National Review: It’s Time to Reclaim the West from Federal Control

Legend says the outlaw Butch Cassidy hid vast stashes of loot across the West. But those still hunting for Cassidy’s treasure could join the Wild Bunch in outlaw status. Hunting for buried treasure on federal lands, it turns out, is a federal crime, and almost all the West where Cassidy roamed is federal land.

But that’s not all. If you were to commit the federal crime of using too much firewood on your campfire while scouring the rugged West for Cassidy’s treasure, that would make you an outlaw. And if you were to move a table at a campsite so your treasure-hunting pals could sit together for a meal, you would be committing another federal crime. Treasure-hunting is muddy work, but if you use an outdoor pump to clean yourself off? Federal crime. And if your treasure-hunting adventures frighten a bird? Federal crime.

While moving a campsite table may not make you Wild Bunch caliber, it’s enough to make you an outlaw in today’s West. Something has gone wrong in America’s enduring symbol of untamed freedom when too many logs on your campfire can give you a rap sheet.

The trouble is that a bloated federal bureaucracy rules most of the West. Recently, Utah asked the Supreme Court to give the Western states more control over their territory. Specifically, Utah claims that federal lands not put to valid use, such as a national forest or national park, should be under state control, which amounts to 18.8 million acres of land in Utah alone (about a third of the entire state). The Supreme Court should grant the case and give the West back to the Westerners.

The federal government owns most of the West. But the federal government is not a typical property owner. It gets to write the rules for all that land, including the criminal laws. So, in each of the twelve Western states, most of the state is not ruled by the governor, the state legislature, or state agencies — it is governed by regulators in Washington, D.C. For most of the Western United States, an unelected federal bureaucrat is the only sheriff in town.

We have a Constitution built to prevent power from clumping in one spot like this. The Constitution divides power along two dimensions. First, it divides power among the three branches of the federal government. Second, it divides power between the federal government and the states. James Madison called this system a “double security” for the rights of the people. These dual checks on power have broken down in states dominated by federal land. Across most of the West, there are no checks save one: a blank check to the administrative state.

Federal rule over vast public lands upsets the federal-state balance. The Constitution gives the federal government a short list of specific powers. Any powers not listed there belong to the states. None of the enumerated powers granted to the federal government include telling you how much wood you can toss on your campfire. Of course, the Constitution offers flexibility by giving Congress the power to do what is “necessary and proper” to accomplish its other powers. But this does not authorize Congress to take over the role left to the states, like regulating local land use and creating a criminal code. This is not a mere turf war. As the Supreme Court once put it, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” When the federal government gobbles up power held by the states, liberty withers.

Worse still, Congress has handed federal bureaucrats the job of ruling the West. Congress cannot deal with every little detail — which is one reason that it shouldn’t manage 640 million acres of land — but it also cannot delegate lawmaking to unelected bureaucrats. But that’s what has happened in the West. Federal bureaucrats make and enforce criminal laws that govern every detail of life on the range, from horses to homelessness. Thus, for most land in the West, a federal bureaucrat has the authority to write and enforce the laws, with as much authority as the state legislature and governor combined.

The result is chronic mismanagement. Federal land agencies have long run massive deficits despite sitting on some of the most valuable land in the nation, and they have a dismal conservation record. Unsurprisingly, state-owned lands have enjoyed better management. Putting power in the hands of people who are more local and more accountable works. Giving federal lands back to the states will not turn the West into a Mad Max set — it will just restore the system of separated powers that promotes freedom and prosperity.

Were we to have a modern remake of Butch Cassidy and the Sundance Kid, we might watch Paul Newman frightening birds (a federal crime), playing poker in a national park (yes, a federal crime), or bringing his dog on a river trip (you guessed it — a federal crime). It just wouldn’t have the same charm. The author of the first true Western, Owen Wister, wrote, “There’s no law west of Dodge and no God west of the Pecos.” Nowadays, there’s too much law and just one god — a federal bureaucrat. This is not what the Framers pictured as the federal government’s proper role. The Supreme Court should take up Utah’s request and restore the Constitution in the West.

This op-ed originally appeared in National Review on November 5, 2024.