Fed’s plan for southwest Wyoming triggers new state laws of questionable constitutionality

Editor’s note: Gov. Mark Gordon vetoed Senate File 13 the day after this story published. To learn more about the veto, click here.

The bill called for equipping the Legislature with a proposed $50 million to prosecute the federal government — money that would let lawmakers fight unpopular-in-Wyoming actions like the Bureau of Land Management’s draft resource management plan for the Rock Springs area. 

But Rep. Barry Crago (R-Buffalo), who’s an attorney, cautioned that Senate File 13 – Federal land use plans-legal actions authorized would bring the legislative branch out of its lane.

“One of the issues I see with the bill is I’m not sure it’s going to be held up as constitutional, as drafted,” Crago told colleagues on the House Agriculture Committee in late February. “Our job is to make laws, that’s what we do. The executive branch, their job is to enforce those laws. And the judicial branch’s [job] is to interpret those laws … That’s why I struggle with this particular bill, because we might be overstepping our bounds.” 

Crago was conflicted about SF 13 because he supported its concept: fighting federal actions that are “harmful to Wyoming.” Even with the constitutional concerns, he voted aye that day in committee and aye down the line on the House floor. So did Rep. Bill Allemand (R-Midwest), a trucking company owner who encouraged lawmakers in the same committee to push the envelope on constitutionality. 

“I’d say what we’re doing today is 100% constitutional,” Allemand said, “until we’re told it’s not.” 

The balance of lawmakers evidently agreed. Senate File 13 cleared the Legislature — the $50 million was actually amended to $75 million — and now awaits a signature on Gov. Mark Gordon’s desk.

This wasn’t the only dispute during the Legislature’s 2024 budget session about who should be suing on Wyoming’s behalf. A proposal to restrict the Wyoming Secretary of State’s use of state funds for out-of-state lawsuits was ultimately defeated.

When it comes to bills emerging from the fight over the Bureau of Land Management’s draft management plan, SF 13 isn’t the only successful bill that’s legally problematic. Before the legislative session started, lawmakers were warned that House Bill 36 – Natural Resource Protection Act similarly confused the roles of the branches of government — roles that are oftentimes delineated in the Wyoming Constitution. 

House Bill 36, which was signed into law by Gordon on March 8, bars 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.

Essentially, the new law prohibits state officials from enforcing federal regulations and it lets Gordon and future governors decide which rules make the cut. Sen. Affie Ellis (R-Cheyenne), an attorney, told members of the Select Federal Natural Resource Management Committee at an interim meeting that the language now in the statute books intrudes 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 said. “I am a little concerned with how the two branches of government are working together.”

Nevertheless, HB 36 enjoyed overwhelming support as it sailed through the statehouse, with primarily only the few Democratic representatives and senators opposed. During committee hearings, lobbyists applauded the concept, with longtime Wyoming Stock Growers Association representative Jim Magagna saying it “delivers a message” to federal land managers: “That the state of Wyoming will stand up for its citizens,” he said, “and defend its businesses.” 

It was that aim — to protect Wyoming — that led Crago to vote in favor of a bill like SF 13. The desire trumped worries about unconstitutionality, he said. 

“Mostly, I wanted to support our people in southwest Wyoming,” Crago told WyoFile. “We need to protect our legacy industries … the bedrock of Wyoming’s economy.” 

Although the new Wyoming statute spurred by the Rock Springs Resource Management Plan fight may be ripe for legal challenges, the bills were not really on the radar for one especially litigious environmental group.

“The state of Utah for years has passed bills of this ilk, and [the state] has never found a way to make them meaningful,” said Western Watersheds Project Executive Director Erik Molvar. “They have no effect on federal policy because the state of Utah doesn’t get to set federal policy. And the state of Wyoming is in the same boat.” 

From Molvar’s perspective, thumb-in-the-eye statutes targeting the federal government may harm state interests more than help them. 

“It’s entirely possible that the state of Wyoming will find itself locked out of the traditional cat-bird seat it’s been given voluntarily by the federal agencies because of these kinds of overreaches,” he said. “Maybe the federal agencies will finally wise up and recognize that they’re in an abusive relationship.” 

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