CHEYENNE — In the throes of the longest government shutdown in the history of the United States, Sen. Charlie Scott, R-Casper, was sitting down for breakfast and reading a newspaper.
Workers for the U.S. Department of the Interior had been furloughed, and in the national parks of the West, things were beginning to go into disarray. In Yellowstone roads went uncleared, and in Rocky Mountain National Park in Colorado, trash began piling up.
Fortunately, it was wintertime and visitation was at a lull. But Scott began wondering what would happen if a shutdown — the most recent of which ended temporarily Jan. 25 — occurred again in the peak season, thus having an impact on Wyoming’s second biggest industry.
“My God,” Scott said. “That would just wreck our tourist industry. It would do a tremendous amount of economic damage as well as disappoint people from all around the world who come especially to see Yellowstone.”
Working with Sen. Ogden Driskill — who does his business near Devils Tower National Monument — Scott began drafting what has become Senate File 148, which would allow for the state to temporarily seize control of federal lands in Wyoming in the case of a shutdown. The bill offers a framework for a future agreement with the federal government delegating what aspects of impacted federal lands the state can work with, such as road maintenance.
The bill also calls for a process to return those lands to the federal government once the shutdown ends.
“We tried to be very careful to be respectful of the fact the federal government does own it,” Scott said. “We would protect the natural features, the government would have some flexibility in deciding what government agencies to use — WYDOT might be involved, for instance, if they couldn’t open the park in a reasonable amount of time, and they needed a plow or two.”
“But (the governor) needs some authority,” Scott said. “And this gives him the authority to act.”
There is already a legacy of state governments drafting memorandums of understanding with the federal government in case of a federal shutdown. Notably, Utah entered one during the 2013 federal shutdown, ponying up $1 million to operate the state parks system — an amount that has, notably, never been repaid.
However, University of Wyoming law professor Sam Kalen said, the language used in the bill — the explicit use of the term “seizure,” for one — will likely make Scott’s piece of legislation unconstitutional.
“If I’m a solicitor, I’m probably going to tell my client that is either illegal or not a good policy,” Kalen said. “I’m not even sure why you would write it like that,” he added. “If the feds won’t enter into (a memorandum of understanding) because of the way it’s drafted, what good does the bill do?”
The bill, as written, has several issues, Kalen said. The bill’s language doesn’t explicitly say the governor needs a memorandum with the federal government to seize control of federal land — only that he or she could if the government were to shut down. Another provision in the bill, Kalen said, that mentions an agreement between the governor and the federal government doesn’t actually require them to enter the agreement, only saying that they “may” do so.
When asked if he had any concern if the bill might be unconstitutional or if he had reached out to the state’s attorney general for their opinion, Scott shrugged it off, saying the intent of the bill was clear: giving Wyoming an option to respond in the case of a federal shutdown.
“That didn’t bother me,” Scott said. “We’re not trying to do anything long-term that’s unconstitutional or will do any harm to anything. We’re trying to help out the federal government and help out the citizens — including our citizens — and the tourism industry. I don’t see any fundamental problems with the bill.”
“When push comes to shove,” he added, “we’re not going to let the foolishness in Washington stand in the way of using common sense.”
Kalen, while clear in the flaws of the bill as drafted, said that the bill language could be massaged, though some areas are problematic: One part of the bill, for instance, gives Wyoming jurisdiction to take over roads entering Yellowstone from Idaho or Montana. Scott said that those details could eventually be worked out either through the states or via the federal government.
As is the nature of a work in progress.
“Part of it is that whenever you draft things, there are always political statements being made — obviously people intend that language will be massaged as it goes through the process, so oftentimes you just introduce something to begin the dialogue,” Kalen said. “The charitable way of looking at this is that it is beginning a dialogue of what the state might be able to do to help the feds during a shutdown.”