Public Lands Fact Sheet 10/17/16
Monday October 17, 2016
by Marti Halverson



(1)  The federal government – legally - MUST transfer the public lands to the state.
    See Wyoming’s Act of Admission, wherein it is stated that Wyoming "asked" Congress, and Congress "granted,” our admission to the Union "on equal footing with the original states in all respects."  
    Our state Constitution was ratified in Convention on September 30, 1889, and was approved by the US Congress the following year as it granted our statehood.  It included Article 21, Section 26:  “The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof . . . and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States.”  Extensive precedent dictates that “shall” is used to imply something that will or must occur. 
    Note that the land shall be subject to the disposition of the United States.   And, from the Taylor Grazing Act of 1934:  “In order to promote the highest use of the public lands pending its final disposal . . .”  Disposal is assumed.  This is what worries ALL of us - that "disposal" shall be made by the federal government ($20 trillion in debt) in sales to the highest bidders, rather than to the states.  (See Ecuador’s 2013 sale of three million acres of Amazon forest, some of it National Park, to the Chinese for the exploration and development of the oil reserves there.)
    As for the "promise" - The language in our Wyoming Constitution, Art. 21, Sec. 26, is identical to the enabling acts of North Dakota, South Dakota, Nebraska and others - all of which own 95% or more of the land in their states.  Western states seeking transfer have the exact same language in their Enabling Acts as Wyoming's Art. 21, Sec. 26 – but, the federal government has not honored its "duty to dispose" - it's "promise" - to the Western states.  And, in 1976, it outright announced that it had no intention of keeping its promise.
    From the University of Michigan Law Journal, "Moreover, in conjunction with this ‘promise’ there is controlling precedent equating the Enabling Acts with bilateral contracts, and the promises made in such Acts by the United States have been held to be ‘obligatory on the United States.’”  Hawaii sued the federal government under this language and in 2009 won the transfer of its federal lands.  In finding unanimously for Hawaii, the US Supreme Court said Congress cannot pass a law, the 1976 Federal Lands Policy and Management Act, or FLPMA, which obviates this promise. 

(2)  Wyoming CAN afford it. 
    A 2014 analysis by University of Wyoming economist Dr. Tim Considine concluded:  “This study only included lands that are eligible for resource development.  Nobody is talking about poking holes in Yellowstone Park or coal mining in Wyoming’s scenic wilderness areas.  The point is that we need to balance the well-being of our citizens with the desire to preserve our special lands.  Our schools, our needy, and our public safety all require resources as wellWyoming has enough to meet all of these needs if we use them responsibly.” 

(3)  “The state will sell the public lands.”  NO! 
    Short answer:  Why sell once when state-controlled leases are forever?  Wyoming does not need to sell the public lands.  A study by the Property and Environment Research Center found that the federal government loses 62¢ per acre it manages.  Economic analyses done for Montana, Idaho, New Mexico and Arizona show that those states stand to earn between $12 and $16 per acre under state management.
    Only the federal government has the incentive to sell public lands, and it is actively doing so.  Visit the BLM’s website and see “our” public lands being auctioned to the highest bidder.  More often than not, the highest bidder is a deep-pocket private developer or a foreign entity.

(4)  It’s been done before
    In the mid-1800s, US Senator Thomas Hart Benton (D-Missouri) fought for transfer of the public lands to the then-Western states (Illinois, Missouri, Kansas, Florida and others) as was “promised.”  He succeeded on the strength of the federal “promise.”  In 38 other states, federal ownership is less than 5%.  Yet, 48% of Wyoming’s surface land, and 62% of its subsurface resources, are “owned” by the federal government.
    In Canada, when its federal government agreed to transfer the crown’s lands to the government of the Northwest Territories, all stakeholders worked together for ten years to plan Devolution.  A smooth transition was accomplished in April, 2014.  This process is what transfer proponents desire for Wyoming.  After all, with whom would you rather deal?  Faceless D.C. bureaucrats, or your own representatives in Cheyenne?

(5)  The federal government is NOT honoring its bargain with Wyoming under FLPMA. 
    Since Wyoming cannot tax the federal lands, counties with public lands were promised Payment in Lieu of Taxes (PILT, 1976)) and Secure Rural Schools (SRS, 2000) funding.  Under FLPMA, counties were promised cooperating and coordinating authority on all decisions regarding the public lands.  FACTS:
    Every year, the federal government attempts to short change Wyoming, or renege altogether on its PILT obligations – funding that pays for our county public safety agencies, our roads, our bridges.  When PILT payments are actually won, they are increasingly paltry – Pennies in Lieu of Trillions.
    SRS payments are a County’s portion (25%) of the revenue generated on its public lands.  And since our federal land managers are not developing any resources, there is no revenue and, thus no payments.
    Just this month (September, 2016), the USFS maliciously obliterated at least seven segments of the historic Lander Cutoff Trail in the Bridger-Teton National Forest, Greys River District, with absolutely no consultation with, or notice to, the Lincoln County Commissioners.  A criminal investigation is in order.

(6)  Federal “management” of the public lands is poor. 
    The federal government is practicing “museum management” – Do Not Touch – on our public lands.  Consequently, whole forests are in crisis - dying and burning.  Vertebrates are dying as habitat is destroyed by fire and neglect.  Jobs are being lost.  Multiple-use traditions are slowly being eroded and outright prohibited.  Access to the mountains, rivers and rangelands for hunting, fishing, grazing and recreation is being cut off.  Conservation, wildlife protections, productivity, environmental health, access – all of these are our goals.

(7)  “A majority of Wyomingites oppose transfer.”  FALSE! 
    This claim is the result of one “push-poll” by one environmental lawyer at the University of Colorado at Boulder.  [A “push-poll” is a poll where the questions are asked in such a way so as to produce a desired answer.]  A straight-forward, unbiased poll on questions relating to transfer that was conducted in Montana showed almost three-quarters of Montanans support state management of its public lands.

(8)  2015 Wyoming House Bill 209 – passed the House, but was not introduced in the Senate. 
    In accordance with Wyoming’s July 10,1890 Act of Admission, HB 209 provided that Wyoming shall:  “Retain five percent (5%) of the net proceeds the state receives from the transfer of title; and it shall be deposited into the permanent common school account within the permanent land fund; Wyoming shall transfer to the United States ninety-five percent (95%) of the net proceeds the state receives from the transfer of title.”  This HB 209 language reaffirms that Wyoming has no incentive to “sell” – only the federal government stands to benefit from the sale of public land.  If Wyoming sells, 95% of the proceeds go to the federal government.
    Public Lands that are EXCLUDED from transfer under HB 209: “Lands to which title is held by a person who is not a governmental entity; Lands owned or held in trust by the state, a political subdivision of the state or an independent entity; Lands reserved for use by the state system of public education or a state institution of higher education; School and institutional trust lands; Yellowstone National Park; Grand Teton National Park; John D. Rockefeller, Jr. Memorial Parkway; Bighorn Canyon National Recreation Area; Devils Tower National Monument; Fort Laramie National Historic Site; Fossil Butte National Monument; Real property or tangible personal property owned by the United States if the property is within the boundaries of a municipality; Any lands managed or owned by any branch of the United States military or the United States department of energy; or Lands, including water rights, belonging to an Indian or Indian tribe, band or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.”
    In addition, HB 209 provided that there shall be “NO NET LOSS OF PUBLIC LANDS.”
    Western states are not alone – at least four Eastern states have passed Resolutions in support of transfer of the public lands to willing Western states.

(9)  Who is opposed to Wyoming owning and managing its lands? 
    Theodore Roosevelt Conservation Partnership; Union Sportsmen’s Alliance; Isaac Walton League of America; Bull Moose Sportsmen’s Alliance; Western Conservation Foundation; Natural Resources Defense Council; EarthJustice; Trout Unlimited; Backcountry Hunters & Anglers – just to name a few special interests. 

(10)  What does the federal government have that Wyoming does not?  Answer: The EAJA. 
    Congress passed the Equal Access to Justice Act nearly 30 years ago to allow individuals, small businesses or public interest groups to be reimbursed for the cost of attorneys that represent them in cases of alleged wrongdoing by the federal government. 
    The act has recently become an increasingly important part of environmentalists’ strategy and revenue.  The Environmentalist Industry can engage in litigation with nearly zero cost for suits regarding National Environmental Policy Act, Clean Water Act, Endangered Species Act, and others. 
    An August, 2011 study by the Government Accountability Office reported that between 2003 and 2010, the Treasury Department paid $14.2 million in attorney’s fees just to those plaintiffs suing the Environmental Protection Agency.  The total for all agencies is unknown - but is estimated by GAO to be in the tens of millions annually. The total is unknown because the EAJA was amended to keep the payments made to plaintiffs secret.  The motivation of transfer opponents is, first, and foremost, MONEY.  They have a lot to lose. 

Source documents are available on request. 



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