On a recent Thursday afternoon, Jennifer Fielder sits in a hallway outside her office on the fourth floor of the Montana Capitol in Helena, leafing through a four-inch-thick binder crammed with bill drafts, leaflets, policy statements and news clippings. Every scrap of paper relates in some way to the public lands issues this Republican state senator from Thompson Falls is pushing in the 2015 legislature, and she pauses occasionally to look over an article or a resolution.
Over the past few years, Fielder has become her caucus' de facto expert on a controversial movement to see federal lands managed by the U.S. Forest Service and Bureau of Land Management transferred to state control. It's a topic that has taken her from small town-hall meetings in rural Montana counties to conferences and workshops in Salt Lake City, home of Utah state representative and lands transfer kingpin Ken Ivory. Even the protective case on Fielder's smartphone is emblazoned with an image of the United States shaded red to mark federal lands and fractured where East meets West—the adopted logo of Ivory's nonprofit American Lands Council.
Fielder paints a bleak picture of the current state of national forest management in Montana. She and her husband, Paul, moved to northwestern Montana from central Washington in 2007, about six years after Paul bought property in the area. Hunters and trappers both, the Fielders have since become prominent characters on the conservative side of public lands debates in the Flathead. To hear Jennifer tell it, the federal government has dropped the ball when it comes to maintaining a healthy, accessible and productive landscape. Hence her increasingly fervent interest in the transfer of public lands issue, and the litany of bills she's introduced in the past few months to explore such a path.
"We're seeing so many closures, so many restrictions," she says. "The fire hazards are so bad. Trails are in bad shape, in disrepair. The maintenance backlog on the trails is really horrendous. We're seeing money—federal money—spent to actually take out and obliterate the old logging roads, which are great trails to walk and ride bikes on. But they're actually spending money to remove those trails, and that really concerns me."
Fielder hardly stands alone in pushing the transfer agenda, which she is quick to note does not include national parks or designated wilderness areas. Since Ivory's Transfer of Public Lands Act passed into law in Utah in 2012, conservative activists and policy makers at all levels of government in the West have flocked to the issue like gun enthusiasts to a shooting range. The National Association of Counties officially adopted a resolution advocating for "the full and immediate implementation of the transfer of public lands" on July 22, 2013. Less than six months later, the Republican National Committee ratified an even lengthier statement of support. The Wyoming Legislature last month approved a bill commissioning a study on the transfer of federal lands to state control. Other legislative proposals have popped up in Arizona, Nevada, Washington and New Mexico.
"We've been seeing this idea catch on across the country," Fielder says. "We've been seeing states all over the West getting engaged in it."
Yet for many on both sides of the aisle, no issue seems as wasteful, ill-conceived or dead on arrival as the transfer of public lands. Hundreds of conservationists, sportsmen and citizens flooded the Capitol rotunda in February for a rally sponsored by the Montana Wilderness Association, Montana Wildlife Federation, Backcountry Hunters and Anglers and The Nature Conservancy. Gov. Steve Bullock spoke out against the very measures Fielder and Rep. Kerry White, her lands transfer counterpart in the state House, were pushing with such gusto. The following month, the Montana Bowhunters Association made a firm stand against one of White's transfer proposals, urging the House Natural Resources Committee to "kill this bill." Despite transfer proponents' arguments that such action would help revitalize Montana's stagnated timber industry, the Montana Wood Products Association clearly stated this year that "we do not—at this time—support the movement to transfer federal lands to the state of Montana for either ownership or management responsibilities."
In fact, it appears that a majority of Montanans view the transfer of public lands issue with either annoyance or disdain. And yet the conversation continues to be debated in the media, at the Capitol and in communities throughout the state, leaving many wondering where the support and drive on this issue lies. Deeper analysis shows Fielder and White—whose Gallatin Valley-based nonprofit Citizens for Balanced Use has advocated for studying the issue—are propelling a discussion that has attracted the attention and admiration of a particular subset of the right wing, one primarily incubated in the northwest reaches of Montana. Revelations regarding these associations have sparked a whole new level of concern, from out-of-state influence powered by taxpayer money to grassroots support from former militia movement activists dead-set against the federal government.
"This sort of stuff in Sanders County is happening across the West," says Rachel Carroll-Rivas, co-director of the Montana Human Rights Network, "and that's not coincidental."
The proliferation of the lands transfer movement throughout the western United States is part of a specific strategy. Utah's legislature served as an early control group for Ivory's transfer of public lands experiment in 2012, and after it passed, Ivory began peddling his idea to other regions. Before long, county governments in several states were paying thousands of dollars for memberships in his newly founded American Lands Council. Critics branded the effort as an updated version of the famed Sagebrush Rebellion of the 1970s. Undeterred by such comments, Ivory established a pyramidal plan for facilitating lands transfers, with education as the foundation on which to build negotiation, legislation and, if needed, litigation. He crafted his message around three key promises: better access, better health and better productivity.
"We look at this as the only solution big enough to better fund education, better care for the lands and the forests, protect access ... and grow state and local economies," Ivory told the Independent in a phone interview in November 2013, just prior to an ALC tour in Montana.
Ivory traveled to western Montana in late 2013 to present his ideas before county commissions and town-hall meetings. Former commissioner Suzy Foss hosted him in Ravalli County; the nonprofit Sanders Natural Resource Council did likewise in Sanders County. Fielder accompanied him throughout the Flathead, her faith in both him and the ALC already established through her sponsorship of several lands transfer bills in the 2013 legislature and research into the transfer issue conducted by both her and her husband. Ivory and Fielder delivered speeches to commissioners in both Mineral and Lincoln counties. According to minutes from the Lincoln County meeting, dated Dec. 13, 2013, Ivory talked about wildfire hazards, about difficulties adequately funding education, and about dues paid by other counties for membership in the ALC, explaining most donate $5,000.
"Representative Ivory preached 'Knowledge and Courage' of taking back the land for the State's control and not federal," the minutes read. "He cited history of the land becoming federal lands and why the states should have control."
The history and legal defenses for public land transfers touted by the ALC hinge heavily on a debatable reading of the western enabling acts granting statehood. Ivory argues those enabling acts included a promise that the federal government would "forever disclaim all rights and title" to public lands in western states. As evidence, he points to Congress' divestment of most of its public lands holdings in the eastern U.S. back in the mid-19th century. Transfer proponents continue to invoke this argument in furthering the ALC's regional agenda. To bolster this Enabling Act theory, Ivory and others make repeated reference to historic political statements and news articles from the times they were ratified.
"From the inception of this Nation and through much of its history, it was the policy of the federal government to dispose of the public lands both to pay off federal debt and to encourage the settlement of western lands for the benefit of the states and the nation," wrote Utah's Constitutional Defense Council in defending Ivory's transfer bill in November 2012. "Indeed, most of the states east of the Colorado-Kansas state line have very little federal public lands within their borders as a result of the historical implementation of this policy."
However, many critics maintain the Enabling Act argument is inherently based on flawed interpretation. As Yale fellow Raph Graybill wrote on the American Constitution Society blog this March, "the plain text of most Western state enabling acts expressly renounces state claims to federal land." Graybill goes on to explain that in requesting statehood, Montana and others explicitly agreed to disclaim all title to unappropriated lands within their borders. His teardown of the historic and legal claims made by the ALC also stresses that a transfer of public lands is patently unconstitutional given the prohibitions laid out by both the Property Clause, which gives Congress sole authority to dispose of its lands, and the Supremacy Clause, which makes the constitution and all federal statutes supreme over state ones.
"I didn't read anywhere in the Enabling Act where it says the feds would give us the land," says Montana state Rep. Rob Cook, a Republican from Conrad and staunch opponent of the transfer movement. "You'd have to get pretty fancy with some missing punctuation."
In addition to the Enabling Act, transfer proponents lean heavily on cost and revenue comparisons between state-managed and federally managed public lands. As the Bozeman-based Property and Environment Research Center stated in a 2015 report on state versus federal management in the West, "Federal land expenditures are more than six times higher per acre than state expenditures. Moreover, state trust lands generate ten times more revenue per full-time employee than federal land agencies." However, critics insist the financial burden for states in taking over management of federal lands is insurmountable and would ultimately result in selling off large swaths of public lands to the private sector. Fielder dismisses these assertions, citing proposals like her Senate Bill 274to prevent the federal government from selling off lands in Montana—as evidence of her dedication to keeping the lands public. She remains resolute in her belief that opposition rallies like the one held in the Capitol this February are just "ginning up this fear and disseminating this bad information" and that what Democrats and conservation groups say is "simply not true."
But even at a regional level, questionable arguments haven't stopped the ALC from finding dedicated allies on the right. In January 2013, not long after Ivory's bill became law in Utah, the nonprofit American Legislative Exchange Council inserted a resolution into its model policy playbook demanding that Congress "convey title of federal public lands to the states." ALEC, which has been abandoned by scores of corporate members in recent years due to increasing public and media scrutiny, named Ivory its Legislator of the Year in 2014 based on his "dedication to the ALEC principles of limited government, free markets and federalism." At the time, Ivory was an active member on ALEC's International Relations and Federalism task force. In fact, Ivory's message meshes neatly with the rest of ALEC policy primarily due to its invocation of state sovereignty and demand that lawmakers, not Congress, be the ones to assert their authority.
The American Lands Council has also attracted the support of Sen. Ted Cruz, the Texas Republican and Tea Party maven who declared his 2016 presidential candidacy at Liberty University last month. But not all of the nonprofit's connections are so contemporary. Current ALC board chairman Demar Dahl was once a prominent figure in the Sagebrush Rebellion, the very anti-government movement many critics have compared to the ALC itself. The Elko County cattle rancher has claimed publicly to be a friend of Cliven Bundy, and used Bundy's armed standoff against federal agents over unpaid grazing fees to promote the need for more local control of federal land in Nevada. Montana Rep. Kerry White, a sponsor of lands transfer proposals this session, was also tied to the Bundy conflict last year, publicly stating his intent to visit the ranch to help diffuse tensions. According to the Bozeman Chronicle, White canceled his plans after the Bureau of Land Management stood down.
Ivory has also attracted growing media attention for, as an article in the Salt Lake Tribune suggested last May, blurring the line between legislator and lobbyist. According to ALC's tax records, the nonprofit pulled in $228,043 in 2013, the bulk of it from grants and contributions. Membership donations alone accounted for $157,378 of that revenue, with dozens of counties in Arizona, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming paying between $1,000 and $25,000 into the group's coffers. Ivory is not registered as a lobbyist in Utah, raising complaints from critics that he's netting a huge payday from the very issue on which he advocates, drafts policy and votes. Tax filings show the ALC paid Ivory $95,000 in 2013.
Ravalli, Lincoln and Mineral counties all confirmed they did not pursue a membership with the ALC following Ivory's visit. Neither did Sanders, though Fielder wouldn't mind her home county allocating tax dollars to the cause.
"I wish my county would join," she says. "I think it would be a very good use of taxpayer money to have my county join. I'd be glad to pay taxes towards it."
Touchdown in Montana
Fielder's path to the Montana Senate began when her predecessor, Republican Greg Hinkle, announced in early 2012 that he wouldn't be running for reelection. Hinkle's last legislative session in 2011 had been dominated by widespread mockery and ridicule, much of it associated with his sponsorship of Senate Bill 112, the now-infamous "legalized spear-hunting" proposal. But his political beliefs and actions also raised red flags for watchdog groups and nonprofits like the Montana Human Rights Network, namely his sponsoring of a measure requiring local governments to demand coordination from the federal government on certain management issues. The concept was decried as costly and borderline unconstitutional by Democrats.
Instead of returning to Helena, Hinkle set his sights on a non-partisan race for the Sanders County Board of Commissioners. He lost by a wide margin to Carol Brooker, the Democratic incumbent who has held a seat on the commission since 1995.
Fielder prevailed in her Senate campaign, however, winning just over 55 percent of the vote for Senate District 7. She'd campaigned fairly hard, and many of her core supporters hailed not just from Hinkle's camp but from the nonprofit he'd become involved with: the Sanders Natural Resource Council. Fielder's website claimed, for a time, that she was a board member of SNRC. It's this particular tie that prompted cautionary letters to the editor throughout western Montana claiming "far-right wing political agendas and philosophies" at the root of both Hinkle and Fielder's campaigns, and landed Fielder a name-drop in a November 2012 report from the Montana Human Rights Network titled "Coordination: New name for the anti-government doctrine of county supremacy."
The concept of coordination started gaining popularity in western Montana shortly after the wave of Republican electoral victories in 2010 that swept Tea Party-minded politicians into office at various levels of government. Constructed in part around fears of federal mismanagement and the purported destructive nature of the United Nations' Agenda 21, coordination advocates call on state and local governments to invoke supposed rights granted by laws like the National Environmental Policy Act to force federal agencies to incorporate local concerns when crafting management plans. The Montana Human Rights Network claims the basic idea is "that county governments can adopt plans that contradict federal policy," adding that coordination proponents "frequently claim their version of 'coordination' is mandated by federal law."
Hinkle's unsuccessful Montana Coordination Act of 2011 is one of the most high-profile debates over the matter to date, and drew opposition from scores of groups including the Montana League of Cities and Towns, the Montana County Attorneys Association and the entire Cascade County Commission. But that January, four commissioners in Ravalli County attended a coordination training in Hamilton hosted by the conservative American Stewards for Liberty. Nearly two years later, the Ravalli County Commission unanimously approved a natural resource policy invoking its rights to coordination and outlining how the county would deal with public land managers like the Forest Service in the future.
Hinkle also attracted national attention for his sponsorship of the so-called "Sheriffs First" bill in 2011, which sought to declare sheriffs the supreme authority in their counties and require that federal employees obtain permission from those sheriffs prior to entering said counties. That bill, supported by testimony from, among others, Montana Shooting Sports Association President Gary Marbut, failed as well, but did provide the Montana Human Rights Network with what it considered another smoking gun. The group says it tied Hinkle and, by extension, the SNRC to the same anti-government, county supremacy beliefs espoused by militia organizations in the 1990s.
The most commonly cited connection between SNRC and anti-government mentality by state bloggers, citizen critics and the Human Rights Network is the nonprofit's relationship to former Militia of Montana founder John Trochmann. SNRC became embroiled in the recent debate over the Forest Service's Kootenai National Forest plan and the group's documented objection to the revised plan lists Trochmann as its chairman. According to records with the Montana Secretary of State, he's also a registered partner in the organization. Indeed, Trochmann represented SNRC throughout the public meetings on the forest plan, at times accusing county officials of not adequately participating in the process. Trochmann cited Executive Order 13575signed by President Barack Obama in 2011 to establish the White House Rural Councilin arguing that SNRC had "a seat at the table for coordination." Paul Fielder and then-Ravalli County Commissioner Suzy Foss also referenced "coordination" and the need to include local communities during their testimony at the April 30, 2014, meeting.
"Do I believe it's all about local control? Absolutely not," Montana Human Rights Network co-director Rachel Carroll-Rivas says of the coordination movement. "Quite frankly, the Human Rights Network has a multi-faceted agenda and we work on local issues of non-discrimination ordinances. Guess what? They're not supportive. So at the end of the day, is the message that this is about local engagement and things coming from the local level? Absolutely not. It's about a larger ideology."
In late 2011, Trochmann appeared on the conservative "Global Freedom Report" radio show hosted by Brent Johnson to discuss problems with federal land management in northwestern Montana. He mentioned "a little organization" called the Sanders Natural Resource Council and claimed they were "going after the Forest Service, bringing a lawsuit against them right now." Trochmann went on to assert, on the subject of grizzly bears, that "if you plug one of them and the heart stops, there will be a satellite over the top of you instantly to take your pictures and call out the game warden instantly." Asked by Johnson if the Militia of Montana was still active and supported, Trochmann answered, "absolutely. We are growing by leaps and bounds. It's nice and quiet." The interview eventually came to the subject of federal road closures, at which point Trochmann defended a county sheriff's right to arrest a federal employee and stated that several Sanders County residents would have the sheriff's back in such a scenario.
Fielder became heavily involved in the Kootenai National Forest plan debate as well, testifying in her capacity as a state senator that the federal government "did not adequately contact affected citizens and land owners." In speaking with the Indy, she stresses that the plan's revision was advertised in Missoula, Kalispell and Sandpoint. "It wasn't advertised in the communities where the national forest actually exists." Her objections to the plan, as well as its proposed amendment addressing the Northern Continental Divide Ecosystem Grizzly Bear Conservation Strategy, revolved around concerns for adverse impacts to local livelihoods, the economy, private property, public lands and "ultimately the survival of rural America." These points are reflective of the same leanings that drew her to the transfer of public lands issue and the American Lands Council. They're also why she believes many have cited coordination between various levels of government as critical to the development of land management decisions.
"I think coordination is one of those tools that some people are trying to use, a lawful tool to increase the dialogue and the responsiveness between the federal agencies and the local agencies," she says. "I don't believe it's a supremacy issue at all. It's a matter of people working with their government to try to get some better decisions that are more responsive I think to the people's interests in the area."
During a May 7, 2012, town hall meeting in Trout Creek hosted by SNRC, Fielder presented her case regarding the grizzly bear amendment alongside Hinkle and her husband. Video of the event shows her talking about permanent closures and moratoriums on new campgrounds and trails resulting from the Forest Service's plan. Local Forest Service officials responded to the event by drafting flyers beforehand disputing the allegations that the draft forest plan would close areas or restrict recreation on public lands.
SNRC also hosted the public presentation made by Fielder and Ken Ivory regarding transfer of public lands in late 2013. Despite these connections, Fielder insists she has no formal relationship or status with the group. When she included the board member position on her campaign website in 2012, she says, she was still considering joining in an official capacity. In the end, she decided against it and removed the position from her online resume.
"I don't want to join any organization, especially as an elected official," she says. "I want to make it clear that I represent my constituency, not any particular organization."
Fielder puts distance between herself and Trochmann too. She had "no idea" about his Militia of Montana background when she first met him, she says, and to this day only communicates with him "pretty infrequently." He's "a constituent in my district," she adds, one who despite his past has "a right to be involved in things."
"I think it's kind of unfortunate because his background creates a focus on him and his background rather than on the issue that I think he's trying to advocate for now," Fielder says. "The discussion gets off track on him. I don't necessarily think that's a great thing for that organization, but there's not that many people in our rural communities that are willing to step up and do work and help on volunteerism, so I guess they felt like they needed to have the help of anyone that was willing to help them."
With her Kootenai National Forest plan objections on record, Fielder has since devoted much of her time to the transfer of public lands. Last year alone, she traveled to Utah at least twice for workshops and convention appearances on the issue, carpooling there in April with Sen. Mark Blasdel (then speaker of the House), Sen. Debby Barrett (now speaker of the Senate) and Rep. Art Wittich for a joint summit of Utah, Idaho, Montana and Wyoming legislators. About one week later, she was back in Salt Lake City for the Western Republican Leadership Conference as a panelist presenting the findings thus far from the Montana Legislature's Environmental Quality Council—an assignment she used to bring Ivory before her legislative colleagues and keep the transfer of public lands issue alive throughout the 2013-2014 interim.
"I'm not a formal member, I'm not formally engaged with the ALC," she says of her relationship with Ivory's nonprofit. "It's one of those organizations that is working on an issue that I think is a really important issue, so I try to stay up to date with what they're doing, provide input and direction and just guidance when I can as far as what I think the movement should be about, what I think the issues and the priorities should be just from the Montana viewpoint."
Even so, Fielder's association with Ivory has grown increasingly close over the years. The two have appeared in radio spots together discussing transfer of public lands. Fielder's Twitter feed is full of photos of her dining at restaurants with Ivory and his wife, hanging out in the couple's Utah kitchen and rubbing shoulder with Ivory and Ted Cruz at events. The ALC has also been a source of mild scandal for her this legislative session; in mid February, her Senate aide, William Macon Richardson, was forced to step down from his position after Democratic lawmakers became aware he'd filed as a lobbyist for the ALCa blatant violation of legislative rules. Richardson had made the filing just weeks before the anti-transfer rally in the rotunda.
Jim Elliot, chairman of the Montana Democratic Party and a former state legislator, is especially perplexed by Fielder's involvement with the transfer issue and her association with individuals boasting a more anti-government lean. He recalls his last race for reelection to the state Senate in 2008, and the unwavering support Fielder and her husband offered his campaign both financially and personally. The couple helped him make campaign signs in his yard one afternoon, Elliot says. He spoke to them about trapping issues and abortion—he's pro-choice—and the Fielders appeared to agree with his stance on both issues. After his electoral defeat that year, the relationship tapered off. He began noting their increasing support for Hinkle, though they gave him no initial indication that they had political beliefs in line with SNRC. When Fielder started pushing the transfer issue, Elliot says he was "disappointed."
"I don't think she's dumb," Elliot says. "I think she's a demagogue. And she's good at it."
Nestled in the corner of Fielder's Helena office is a translucent plaque etched with the words "Keeper of the Tenth." Fielder received the award in late March from the nonprofit Montana Agri-Women in recognition of her legislative efforts to uphold the Tenth Amendment to the U.S. Constitution, which reserves to the states those powers not delegated to the federal government nor prohibited by it to the states. Karen Yost, vice president of communications for Montana Agri-Women and immediate past president of its national counterpart, says Fielder was a prime choice for the distinction during the nomination process last summer.
"We just believe that she's very ethical in what she does," Yost says. "She's very hardworking, and when she believes in something she's—I'm not going to say undaunted, but if you're familiar with the American Lands Council you know there's just a lot of negativity, and she's continuing on with it because she believes it's right. So we're in support of that."
Montana Agri-Women has no official policy stance yet on the transfer of public lands. According to Yost, the issue will be taken up by the national American Agri-Women during a symposium in Washington, D.C., this June. However, Fielder's efforts on the issue do echo the broader position of the organization that recognized her this spring.
"We do believe in being able to manage our lands," Yost says, "and as an affiliate of American Agri-Women ... we believe in less federal management and ownership and more states and private ownership."
Yet even within the ranks of the Montana Republican Party, support for the transfer of public lands seems spotty at best. Most agree that federal lands management should be a topic of serious discussion, given widespread concerns within the GOP over timber harvest, beetle-killed forests, wildfires and environmental regulation. As Rep. Rob Cook puts it, there has to be a better mechanism to address the plight of western lands. But transferring ownership of those lands to the states is not one of them.
"I can guarantee you that 95 percent of Republicans wish it would just go away," Cook says of the issue.
Sen. Pat Connell, R-Hamilton, agrees. He speaks far more highly of measures like the one he co-sponsored last session with Sen. Bradley Hamlett, D-Cascade, to allow Montana to engage in activities on federal lands deemed critical watersheds in the interests of protecting water quality. He points to the state's inclusion in a timber harvest project around Chessman Reservoir—a key water source for the city of Helena—as proof that common-sense, cooperative efforts can achieve real results.
"The state has engaged in a way that is accomplishing the fundamental goal that we were looking for, and that's to strive to get back to good management," Connell says. "To try to take over the federal lands has turned into a political hot potato that other states have promulgated, but take a look. Utah passed a law that said this has got to be done by last December, and basically the fed ignored them. Last word I had, Utah just wound up spending a batch of money and is sitting there with no results and nowhere to go other than issue statements."
The question then remains: How did transfer of public lands make it into the Montana Republican Party platform? At last June's GOP platform convention in Billings, delegates voted in favor of adopting a new plank requesting that state and federal officials and citizens of Montana "fully exert their efforts and powers to support granting federally managed public lands to the states." The resolution was "passed, approved and adopted unanimously by the Montana Republican Party" on June 21, 2014. Cook attributes the plank's passage to the "successful infiltration of [county] central committees by ideologues and single-issue individuals." Connell contests the GOP's claim that the vote was unanimous.
"I was at that party platform convention, and Steve Gibson, who at that time was a representative out of Helena, and myself were sitting together and our votes in opposition to that were not recognized by the chair," he says. "But we damn well did vote against it."
Fielder, who had given a presentation on the transfer issue for the convention delegates alongside Ken Ivory the day before the vote, acknowledges that members of her own party don't support the movement. But regardless of the characters it has attracted in Montana and regardless of the stated lack of support for a transfer from the entire left and the bulk of her own party, Fielder continues to push for the state to consider the option.
"A lot of great ideas don't start out as popular," she says. "What great idea has ever started out as popular?"