By Mateusz Perkowski | Jan 14, 2019
George Wentz, an attorney for Utah in a dispute over federal lands management, spoke at the American Farm Bureau Federation’s annual convention in New Orleans on Jan. 14. Wentz believes federal ownership of Western lands can be challenged by state governments affected by the Federal Land Policy and Management Act of 1976.
Federal ownership of vast acreage across the West is vulnerable to a constitutional challenge by affected state governments, according to a public lands attorney.
While court rulings until now have supported the federal government’s control over Western public lands, attorney George Wentz said those cases predate the Federal Land Policy and Management Act of 1976, which made federal ownership permanent.
An argument could be made that federal ownership of major swaths of 12 Western states effectively deprives them of the same sovereignty as the remaining 38 states, he said.
“Why are we inferior because we chose to live in the West?” Wentz asked growers at the American Farm Bureau Federation’s annual convention in New Orleans on Jan. 13.
For reasons of legal standing, it’s likely that FLPMA would have to be challenged by a state government impacted by the law, but none have stepped up to the challenge so far, said Wentz, who has represented Utah in a dispute over federal land management.
In the case of Oregon, Idaho, Utah, Nevada and Alaska, the federal government owns more than half the land mass.
Realistically, such vast federal ownership of public land limits the ability of Western states to develop economically and attract residents, effectively hindering their political power permanently, Wentz said.
“A less-than-sovereign state can’t protect its citizens in the way a fully sovereign state can,” he said. “How do I compete with Texas, how do I compete with New York, how do I compete with Florida?”
The U.S. electoral system has basically been “gerrymandered” to favor populous states in the East and Midwest over sparsely populated ones in the West, he said.
Citizens in Western states have less political influence compared to states such as Florida, which have proven pivotal in presidential elections, Wentz said.
Federal authorities are also less accountable to citizens of Western states in law enforcement, he said.
For example, “Occupy Wall Street” protesters on public property in New York City were not prosecuted by city officials for the occupation, while the federal government arrested other protesters at Oregon’s Malheur National Wildlife Refuge and several of them now have felony records, Wentz said.
“That’s called who wields the police power,” he said.
While unappropriated land in the East and Midwest was sold or turned over to the state governments, Western states weren’t given that option, Wentz said.
With the advent of the federal income tax, the federal government wasn’t reliant on selling land and thus retained Western acreage, he said.
Wentz compared the situation to a trustee taking ownership of trust assets rather than managing them for the financial interest of the beneficiaries.
“The mechanism for these states to grow into equal sovereigns was abandoned,” he said.