Can you imagine turning our national forests over to the nearby localities which have always wanted to exploit them as they wished? Is this a pipe dream? No. It is a nightmare that is in the pipeline. Various influential people are working hard to make this happen.

What Is Happening

In its budget for 2003 for the Agriculture Department, the Bush Administration has actually proposed testing this idea. Forests that would be turned over to localities would be called "Charter Forests" (apparently to be built on the model of "Charter Schools," which are given a freehand). These charter forests would be managed by a stakeholder group, top heavy with state and local officials. The group would be comprised of representatives of municipal, county, state, and tribal, as well as federal, units of government. They, in turn, would report to some land trust (unspecified).

Bills have been introduced in Congress to authorize this. A Colorado Republican, Rep. Thomas Tancredo, has introduced H.R. 4911 to have the Pike and San Isabel National Forests there be managed under a variation of this notion. Another congressman--from South Dakota (Rep. John Thune, R.) wants to try the same idea in the Black Hills National Forest. And Idaho's two congressmen, Representatives Otter and Simpson, have expressed support too. Otter has said: "Local solutions are needed to address many of the problems on our public lands, and charter forests are a promising approach to break the gridlock." Gridlock is their word for the dearth of commodity sales.

A panel set up last year in Idaho by the state land board (the Idaho Federal Lands Task Force) recommended setting up five pilot projects there for over ten million acres of federal land. There would be little review of environmental impacts under their proposal.

The Society of American Foresters has backed setting up prototypes in various national forests across the country to test different approaches to this idea.

The Chief of the Forest Service, Dale Bosworth, agrees that the concept "has merit." He says that he and his staff are working on the details. The Resource Committee of the U.S. House of Representatives has already held its first hearing on the idea and is looking for a promising place to test the notion.

Legislation enacted last year to set up the Valles Caldera Trust to manage the Baca Ranch property in New Mexico is thought to have established a promising precedent. There a new federal property is managed by a government corporation with a governing board composed of private parties, as well as local, state and federal officials.

Background

This idea has an interesting provenance. Not only are Republicans from rural areas in the west supportive; support also comes from some liberals in academia who romanticize the local and praise collaborative approaches. Rural sociologists now see embattled small town economies in the west as the "underdogs." They think that major environmental groups have too much power. They believe that localities around national forests will live up to a higher standard if only they are put in charge. Others see this as a step toward bioregionalism and place-based environmentalism. They are quite prepared to project their ideals onto others and hope for the best.

The high priest of this concept is Daniel Kemmis of Montana. He elaborates on the notion in his latest book: "This Sovereign Land: A New Vision for Governing the West." A centrist Democrat, he is a former speaker of the Montana state House of Representatives, as well as mayor of Missoula. He runs the Center for the Rocky Mountain West in association with former U.S. Congressman Pat Williams, a liberal Democrat who has been close to labor. Thus, Kemmis and Williams bring the perspective of professional politicians on the Democratic side to complement that of the Republicans. Williams also claims that congressman Tom Udall of New Mexico is sympathetic.

Thus, there are now sources of support for this idea across the political spectrum - on the right, in the center, and on the left. With this kind of support, this idea may gain more traction than would be imagined at first glance.

Kemmis's Stance and Response

Kemmis's central premise is astounding. In effect, he wants the arid west to be granted sovereignty over decisions affecting its environment. If this grant is not willingly made, he seems to be on the verge of urging that these states secede from the Union.

Setting up Charter Forests would be the first step in a long line of phased decisions in which the federal government would turn its power over resources, land, and the environment to bodies "close to the people." He wants authority turned over to collaborative bodies organized on the basis of watersheds. He thinks that these bodies could manage to meet national objectives and that the collaborative process would adequately protect the interests of environmental stakeholders. He thinks that local voices should predominate in charting the course for public lands. He characterizes existing management of public lands as "dysfunctional" -presumably because not enough economic benefits accrue anymore to local people.

It is interesting to note that management of the national forests was regarded as properly functional when they produced what commodity interests wanted. They became dysfunctional only when they produced less of that.

The claims that local management will be environmentally responsible and meet national objectives also flies in the face of history. Most of the legacy of erosion, over-cutting, depletion, damaged ranges, mine pollution and species extinction arose out of decisions made in these communities.

While there may be some people there now with environmental sensibilities, they are likely to be outnumbered. Judging from how people in the rural west vote in federal elections, one certainly cannot conclude that they are environmentally inclined.

Should there be a requirement that decisions be made by consensus, which may only prevent the worst decisions from being made. It may simply pull the group toward the "lowest common denominator" in terms of issues they can viably address. The most tractable issues would be addressed instead of the most important ones. Quality management is not likely to result. In no way would a consensus requirement guarantee that national objectives would be met.

There would be no way to assure accountability. This whole system would not respond to decisions that the electorate in the nation as a whole makes. It would be beyond the reach of democratic accountability. Moreover the public lands do not even fit the theory of devolution. This is the theory that we would be governed better if more of the powers of the federal government were turned over to state and local government. Federal lands are held in a proprietary sense, not in a governmental sense. While governmental powers can be devolved within limits, the laws governing federal lands arise out of the fact of federal ownership. In our legal system, control and ownership are connected. Those who own lands get to decide how they are managed. In this case, all of the citizens of the United States own these lands. The people who live nearby hold a relatively small share of this ownership interest. While they have interests and equities in these lands, there is no logical reason that they should control the management of lands owned by all of the citizens of this nation. Their interests should not prevail against the interests of the majority owners.

Over the years considerable deference has been paid to the economic welfare of nearby communities. The Forest Service spent most of the preceding century trying to placate these communities through promoting commercialization of resources on public lands. Huge sums were spent in subsidizing rural development. Prices for such commodities as timber and forage rarely reflected the costs of administration, nor did they internalize environmental costs. It is too late to try to restore the "old regime." Most of the stocks of the most saleable commodities have been exhausted; many of the processing facilities have been closed. Natural resource industries are in irreversible decline. These lands now need restoration after hard treatment. Administration Proposal

While Daniel Kemmis may have coined the term "Charter Forests" and put the idea in play, the Bush administration has now put its own stamp on the idea. As embodied in its budget proposal, the idea is divorced from the notion of collaboration and watershed communities. Those words do not appear in its proposal.

Instead the idea is framed around roles for three different entities. Management would be entrusted to a stakeholder group in which the federal government would be a bit player? With city, county, state and tribal governments holding control. Something called a "multiparty" group, which is not described further, would set targets for future ecological conditions, as well as assess current ones. And the stakeholder group would report to a local land trust. But it is far from clear what powers the land trust would have in overseeing the process. Could it override the stakeholder group, and if so, on what basis?

One must also wonder who the multiparty group is and why they would set longer-term objectives for the condition of the land? Are they supposed to represent a broader interest, or greater expertise? Oddly two very different roles are combined in the proposal for this group -exercising ecological expertise to appraise current conditions and a policy role in determining the long-term goals for the land. With these three entities playing roles, it is hard to understand who would really be in control. Actual management would be in the hands of the stakeholder group, but the multiparty group would set the long-term goals for the condition of the land, while the land trust would exercise oversight (but by standards that are unclear).

It is also not clear who would choose those who are to serve in these various capacities. Would this be the President, the Department of Agriculture, or governors of states? And what would happen to agencies such as the Forest Service? Would they merely serve a new master, or are they being replaced -- and if so, by whom?

Moreover, it is far from clear that these Charter Forests would be subject to policy guidance from the top. As various national administrations are elected, they usually provide policy direction for the agencies under them. Are Charter Forests designed to bypass this process? Would these forests be exempt from meeting RPA (Resource Planning Act) goals and others devised at the level of the Chief of the Forest Service? Indeed, it is hard to imagine that groups with this composition would feel any obligation to meet national objectives. Their very diversity suggests bargaining over the choice of objectives.

While the administration says that these forests would have to comply with applicable federal and state environmental laws, presumably the Charter Forests would exercise discretion in applying these laws. How would they be held accountable in practice? If these groups were chosen to reflect the predilections of state and local government, what recourse would national voters have if the nation's laws were defied? Voting in a different party might make no difference. While injunctions might be obtained, these cannot deliver faithful implementation of environmental laws.

Indeed the whole history of the parallel idea of Charter Schools seems to involve the idea of freeing schools from having to comply with ordinary requirements. The argument is made that these requirements are holding schools back. But recent exposes suggest that the charter schools fail more often than others, with little accountability. It would seem likely that Charter Forests are also designed to free forests from both requirements and accountability.

Legal Issues

Legal issues hang like a cloud over these ill-advised ideas. At the very least, it is clear that Charter Forests cannot be set up by administrative fiat. Statutes governing the national forests and the BLM vest authority over these lands in the respective Secretaries of Agriculture and of the Interior, who may delegate these powers to those they hire. They cannot delegate those powers to others. This question was clearly decided in the case of the National Park and Conservation Assn. v. Stanton (54 F.Supp.2d 7, 17-21 (D.D.C. 1999) in which a federal court struck down an effort by the National Park Service to delegate its responsibilities for the Niobrara Wild River in Nebraska to a local council.

Federal lands are administered by the President of the United States under the executive powers granted to him under Art. II, sec. 1 of the constitution. Through court decisions and accepted practice, it is clear that he may delegate portions of those powers to those whom heap points and who are responsible to him. They represent an extension of the executive power of the President and constitute "competent authorities."

It can also be implied that he may not delegate his powers to those who are not accountable to him and subject to his direction. That would constitute an unlawful delegation of governmental powers to private parties. Accountability is a prerequisite for democracy to work. Once the chain of accountability is broken, there is no way to assure that policy will respond to the results of elections.

Thus, it would appear that Congress might not be able to delegate management of federal lands to bodies, which are not accountable. Accountability is achieved through a contract of employment or retainer. No such contract is contemplated in the case of Charter Forests.

Indeed, the whole idea seems to originate in the quest to be free of accountability to the people who own these lands--the citizens of the United States. We should not let our public lands be "high-jacked" to serve the interests of a few.