ll show all those Eastern snobs who try to tell Westerners what to do with their land by applying the provisions of the 1964 Wilderness Act to them. Well, more than applying, since the 1964 Wilderness Act called for looking at 5,000 acres of federal land – not private land.
But you never know what’s going to happen when you start to fool around. What happened was that at a hearing on Hansen’s bill on June 17, the Wilderness Society supported parts of it. Peter Kirby of the society’s Atlanta office endorsed the idea of considering wilderness protection for some federal lands in the East.
Meanwhile, back in Utah, there are lawsuits by the Western States Coalition, the Utah School and Institutional Trust Lands Administration, and the Association of Counties.
But maybe not all the counties. Salt Lake and Weber counties, where almost half of all Utahns live, have not committed themselves to helping pay the lawyers, a hesitation which may reflect a shift in public opinion. A poll taken by the Salt Lake Tribune in May found that a plurality of Utahns – and a majority in the two big counties – think the monument will be good for the state.
Or it may reflect a disinclination to throw good money at a lost cause. The basis for the action, according to the association’s lawyer, Constance Brooks of Denver, is that the president’s power to withdraw land from mineral entry was “repealed in 1976 by Section 204 of the Federal Land Policy and Management Act,” commonly pronounced “flipma.”
But Section 204 doesn’t say anything about repealing the Antiquities Act. It does deal with the same subject, giving rise to the argument that repeal is implied. The courts, however, don’t like “repeal by implication.” If Congress wants to repeal a law, it has to do so explicitly, as FLPMA in fact does to many laws.
The School Trust has the somewhat different, but no more likely to prevail, contention that the Antiquities Act was not designed as a land-management tool. However weak its legal case, the trust is trying to do its job, which is to gather as much money as possible for Utah’s public schools.
And here we come to a serious point behind the comic fulminations. About 200,000 acres of the monument was land set aside at statehood (four sections out of every 36, statewide) to support Utah schools. Right now, they bring in only about 1 percent of the cost of public education, but there is a potential for more. All sides agree that there should be an equitable swap giving the school organization some valuable lands. What is going on now is a bargaining opener. If the Trust Administration is fairly compensated, spokesman David Hebertson said, “we’d have to drop the suit.”
Bargaining also seems be what is going on between the feds and Conoco, which has an exploratory drill going on a state-owned parcel within the monument and has applied for permission to do the same on four federal parcels. The Bureau of Land Management seems likely to grant that permission in the hope that there isn’t much oil there. If BLM is right, Conoco won’t be in much of a bargaining position (see story page 3). If Conoco hits a big pool, the government will either have to let them drill or buy them off with some federal oil land elsewhere. That’s not a joke.
And neither is everything about the anti-monument activity. One can applaud the results of the Grand Staircase-Escalante designation and still retain some qualms about the way it was done. It was, by any definition, a sweeping, if legal, exercise of executive power, always a cause for concern in a republic.
Nor was it a model of cooperative federalism. Consultation with the state was non-existent, and some reconsideration of the process would not be out of order.
Alas, serious matters cannot keep up with the comedy. One day in mid-July, the computer home page of the Association of Counties was invaded by hackers who replaced the content with something written in German, or perhaps Swedish. The association reported this outrage to the FBI (yes, the FBI), and while it formally accused no one, it did point out that the incursion followed hard on a press conference it had held blasting the Southern Utah Wilderness Alliance, against which it is conducting something it calls a “SEWA-Watch” campaign.
Thus we may conclude with the most exalted of all forms of comedy. Up in New England where I live, when you say SEWA you’re talking about a wastewater treatment facility.
Jon Margolis covers Washington, D.C., for High Country News.
This article appeared in the print edition of the magazine with the headline Utah’s bumbling obscures a valid complaint.
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