A draft Bureau of Land Management plan for the administration of 3.6 million acres in southwest Wyoming sparked disapproval from the highest levels of state government this summer, along with plenty of misinformation and hysteria. Now, it’s spawned legislation as well.
House Bill 36 – Natural Resource Protection Act would bar Wyoming and its political subdivisions from using “any personnel, funds appropriated by the legislature or any other source of funds” in support of any federal land management action that the governor — independent of court action — deemed illegal.
Put more simply, the legislation could bar state officials from enforcing federal rules — and let the governor decide which regulations make the cut.
Sen. Affie Ellis (R-Cheyenne), an attorney, is among the bill’s detractors and cast the lone vote against the measure in the Select Federal Natural Resource Management Committee. She worries that her fellow legislators are intruding on the system of laws and policies that have long been used to sort out disagreements over federal land management in Wyoming.
“This is essentially turning the governor into a judge,” Ellis told fellow committee members during a November meeting. “I am a little concerned with how the two branches of government are working together.
Sen. Brian Boner (R-Douglas), who chairs the Select Federal Natural Resource Management Committee, disagrees.
Referencing part of the draft plan that called for the closure of 15,000 miles of BLM roads — an inclusion that the agency said was a mistake — Boner told WyoFile, “It’s just a clear statement that if they do, at some point, cross that line and shut down public access, then we’re simply not going to assist them.”
House Bill 36 includes some political gesturing, like a declaration that the “federal government shall comply with federal law when administering federal lands.” But the legislation also includes components that could have real implications in Wyoming. One such component stipulates that Wyoming and its political subdivisions not use any Wyoming resources in support of any federal land management actions that are deemed illegal.
What constitutes illegal? Illegality would be determined outside of the court of law. The “governor, with advice from the attorney general,” would instead be the arbiter of a regulation’s legality, according to the bill.
Ellis explained in an interview that her no vote on HB 36 in committee had nothing to do with the Rock Springs RMP, which she does not support. Rather, her opposition was related to her own experience working with federal environmental laws, like the National Environmental Policy Act, which is the overarching policy guiding the BLM’s planning process.
“I see those processes work very effectively,” she told WyoFile, “particularly when an agency has not been following the requirements of NEPA and other federal laws.”
In the realm of federal environmental laws, there are avenues for administrative opposition: submitting comments and engaging in objection processes. If parties remain dissatisfied, they still have recourse: They can sue.
Ellis told her colleagues on the Select Federal Natural Resource Management Committee that the conventional system can still stop a federal government decision in its tracks.
“If the agency is still moving forward with a preferred alternative that people really dislike — that our state objects to — they would file something called a preliminary injunction in federal court,” Ellis said. “That would preserve the status quo.”
But a judge would have to agree to the injunction.
Having the governor and attorney general make their own independent legal conclusion “intrudes on the roles of other branches of government,” Ellis told WyoFile.
Boner, a farmer and rancher by trade, doesn’t see it that way. The act, he said, “does not interfere” with litigation. Lawsuits could run in parallel to the governor’s non-judicial determination, he said.
“This is separate,” Boner said. “We’re just simply saying that we’re not going to help you in the meantime.”
While the Natural Resource Protection Act made it through the interim committee with only Ellis in opposition, her concerns did help shape the bill. At her urging, a section that would have exposed any “public officer” to misdemeanor charges for “knowingly violat[ing]” the statute was amended out.
House Bill 36 will require a two-thirds vote of support upon introduction to advance in the Legislature’s budget session, which starts Monday.