Dan Wheat/Capital Press
YAKIMA, Wash. — While intended to improve forest management to reduce the threat of wildfires, the Resilient Federal Forests Act also allows the federal government to supplant the voice of counties with that of Indian tribes in managing some federal lands, a constitutional attorney says.
“It’s a mystery to me why this passed out of the Republican House with this language intact,” said George Wentz, a constitutional lawyer and former Reagan administration official. He spoke at the Washington Farm Bureau’s annual meeting in Yakima on Nov. 15.
The act, HR 2936, which the House passed 232-188 on Nov. 1, includes a section allowing the secretary of the Interior or the secretary of Agriculture, at the request of a tribe, “to treat federal forest land as Indian forest land for purposes of planning and conducting forest land management” … if it “is located within, or mostly within, a geographic area that presents a feature or involves circumstances principally relevant to that Indian Tribe.” This includes land ceded to the U.S. by treaty, federal land within a current or former reservation or land adjudicated to be tribal homelands.
Authority is limited to planning and conducting management and “shall not be construed to designate federal forest land as Indian forest land,” the bill states.
Currently, federal forest lands are under the dual jurisdiction of counties and the federal government, said Wentz, a partner in Davillier Law Group in New Orleans and Sandpoint, Idaho. The bill removes county jurisdiction and replaces it with tribal jurisdiction at the discretion of one of the department secretaries, he said.
“With regard to planning, this would make the tribe the dominant party interacting with the Forest Service on land rather than the county. Think of the impact on issues like harvesting timber and water rights,” Wentz said.
“This could be used, along with the Antiquities Act, to tie up vast areas of the West,” he said. “How does the federal government have the right or power to remove land within a county from the jurisdiction of the county and suddenly treat it as tribal land? People in the county have no voice in the decision to remove it.”
Rep. Raul Labrador, R-Idaho, has said he will try to fix it in conference committee with the Senate, “but there’s no certainty it can be fixed at that point and I can’t understand why 17 Republicans put it in there,” Wentz said.
The bill was sponsored by Rep. Bruce Westerman, R-Ark., and co-sponsored by 16 Republicans and two Democrats. Republicans include Reps. Cathy McMorris Rodgers and Dan Newhouse of Washington and Greg Walden of Oregon. Capital Press is seeking comment from them.
Presidents have long used the Antiquities Act of 1906 to designate millions of acres of Western lands as national monuments, he said, including President Obama’s designation of 1.35 million acres in San Juan County, Utah, now under review by the Trump administration.
Utah is considering a legal challenge to the Federal Land Policy and Management Act of 1976, which says the government can’t dispose of Western federal lands without a compelling national interest.
Wentz told the Farm Bureau crowd that Western lands were only destined to be held in trust by the federal government pursuant to an agreement to get Maryland to sign the Articles of Confederation. The land was to be given to Western states as they were created but most of it wasn’t because the government no longer needed the revenue when it adopted the federal income tax in 1913, he said. Continued federal ownership over much of the land in 12 Western states denied them equal sovereignty with Eastern states, he said.
It’s a civil rights issue, not a property rights issue and affects self-governance of the West, he said. It affects Western land, infrastructure and economic development and gives federal agencies police power over vast lands, he said.
“It’s an unelected bureaucracy wielding power over us and we can’t vote them out of office. They control our daily lives. It’s not the structure intended by the framers (of the Constitution),” he said. “It’s the largest civil rights violation of our time.”