Lawmakers weighing study of public lands transfer in 2021

CHEYENNE – On the final Friday of the 2021 Legislative Session, members of the Joint Agriculture Committee met to map out goals for the coming months. 

There was talk of state forest health, concerns about trespass law and worries about the thousands of wild horses inhabiting the western reaches of the state. 

But lawmakers also raised the possibility of starting another conversation before the next session, one that has been churning in the minds of many western lawmakers for a half-century: the feasibility of Wyoming taking over a large share of the more than 30 million acres of federal lands within its borders.

That proposal, which was brought to the committee by Rep. Robert Wharff (R-Evanston), would be accomplished through a process similar to one outlined in a bill he co-sponsored with the committee’s co-chair, Rep. John Eklund (R-Cheyenne). House Bill 141 – Transfer of federal lands called on the federal government to transfer all federal lands (minus national parks or certain historic sites) to Wyoming’s control for profit and preservation. It never received a hearing. 

Wharff, a longtime advocate for state primacy in wildlife management decisions as former director of the Wyoming Sportsmen for Fish and Wildlife, told lawmakers Friday that Wyoming is being “hammered” by the Biden administration, and needed to forge its own destiny. 

“This is the second time in my brief history in this state where I’ve seen a presidential administration basically attacking what I believe is the backbone and heartbeat of our country and state, and that is our economic driver, the oil and gas and the coal industry,” Wharff said. “And I do think it begs the question: if they’re going to continue to attack our economy, we need to figure out a way to fund our state and local governments. And that’s always been done by having the ability to develop our own resources.”

Several members of the committee – including Eklund – appeared to express an interest in the topic and, if approved by Management Council, could explore the feasibility of Wharff’s proposal ahead of the 2022 legislative session. 

The topic, however, is not a new one to Wyoming — lawmakers have brought it before the Legislature in several different iterations — and it faces what appear to be steep challenges. Experts have said the state cannot compel such a transfer without a Congressional act or successful lawsuit, and studies have concluded that the management would be too onerous on the state.

Roots of the movement

Pushes to take over federally owned lands in western states began roughly a half-century ago as a response to the passage of federal laws like the Wilderness Act of 1964 and The Federal Land Policy and Management Act, or FLPMA, in 1976. Where federally owned lands were once managed for profit, FLPMA altered the traditional functions of agencies like the Bureau of Land Management to consider the intangible benefits of public land ownership as well as their potential for uses like mining, drilling and grazing.

The backlash to that grew into a movement often called the Sagebrush Rebellion. Conservative activists sought more control over federal land in their states. It has since morphed into an effort to control the management of endangered species and make other land-use decisions.  

For decades, Wyoming’s leaders in Cheyenne and Washington have fought the federal government for control of wolf and grizzly populations in the Greater Yellowstone Ecosystem and for a greater say on federal property in Wyoming. Roughly half of all the land in the state is federal, belonging to all Americans.

The momentum behind the takeover in the West has persisted in recent decades, with states like Utah and Nevada weighing legislation to sue the feds for control of those lands. 

“There is a lawsuit ready to go,” Marti Halverson, a conservative activist and a former state legislator, told lawmakers in testimony on the proposal Friday. “It is fully funded by one of the western states. And I think if they saw Wyoming taking on this subject over the interim, they would be encouraged to bring this lawsuit forward.”

Limited success

Though the debate over public lands in Wyoming is long-standing, the most serious efforts by the Legislature to gain control over those lands have primarily unfolded in the past decade, with limited success.

After a government shutdown closed numerous national parks to the public in 2019, Sen. Charlie Scott (R-Casper) brought legislation proposing that state government could temporarily operate federal facilities during government shutdowns. That bill passed the Senate before being defeated in a House committee.

Before that, Wyoming lawmakers introduced a number of bills looking at the topic with varying success, including House Bill 228 in 2013, House Bill 35 and Senate File 41 in 2014, House Bill 209 and Senate File 56 in 2015, and House Bills 126 and 134 in 2016. The most contentious effort may have been the 2017’s Senate Joint Resolution 3 – Public lands-constitutional amendment, which some feared would lead to the eventual privatization of public lands in the West.

Then-Senate President Eli Bebout (R-Riverton) later killed the bill — which called for a statewide vote to change the Wyoming Constitution — under immense public pressure.

Experts working at the behest of the Legislature have studied the concept of Wyoming taking over federal property within its borders before, with the consensus being that Wyoming simply can’t afford the immense obligations of managing the land. While proponents have argued the freedom to develop the land would allow the state to generate revenues necessary to cover the cost of managing it, a government-sponsored study several years ago concluded that Wyoming did not have the infrastructure or ability to sufficiently manage the entirety of those lands on its own.

“Management of federal public lands is an incredibly complex puzzle of interwoven and sometimes conflicting pieces,” the report read. “We believe the resources of the state would best be utilized if directed at tackling smaller pieces of this puzzle.”

Past critics of the land transfer have also pointed out that Wyoming cannot simply compel the federal government to hand over federal land through legislation. Others have said such handover would require either Congressional action or a successful lawsuit. A study conducted on behalf of attorneys general across the west in 2016 cast doubt on their legal standing in such a case.

A persistent idea

Polls have shown a majority of Wyomingites – 53% — to be opposed to the transfer of federal lands to the state.

“It’s just hugely unpopular with the Wyoming public to pursue transfer of federal lands,” Stephanie Kessler, a senior conservation advocate for the Wyoming Outdoor Council, said. “And that’s been demonstrated, year after year after year.”

But advocates of the idea, like Wharff, believe that a balance can be struck between conservation and development.

“We are a remote state,” he said Friday. “But I think our state could have a lot more growth if we had the ability to develop more of our lands. Believe me, I am a sportsman’s advocate. I love hunting more than just about anything. But I think we can do both.”

The makeup of states and the federal government agencies in regards to public land can create a divide, said Jess Johnson, the government affairs director for the Wyoming Wildlife Federation.

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“There is always going to be a disconnect,” she said. “We’re asking one seat of government to make laws and rules for a very culturally diverse country. And those laws and rules have to be broad. They have to let every voice in. Sometimes I think that feels incredibly unfair for the folks who are living in a place where whatever decisions are being made affects their backyard.”

The idea is that everybody has access, Johnson said, becomes a sort of great equalizer. “But I think what we fail to realize is that when we look at things like the multiple use mandate, that means that your voice is equal to other voices. Not more important. Not ‘more special than.’ Equal to. And so sometimes when the other voices have more needs — maybe that’s an endangered species or others — your voice comes second.”