State Lands: For the Birds?

By Hal Herring

Around my part of Montana this past hunting season, there was a mind-boggling amount of pressure on our state lands. Trucks parked along back roads where I never even knew there was any state land (or I had been too afraid of offending a landowner to try and hunt it) - a quarter section here, a section there, always with two orange clad figures coming over the hill. My local antelope spot was useless on the weekends, with a steady rumble of traffic along the roads, and blown herds like specks of orange and white dust way out on the flats and hightailing it for private lands. A tsunami of license plates from west of the mountains, where, as all locals know, paid vacations abound, the wind never blows, and beautiful people sip microbrews while planning the best way to kill our game and fish.

The culprits, of course, are the (relatively) new and (relatively) inexpensive GPS units that show land ownership maps. For the first time, hunters and fishermen can determine within a few feet of where a public land boundary ends. More land to hunt, roam, run the kids and train the dog. No more purple-faced confrontations with landowners who are claiming that their state land lease is actually their private property. Fewer trespassing violations issued by game wardens. These are big positives here to offset the loss of secret state land honey holes and exclusively local access, and there may be the potential for a lot more. Because the GPS has done what all successful technology does: opened a Pandora’s Box of questions and turned loose the winds of change. As more sportsmen zero in on state lands, and as the role of recreation in our economy becomes more clearly understood, state lands may be the next big opportunity for increasing wildlife populations, restoring habitat and creeks and wetlands and maybe even providing more money for schools and local communities at the same time. The time is becoming ripe for leasing state lands for conservation and recreation rather than just traditional commodities production. It will not be done easily, it will not be done immediately, but it will come to pass. There are too many good reasons for this conservation leasing, or some variation of it, for the idea to be held at bay forever.

When we are looking for new places to hunt, opening a landownership map, or gazing on a computer screen (Montana Sportsmen's Atlas) at the millions of acres of state lands marked in blue, is like being a kid on Christmas morning. All of that state land, 5.1 million acres of it, there for the wandering, the envy of any sportsman in almost any other state. We imagine the wild flush of pheasants, the quiet thunder of a big mule deer buck’s hooves on the gumbo in some forgotten coulee, coveys of sharptails in buffalo brush thickets. I’ve spent days doing this, gazing at maps, planning hunts, imagining long days packed with game, in prime habitat. Every once in a great while, the reality matches the dream. More often, though, I find myself trudging across empty sections, the grass eaten down to the dust, cowpies outnumbering game birds ten thousand to one, or monocultured pool tables of wheat and hay, with eroding creeks and cow-hammered wetlands long ago dried to alkali. It’s disappointing to a hunter, and it’s sad for anybody who knows how rare really good habitat is these days.

There’s a reason for the emphasis on bales and bushels and cows on state lands, and it’ not usually because the ranchers and farmers who lease those lands are poor stewards, or that state land managers are looking the other way. The simple reason that so many state lands have such poor wildlife habitat is because there is a law that mandates that these lands produce the maximum sustainable amount of revenue for our public schools, which is why they were set aside in state ownership in the first place.

Montana’s 5.1 million acres of state lands are our part of almost 40 million acres of state owned lands across the West. All of these lands date back to the federal Enabling Acts that granted the states, at or near the time of statehood, two sections (a section is 640 acres or one square mile) in every township ( a township being 36 numbered sections, or 23, 040 acres). Latecomers to the statehood game, Utah, Arizona and New Mexico, were granted four sections per township. These sections- usually chosen as section 16 and 36 of each township, were to be used in a sustainable manner to produce money for schools and other public institutions, which is why many people call them “School Trust Lands.” It was an odd idea, really, because the sections can be of any quality- some are bare rocks, some badlands, some lush pasturelands or riverbottom or forest, all arbitrarily selected out of the grid. Many times, Section 16 and 36 were already homesteaded or were otherwise unavailable, so other sections were granted instead, making a kind of crazy-quilt patchwork that can be difficult and expensive to manage and monitor. California and Nevada opted to sell their lands as soon as they could, and Montana, like other states, has sold some as well (while retaining the mineral rights, which is why we have about a million acres more mineral rights than we do land), traded some for others, and tried hard to manage the rest as well as possible.

Since 1889, Montana’s state lands have produced income as intended. They are an economic powerhouse, generating over $150 million in 2010. Most of that money goes to schools, with smaller portions going to state universities, the Montana State Hospital, Agricultural Research Station, etc. Since 1889, the way to make money to support our schools and public hospitals has been to lease state lands for the traditional money-makers: agriculture, grazing, timber production and energy development. So that’s what we’ve done. Recreational use, hunting, horseback riding, walking, fishing, were hardly considered until 1991, when the Montana legislature recognized the importance of these lands to sportsmen, and tacked on a $2 fee on the conservation (hunting and fishing) license to codify our right of access, and to produce more money. That legislation opened up 5.1 million acres to public access, a deal if there ever was one. Most of us have not wanted to look that gift horse too closely in the mouth, so we have not complained too much about the condition of the lands we are free to roam.

But now, with increasing hunting and other recreation pressure combined with the loss of access to so many private lands, there is a renewed focus on state lands as a source of hunting opportunity and the restoration of what are termed “ecosystem services,” such as revegetated creeks that lose less water to evaporation and are less prone t destructive floods, native grasses that prevent erosion of valuable topsoil, wetlands that filter and recharge the waters in aquifers, and on and on, all the workings of the complex natural systems that support life on our planet. The interest in the role of state lands in recreation and ecosystem services is not new. In fact, in 1995, the Ravalli County Fish and Wildlife Association, Inc. won a Montana Supreme Court case (the case started as a dispute over grazing permits for domestic sheep that spread disease to bighorns) and established that the mandate to produce the maximum amount of revenue on state lands did not in any way preclude the responsibility to maintain wildlife populations and recreational values on those lands. It was a landmark case, and another step in the ladder leading to a change in priorities on our state lands.

As always, money provides the strongest step of all, and recent studies that show hunting and fishing and other outdoor recreation contributes over $2.5 billion to Montana’s economy and generate more than $118 million in tax revenue have added some real muscle to the questions about the best use of these lands.

Got Beef?
Photo Land tawney
One answer that seems simple is that sportsmen’s groups or conservation organizations should be able to offer competitive bids to lease state lands for something other than crops and cattle or oil and gas. The lands would remain accessible to the public, but resting them from intensive grazing, restoring shelterbelts and upland game bird specific plants could create a huge increase in game, not to mention creating habitat for non-game wildlife and birds. Right now, it costs a minimum of $9 to run one AUM (Animal Unit Month, one 1000 pound cow, or a cow/ calf pair) on state land. If you are farming the land, the average lease rate is a 25% share of the crop. Leases can easily add up to a couple of thousand dollars or more, and a lease runs for ten years. $20,000 is a lot of commitment money to restore habitat on land that will be open to the public. But it is not an astronomical amount. Legally, the Montana Department of Natural Resources will have to consider a bid on a lease when it expires at the end of a ten year period, although the current leaseholder will retain the right of first refusal. The current leaseholder will have the option of meeting the new bid. If the leaseholder decides that the bid is too high to meet, of course, the lease is awarded to the newcomer.

According to Stephanie Kellogg, Surface Leasing Section Supervisor for the Montana Department of Natural Resources and Conservation (DNRC), such a bid by a conservation or sportsmen’s group has not yet come up, but there are no real obstacles to the concept. “We just ended our competitive bidding for this year,” Kellogg told me in February, “and we’ll be posting the ones that are coming up for bidding in June of 2014. The existing leasee has a preference, but if a competitor is willing to match or exceed their bid, then the land use specialist in that region would decide whether or not to award that lease to the competitor.”

Kellogg suggested that I speak with Erik Eneboe, A DNRC Unit Manager in Conrad, MT. Eneboe said that he couldn’t remember anyone in his region ever trying to lease state land for conservation purposes, but that it could happen: “Anybody over 18 can bid on a lease. But we haven’t seen that locally, say an outside group bidding high to try and take over a lease.” What he has seen and worked with, though, Eneboe explained, was “a focus on working together with leaseholders to enhance habitat” through cooperative programs like the Upland Gamebird Enhancement Program.

DNRC’s grazing lease chief Kevin Chappell also encouraged a co-operative approach. “I can’t think of a time when anybody has taken over a lease just for conservation or hunting,” he said. “Is it a possibility? Yes. But if folks are really interested in doing some conservation work, it would be better to work with the leasee.”

During almost every one of my interviews for this story, whoever I spoke with directed me to Craig Roberts, the now-retired Area Manager for the Northeast Land office of the DNRC. After a week or so of my leaving messages at his home in Montana, Roberts called me back- from New Mexico, where he and his wife visit grown children, get outside, and enjoy a break from the Montana winters. It was immediately clear why everyone suggested I talk with him- Roberts has decades of experience in land management and wildlife habitat restoration and conservation. He also, alone among my sources, has actually leased (with his local chapter of Pheasants Forever) a section and a half of state land north of Denton, Montana, for upland game bird habitat. Instead of being overly encouraging on the subject of conservation leasing, though, Roberts offers a cautionary tale. “Our chapter of PF (Pheasants Forever) leased a half-section in one place and a full section in another,” he said. “From a practical point of view, it’s a tough thing to do. It was expensive, and it’s tough to comply with all the responsibilities, the fencing, all of that. The old leases were bid so high by the guy who had the lease before- he’d wanted that state land so badly he’d paid $25 per AUM, and a 35% crop share, so the whole thing got pretty spendy for us, and we’re roped in to farming it, too.”

Roberts said that there were two major weak links in leasing state lands for conservation: Price, on land that will produce little or no profit for the leasee, and, above all, long term maintenance. “You are talking about a period of ten years, where you are going to be putting in shelterbelts, controlling weeds, all the basics of land management, with all the time, money and energy that entails. Somebody has to do all that, and if at some point they give up, it turns into a big mess, and the DNRC inherits that.”

Roberts adds that there is also very little vacant state land, in any part of the state, waiting to be leased. “You could either try and get a voluntary re-assignment of a lease, or just wait for one to come back up for bid (after its ten years is up).”

Sadly enough, a wholesale movement to enhance wildlife habitat on state lands has never really taken off. And what progress Roberts made during his years of active service at DNRC has not, until very recently, been carried on.

“I established a system of being able to put upland game bird enhancement programs on state lands in the 1990’s,”Roberts said. “It was a hard sell, actually. Some offices didn’t want the extra workload, we were having to mediate the tensions between FWP (MT. Fish, Wildlife and Parks) and the DNRC. We managed to do a few projects on state lands out of Lewistown, in Fergus and Petroleum counties. It was tougher than we thought it would be. Costs were high. We were always looking for smaller parcels on leases where you would not have to cut production to do them, and we had to find lease holders who were interested in being part of the projects. The program expired some years ago, and nobody has renewed it.”

But not for lack of trying, and not without at least a glimmer of success. Craig Roberts’ friends and conservation colleagues Gordon Haugen, a retired US Forest Service biologist, and Tom Pick, a water resources specialist recently retired from the Montana office of the federal Natural Resources and Conservation Service, have been working for years to get a Memorandum of Understanding in place between the FWP and the DNRC to create upland gamebird habitat on state lands. They finally got the MOU recently. “We have funds available through the FWP, and Pheasants Forever or the like could step up with some money, too,” Haugen said. “We’ve got the MOU for one year, and what we’d like to do is, if we have say, a section, we’d like to use that money to first pull out a 35-40 acre piece and pay the leasee to let us put that into permanent upland gamebird habitat. The kicker is, we have to find a willing leasee, or it won’t work.” Haugen said so far, he and Tom Pick have worked for five years just to get as far as they are now. “It has taken forever. Every time we wrote a new version, somebody wanted to massage it, or change it. But the fact is, this has been a labor of love.”

Tom Pick laughs when I ask him if it wouldn’t be easier just to have somebody with enough money offer more money for the state leases and re-establish wildlife habitat that way. “We decided not to stick our heads in that hornet’s nest,” he said. “And the reality is, with that model, we just didn’t find the interest from sportsmen’s groups to lease the land. Most of them rejected the idea because those lands would become known to the public and see an increase in use. The public is figuring out the best places anyway, but this was another reason why there wasn’t much interest in competing for the leases.” Pick said that, while competitive bidding from sportsmen’s groups might happen someday, it’s definitely best not to wait around for it.

“I could see where, if there were couple of sections close to a town that were being managed poorly, and you could prove that it would produce more revenue as conservation or recreation value, maybe you make an argument for that,” he said.

Instead of the “hornet’s nest,” of competing with agricultural producers, Pick says, he and his fellow-conservationists have focused on identifying the “best lands that met our criteria for the best chance for restoration. These are mostly croplands, with good agricultural values. They’re not going to return to prairie, but the opportunity to enhance what habitat is there is huge. A little good habitat goes a long way.”

Pick says that he and Haugen and others are “pioneering an approach” that will allow the use of money from the Upland Game Bird Enhancement Program to restore habitat on the lands they have identified as having the most potential.

In the long run, the attempt to restore habitat and nourish solid populations of wildlife on state lands is probably an “all of the above,” model. One of the ways forward, several of my sources told me, was a non-confrontational and fiscally responsible approach: simply make sure that the rules governing the leases are understood and enforced and that the land is managed as directed. “A lot of what we see are leases being grazed far in excess of the AUMs that are being paid for,” said Craig Roberts. “What I think would be best is to hold the leasees accountable for what they are actually doing on the lands they lease. We have seen instances where we really held the leasee’s feet to the fire on the number of AUMs. We were able to keep track of all of that, and those lands were in pretty darn good shape. That is extremely important, because where we found too many AUMs coming off that were never paid for, they were hitting it so hard it was reducing the carrying capacity of that land, and losing money.”

Such loss of revenue due to land degradation, if proven, sets the stage for costly and complex lawsuits, as has occurred in Arizona regarding the use of its state lands. In 2001, the environmental group Forest Guardians allied with the Western Gamebird Alliance and others to bring suit against the Arizona Commissioner of Public Lands, Ray Powell, claiming, among other grievances, that Powell’s office “has violated their trust obligation by failing to protect the corpus of the trust by allowing state trust lands to deteriorate.” (That suit was unsuccessful, but another that the groups filed, to force the state to offer leases to the highest bidder rather than restrict them to grazers, was successful after traveling all the way to the Arizona Supreme Court.)

Such a claim of land deterioration and lost revenues is easy to make. Pat Graham, who during a life’s work in wildlife and conservation served as Director of the Montana FWP during the 1990’s, has been working on public lands issues for the Nature Conservancy in Arizona since 2001. Graham says that, while the Forest Guardians lawsuits made headlines as “the environmentalists trying to get in on the bidding process,” on state lands, the outcome for actually leasing a lot of land was not nearly as dramatic as the narrative in the media. “”Really not many of them (environmentalists) showed up,” Graham said. “It takes a lot of money, and you have to plan ten years ahead. There’s not many in the conservation community that can or want to do that.” Graham said that compared to Montana, the fights over the sale and leasing of public lands in Arizona have been intense, due to the explosive human population growth in the state and the fact that so many of the lands are in urban growth corridors.
“Because many of the grazing leases are often on arid lands, it takes time for landowners to recover investments from actions like restoring grasses and removing shrubs using controlled burns. It just doesn’t pay in the short term and the profit margin is low. I know some have considered a lawsuit to say that the way the state is managing some of these lands is trading off short-term gains for long-term revenue for the schools. I think a better approach is to look for incentives to provide some security to the good ranchers who are in it for the long-term. Offer them preference for renewal of leases if they manage for good land health and habitat. Some think a lawsuit is the stick needed to better manage state lands. I think we need to step up with creative carrots,” he said.

Graham said that, after all these years of working on the issue, there is no “big, silver bullet,” for managing these lands for conservation values while meeting the mandate for revenue. But he agrees that the model being pioneered in Montana by Haugen and Tom Pick would be a good start. “In one case we could have bid and subleased land with fewer AUMs to a good grazer at a reduced price while restoring the health of the land. We would all win.”

There is still the question of finding that willing leasee to work with. No one can know what percentage of leasees would want to participate. In Arizona, if you read the 2001 editorials and articles concerning the Forest Guardians lawsuits, it’s easy to see how angry and polarized the issue of leasing state lands for conservation became. But these lawsuits do not come out of the blue. They are the result of a monopoly on the use of the lands that refuses to consider the needs and demands of the public that shares ownership in them.

Any outright attempts by sportsmen to outbid current agricultural leaseholders in Montana will lead to escalating contention. As Jim Posewitz, Executive Director of Orion the Hunter’s Institute and a wildlife biologist for the state of Montana for 32 years, puts it, “I do know that this will throw more sand into the gears of the sportsmen-landowner relationship. The agriculture folks will say that this is another example of sportsmen coming for them, and another reason that they should post their lands.” Posewitz adds, “This is America, though. Free enterprise, free markets, land stewardship. Ultimately this could lead to land stewardship that really does enhance the production of wildlife.”

There is ample, and growing evidence, too, that the “sand in the gears” of the landowner-sportsmen relationship is grittier and heavier than ever. A map produced recently by the Montana Sportsmen’s Alliance shows the extraordinary extent of private lands across the state leased to outfitters, and, presumably, mostly off-limits to the average hunter. Every session of the Montana legislature produces a new blizzard of bills that are anti-conservation and anti-public hunting, all of them written by legislators who claim the support of the agricultural community that is leasing the state lands. This past year, legislators successfully killed the so-called “corner crossing bill” that would have allowed the public to step from state section to state section without being charged with trespassing. Other bills made it impossible to restore a small herd of bison on federal lands in the Missouri Breaks - and these bills were delivered on the alleged behalf of some private landowners who lease federal land for grazing at $1.35 per AUM- a price that dates back to 1966, when a Coca-Cola cost 15 cents, gasoline was 32 cents a gallon, and a good new car could be had for $2,650. Do most agricultural producers who enjoy these sub-market lease prices really support legislators kicking this particular sleeping dog? It’s highly doubtful, but we do not know, because no one is asking any questions. Why do we have an AUM rate on federal lands that has not been changed since 1966, at a time when we are experiencing a crushing national deficit? Why no official studies of how many big game animals could be supported by the forage in an AUM, and a weighing of what that figure could mean economically, in increased hunting license sales? As energy development overwhelms so many acres of state and federal land, why has no one discussed a focus on a quid-pro-quo restoration of undeveloped lands, rather than just continuing with AUM’s as usual, as if the thousands of acres impacted by energy development did not exist? Why a state lands revenue model that ignores the economics of recreation, and leaves out the economic role of the ecosystem services- less floods, less erosion, better water quantity and quality, and more, provided by partially restored, rather than single-use landscapes?

A successful hunt will take cooperation from all parites

It is difficult to argue that the gears of the sportsmen-landowner relationship can be made to operate more smoothly unless we are at least willing to ask and answer some of these questions. This is not about confrontation, this is about acknowledging responsibilities, both by leasees and by the rest of the public that shares ownership in the lands. It should be a partnership.
If wildlife and public hunting are to be a part of the unfolding story of Montana’s state lands, something has to change. The newly empowered hordes of GPS-carrying hunters and nature- lovers are going to expect more from the lands that they can access. Land does not exist in vacuum, and commodities do indeed become more valuable as they become scarce. At this moment in history, with a soaring human population and sprawling cities, wildlife habitat and access to hunting or just recreating in a place of natural wealth and beauty, are very valuable commodities indeed. The out-of-state and out-of county license plates that I saw everywhere in my hunting spots last season attests to that value, and foretells a conflict to come. I think Montana, with its long history of public-private partnership, with its wildlife-supporting agricultural producers and pragmatic conservation community, can head off that conflict and create something of powerful benefit from this change. But the time to start figuring it out is right now, while it’s still possible to talk over a cup of coffee, before the lawsuits and the intransigence they breed become our only reality.
Related links:

(Montana Sportsmen's Atlas)

FWP Upland Game Bird Enhancement Program

Back Country Hunters and Anglers and Big Sky Upland Bird Association on Upland Game Bird Enhancement Program

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