Land transfer resolution: Vague solution looks for a problem

Here the Forum takes up one of the hottest hot-button items on the legislative agenda: the transfer of federal public lands to the state of Wyoming. For the sake of balance and clarity, I have invited a major backer of the bill, Sen. Larry Hicks of Carbon County, and a natural resources attorney, Larry Wolfe, to help explain this complicated matter.

Larry Wolfe is a longtime Cheyenne resident and fan of Wyoming’s public lands. He practices energy, natural resources, public land and water law at the regional law firm Holland & Hart in its Cheyenne office, and has served on numerous boards and task forces concerned with economic development, the University of Wyoming, and Wyoming’s tax structure.

Hicks’ thoughtful essay takes us through the evolution of his thinking on how Wyoming can put its own stamp on the management of much-beloved lands, and Wolfe’s cautionary words about the potential effects of a proposed transfer, together offer broader dimensions and perspective to consider. These essays, I think, put us all in a position to discuss further the ramifications of this important question — Pete Simpson.

The ownership and management of public lands in Wyoming has been controversial since Territorial Days.

Wyoming has endured the shifting sands of federal policy from the disposition eras, when land was sold for very little or given away to settlers (and swindlers), to the current era where lands are intensively managed by the BLM and Forest Service. The proposed constitutional amendment on public lands, recently introduced in the 2017 Wyoming legislative session as Senate Joint Resolution No. SJ0003 is just the latest in the now century-old tug of war over the future of Wyoming’s vast public lands resources.

In understanding this debate, everyone needs to separate two issues. The first is the presumption in the resolution that something will occur to cause lands (and perhaps minerals) that are currently owned by the feds to be delivered to Wyoming. How that will happen is not addressed in the Resolution. It is just built on the premise, focusing on “lands granted to the state after January 1, 2019…”

The second issue, which is the subject of the resolution, is how the state will deal with the lands once they are state property.

This article focuses on the first issue, not to examine the merits of the arguments but to point out that there is no reason for the Legislature to take up the resolution in this session or likely many sessions in the future. Since the resolution is a fruitless exercise that should be abandoned there is little reason to argue about its specific wording.

As to the first issue — under what circumstances will the federal lands be granted to the state — no one knows the answer. The two most commonly discussed paths are: (1) some Western state, most likely Utah, will sue the feds under what is known as the “equal footing’ doctrine, seeking a transfer to the state of federal lands and it wins that litigation; (2) Congress and the President will pass legislation transferring federal lands to Wyoming.

Many of the substantive arguments advanced against the resolution focus on objections to paths 1 and 2. While these arguments are strong and quite legitimate, the proponents of the resolution will argue that the opposition is a bit misdirected since the resolution does not try to anticipate how the lands arrive in the state’s hands, it just happens.

But, for the opponents of the transfer of public lands to the state the first issue is vital, not from a strictly legal perspective but from a timing and process standpoint. It goes to the heart of the main objection to the resolution which is:  What is the rush? Why now?

The supporters of the resolution want to amend the Wyoming Constitution to address the possibility, which is likely quite remote, that some federal lands will be given to the state. The supporters have no idea when this might happen nor the conditions under which the lands might be given to Wyoming. They are trying to anticipate circumstances that they cannot possibly know. If you try to realistically assess when these lands might be transferred the only reasonable answer is that it will be a very long time, probably at least a decade and maybe longer. Given that fact, why should the Legislature act on this resolution in this session, when it is faced with far more pressing matters?

Long roads to land transfers

Here is why it will take at least a decade to resolve either path 1 or 2. Under path 1, a lawsuit by Utah, that case has not even been filed. The Utah Legislature set a deadline at the end of 2014 to get the lands back or the state would file suit. The state has been advised that such a lawsuit will cost tens of millions of dollars and the outcome is likely to be unfavorable to Utah.

A report from the Conference of Western Attorneys General — written by a subcommittee headed by Wyoming Attorney General Peter Michael — suggests some of the problems involved. Utah has thus far wisely refrained from pursuing litigation. But if it did file the suit, think about how long it will take. The case will have to start in the Federal District Court. It will involve lots of parties, profound legal issues, experts — the works. The case could take years at the District Court, and it would then go the Court of Appeals and then possibly to the Supreme Court.

A useful comparison may be water rights litigation between states, which as Wyoming knows from its water rights litigation with Montana, can take at least 10 years to get to the stage of a recommendation by a Special Master. And, that case started in the Supreme Court.

Also, even if the Supreme Court ruled in favor of Utah, imagine how long it will take the Federal government and the state to actually begin the transfer process.

Another useful comparison might be the 1954 school desegregation cases in Brown v. The Board of Education. It took the country more than 20 years to make progress on school desegregation and that work is still going on 60 years later. The Courts and the states will be dealing with millions of acres of federal land. That will not be done in a short time.

As to path 2 — Congressional legislation transferring the lands — while the new Administration may talk about giving lands to the states the likelihood is that it will not be a quick or easy undertaking. The resolution proponents might consider how long it took Congress to set up the military Base Closure Commission and how difficult it has been to dispose of federal lands that are relatively small in comparison to the 27 million acres of BLM and Forest Service land in Wyoming.

Of course, it is not just the people of Wyoming who will have a stake, and a voice, in this. The public lands are national resources, indeed many consider them a national treasure, and the several hundred million people who live to the east and west of Wyoming and Utah will certainly be heard in this process.

Under either of these pathways, or others, you might imagine Wyoming will have many years to craft a legislative plan to deal with these lands. There is no reason to do anything now. The Legislature will be able to draft a much better solution, which might involve a constitutional amendment or it might just need to be a statute, when it has a clearer view into what is going to happen. Speculating now may lead to either the wrong solution or a very imperfect one, not to mention all the controversy it will engender.

A million dollar appropriation

Speaking of controversy there is one thing missing from the resolution: A very large appropriation.

If the Legislature is serious about this bill then it ought to attach a million dollar appropriation to it. That appropriation would be used to pay for the public advertising and education campaign that the Legislature is going to need to mount to get this passed by the voters. A recent poll in the Wyoming Tribune Eagle in Cheyenne indicated that only about 11 percent of those polled supported the proposed resolution.

If the Legislature does not plan to conduct such a campaign, then it shows the proponents are not serious about the resolution. The opponents will spend whatever it takes to defeat this. The Legislators should recall the debacle with the proposed amendment to add out-of-state trustees to the University of Wyoming board. The Legislature passed the bill, got the proposition on the ballot and then did nothing to persuade the public to vote for it. It went down to an overwhelming defeat. Either the Legislature believes in this resolution and is willing to spend the money to see it enacted by the voters, or it doesn’t, in which case the Legislature is just trying to make a political statement.

The proponents of the resolution say that it is being proposed to protect the interests of sportsmen, conservationists, and public land users and that these groups should take comfort in the bill and support it.

These groups have a simple answer to that argument. We are not comforted. The bill is fundamentally flawed. It allows sales of public lands to private individuals if there are “exigent circumstances associated with public health and welfare.” Would selling land to fund the school system qualify?

In truth, this resolution is a lawyer’s full-employment act. Everyone will have to litigate the meaning of all the vague terms in the amendment. As just one example, how is the Legislature going to “ensure” that there is “no more than a de minimis loss or gain in value”?

Is the State Lands Office going to make that determination? Or are the parties going to submit competing appraisals?

Or is the Legislature going to hold hearings and accept the recommendation of a standing committee or special committee?

Or is the Legislature going to decide on the basis of floor debates, and will those be on a parcel by parcel basis, or on a township and range basis? Is it going to examine all the maps during the debates and decide whether the entryway to the Big Sandy recreation area has been properly valued and included — or excluded?

If the Legislature takes on this task, will it have time to do anything else, given the millions of acres it must potentially deal with? And, all those decisions will undoubtedly be litigated.

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Because the Legislature is trying to peer into the future, it cannot possibly predict what the world will be 10 or 20 years from now. There is enormous wealth in the world, wealth of such staggering amounts that someone, or some entity, could buy Wyoming or large chunks of it.

Or, as water becomes more precious, California could come to Wyoming and seek to buy the Green River watershed to the peaks of the Wind River Range, to protect California’s rights to Colorado River water. Under the resolution is California a public entity to whom lands can be sold? That is no more farfetched than Denver piping water from the Green River to the Front Range, a project actually proposed in recent years by an entrepreneur suitably named Million.

The resolution might permit this, and leaders of a cash-strapped Wyoming, with no money to pay for education, might succumb to the temptation to trade away Wyoming’s treasures.

While everyone in Wyoming can at times understand the frustration with the feds over land management policy, this resolution does nothing to address that issue and it does not advance any sensible or well-crafted land policies. The state would be far better served by tabling this Resolution until such time as we all have a clearer view of what problems we are trying to solve.