Tracking Utah’s trickiest legislator
There are good and not-so-good things that happen in our state legislature. With over 1,200 bills (1,000 more than in New Mexico’s legislature, for example) time to carefully study each and every bill is limited. Many of the not-so-good bills come at the hands of Kane County Rep. Mike Noel who is always cooking up some new scheme that usually involves public land or water — and in the meantime apparently looking out for his best interest as is made clear in a piece by the Western Values Project. Two bills of his are of particular concern this session: HB135 (water) and HB136 (public lands).
HB136, the Federal Designations bill, was heard in the House Natural Resources, Agriculture and Environment Standing Committee Feb. 6. I listened to the entire hearing on the bill and was amazed at what I heard from Rep. Noel and others. Noel’s bill aims at controlling local governments and how they advocate for federal protections on lands in their areas. The issue has generated much passion such as that surrounding the Bears Ears National Monument designation. The bill would affect those who support federal land designations but apparently not those who would oppose. Noel says it brings “transparency” to the process, but I wonder.
One thing I found particularly galling was that those who testified during the public comment period were required to take an oath that their testimony would be truthful. This is the oath they had to take: “Do you solemnly affirm that the information you shall give in this meeting shall be the truth, the whole truth, and nothing but the truth under the penalties of perjury?”
One committee member, Rep. Susan Duckworth (who ultimately supported Noel’s bill), challenged this oath requirement, but the committee chair responded that all legislators are already required to take an oath. However, this is the oath they take as far as I am able to determine: “I do solemnly swear [or affirm] that I will support, obey, and defend the Constitution of the United States and the Constitution of the State of Utah and that I will discharge the duties of my office with fidelity.”
I’m not going to get into a detailed analysis of the difference between these two oaths, but there are obvious differences just in the wording. As for “truth” and defending the Constitutions of the United States and Utah, we have a Supreme Court that has been arguing about what the U.S. Constitution means almost since its creation in 1789. So perhaps “truth” is in the eye of the beholder. There’s also no mention of “penalty of perjury” in the legislators’ oath, so it seems to me that the citizens who testified Feb. 6 were held to a very high and unnecessary standard. The committee chairman noted, when challenged by Duckworth, that the topic of the bill is fraught with emotion and so this was necessary to keep comments accurate and truthful. Does that just apply to the public?
I have sat in committee meetings during which legislators have clearly said things that were not true. One instance in particular was at a committee meeting a couple of years ago during which Sen. Stuart Adams was explaining his water bill but omitted — either purposely or not — some key information that I mentioned in my public comment that day. My information was verified by the legislative analyst who was present and who was asked by the committee chair to verify. So the point is that legislators are not above altering a presentation of their bill to meet their ends, or perhaps making an innocent mistake (giving Adams the benefit of the doubt!). The public should not be held to a higher standard than these legislators are.
Whether this oath requirement made those who would otherwise have testified more skittish I do not know. But I do know that there were only a handful who testified, and if the issue is so fraught with emotion, you would think that more would have spoken for or against Noel’s bill.
As for honesty on the part of legislators, I found it interesting that the Utah School and Trust Lands Administration, or SITLA, had requested to be exempted from Noel’s bill. When asked, Noel stated that SITLA is apparently constrained in its activities because of the patchwork nature of its state lands. Given what I’ve seen in Washington County and SITLA’s ability to develop its land, I’d say that’s not much of a problem! However, while Noel was making the point that SITLA is constrained, he said nothing about this particular part of the bill. Specifically with regard to SITLA land in our county, the bill reads: “Notwithstanding Subsections (2) and (3), the Legislature approves all conveyances of school trust lands to the United States government made for the purpose of completing the Red Cliffs National Conservation Area in Washington County.”
Why did Noel fail to mention this when he was discussing SITLA at the committee meeting? Who knows? Was his answer about why SITLA has been exempted “truthful,” or was he just obfuscating? But given my experience with Noel, there was a reason behind it that he didn’t want to explain in public or have on the record. Why did no committee member ask for further explanation? No legislator on the committee is from Washington County, so I suppose no interest existed. However, that said, had there been a Washington County legislator on the committee, I would guess they would not have asked either since they would probably support the land transfer. Ever since Red Cliffs Desert Reserve (now Red Cliffs NCA) was formed, efforts have been made to buy or exchange the private and SITLA inholdings that remain in the area. SITLA’s more than 6,000 acres of land are just above the exploding Green Springs area where the first non-federal-land leg of the Washington Parkway is under construction. It may be a good thing to have this exchange completed and get the property officially in the Red Cliffs NCA so that development pressures do not create additional challenges. That seems to be why SITLA wanted to be exempted, or it would not be so clearly stated in the bill. So it seems obvious that Noel should have addressed that in his answer.
Committee chairman Stratton was the person who asked Noel about the SITLA exclusion and asked about several other aspects of the bill, but the questions and answers sounded very canned and rehearsed as if Stratton was playing Noel’s little game with him.
During the committee meeting, Willie Grayeyes, chairman of the Utah Dine Bikeyah Board, testified against Noel’s bill. After Grayeyes’s testimony, Mike Noel jumped in to remind the committee that the Dine Bikeyah Native Americans organization (made up of five tribes including Navajo, Hopi, Zuni, Ute Mountain Ute, and Uintah Ouray Ute) receives funding from environmental groups. Noel provided no details or “proof” to verify this accusation. Why was he allowed to get away with such an accusation? What about his oath to “discharge the duties of my office with fidelity”?
I was able to find that the David and Lucile Packard Foundation contributed $100,000 to Dine Bikeyah in 2017 but did not find evidence of contributions from “environmental” groups specifically. The Packard Foundation funds a wide variety of causes. But perhaps more to the point, where does Noel’s funding come from? He’s supposed to be representing all constituents from Kane County, many of whom value public lands and want them held and managed by the federal government.
A review of Noel’s official campaign financial reports indicates that according to disclosures.utah.gov, he received about $108,000 in contributions from 2010 to 2016, 74 percent of which were non-individual contributions but rather business/organization/agriculture/political contributions. In fact, only 26 percent were from “individuals” — $17,500 (63 percent) was Noel’s own money! Contributions from energy-related businesses — some as far away as Texas, Kentucky, and Tennessee — make up 29 percent of the non-individual contributions. While he’s willing to accuse Grayeyes of heading an organization that’s funded by “suspicious” entities, Noel gets plenty of funding himself from what some might consider “suspicious” entities, and his efforts to secure public lands for energy development certainly show his fidelity to that.
In an attempt at fairness, I compared Noel’s information to Rep. Joel Briscoe’s financial reports. Briscoe is one who is willing to challenge Noel head on in spite of Noel’s leadership of the powerful Rules Committee, which apparently scares other legislators and keeps them in line. Briscoe’s 2010–16 financial reports show that he received approximately $72,000 during the same period as Noel’s $108,000. However, 38 percent of those contributions were from individuals, of which he provided about 5 percent personally. So I guess one could ask, “To whom are these two legislators more beholden when doing their legislative work: individual citizens or other major contributors?” Briscoe’s largest non-individual contributions fell in the sub-category of “education” at 13 percent.
Also interesting is that there is no 2017 financial report on file for Noel, but Briscoe’s 2017 was filed by the Jan. 10, 2018 deadline as required per this website. Why is Noel’s 2017 filing not available? Too busy pursuing his public land and water causes to do his filing appropriately? Was Noel busier than Briscoe, who was able to get his report submitted in a timely manner?
Noel’s bill, HB136, attempts to wrest control over land decisions from local government entities and seems to fly in the face of his and others’ repeated admonitions that “government closest to the people is the best” government. Apparently, that does not hold true when local decisions involve public land matters which Noel and others feel are best left to “wiser” state decision makers.
HB136 passed out of committee on an 11-to-1 vote. Briscoe voted against, but his Democratic cohort Duckworth voted to move the bill and seems to have been aligning herself with Republicans on more than this one occasion.
Then there is his HB135, titled “Extraterritorial Jurisdiction.” It started as a bill to help control Salt Lake City’s jurisdiction over areas that Noel feels should be out of bounds when it comes to water decisions. He noted that some decisions have had impacts on necessary projects that can be held up unnecessarily. The original focus of the bill dealt with cities of 100,000 or more people controlling land-use decisions outside municipal boundaries determined by water sources or points of diversions and those decisions sometimes conflicting with property owners who don’t agree with the decision makers. There’s more to it than this, including surplus water contracts, and it’s all very complicated.
The original version of the bill seemed focused on the Wasatch jurisdiction issue. Then Noel offered a substitute bill that kept the same title but added extensive text regarding a “Special revenue fund — Creation — Deposits” section that beginning Jan. 1, 2020 would allow money to be distributed to a fund to implement clean drinking water projects. One dollar per billing cycle would be added to customers’ accounts, and 25 cents from that money would be diverted to the Water Infrastructure Restricted Account, or WIRA, established in 2015 to fund the Lake Powell Pipeline and Bear River Project. Why Noel would want to muddy up his bill with the LPP and BRP is anyone’s guess, but it seems to me that he was just trying to sneak more money through, hoping there would be little opposition.
There was much discussion around the funding portion of the substitute bill. Noel tried to convince the committee that it is a good idea for all Utahns to help pay for projects such as the Lake Powell Pipeline because there are many second homes in Washington County and Kane County, and those who don’t already have second homes there want to have them in the future. Certainly, if that is true this area will be overpopulated sooner rather than later, and no amount of water sent our way will solve the problems created by that in the future. He also used the Salt Lake City Olympics to lend support to his point that we should all be paying for southern Utah’s water because he, as a Kane County resident, paid taxes to help that but did not benefit. It may be that many have paid for state projects and events in the past, but that does not mean, given the challenges facing the Lake Powell Pipeline, that we should all be dragged into paying for it.
Briscoe challenged the bill directly and forcefully in the Feb. 16 House Natural Resources, Agricultural and Environment Committee meeting. Besides questioning Noel directly on several issues, particularly the funding, Briscoe moved to have the committee hold the bill. Helping Briscoe’s effort was a request from the state’s Executive Water Task Force, a group that felt this bill and two other pieces of water legislation should be held for further review.
Noel challenged the idea that the state’s Executive Water Task Force, or EWTF, the group that advised holding his bill, should be making decisions better left up to Utah’s politicians regarding water, even though it was legislators who were voting on his bill. It is true that the EWTF is a volunteer group created about 15 years ago that brings those interested in water from various entities together to discuss water issues and make recommendations. It is not officially a “public body,” but the members come from a variety of groups. Whether they should have the influence they did on HB135 can be debated, but many who made public comments referenced EWTF’s recommendation to hold the bill, and apparently that sufficiently influenced the committee. The committee deserves credit for voting unanimously to hold the bill.
Needless to say, Noel was not happy with the outcome and commented after the vote that there is time left in the session to work on this bill and that he would be “talking” — code talk for “arm twisting” in Noel’s vernacular — with those who voted against moving the bill out of committee. Those who voted against moving the bill include Reps. Briscoe, Chew, Duckworth, Hawkes, Owens, Sandall, and Watkins. Citizens who are concerned with efforts such as Noel’s to stash away our tax dollars for unnecessary projects such as the Lake Powell Pipeline and Bear River Project would do well to contact these legislators and thank them for stopping such efforts.
This gets to the heart of asking the public to take an oath when perhaps it’s legislators such as Noel who should take a new and perhaps more specific oath. It’s clear from this HB135 change that Noel was trying to slip in a funding mechanism for the proposed Lake Powell Pipeline under the radar. Even with the oath he has already taken, is this “discharging the duties of his office with fidelity” as required of legislators?
So what are citizens to do? Legislators like Noel do not give up. He will continue to push to get HB135 and HB136 through. HB136 will attempt to chill free speech at the local and county level while HB135 will continue to take tax money that could be used for other worthwhile and truly necessary purposes and direct it at expensive and unnecessary water projects. Even as I finish and submit this opinion piece, Noel has already rescheduled his HB135 for another House Natural Resources, Agriculture and Environment Committee hearing Feb. 21. Citizens can continue to contact their legislators and speak out. What we need are clean bills rather than bills such as HB135 that hide major water project funding under the guise of another topic. Giving up is never the answer for citizens, either. The legislative session goes to March 8. Hang in there folks!
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