BRETT FRENCH | bfrench@billingsgazette.com
One of the central tenets of the right-wing militants who staged an armed takeover of an Oregon national wildlife refuge in 2016 is idling in the halls of the Montana Legislature.
Rep. Tom Millett, R-Marion, is sponsoring a joint resolution that would ask the Legislature to endorse the state of Utah’s latest attempt to transfer federal lands to state management.
Millett’s joint resolution is directed at the claim by some Utah Republican lawmakers that 18.5 million acres of Bureau of Land Management property would be better cared for by state officials.
“Current policy deprives Utah of sovereignty, including access, use and land management for recreation, infrastructure, fire mitigation and conservation,” the Beehive state lawmakers said in a press release.
Draft resolution details
Millett’s LC 2912, a draft joint resolution, casts Montana as equally aggrieved, stating in part: “That the federal government’s policy of indefinitely retaining lands denies Montana equal statehood and representation.”
Joint resolutions, which require passage by the full House and Senate, are not signed by the governor. They don’t mandate anything or carry force of law, rather they state an opinion.
In January, the U.S. Supreme Court declined to hear Utah’s lawsuit regarding its claims, although noting the state could still file its suit in federal district court.
One of the groups to file an amicus brief supporting Utah’s claims was United Property Owners of Montana, the group that has sued Montana Fish, Wildlife & Parks over elk management and recently supported a bill to ban perpetual conservation easements.
The Utah lawmakers also remain hopeful the Trump administration may help.
In an emailed response to questions, Rep. Millett said he agrees with his Utah counterparts that federal lands would be better managed by states.
Almost 30% of Montana lands are federally owned
About 29% of Montana’s 93 million acres are federally owned. The largest share, more than 17 million acres, is managed by the Forest Service. The Bureau of Land Management comes in second with 7.98 million acres. Other agencies that make up the difference include the National Park Service, Department of Defense and U.S. Fish and Wildlife Service.
Since these lands aren’t taxed, the Department of Interior provides Payment In Lieu of Taxes (PILT) to states. In 2024 that amounted to more than $43.3 million for the state. The funding is broken down by county, based on the amount of federal acreage in the county.
Given that most national forests are in the western third of the state, those counties saw the largest PILT payments. Ravalli, Lewis and Clark and Flathead counties led with more than $3.2 million each.
These direct payments to counties don’t count the attraction that public lands provide in terms of the recreation and tourism industries. Montana is ranked third in the nation for its outdoor economy, which accounted for $3.4 billion of the state’s gross domestic product in 2023, according to Headwaters Economics. That’s more than the state’s agriculture and forestry, mining and utilities, and transportation sectors.
Public lands, and the public outdoor recreation opportunities they provide, are also cited in polling as one of the most important benefits to state residents.
Despite such public support, Millett said there’s an underlying “constitutional issue that needs to be settled.”
“Is the federal policy embodied in 43 USC 1701, of perpetual federal retention of unappropriated public lands in Utah (and by extension in all the western states), unconstitutional?” Millett questioned.
Issue at hand: The FLPMA
The statute Millett cites deals with the Federal Land Policy and Management Act (FLPMA), passed by Congress in 1976.
FLPMA was created to provide the Bureau of Land Management with a framework for managing its lands, according to a Vermont Law Review article. Without the act, BLM lands were seeing “widespread degradation.”
More central to Millett’s and Utah lawmakers concerns, “FLPMA fundamentally shifted the country’s historical preference for ‘disposal’ of the public lands — a practice that governed federal land policy since the country’s inception.”
In fact, when the law was passed, Congress “repealed many of the miscellaneous laws governing disposal of public land, and established a policy in favor of retaining public lands for multiple use management.”
John Leshy, a distinguished professor of law emeritus at the University of California, Hastings College of the Law, wrote in a review of claims by Utah lawmakers and others:
“The arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary.”
“At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state,” Leshy continued. “For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.”
Hunters, conservationists, others are opposed
Conservation, hunting and recreation groups have been vocal in their opposition to calls by lawmakers to take over management of federal lands in the past — arguments that have resurfaced with the latest round of state actions.
“Montanans, across the entire political spectrum, strongly support public lands,” said Randy Newberg, a Bozeman-based public lands conservationist and star of the “Fresh Tracks” hunting show. “We all want better management of federal lands, not sale or transfer of those lands. A better use of the Montana Legislature’s efforts would be to work with Congress to get better federal land management. After all, Congress is the managing trustee of those lands.”
With the Trump administration seeking ways to reduce the federal budget, Millett said he’s encouraged there will be “a more friendly atmosphere for western states to work better with the federal government on western land issues.”
However, he wants to see the issue of FLPMA’s constitutionality settled “once and for all,” calling it “THE question when it comes to federal western unappropriated lands.”
Millett said if the act is found constitutional, then “life moves on.” If not, “then let’s develop a plan to assume title to and control of our land.”
Millett’s joint resolution supporting Utah’s quest hasn’t been introduced yet.
Cost considerations
Taking over management of federal lands comes with a cost, opponents note. States would have to pick up the bill for expenses like firefighting.
To fund such expenditures, states could make money off mineral extraction and timber sales or even sell parcels of land.
Firefighting costs could be cut by logging more forest.
Fees could also be raised. Right now, the BLM grazing fee is $1.35 per animal unit month. In Montana, on state lands, the fee is $23.
GOP platform is a familiar one
Rep. Millett’s proposed resolution shouldn’t come as any surprise to voters. The Montana Republican party’s platform has long endorsed “relinquishing federally managed public lands to the states,” arguing that local management is better.
In responding to questions from The Western News about his candidacy, Millett echoed his party’s ideals.
“We must work towards the return of the manufacturing, mining and timber industries and Montana must take steps to attract these industries back to the district,” he said in the May 2024 publication. “Reducing burdensome rules and regulations, fast-tracking the permitting of mines and a long-term goal of Montana gaining ownership of the National Forests is where we begin. The latter can be accomplished by partnering with other western states, through the American Lands Council, to sue the federal government into relinquishing ownership of the forests to the respective states. Montana can manage the forests better.”
The American Land Council is led by former Thompson Falls legislator Jennifer Fielder. In 2013 she was a member of the Environmental Quality Council, an interim legislative committee, that studied federal land management. The study was fodder for Fielder to push for state control of federal lands.
The American Land Council’s website touts Fielder as “one of America’s leading advocates for the transfer of federal lands to willing states.”
In Wyoming, similar legislation
Utah and Montana aren’t the only Republican-controlled western states taking another stab at the federal lands issue.
In Wyoming, a Senate joint resolution advanced, before finally being killed this week, that asked Congress to hand over federal lands and their mineral resources to the state, except for Yellowstone National Park.
Similar demands were made across the West and in Montana a decade ago, and during the Sagebrush Rebellion of the 1970s and ‘80s.
Given the Republican push, it was surprising that U.S. Rep. Ryan Zinke, R-Mont., reintroduced The Public Lands in Public Hands Act in January that would ban “the sale or transfer of most public lands managed by the Department of the Interior and U.S. Forest Service.”
