by Benjamin Barr
Somewhere around the Fourth of July, Governor Freudenthal threatened to sell an attractive parcel of state land located in the confines of Grand Teton National Park.
For more than a decade, Wyoming has worked to strike a deal with the federal government to exchange other parcels of federal land for this piece of trapped property. Try as it may, no deal has been struck, leading the governor to openly suggest selling the land with a price tag hovering around $125 million. No takers have yet been announced.
Governor Freudenthal’s statement sparked some fears over environmental spoilage if the property in question were to be sold to private interests. But much of the outrage over this controversy misses key points. When territorial Wyoming agreed to become a state, it entered into an agreement with the federal government to take certain lands in trust for the benefit of state schools. Today, the state owns close to 4 million acres dedicated as school trust lands. They are used in many ways – agriculture and natural resource development are prime examples. Having taken these lands in trust imposes certain legal obligations on the state. As trustee, Wyoming is legally required to put them to their highest and most beneficial use.
Like any other trust arrangement, trustees cannot waste the resources of the body of the trust or act in a manner contrary to the interests of the beneficiaries. Here, that means producing the most productive returns for the children of Wyoming. In the Grand Teton National Park example, the land island is just such a trust parcel and Wyoming – to be true to its fiduciary duties – must act swiftly to ensure a healthy return on the land. To do otherwise would be to fundamentally neglect the responsibility it holds in managing such property. But there’s more to the legal story.
Wyoming would do well to think of the Grand Teton National Park issue beyond the limited context of the school trust doctrine. If the state is to take sovereignty seriously, and we hope someday it will, Wyoming must be creative in the use of accompanying legal doctrines to end federal imperialism. The state land trust doctrine presents just such an opportunity. Lands held in trust by the state as part of federal land grants receive heightened protection by federal courts when state uses collide with overreaching federal policies. This is not mere speculation – states have reached serious victories on this front.
What the state land trust doctrine means for Wyoming’s someday-battle for sovereignty is that it offers a proven lever of power against federal meddling. That is, when federal policy prohibits Wyoming from using its state trust lands in a productive way, state sovereignty can win out. Should Wyoming need to link its islands of state trust lands together to produce more profitable results, intervening federal public lands and obnoxious policies might just go by the judicial wayside. To be more vivid, imagine the day when sensible use of state trust lands beats intervening federal policies. That day can be reached.
These approaches can only happen if the state takes its trust obligations seriously and its sovereignty concerns even more so. Mere saber rattling about the Tenth Amendment and endless streams of resolutions to Congress won’t get the job done. Returning to first principles, embracing unique protections found in Wyoming’s legal landscape, and being aggressive in court can make headway here. Doing so would reclaim a fundamental trust – between the true sovereigns and state government.
Benjamin Barr is an attorney specializing in constitutional law with the Wyoming Liberty Group, 501(c)(3) nonprofit think tank and policy center based in Cheyenne.