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 Hicks was born in Powell, and for the last 26 years has been the natural resource coordinator with the Little Snake River Conservation District in Baggs, where he has managed many large landscape scale restoration projects. He is currently chair of the Senate Agriculture committee, and sits on the committee that oversees the Wyoming Wildlife and Natural Resources Trust Fund.
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
When I was a child, my parents, in particular my mother, exposed me and my three brothers to the wonders and grandeur of Wyoming. At the earliest ages, we were combing the Bighorn Basin with the local rock club looking for artifacts, fossils, and geological treasure in the form of petrified wood and other interesting rocks. We spent numerous weekends digging through old refuse piles of early trapper, ranch, and homesteader dumps looking for antique bottles.
My dad led us all through the Beartooth Mountains chasing trout of every size and color, and we scaled down the granite sides of the Clarks Fork Canyon in pursuit of trophy trout. I didn’t know who owned it or how the land was managed in those days. I just knew that I loved the great wide open spaces of Wyoming where I was bounded only by my imagination.
While finishing up my tenure as a graduate student and teacher at the University of Wyoming, I came to one of those moments of confronting the harsh realities in life that many young people have to face. Do I follow my career to a place away from Wyoming, or do I stay? The opportunity to follow my academic career as an Agriculture research scientist in the Midwest presented itself and I had to make a decision.
While I agonized over my future, in the end it was simply a matter of recognizing the fact that they did not have vast amounts of public lands for me to chase elk on. So I have spent the last 26 years working with landowners, federal and state land management and regulatory agencies, conservation, and wildlife organizations in managing the natural resource in Wyoming. My story is not unique to Wyoming but bears more resemblance to the shared cultural identity that makes us call ourselves Wyomingites.
Today I have become much more sharply aware of how the place we call Wyoming has molded me as a person. I think Wendell Berry said it most succinctly … “that we and our country create one another, dependent on one another, are literally part of one another.”
Daniel Kemmis in his book Community and the Politics of Place opined that the “the politics and political culture may be shaped by its place.” I find this to be especially true for myself. To me Wyoming in so many ways epitomizes “The Last of What is Best of America,” not only as a land but as a people.
Historical context of the transfer
As I have sat through upward of seven hours of public testimony on the idea of the transfer of federal lands, I have had to ask myself what has changed in over 200 years?
The debate today has subtle similarities to the presidential election contest of 1800 between the Federalists (Hamiltonians) and the Democratic-Republican Party led by Thomas Jefferson. The question, then as is it is today, is do we want a strong centralized federal government, Hamiltonian version, or should we have the smaller state-led form of government advocated by the Jeffersonians?
Are we in the West, and particularly in Wyoming, capable of self-governance of our lands and natural resources, or do we require the paternalistic and sometimes imperialistic oversight of a national government?
Personally I believe that we in the state, with our deeply held commitments to the land we call Wyoming, have finally come to the place in time where we can manage the landscapes and our natural resources with a commitment to the broader needs of the entire United States public — consistent with environmental stewardship, multiple use, and the ability to responsibly develop those resources for our economy and culture in a fashion that is truly Wyoming.
Today there are 2.27 billion acres in the United States. If we subtract the original 13 colonies and the Republic of Texas, then at one time the United States government owned roughly 1.93 billion acres of federal lands; today roughly 640 million acres remain in federal control.
For the first century of federal land management, the nationally-accepted goal was to dispose of the lands to new state and private owners. Transferring the lands to new ownership was seen as a first step in putting them to productive use as part of the essential task of building a new nation; the sales also helped fund the federal government.
For the second century, the national goal was to apply scientific and administrative expertise to the management of remaining lands unclaimed by private or state owners. The goal was to use newly created public land agencies to manage the lands in a manner to maximize the net economic benefits to the nation over the long run.
As a third century begins, there is no similar national consensus on the best approach. The public land agencies have adopted a new goal under the rubric of “ecosystem management,” but the true meaning and the management implications of ecosystem management remain elusive at best and ever changing.
The public lands thus have been left to function without a clear purpose or sense of direction — mirroring policy confusions and a state of gridlock seen more broadly over much of the federal domain in Washington D.C. and elsewhere.
Unlike some areas of federal activity such as national defense, there is nothing intrinsically national in scope in the majority of management responsibilities of the public land agencies. In the current political environment, the attempt to impose one set of national values and management methods on a domain as diverse as the public land in the rural West has yielded agency dysfunction. The public lands today incur large federal costs while falling well short of achieving their potential economic and environmental benefits for the nation.
Federal management of the public lands has failed the test of time. Management of the lands has been neither scientific nor efficient. The old mission of scientific management has been strongly challenged — and indeed sometimes altogether displaced — by new ideas advanced by the environmental movement.
Yet, the original forms of the land management institutions created in the Progressive era, dating back 100 years, remain with us little altered. The result is an antiquated and costly system of public land management that is unsure of either its goals or its methods.
Informed observers are now approaching a consensus that public land management wastes large amounts of money while mainly serving the private interests and other narrow groups that benefit from the lands. One hundred years of public land history have shown that the public lands have seldom been managed either expertly or efficiently.
Rather, they have been managed mainly in response to strong political pressures. Under political management — and despite the possession of hundreds of millions of acres of land, and large oil and gas, coal, and other valuable mineral assets — the lands have proved to be a money-loser for the federal government. The environmental results have not been much better.
As a case in point, total federal revenues from all sources in the national forests in 2010 were $953 million. This figure comes from the book by Robert H. Nelson, The New Holy Wars: Economic Religion vs. Environmental Religion in Contemporary America.
As he details, this total national forest revenue figure compares with total Forest Service spending in 2010 of $6.1 billion, including around $5 billion for direct management, fire prevention and suppression, and other national forest related activities. That is to say, the ultimate net cost of national forest management borne by American taxpayers in 2010 was around $4 billion — this on lands representing nearly 10 percent of the land area of the United States and often containing valuable natural resources.
These large deficits are being incurred at a time when worldwide demands for minerals, agricultural products, and other commodities has been soaring, driving up resource prices and in other places filling the coffers of nation states that are rich in natural resources. In 2002 the Forest Service lamented its own fate in an internal study, “The Process Predicament,” noting that it was beset by a “costly procedural quagmire” in which perhaps 40 percent of the direct work at the individual national forest level was now taken up in “planning and assessment” — paperwork activities which in the end often led nowhere.
The overall result, as the agency characterized its own circumstances, was that “unfortunately, the Forest Service operates within a statutory, regulatory, and administrative framework that has kept the agency from effectively addressing rapid declines in forest health,” including increased costs for fire suppression to deal with the development of potentially explosive woody fuel buildup on many Western national forests.
If restoring an ecology requires effective planning and skillful implementation, this environmental goal is just as likely to be a casualty of the 2000s.
Daniel Kemmis wrote in 2007 that “our public lands, the vast majority of which are in the eleven western states and Alaska, are burdened by a steadily more outdated regulatory and governing framework.”
Kemmis spoke for more and more Westerners in declaring that they often experience the public land system as a “frustrating, alienating bureaucratic paternalism.” Even if some financial sacrifice perhaps would be required, the West should unite “behind an agenda of ecologically responsible devolution of authority” that would “transfer responsibility for public lands to western institutions” grounded in actual local western democratic control, Kemmis argued.
Among the leading national commentators on the public lands, there is surprising agreement. Professor Sally Fairfax of the University of California, Berkeley, America’s foremost political scientist in studying the public lands, observes that the creation of the national forests established “a relationship between the national government and the western states that is usefully described as colonial.”
The current management practices of the U.S. Forest Service are so “maladapted . . . to current social and political realities,” reflecting the past influence of “explicitly anti-local ideas of centralized, top-down management” inherited from the Progressive era, that she suggests a radical public land system reorganization will be necessary.
Misplaced trust in federal retention of public lands.
Since the inception of our nation the Federal government has disposed of approximately 77 percent of all the lands it has owned, the vast majority going into private ownership, with lesser amounts transferred to either tribal or state governments.
Since 1990 alone, the Congressional Research Service reports, the federal government has accomplished a net reduction of its public lands holdings by 23.5 million acres with the largest amount of those lands being transferred to tribes and to a lesser extent states.
This amount of acreage is equivalent to disposing of 78 percent of all the public lands in Wyoming. Contrast that with the State of Wyoming, which since its acts of admission, has disposed only of 17 percent of its state school trust lands.
Since 1997, the state has adopted a policy that “Trust lands should remain a substantial component of the state’s assets with a focus on protecting the corpus for multiple generations.”
Translated, this means the state should maintain approximately the same amount of acreage.
In Wyoming the BLM has disposed of a little more than 89,000 acres since 1990. As recently as 2016, tens of thousands of acres of previous multiple use public lands in the West were transferred to tribes via executive order thereby eliminating the access and use by the public.
Not only has the federal government disposed of federal lands, it has exceedingly changed the management description on millions of other acres that were previously under a multiple use management prescription to management regimes of very limited use and often with more restrictive access to the general public.
In 2016 over 1.5 million acres of previously designated multiple use BLM lands in the West have been designated as national monuments with increased restriction on how the public can use those lands, and the elimination of many types of industrial and other economic use of those lands. The loss of economic opportunity use of these newly designated monuments often cripples local communities’ ability to sustain themselves, and reduces the inflow of cash into the federal coffers.
The year 2016 was a harbinger for increasing federal paternalism and the usurpation of states’ legitimate right to manage the non-federal trust wildlife species on public lands and waters for hunting and fishing. From grizzly bears in Alaska to Red Snapper in the Gulf of Mexico, federal agencies are using rule-making to eliminate the opportunity to hunt and fish on public lands and waters.
In the summer of 2016, the U.S. Fish and Wildlife Service, through rule-making, eliminated the State of Alaska’s authority to manage grizzly bears and wolves on over 73 million acres of public lands in Alaska.
In Wyoming we have spent more than $50 million of state funds and 10-plus years crafting a state comprehensive and collaboratively-developed sage grouse management plan, the first in the nation. Subsequently the U.S. Fish and Wildlife service approved Wyoming’s plan and determined the sage grouse did not warrant listing under the endangered species act.
Within months of this landmark decision not to list the species, the federal land management agencies released their own plans that were significantly more restrictive for most all aspects of public lands use — thereby undermining Wyoming’s plan.
Conversely to Wyoming’s planning process and in the typical fashion of a federal land management agency, their plans were not developed in a collaborative effort. Add to this in recent years efforts of the Forest Service Region 4, specifically the Bridger-Teton National Forest’s, attempts to supplant Wyoming’s collaboratively developed bighorn and domestic sheep management plan that has been in place for over a decade, and you start to see an alarming trend of land management agencies usurping the authority and ability of the state to manage our wildlife for hunters.
The future of hunting, fishing, and recreation on public lands
Less than 12 percent of the entire U.S. population hunts and fishes. This number has been on the decline for decades and there is little reason to assume that the trend will not continue. As our nation becomes more urbanized and technology driven, it is less likely that people will spend time in the wide open space of the public domain and when they do it will only be for high-use destination areas like our national parks or developed recreation sites like ski areas.
The vast amounts of public lands comprising the endless miles of sagebrush steppe, arid desert, or remote forest that lack any amenities and are difficult to access will not be cherished by our general population. Society is changing and increasingly becoming urban with less, not more, connection with the outdoors.
This has significant ramification for the long-term probability that our national government will retain the public domain in perpetuity. Once our largely urban population realizes that selling off those remote and less desirable assets of the public domain can provide funds for more programs and services in large urban areas, they are likely to demand the sale of those less desirable western arid lands in places like Wyoming.
Even more likely is that our urban neighbors may just want to divest themselves of the western public lands because they are already costing them goods and service from the federal government. In Wyoming the Forest Service cost the county’s taxpayers $44 million a year to administer forest lands. Taxpayers from other parts of the nation are principally responsible for providing the necessary revenues to support the rural West.
Much misinformation has been put forth regarding whether the State could ever afford to administer the federal lands (excluding the national parks and monuments — these would stay under the administration of the national government under any proposal for transfer). While the most recent data available, from 2014, shows the forest lands are net losers in Wyoming, by contrast the BLM generates $1.1 billion in excess revenues from BLM lands in Wyoming, after all expenses are taken out. That is according to the report done in 2016 for the Legislature on public lands management, by Y2 Consultants. That net revenue from BLM lands is unique to Wyoming compared to most of the other public lands states in the West.
If Wyoming acquired the federal lands, it would yield approximately a 33 percent net increase to our general fund budget — after management costs are deducted. That figure assumes we could acquire both the subsurface of the federal holdings, as well as the surface. Federal budget-watchers are likely to resist that move, since minerals generate good revenue. However historical precedent has already been set. All federal lands ceded to states upon their act of admission to the union included the subsurface as well.
The real dichotomy here is that in Wyoming the state could afford to manage public lands, but West-wide the federal government cannot. The federal government today is if anything in even worse long-run financial shape than state and local governments. Its credit-card borrowing habits, denied to the states, cannot go on indefinitely. By the end of the year the federal debt will be more than $20 trillion in debt and we are still borrowing between 25 to 30 percent of the money we need to run the federal government.
This cannot sustain itself. It’s not feasible to tax our way out of this debt quagmire our national government has put us in. If you lack the ability to tax sufficiently then you sell assets. The single largest asset left in the federal coffers is the 640 million acres of federal lands. For the first 100 years of our existence, before there was a federal income tax and corporate taxes, our national government balanced the books through the sale of federal lands. We would be extremely foolish as a people to think that history will not repeat itself: it usually does.
What would a federal land transfer to the states look like?
There are potentially two mechanisms for how the federal government could or would have to transfer lands to the states. The first of those is through an act of Congress. It’s worth noting that just recently the House of Representatives passed a bill to move this option one step closer to happening.
The second would be a legal challenge through the Supreme Court of the United States. Some suggest this challenge — unlike the Sagebrush Rebellion of the 1980’s which was based on the Tenth Amendment to the U.S. Constitution — could possibly prevail under the Equal Footing Doctrine.
James Madison insisted that “the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.” Since the admission of Tennessee in 1796, Congress has included in each State’s act of admission a clause providing that the State enters the Union “on an equal footing with the original States in all respects whatever.” The argument here would be that the states east of us had all or most of the federal lands within their boundaries disposed of. This does not include, of course, the 13 original states and the Republic of Texas, which had no “federal lands.”
It was not until 1976 that Congress changed the longstanding constitutional law, as understood under the “Equal Footing Doctrine,” that said the federal government always intended to dispose of excess lands. With the passage of the Federal Land Policy and Management Act (FLPMA), Congress changed that to a policy of the federal government retaining lands.
Regardless of the mechanism, if a transfer were to happen, it would likely take several years to unwind the federal bureaucracy that currently administers the federal lands. Because this is a Western issue and not just a Wyoming issue, the transfer of federal lands could potentially occur even without Wyoming being an active participant in the policy debate.
If a federal lands transfer occurred what happens then
It is not only ranchers and miners but also hunters, hikers, and many other types of recreational users who have had open access to the public lands for many decades. These groups perceive this access as a matter of “right” that cannot simply be abrogated as a result of a change in government ownership, from federal government to state government.
Any plan that would result in the dispossession of public land users of their de facto rights would be a political non-starter. So if transfer occurred, what political and legal avenues are available to secure those lands for continued public access? Within the legal framework the most powerful laws any state has available is the state constitution. Article I Section I of the Wyoming constitution states, ‘”All power is inherent in the people…” If the federal government ceded the federal lands to the State of Wyoming, the method to protect in perpetuity the public access and continuation of those activities that we the people of Wyoming feel are right and proper, should be through amending our constitution.
Through our constitution we can bind the hands of our legislature, governor, and future generations of Wyoming residents. The constitution can only be changed by a vote of the people. Any amendment to the Wyoming Constitution should state that if Wyoming obtains federal lands through a transfer, those lands would be managed under four principles which we should outline in our constitution. Those principles are as follows:
- Acquired lands would be managed in perpetuity as “State Public Lands.” All activities currently on federal public lands would be retained for the “state public lands.”
- The acquired lands would not be managed as “Wyoming State School Trust Lands” are managed now.
- All lands would be managed under a prescription for multiple use and sustainable yield.
- There would be no net loss of “State Public Lands.”
- All trades, swaps, transfers, sales and acquisitions would only be done where public access would be maintained or improved. Net result of such actions would have to be retained or improved access for recreation and a reasonable regulatory climate for the industries that support our tax base.
Without a transfer, is there a better way of managing federal lands?
If public lands remain in federal control, two goals should be paramount. Privatization should not be an option. The first goal should be to raise greater revenues from and to reduce sharply the bloated costs of the current federal management of the public lands, thus contributing to the resolution of the nation’s fiscal problems.
Second, this must be done in a way that effectively promotes national economic and environmental goals and also meets basic standards of fairness to historic users and other involved parties, such as national taxpayers and public land users.
History has taught us that unless we address the underlying issues that instigated the Sagebrush Revolution, the War on The West, and now the struggle over federal lands transfers, different portions of our society will continue to wage war upon each other, and conflict will destroy us. Our current federal laws and land management practice are structured so that anybody, through the use of the legal and regulatory frame work, can either completely stop or create costly delays — sometimes approaching decades — for any activity on federal lands.
The current process of federal lands management is inadvertently but perfectly designed for us to wage war on ourselves and then have the third party, the “federal agency,” determine who wins and who loses. In this process of polarizing management, little gets done except to elevate the rhetoric and vitriol which further exacerbates the animosity of the warring parties.
Let’s call this “the failed model of third party division and factionalism.” As Kemmis says, the natural outcome of this type of management regime results in a “waning confidence in our ability to govern ourselves.”
James Madison in the Federalist papers penned the following: “The latent causes of factions…[are] sown in nature of man; and we see them everywhere brought into different degrees of activity according to the different circumstances of a civil society …It is vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good … ”
“The inference to which we are brought is, that the cause of the factions cannot be removed, and that relief is only to be sought in the means of controlling the effects.”
So in effect, if the current federal “failed model of third party division and factionalism” has not been successful in controlling what Madison called “factions” and we the people as statesmen have not been “able to adjust the clashing interest for the public good …,” then, what’s next, just maintaining the status quo? Because of the systematic failures at all levels shouldn’t this leave us asking ourselves, is there a missing middle piece that might solve this problem?
Cooperation is often overlooked as the “missing middle piece” method of land management versus the regulatory spoilsmanship and third-party division and factionalism methods currently employed.
This is not a new concept in Wyoming, and in the last three decades Wyoming has on numerous occasions pioneered and successfully implemented cooperative and collaborative efforts, leading the way in the West. In the 1990’s Wyoming efforts paved the way for Coordinated Resource Management (CRM) as a land management tool and philosophy.
In the 2000’s, under the direction of our senior U.S. Sen. Craig Thomas and Gov. Jim Geringer, again using the collaborative process, developed the only collaborative plan in the United States to manage bighorn and domestic sheep on our federal lands.
And in this decade, Wyoming led the nation in developing a collaborative-based sage grouse management plan that included millions of acres of federal lands.
Maybe “we” can learn from our own history for a path forward. Daniel Kemmis in his book Community and the Politics of Place put it this way: “But what we do depends upon who we are (or who we think we are). It depends, in other words, upon how we choose to relate to each other, to the place we inhabit and to the issues which that inhabiting raises for us.”
I wish I could take credit for much of what is used in this article, I cannot. Much of the information in this article is directly from Daniel Kemmis’ Community and the Politics of Place. Mr. Kemmis was born and raised on a farm in eastern Montana. He is a graduate of Harvard University and the University of Montana School Of Law. He has formerly served as mayor of Missoula, Montana (1990–1996), speaker and minority leader of the Montana House of Representatives (1983–1985) and director of the Center for the Rocky Mountain West at the University of Montana. I also used information and quotes directly from work by Robert H. Nelson. Nelson is a Senior Fellow at the Independent Institute and his latest book is The New Holy Wars: Economic Religion vs. Environmental Religion in Contemporary America. He is also a professor of environmental policy in the School of Public Policy at the University of Maryland. Much of the statistical and numeric data came from the Congressional Research Service Report # R42346, Federal Land Ownership: Overview and Data (2014) and the Study on Management of Public Lands in Wyoming, Y2 Consultants, Jackson, Wyo. Nov. 2016. — Larry Hicks