A freshman state lawmaker says the federal government must obtain the consent of the Wyoming Legislature to acquire more property — even private property from a willing seller — in the state. Legal experts say the argument smacks of debunked legal posturing in a long-simmering fight against federal land ownership and management in the West.
Sen. Bob Ide (R-Casper) criticized the U.S. Bureau of Land Management’s 2022 acquisition of the privately held Marton Ranch property in Natrona and Carbon counties, in a May 3 letter to the agency’s Casper Field Office. The U.S. Constitution and federal case law, Ide wrote, gives the state Legislature authority to approve or disapprove of land transfers to the federal government, as well as whether to grant the federal government “exclusive jurisdiction” to dictate management over lands it acquires in the state.
“The role of the Wyoming Legislature in relation to federal land transfers is based upon the fundamental principles of federalism,” Ide wrote. “Unless the federal government can show a constitutional grant of authority that preempts the state’s involvement, the Wyoming Legislature retains the authority to decide whether to authorize land sales and transfers to the federal government.”
In the 3-page letter — printed on Wyoming Legislature letterhead and distributed by Ide as a press release — the lawmaker cited the Enclave Clause of the U.S. Constitution and several U.S. Supreme Court opinions to make the case that the BLM’s purchase of the Marton Ranch was flawed and therefore the federal agency’s management of the property is limited.
“It appears as though the BLM will accept public comment and move forward with the land transfer,” Ide concluded in his letter. “Therefore, the federal government should be legally prevented from exercising exclusive jurisdiction over the land once officially acquired, leaving the State of Wyoming to regulate the land as though it were owned by any other ordinary proprietor.”
The sale of the privately held Marton Ranch property was completed and announced by the BLM on June 2, 2022.
The nonpartisan conservation and advocacy group Center for Western Priorities described Ide’s claims as “hogwash.”
“The states cannot tell the federal government what to do with federal land,” Western Priorities Deputy Director Aaron Weiss said. “Nor do states have any standing to tell private landowners who they can or cannot sell their land to.”
The language, tone and reasoning of Ide’s letter “is reminiscent of the Sagebrush Rebellion,” University of Wyoming College of Law Associate Dean Sam Kalen told WyoFile, referring to the decades-old movement to transfer public lands from the federal government to the states. Case law has affirmed the federal government’s authority to own and manage lands it retains and acquires, Kalen said.
Federal authority, obligations
While states have broad authority to negotiate the sale of state-owned properties to the federal government, there’s little that states can dictate when it comes to a private-to-federal deal, according to Kalen.
The Federal Land Policy and Management Act of 1976, or FLPMA, is the overriding law guiding how federal lands are managed. The law also empowers the federal government to acquire, exchange or divest properties. The federal government “can buy or exchange land under FLPMA to get private property,” Kalen said. “And, arguably, the federal government also has eminent domain authority to be able to condemn property.”
A private-to-federal land sale is “not all that complicated,” he added. Whether newly acquired land is private or otherwise, FLPMA and the National Environmental Policy Act require federal agencies like the BLM or National Forest Service to ensure newly acquired property fits the local land use plan for the area before finalizing a deal. It also requires the government to extend “cooperating agency” status to certain entities like state game and fish departments and local counties, as well as solicit public comment.
For example, in analyzing the purchase of the Marton Ranch, the BLM made the case that the property provides an opportunity to further conservation goals set forth in its Casper Resource Management Plan and its Rawlins Resource Management Plan.
“The states cannot tell the federal government what to do with federal land, nor do states have any standing to tell private landowners who they can or cannot sell their land to.”AARON WEISS, CENTER FOR WESTERN PRIORITIES
“The acquired lands will be managed initially the same as adjoining BLM-managed lands, with existing decisions in place that protect wildlife habitats and other resources while promoting recreation,” the BLM stated in announcing the Marton Ranch deal in 2022. “The BLM will undertake a planning effort to develop management prescriptions specific to the area that take into account the purposes of the Land and Water Conservation Fund and the input of Tribes, partner agencies, and the public.”
“A lot of times [a federal land acquisition] clearly does involve the states,” Kalen said. “[States] have the ability to comment on those plans and provide input in the development of those plans, which is what they’re doing now.”
Marton Ranch deal
The BLM announced the “conservation purchase” of the 35,670-acre Marton Ranch June 2, 2022. It’s the largest land acquisition by the BLM in the state’s history, according to the BLM. The transfer of the private ranch to federal ownership unlocks public access to another 40,000 acres of interspersed BLM and state land sections, as well as 8.8 miles of riverbank along the North Platte River, the BLM stated.
The voluntary sale was years in the making, according to the BLM. The deal was spearheaded by an independent group, The Conservation Fund, with help from the Rocky Mountain Elk Foundation. The BLM used $21 million from the Land and Water Conservation Fund to purchase the property.
“Through our lasting partnership with The Conservation Fund, we have a unique opportunity to conserve crucial wildlife habitat at a landscape scale and expand access to the river and public land for our local community and visitors,” BLM High Plains District Manager Kevin Christensen said in a prepared statement in June 2022.
The deal also boosts President Joe Biden’s America the Beautiful initiative, also known as the 30×30 initiative, to conserve 30% of the country’s lands and waters by 2030.
Gov. Mark Gordon objected to the BLM’s handling of the deal, arguing that state and local government agencies — and the public — were not invited to comment before the BLM made its decision to proceed with the purchase. At Gordon’s direction, the state filed a complaint to the Interior Board of Land Appeals. The IBLA agreed, prompting the BLM to revise its socioeconomic and environmental review by issuing a supplemental analysis in April, kicking off a public comment period that ended May 12.
The Wyoming BLM will release public comments, its response to public comments and its final decision on the environmental analysis before the end of June, a BLM official said.
Limiting federal land expansion
Among the state’s concerns regarding the Marton Ranch purchase is whether state and local agencies will incur additional costs related to expanded public access and related impacts of increased public use, according to the complaint to the IBLA. The state also listed concerns about the potential loss of grazing and mineral development.
Beyond such specifics, state and county leaders are wary of the federal government expanding its ownership and management of lands in the West.
In Wyoming, where the federal government owns and manages 48% of the land, lawmakers and county leaders have pushed for a “no net-loss” of private land. In response to the 35,670-acre Marton Ranch purchase, Gordon called on the BLM to divest an equal amount of existing BLM lands.
Ide supports Gordon’s call for an equal divestment of BLM lands, he said. He also remains convinced that the federal agency hasn’t followed “the rule of law” in the Marton Ranch deal.
“They sort of clandestinely purchased this,” Ide told WyoFile. “They didn’t ask for any public input or input from the state or the counties. We still have authority over that land.”
Ide, an oil and gas landman by trade, said he’s not against increased public access for recreation. His primary concern with the Marton Ranch transfer is the loss of property tax revenue.
As federal property, the Marton Ranch will no longer be subject to state and county property taxes, resulting in a revenue loss of about $10,000 annually ($7,000 to Natrona County and $3,000 to Carbon County), according to BLM estimates. The federal “Payment in Lieu of Taxes” program is intended to make up for such property tax losses due to federal land ownership, but Natrona and Carbon counties both already receive the maximum allowable PILT payments based on population, according to the BLM’s analysis.
Whether a corresponding increase in recreation will make up for taking the Marton Ranch off local property tax rolls is an open question, Ide said.
“I just want to get the conversation going and see if I can get some answers as to why [the BLM] hasn’t asked for consent from the Legislature,” Ide said. “If they don’t, I believe they are treated as a proprietor just like any other landowner and should have to pay property taxes.”