Keith Kennedy of Virginia was shocked to learn from a WyoFile reporter that his photograph appears on a political mailer for Keith Kennedy of Wyoming — a candidate for the Wyoming Senate. 

That the glossy, full-color, eight-by-five-inch postcard granted him the title of state senator — a designation neither Kennedy has earned — was little consolation.

For 28 years, the virginian Kennedy did work for the U.S. Senate, serving as majority staff director during three separate periods as well as a two-year stint as deputy Senate sergeant at arms. 

His official Senate photograph is the first image that turns up when googling “Keith Kennedy.” 

It’s a stately portrait: Kennedy standing in a suit jacket and tie, smiling, with sunlight casting through a corridor behind him. 

In early July, a cropped version of the portrait appeared on mailers sent to Albany County voters promoting a different Keith Kennedy for Wyoming Senate District 10, which encompasses the outer limits of Laramie and the rural communities of Bosler, Rock River, Centennial and Jelm. 

“Whoever this candidate is, I don’t know him,” he said. “I don’t know what he’s running for. I don’t know what he stands for, but apparently he’s using my image just because he has the same name.”

In yellow font over a darkened image of a bear, the mailer alleges that Keith Kennedy is “the ONLY 100% pro-gun candidate in the race,” “a gun rights CHAMPION,” and “a leader with a BACKBONE.”

The mailer also gives the wrong dates for early voting in Wyoming and inaccurately infers that Keith Kennedy is the incumbent. Sen. Dan Furphy (R-Laramie), who is not seeking reelection, has represented the district since 2021. An out-of-state political action committee takes credit for the mailer in its bottom left corner. 

“Paid for by Make Liberty Win,” the mailer reads. “Not authorized by any candidate or candidate’s committee.”

Candidate Keith Kennedy did not respond to WyoFile’s request for comment by press time.  

Nearly identical mailers, mostly boosting candidates who are either members of, or ideologically aligned with, the hard-line Wyoming Freedom Caucus, have been distributed in communities across the state. 

The mailers were among the first to hit Wyoming mailboxes after the candidate filing period closed for an election many expect to be particularly ugly and expensive as the two factions of the GOP battle for control of the statehouse.  

‘Direct voter contact’

As a lifelong hunter, concealed-carry permit holder and member of the Laramie Rifle Range, Gary Crum objects to Make Liberty Win’s assertion that he’s against firearms. Crum is running against Kennedy in the Republican primary. 

“I’m not going to do anything in the state Legislature that would limit gun rights,” Crum said. “It’s very spelled out on my website.”

Crum also objects to Make Liberty Win’s efforts to sway Wyoming voters. 

“How can you believe what these out-of-state organizations are saying?” Crum said. “They don’t even know the candidate that they’re supporting well enough to have the right picture on the thing.”

While the mailers may appear haphazard, Make Liberty Win is a well-funded political machine. 

As a Carey committee, according to OpenSecrets, the organization is a hybrid PAC that isn’t affiliated with a particular candidate. It can operate both as a traditional PAC — giving money directly to candidate committees — and as a super PAC that makes expenditures independent of candidates. 

It raised about $8.7 million since the beginning of 2023, almost all of which came from donors in Texas, according to filings with the Federal Election Commission. No donations were listed from Wyoming. 

The PAC lists Elizabeth Curtis as its treasurer and Petra Mangini as assistant treasurer in its filings. Neither returned calls to WyoFile. An email sent from WyoFile to the address listed in the filings also went unanswered. 

The PAC is primarily funded by the Austin, Texas-based libertarian student activism organization Young Americans for Liberty, according to OpenSecrets. YAL’s aim, according to its website, is to “build the bench of liberty legislators at the state level who will advance a pro-liberty philosophy, ascend to higher office, and reclaim the direction of our government.” It claims to be “the most active and effective pro-liberty youth organization advancing liberty on campus.” 

Young Americans for Liberty didn’t immediately respond to an email from WyoFile. 

Goals

Make Liberty Win’s goal is to elect “250 liberty-defending state legislators,” according to its website, through “direct voter contact,” which includes mailers, door knocking, phone calls and texting. 

A similar full-court press recently proved moderately successful in neighboring Idaho. While the PAC had a hand in the upset of a powerful 16-year incumbent and spent more than $700,000 in May alone, according to Idaho Education News, most of the candidates it opposed prevailed. 

In Wyoming, the group began sending campaign materials and text messages and making phone calls in support of Wyoming legislative candidates in early July. 

“As we prepare to celebrate Independence Day, it’s time to think about one of the great advantages of living in a Free America — choosing who will represent you in Cheyenne!” one of the early text messages said, encouraging readers to vote for specific candidates. The PAC sent out another text message on Friday claiming that its chosen candidates would “NEVER vote for gun control,” and would “ADVANCE pro-2nd Amendment legislation” and “Be a leading voice for FREEDOM in Wyoming.” 

Some of the incumbent candidates that the PAC has endorsed, such as Reps. Jeanette Ward (R-Casper) and Bill Allemand (R-Midwest) are aligned with the Wyoming Freedom Caucus, a hard-line far-right bloc of the Wyoming House of Representatives. 

Allemand said he hadn’t heard about the PAC or seen any of its materials when WyoFile reached him by phone. Ward told WyoFile that she was grateful for the PAC’s support. “They seem to have gotten some things mixed up, but I’m not responsible for that,” she said. 

Errors 

The PAC’s materials have several errors. They say that early voting is from July 17 through Aug. 19, when the dates are actually July 23 through Aug. 19. Some mailers were sent to the wrong district. They also represent some of the candidates as the current lawmaker in their respective districts when, in fact, these candidates are challenging an incumbent. 

What’s more, some candidates say the PAC’s materials are misleading. 

“If you look at my voting record, I’m a 100% pro-gun candidate,” incumbent Rep. Tony Niemiec (R-Green River) told WyoFile. Make Liberty Win had sent mailers in support of Niemiec’s primary opponent Marlene Brady, a political newcomer who hasn’t served in the Legislature before. 

“They’re just trying to put these candidates in that have no voting record,” Niemiec said. 

Brady said in a Friday text message to WyoFile that she’s “grateful” for the PAC’s “acknowledgement that I am the only 100 pro-2A candidate” in her race. But she added that she wished the PAC “had been more careful proofreading their materials before sending them.”

Christopher Dresang, a new candidate challenging Rep. Tony Locke (R-Casper) in House District 35, said he messaged Make Liberty Win through its website to complain about the claims on the organization’s pro-Locke mailers. 

“I wanted to know where they got their data, and I said, ‘I’ve never filled out anything that would show that I’m not in full support of the Second Amendment and its application,’” Dresang told WyoFile. (He had not heard back from the PAC as of Monday morning.) 

Robert Hendry, a Make-Liberty-Win-supported candidate challenging incumbent Sen. Charles Scott (R-Casper) in Senate District 30, took issue with the “100% pro-gun” message for a different reason. 

“I’m not sure I’m 100% on that. I think there are places where we don’t need to pack guns,” Hendry told WyoFile. 

“We live out in the country, and I’ve always got a firearm with me somewhere. So I’m plenty pro gun, but there are places we don’t need to pack them.” 

Though Make Liberty Win is based in Alexandria, Virginia., the mailers show a Cheyenne, Wyoming address. 

The PAC has also distributed door hangers. One of these door hangers supporting Republican political newcomer Steve Johnson, who is running against incumbent Rep. David Zwonitzer (R-Cheyenne) and fellow challenger Cayd Batchelor in House District 8, focuses on parental rights, immigration and foreign influence in the U.S. Like the mailers, it also misrepresents Johnson as a current representative. 

Johnson declined to comment on the Make Liberty Win-sponsored door hanger when reached by phone Thursday. 

“I think you’re a leftist newspaper, and I’m not going to talk with you,” he said. 

Another door hanger supporting Ward focuses on lowering taxes, Second Amendment rights and school choice. “She is ready to do whatever it takes to prevent the leftist agenda from going any further in our state,” the mailer says of Ward. 

The candidates that WyoFile spoke with said they didn’t know the PAC would be sending out materials on their behalf. Bryce Reece, a Republican first-time candidate challenging incumbent Rep. Jim Anderson (R-Casper), told WyoFile that he recalled responding to the organization’s questionnaire but wasn’t alerted that its PAC would be sending out materials in his support. The first knowledge he had about this, he said, was when he went door knocking one evening and people said they had already received a mailer from him, even though he hadn’t yet sent any. 

“Anytime somebody is positive about you, it’s flattering. But I’m not sure that that’s going to make people’s decision. I hope that a mailer like that isn’t what makes up people’s minds about me,” Reece said, noting that he and his wife spent significant time building his campaign website where voters can learn much more about his policy stances. 

“A mailer like that, it tells you where I’m at on Second Amendment, but it doesn’t really tell you everything that there is. I hope that voters are trying to educate themselves.”

While candidates said they didn’t know these materials would be disseminated, some are familiar with the PAC’s associated organization, Young Americans for Liberty. Allemand, a Wyoming Freedom Caucus member, told WyoFile that he attended the organization’s convention in Orlando, Florida last August. Other Wyoming lawmakers also attended the convention last year, and more were invited, Allemand said. (He declined to share the names of the other lawmakers.) 

The convention, he said, was packed with hundreds of college students and legislators from around the country. Conservative firebrands like former 2024 presidential candidate Vivek Ramaswamy, former Texas Rep. Ron Paul and Kentucky Republican Rep. Rand Paul gave speeches. Allemand got to shake Rand Paul’s hand. 

“It was a very electrifying event,” Allemand said. “Just like everything, they’re not 100% perfect, but I look at YAL as a good organization.” 

The primaries are on Aug. 20.

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Wyoming has narrowed its definitions for who can bid on state oil and gas lease parcels, disqualifying parties that intend to conserve the land rather than produce the mineral resources.

The change, made under emergency rulemaking in June, was mandated by House Bill 141 – State land oil and gas leases-operator requirement, which the Legislature passed during the budget session. Rep. Cyrus Western (R-Big Horn) brought the bill on behalf of the Petroleum Association of Wyoming. The association raised concerns over the state’s vetting process after the Lander-based conservation group Wyoming Outdoor Council last July placed bids on a state oil and gas lease parcel in Sublette County intending to spare it from development.

If a small Wyoming conservation group can bid to block energy development, a conservation- or anti-oil-and-gas-minded billionaire could do the same, the trade association argued.

“So rather than wait for that to happen, we thought, ‘Well, let’s step in now and let’s put in place a bill that acts as a deterrent to doing that,” Petroleum Association of Wyoming President Pete Obermueller told WyoFile.

Ultimately, the winning bidder in last year’s controversial auction was Casper-based Kirkwood Oil and Gas — the same company that had nominated the parcel — at $19 per acre for the 640-acre tract. When the company later learned that it had been competing against a conservation group, the owners cried foul and claimed they were duped into paying an artificially inflated price.

The Wyoming Outdoor Council defends its actions. 

Yes, council leaders say, the organization did bid on the controversial “Parcel 194.” But it didn’t skirt the rules or misrepresent its identity. The group expected that, if it was the winning bidder, it would pay about $12,000 for the lease (based on its $18 per acre bid) out of its own budget, according to Wyoming Outdoor Council Executive Director Carl Fisher. No well-heeled individual was on standby to finance the purchase, he told WyoFile.

The bidding controversy, he said, misses the larger issue: a lack of commitment by the state to implement its own policies that were crafted years ago to avert such conflicts in wildlife migration corridors.

Path of the Pronghorn

Kirkwood Oil and Gas had nominated a state lease parcel, 194, smack in the middle of the Path of the Pronghorn — a popular name for the long-distance migration of the Sublette Pronghorn Herd. It’s part of one of the most studied ungulate migration routes in North America, and the Path of the Pronghorn portion of the route is so named because it represents a “bottleneck” — an area squeezed due to rural development and landscape features.

And, critically, according to the council, Parcel 194 bisects the New Fork River where pronghorn cross. 

Given the years of high-profile studies and discussions regarding the Path of the Pronghorn and many other well-documented ungulate migration routes in Wyoming, the group didn’t expect the state would OK oil and gas lease parcel nominations in the area for its competitive lease auction.

“To our surprise, they were going to offer an oil and gas lease directly in one of the most important spots where, like, thousands of these members of the Sublette pronghorn herd are crossing the New Fork River,” said Alec Underwood, the council’s program director.

In the weeks before the auction, the council and other conservation groups implored state officials and the Wyoming Game and Fish Department to intervene and convince the Office of State Lands and Investments to remove Parcel 194 and others inside the Path of the Pronghorn from the auction, according to Fisher. But the parcels were not removed.

At that point, Fisher said, the council felt it had no other choice. 

“We had a conversation just to say, ‘Well, if we can’t get the parcel removed, and if we do qualify as a bidder in the process, we should engage in the process and put our money where our mouth is and bid to protect the parcel and the corridor,’” Fisher said.

Delayed protections 

The state had already anticipated such conflicts.

Gov. Mark Gordon signed an executive order in 2020 outlining general protections for designated wildlife migration corridors and directed the Wyoming Game and Fish Department to develop a set of specific migration corridor policies to avoid activities that might disturb the critical pathways. But the state, under pressure from industry, still has not bestowed official designations to several migration corridors, which leaves the Path of the Pronghorn open to development without the state’s stipulations — although the years-long designation process is formally underway.

In the immediate wake of the July 2023 bidding controversy, Wyoming Game and Fish Department officials collaborated with the Office of State Lands and Investments to propose adding stipulations to Parcel 194 preventing industrial activity during spring and fall migrations.

But the State Board of Land Commissioners, made of the state’s top five elected officials, declined the proposal.

For its part, Kirkwood Oil and Gas discounts the need to significantly restrict industrial activities in migration corridors — the industry has a stellar track record of producing oil and gas without detrimental impacts to wildlife, the company’s Land Manager Steve Degenfelder said. The industry continually refines best practices for habitat mitigation, he added.

Kirkwood didn’t nominate Parcel 194 because it is in the Path of the Pronghorn, he told WyoFile. It nominated the parcel, and others in the area, because the company is trying to piece together a block of lease tracts on the western flank of the prolific Pinedale Anticline natural gas field.

“I hunt and fish,” Degenfelder said. “I value the attributes of Wyoming, both monetary and wildlife, and our standard of living with great respect. I think that we can accomplish both of them at the same time.”

Research, however, shows that pronghorn have avoided and abandoned the Anticline gas field. 

The state’s new definitions for qualified bidders went into effect just before an oil and gas lease auction that began July 8. The online auction, which is managed by Texas-based EnergyNet, was extended to Wednesday due to disruptions caused by Hurricane Beryl.

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The man shot and killed by rangers at Yellowstone National Park on Thursday approached a building occupied by roughly 200 people while firing a semi-automatic rifle, park officials announced Tuesday. 

Several law enforcement rangers posted near Canyon Lodge exchanged gunfire with the man, identified as Samson Lucas Bariah Fussner. The 28-year-old from Milton, Florida, died at the scene, the park said in a statement. One ranger was shot in a lower extremity, treated at an area hospital and has since been released. No one else was injured.

“Thanks to the heroic actions of our law enforcement rangers, many lives were saved here last Thursday,” Superintendent Cam Sholly said in a statement. “These rangers immediately confronted this shooter and took decisive action to ensure he was no longer a threat to public safety.”

According to the statement, Fussner worked for Xanterra Parks and Resorts, a private business that the National Park Service contracts with to provide lodging and other services at Yellowstone. 

911 call

Shortly after midnight on Thursday, 911 dispatchers at Yellowstone received a report that a woman had been held against her will by a man with a gun at a residence in Canyon Village, which sits near one of the park’s main attractions: Grand Canyon of the Yellowstone. She also told authorities that Fussner threatened to kill her and others, and had plans to carry out a mass shooting at Fourth of July events outside Yellowstone, the park said.

Rangers found Fussner’s unoccupied car in the “Canyon area.” Authorities, preparing as if Fussner was armed and dangerous, deployed law enforcement rangers strategically to protect areas with park visitors and workers, according to the statement. At the same time, authorities continued to search for Fussner.

The park says more than 20 rangers, including Yellowstone’s special response team, were involved in searching for the suspect while protecting the public. The search occurred at the start of a holiday weekend during what is typically the park’s busiest month. The area of the park is home to the Canyon Lodge and Cabins, which has 500 rooms, and a campground with more than 270 sites.

Gunfight

Those rangers encountered Fussner at about 8 a.m. Thursday near Canyon Lodge, which houses employee and public dining rooms. Fussner, the park says, was walking toward the service entrance while firing the rifle. A gunfight ensued, and after Fussner and the ranger were shot, authorities provided emergency medical care to both people.

The case is now being investigated by the FBI, which is also providing support to others involved in the incident. The U.S. Attorney’s Office in Wyoming will review the case.

“We are working now to provide maximum support to those involved and their families,” Superintendent Sholly said. “We appreciate the support of the Federal Bureau of Investigation, National Park Service, Department of the Interior, and many other partners as we continue to manage through the aftermath of this incident.” 

The rangers involved in the shooting have been put on paid administrative leave during the investigation, which is standard policy. The park service says it will release body-camera footage of the shooting within 30 days. 

People are allowed to possess guns inside Yellowstone, though they are not allowed inside certain facilities and government offices. Firing a gun is prohibited while inside the park.

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Editor’s note: This story has been updated with more information about the law enforcement response and the area where the shooting took place.

Yellowstone National Park rangers shot and killed a person early Thursday morning during an exchange of gunfire that also left a ranger injured, the park announced.

The law enforcement ranger was in stable condition and receiving medical care at a nearby regional hospital late Thursday morning. The park’s announcement did not disclose the nature of the ranger’s injuries.

There was no active threat to the public at the time of the park’s announcement.

The park described a “significant law enforcement incident” that occurred at Canyon Village in central Yellowstone overnight Wednesday and into Thursday morning. Rangers responded to the area after learning that a person with a gun was making threats, the park said.

When rangers contacted the person, whom Yellowstone did not identify, they and the individual exchanged gunfire. The park announcement did not state how many rangers were involved in the shooting.

Firearms are permitted in the national park, but prohibited in certain facilities including visitor centers and government offices. Firing a gun is also prohibited.

Calls to park officials weren’t immediately returned around noon Thursday.

The area around the Canyon Lodge complex remained closed Thursday while authorities investigated the shooting. The FBI is leading the investigation with help from National Park Service special agents.

In an email, an FBI spokeswoman for the agency’s Denver field office said the bureau could not comment beyond what was included in the park’s announcement.

Images from the scene

A retired National Park Service ranger who runs a Facebook page focused on agency news posted photographs of law enforcement officers said to be at the site of the deadly shooting in Yellowstone on Thursday morning.

Retired ranger Greg Jackson posted photographs he said showed armed law officers entering the Bison employee dorm building at the Canyon complex.

Jackson, who left the agency in about 2012, said he received the photographs from the father of a concessionaire’s employee. Jackson did not name the employee or her father.

But he said the female photographer “was a fellow concession employee and had an interaction with the suspect,” who was a male.

“Multiple sources have told me that he was an employee of the park concession,” Jackson wrote on the NPS Ranger News Facebook page. “This squares with the incident photos that show a concession employee housing area.”

WyoFile has been unable to confirm whether the deceased worked for a park concessionaire at Canyon Village. Neither the park service nor Xanterra, which operates the Canyon Lodge and Cabins, returned messages seeking comment mid-afternoon Thursday.

Jackson retired from 23 years with the park service after serving as deputy chief of law enforcement, security and emergency services in Washington, D.C. He said he first received information regarding the shooting from Yellowstone employees who relayed a message sent from Park Superintendent Cam Sholly to them.

Although the incident happened in Yellowstone on the Fourth of July — on a holiday in the world’s most famous pleasuring ground — law enforcement was equipped to deal with the threat, Jackson said.

“They’re trained federal law enforcement officers,” he said. “You can see by photos they’re well equipped for an armed response. They’re quite well trained for things like this.”

Popular part of the park

Canyon Village is perched on the edge of the Grand Canyon of the Yellowstone, one of the park’s premier attractions that features Artist Point and a view of the 308-foot high Lower Falls of the Yellowstone River.

There are more than 500 rooms at Canyon Lodge and Cabins, which is situated near the canyon, according to the park’s website.

In addition to the Canyon Lodge and Cabins, the developed complex includes a campground with more than 270 sites.
The shooting occurred at the start of the July 4 holiday weekend during what is typically the park’s busiest month for visitation.

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When Gov. Mark Gordon let legislation prohibiting transgender girls from competing in middle and high school girls’ sports become Wyoming law without his signature in March 2023, both opponents and supporters of the ban expected to go to court. 

Wyoming Equality, the state’s largest LGBTQ+ advocacy group, said it was in talks with local and national partners in preparation for litigation, according to the Casper Star-Tribune. 

The legislation itself incorprated a court-challenge contingency plan. 

In the event the ban was suspended or struck down altogether, a five-member school activity commission would be responsible for determining the eligibility of transgender students on a case-by-case basis. 

But one year since the ban’s enactment it has yet to have its day in court. 

“The part that we always knew was hard — and hard on multiple levels — was asking a child to undergo this harrowing process,” Sara Burlingame, executive director of Wyoming Equality, told WyoFile. “[Going to court is] not easy. That’s a heavy lift,” 

Four transgender students were competing in Wyoming’s school athletics when the Legislature passed the ban, according to the governor’s office. For various reasons, none were in a position to pursue litigation, Burlingame said. 

“They’re just like anybody else. They want to run track or downhill ski. They don’t want to be pariahs,” Burlingame said. “They don’t want to fight for every inch just for the opportunity to play.” 

Meanwhile, the legislation’s main sponsor Sen. Wendy Schuler (R-Evanston) is glad there has yet to be litigation, “at least within our state,” pointing to the Biden administration’s new Title IX regulations. 

In May, Wyoming was among several states to sue the federal government over the new regulations prohibiting the exclusion of transgender students from educational programs, such as sports, on account of their gender. The new regulations have been blocked by a federal court in several states

Details

Burlingame said her organization was always confident that if the ban went into effect the law would ultimately be on their side in a court challenge.

“If you’ve looked at the recent rulings in Tennessee and elsewhere, that’s right. Like the law says, ‘you can’t actively discriminate against some folks,’” Burlingame said. Finding a plaintiff, she added, was the challenge. 

Out of the four families dealing with the ban, one stepped forward last year with an interest in litigation. But that fell through after their child decided to stop participating in sports, Burlingame said.

Not wanting to speak too much on behalf of the student and their family, Burlingame said the sports ban was at least part of that decision.

The fact that the ban applies to so few students shows the Legislature’s priorities are out of whack, Burlingame said, since it “decided targeting these four kiddos instead of balancing the budget or investing in our roads and bridges was the way to whip up a frenzy.”

Schuler said she believes the governor’s estimate of four students was low. 

“I think it’s at least twice that from what I had heard from various people around the state,” Schuler said. 

But either way, she stands by the ban. 

“I know the numbers aren’t great, but to me it doesn’t matter if it’s one or if it’s ten,” Schuler said. “If one biological girl is left behind because a trans athlete takes her spot it’s just wrong. It’s not fair.”

For Schuler, the legislation was also personal. A longtime athlete and coach, the lawmaker was a junior playing basketball at the University of Wyoming when Title IX was first enacted. Practically overnight, Schuler said, everything changed for the better. 

“I used to tell my high school athletes all the time, you don’t know how lucky you are that you just get to walk in here and you get the same opportunities as the guys in every way shape or form,” Schuler said. “Because there were a lot of folks back in the day that had to fight for those opportunities.” 

As for feedback, Schuler said she’s not heard any negative comments from her constituents. 

“I’ve had a lot of people just come up and thank me and just say, ‘That’s great that we got that done,” Schuler said. 

Otherwise, the ban hasn’t caused much of a stir with the Wyoming High School Sports Activities Association during its first year. 

“Since we have followed our state statute, we have not received any feedback from our schools, positive or negative,” Trevor Wilson, commissioner of the association, told WyoFile in a statement.

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TETON PASS—Highway construction workers Tuesday were paving a detour around a missing section of Highway 22 in hopes the temporary fix will open the vital inter-state link to commuters Friday.

The road is expected to open to all traffic, including semi-trucks weighing up to 60,000 lbs., but will be signed with a 20 mph speed limit through the detour.

“It’ll be a slow-down point,” said Keith Fulton, assistant chief engineer for the Wyoming Department of Transportation who described the detour at the construction site. “A little bit of slow-down is better than a big detour.”

A landslide undermined the route over 8,431-foot high Teton Pass the night of June 7, befuddling thousands of Jackson Hole workers who live in nearby Victor, Idaho, where housing is more affordable. For two and a half weeks, they have had to make an 86-mile commute around the Snake River Range and through the town of Alpine instead of their usual 24-mile trip over the pass.

“We have the utmost confidence in this detour.”

WYDOT geologist James Dahill

The change amounts to about four or five hours of driving a day, commuters say, an unsustainable burden on top of a normal eight-hour workday.

That’s going to end, “hopefully by the end of the week,” said Darin Westby, WYDOT director. He made his comments on the edge of freshly laid asphalt as it was being steamrolled amid the industrial cacophony of road construction machinery.

Concrete barriers will line both edges of the detour, which shortcuts the inside of the now-gone original sweeping curve. The new section has an 11.5% grade, steeper than the old road’s 10%.

“We have the utmost confidence in this detour,” said James Dahill, chief engineering geologist with the transportation department.

The Big Refill

It was “a perfect storm” that led to the failure, Dahill said. Rain fell on snow this spring as the temperature suddenly jumped 25 degrees resulting in unusual runoff.

All that water helped undermine “The Big Fill” portion of the highway that was built up five decades ago to span a significant swale in the route’s alignment. The Big Fill, however, was constructed atop “a little pocket of clay” Dahill said.

A saturated embankment and saturated soils contributed to the failure, Dahill said. “It was wet,” he said of the failure point.

Engineer Fulton said clay layers are “usually the slippery spot.” But he didn’t find fault with the original construction, completed more than 50 years ago.

“It gets used a lot,” Fulton said of the highway. “We keep up on maintenance.”

Landslide dangers are part of the nature of the mountain-pass highway beast, Fulton said.

Wyoming will likely qualify for federal funding for 90% of the expected $30 million cost of a permanent reconstruction, officials said. Plans are to rebuild the road in its original location, albeit with lighter embankment material.

The Big Fill, “that was heavy embankment material,” geologist Dahill said.

Although design and engineering is incomplete, the reconstruction will resolve the clay issue one way or another, he said, possibly with steel shafts or some other ground-penetrating columns. Drill holes have revealed no water problems at this point, he said, and underground sensors will reveal both gradual ground motion and any water flow.

Crews, including from emergency contractor Evans Construction, worked 24/7 for weeks, “through Father’s Day and everything else,” said Bob Hammond, WYDOT’s resident engineer in Jackson. “We wanted to get this done in two weeks; it’s taken three.”

Although the road will be signed with a 20 mph limit, savvy commuters who aren’t in heavy traffic will likely be able to negotiate the detour a little faster, Hammond said.

Director Westby said he hopes the permanent replacement will be completed “before the real big winter sets in.” He touted cooperation across agencies, states, counties and municipalities and the capabilities of his department, too.

“We have the biggest engineering firm in the State of Wyoming,” he said.

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The U.S. Bureau of Land Management sidestepped the National Environmental Policy Act in issuing its new “conservation rule,” a “sea change” in federal land management that threatens wildlife, landscape health and economies reliant on some 245 million acres of BLM-managed lands across the nation, a lawsuit filed this week by Wyoming and Utah alleges.

The two western states, which, combined, are home to more than 41 million BLM acres, filed the 34-page lawsuit Tuesday in U.S. District Court in Utah. They’re asking the court to vacate the Conservation and Landscape Health rule, which was finalized in April.

“Ever since this abomination of a rule raised its ugly head, demonstrating the Biden administration’s disregard for the law, I have fought it tooth and nail,” Gov. Mark Gordon said in a prepared statement Wednesday. “This legal challenge ensures that this administration is called out for sidestepping the bedrock federal statutes which guide public land management by attempting to eliminate multiple use through a corrupted definition of conservation, and for doing so with impunity.”

The complaint is the latest in Gordon’s mounting legal battles against the Biden administration over land use and climate policies. The administration has issued a suite of new policy measures in recent months that violate Wyoming’s primacy over wildlife management and many state-led programs to implement federal environmental rules covering things like emissions from coal, oil and natural gas, according to the governor. Gordon has said the administration appears intent on destroying the state’s fossil fuel industries while ignoring his own initiative to “decarbonize” those industries as a means to address climate change.

Freedom Caucus members in the Wyoming Legislature, however, have alleged a “lethargic” response from Gordon regarding recent federal rules.  

Gordon has scheduled a town hall event from 1-3 p.m. Tuesday in Gillette to highlight his administration’s response to the barrage of new federal policies, which include the Environmental Protection Agency’s coal pollution rules, the BLM’s sage grouse management amendments, its “methane rule” and a proposal to end federal coal leasing in the Powder River Basin.

Conservation rule

The BLM unveiled its proposed conservation rule last year, citing the need to adapt federal land management strategies in recognition of mounting pressures from climate change, such as intense drought, wildfires and invasive plant species.

The rule “promotes conservation and defines that term to include both protection and restoration activities,” according to the BLM. The rule also “clarifies that conservation is a use on par with other uses of the public lands” under the Federal Land Policy and Management Act.

“It seems that Utah and Wyoming are employing all these strategies to try to drag all of us down into the legal weeds to distract everyone from the larger picture, which is that the public wants to see more balanced management of these resources and values.”

Rachael Hamby, Center for Western Priorities

Conservation groups, including the Lander-based Wyoming Outdoor Council, have hailed the conservation rule as a victory for landscape health that also supports rural economies by ensuring healthy wildlife habitats and outdoor recreation.

The rule, “does not prevent oil and gas drilling, mining, or grazing on public lands,” the council states on its website. “But it does enshrine protection and restoration as necessary components of responsible management. In doing so, our wildlife habitat, areas of cultural importance, water quality, and landscape intactness all stand to benefit.”

In a webinar hosted by the council last year, the group’s Wildlife Program Manager Meghan Riley said the BLM’s conservation rule is a much-needed correction to what has been an over-emphasis on industrial development.

​​”Some of these money-generating uses have gotten a little bit more attention in management decisions, and some of these conservation values may have fallen by the wayside,” Riley said. “So the intent of this rule that’s been put forward is to put conservation on equal footing with some of these other uses on BLM lands and bring better balance to management decisions.”

U.S. Sen. John Barrasso (R-Wyoming), ranking member of the Senate Committee on Energy and Natural Resources, introduced a bill last year to block the rule. Nine senators, including U.S. Sen. Cynthia Lummis (R-Wyoming) joined as sponsors. The bill has not advanced.

Barrasso also said he would use the Congressional Review Act to block the rule. But that hasn’t happened. 

“It seems that Utah and Wyoming are employing all these strategies to try to drag all of us down into the legal weeds to distract everyone from the larger picture, which is that the public wants to see more balanced management of these resources and values,” Center for Western Priorities Policy Director Rachael Hamby told WyoFile on Wednesday.

Hamby pointed to a Center for Western Priorities analysis of public comments submitted to the BLM regarding the rule. The group found that 92% of the comments were either in support of the rule as proposed or in favor of making it stronger in terms of conservation.

“So in terms of American taxpayers, whose lands these belong to, are in overwhelming support for this rule,” Hamby said.

“The BLM is supposed to have been managing for multiple uses this entire time,” she continued. “What we have seen is that the extractive industry has been getting priority a lot of the time, and they have gotten used to that. So now we see this rule that says, ‘We’re gonna get back to a true multiple use management framework,’ and now they’re going to be one of many uses that are on equal footing in terms of how the BLM manages its public lands.”

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Wyoming will see more contested statehouse races this primary election than the last, but the number of Democratic legislative candidates who are participating has hit a 26-year low, an analysis of election data by WyoFile shows. 

Sixteen Democrats will run for the Legislature this year, according to the 2024 primary election candidate roster. That’s less than half of the 26-year average, and far below the high point of the last decade, when 62 Democrats ran in 2016. 

Meanwhile, the number of Republican candidates running for the statehouse has steadily climbed since 1998. 

Sen. Chris Rothfuss (D-Laramie), the Legislature’s longest-serving Democrat, said a lot has changed since he was first elected in 2011. 

“The current political climate is such that it’s unwelcoming to engage in politics,” Rothfuss told WyoFile. “You have an awful lot of hatred and vitriol, more so than the past, and the campaigns are mean and destructive instead of constructive oftentimes.”

The rising cost of running for office in Wyoming is likely another culprit. 

Jen Solis, a political newcomer running for Cheyenne’s House District 41 as a Democrat, said she sees the low number of candidates as a natural extension of “Democrats being told over and over and over again that ‘You don’t belong here.’”

“I think we’re seeing folks saying, ‘What’s the point of giving up my summer to do all this for nothing?’ And I personally don’t think it’s for nothing. I think people deserve a choice,” Solis said. 

The number of candidates running this year mirrors a decline in the party’s statehouse representation, which took a hit in both the 2020 and 2022 elections, dwindling to Democratic representation at the statehouse to seven lawmakers from two counties. 

Wyoming Democratic Party Chair Joe Barbuto said he’s hoping the party can move past several events in recent years that “made it more difficult in Wyoming to be a Democrat,” including the pandemic and the U.S. House race between Liz Cheney and Harriet Hageman. 

“We had a lot of people think that switching over to vote in the Republican primaries would be a productive tactic. And it really wasn’t. I mean, we can look at the outcome,” Barbuto said. “So that’s something that we have to rebuild from.” 

That tactic, which did not help Cheney save her seat, also put the Democrats at risk of losing their major party status. 

Neither of the Senate’s two Democrats are up for reelection — Rothfuss and Sen. Mike Gierau (D-Jackson). Otherwise, the House’s five Democrats will all seek reelection, three of whom will face Republican challengers.

The 11 remaining Democratic candidates are either political newcomers or former lawmakers. 

Details

While this year is a certain kind of a low point, the high point wasn’t that long ago. In 2016, 62 Democrats ran for the Wyoming Legislature. 

“It was spectacular,” Rothfuss said. It wasn’t a coincidence either. 

“That was a deliberate effort by Aimee Van Cleave, who was the executive director of the Wyoming Democratic Party at the time,” Rothfuss said. She tried to get a candidate to run “for every single seat and she came pretty close.”

Thanks to Van Cleave’s candidate recruitment efforts, Wyoming had one of the highest ratios of contested races in the country that year, according to the Jackson Hole News & Guide.

Ten Democrats were elected to the statehouse that year, but Rothfuss said the intention for some candidates wasn’t simply to try to win races.

Lots of Democrats ran to give voters choices and “to make sure that Democratic values were heard, and priorities were communicated,” Rothfuss said. 

That’s a much harder sell in today’s hostile political climate, he said.

“When you have a circumstance where there’s this much hostility in politics, it’s a pretty hard sell, to get someone to go into an election, where there’s a very, very high likelihood that they’re going to lose that election, just to communicate values,” Rothfuss said. 

Barbuto said while he would have liked for there to be more Democrats running for the Legislature, he’s “thrilled with the Democrats who are running for office at every level of government.”

“There’s some exceptional people with a variety of backgrounds that bring a lot of needed voices and experiences,” he said. 

While there’s no denying that running for office in Wyoming as a Democrat is a lot less appealing than it used to be, Barbuto said, he remains optimistic. 

“There’s really an incredible amount of work, mostly at that county level, going into building this party for the future,” he said. “When you look at our infrastructure, our party, the passion of our volunteers and dedication that we have to this work, despite all those odds, and what we’re up against, it’s pretty inspiring, actually.”

That was on full display earlier this month when Democrats gathered in Casper for their state convention. The party settled its platform and resolutions, and elected its delegation to represent the state at August’s Democratic National Convention in Chicago, but chose to schedule one of its bigger agenda items for a special convention early next year.  

“We’re gonna do a complete rewrite of our state party bylaws,” Barbuto said. Between now and December, a committee will meet to develop a draft that will be more reflective of the party’s embrace of technology, activist grassroots, and more progressive views on gender identity.

More to come?

In the meantime, Barbuto said he’s not ruling out the possibility that more Democrats make it onto the ballot for the general election thanks to the state’s provisions on write-in candidates. 

If a write-in candidate receives at least 25 votes in the primary election, state statute allows them to appear on the ballot in November. 

Such was the case with Jen Solis in 2022 with House District 41, which encompasses a section of north-central Cheyenne. 

“There was going to be an uncontested race on my ballot, and I don’t like that,” Solis said. “I never like going to vote and seeing there’s only one name there.”

On impulse, Solis said, she decided she’d run as a write-in and ended up with the requisite 25 votes. That gave her less than three months to campaign for the general election where she faced Rep. Bill Henderson (R-Cheyenne). 

Solis ultimately lost, but not by much — 221 votes. 

“I think what that campaign showed was that people do want choice, and I think that’s important across the state,” Solis said. “It’s something that we’re getting away from.”

Depending on who wins the Republican nomination in House District 41, Solis will face Henderson again, or Gary Brown for the first time.  

Solis said her 2022 campaign was a “super positive experience,” but said she’s also prepared to face whatever ugliness she encounters on the campaign trail. 

“We’ve let this sort of story take over, this narrative of, ‘We are the most conservative state.’ And sure, yeah, we are. But that doesn’t mean there hasn’t been Democratic leadership that shaped our way of life,” Solis said, pointing to Wyoming’s former Democratic congressmen, governors and lawmakers. 

“And we’re losing [sight of] that if we only let the debate be between the ultra-far right and the moderate right,” Solis said. “There has to be a conversation that includes all Wyomingites.”

The primary election is Aug. 20. Early voting for most residents starts July 23. 

Tennessee Watson contributed to this reporting.

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Teton County leaders declared Monday that Jackson Hole and Yellowstone and Grand Teton national parks are open and accessible to visitors despite the destruction of a key regional highway.

A landslide Friday night severed the mountain-pass artery between Jackson Hole and Victor, Idaho, a vital commuter and commerce route that is one of five paved roads into the valley. As news of the landslide hit the nationwide press, worried prospective tourists peppered hospitality hosts, asking whether they could still come and reach the region’s recreational attractions.

“Jackson Hole is open,” Teton County Commission Chairman Luther Propst said during a hastily prepared briefing from a group of 10 emergency managers Monday morning. He led a discussion that included calls for aid to commuting workers across a spectrum of needs from housing to transportation, child care, carpooling and more.

Gov. Mark Gordon declared an emergency Saturday, enabling the state to seek Federal Highway Administration funds to repair the highway. The destruction of a segment of the road “endangers the health, safety, economy, and resources of residents of Wyoming” the declaration reads.

“The impact is a lot more on our community.”

Jackson Hole Chamber of Commerce President Rick Howe

A detour around the destroyed section of highway could be fixed in “weeks, not months,” Darin Westby, director of the Wyoming Department of Transportation, told the Teton County Board of County Commissioners over a broadcast link. That will be well into the region’s busy summer tourism season, which has already begun.

Fearful that news of the landslide would crimp the local and state economy, tourism officials and others urged a unified message saying the parks and valley are open and accessible.

Visitors from California, New York and Texas with vacation reservations have asked “will things still be accessible?” said Rick Howe, president and CEO of the Jackson Hole Chamber of Commerce.

Other than the one route, the message to visitors is “we are not closed,” Howe told the county board. Considering that there are four other highways into the valley, visitors have options to get to Jackson Hole, he said, to enjoy the Snake River along with Grand Teton and Yellowstone parks.

“The impact is a lot more on our community,” Howe told the board.

Temporary housing

Loss of the highway means commuters from the Idaho side of the Teton Range, where housing is cheaper than Jackson Hole, will have to drive an extra 62 miles. That adds 1 hour and 6 minutes to what is usually a 24-mile and 32-minute drive. Congestion will increase that time as thousands of commuters re-route their daily travel through Swan Valley, Alpine and the Snake River Canyon.

Fully 20% of the workers at St. John’s Health are affected commuters, hospital spokesperson Karen Connelly told commissioners Monday, and 115 of those “need to be on-site.” Many work 12-hour shifts and have pets, children and homes to worry about.

Adding what could be up to four hours of commuting time to such shifts creates obvious burdens, she said.

“These are long days for people,” she said. “There are needs.”

Additional response

Commissioners will meet Tuesday to take action on a host of recommendations made by emergency and community leaders, including reducing occupancy limits in some housing blocks, giving temporary occupancy permits to others, allowing RV and tent camping, waiving bus fees and other proposals.

“There’s a limit to how many people we’re allowed to put in our units,” said Mary Kate Buckley, president of Jackson Hole Mountain Resort. The ski-area company has constructed employee and workforce housing that’s regulated to some degree by development agreements with Teton County.

She asked for a temporary waiver of those occupancy limits and flexibility in other restrictions to accommodate commuters during the emergency. The resort also wants permission to house worker trailers, campers and tents at potential sites at a Teton Village parking lot and the Stilson transit hub a few miles south of the resort and village.

The Jackson Hole Community Foundation has reactivated its emergency fund that was last used during the COVID-19 emergency, said Laurie Andrews, president of the nonprofit hub. The foundation, best known for its annual Old Bill’s Fun Run for Charities that raises millions of dollars each fall for nonprofits, is setting up a network to pair unoccupied guest houses and vacant rooms with commuting workers, she said.

The town and county START public bus service has reworked its Idaho-Jackson schedule to accommodate the longer drive, director Bruce Abel told commissioners. Ridership on the first day of the new schedule was “somewhat disappointing,” he said, but that could change.

Congestion in the Snake River Canyon and Jackson during the emergency could extend the new, longer commute times, he said, because the highway network is “at capacity.”

The Federal Transit Administration, an arm of the U.S. Department of Transportation, reached out to START to offer aid, he said. START will carefully log expenses with the aim of securing reimbursements during the emergency, he said.

That reimbursement was “top of conversation” with the federal agency, Abel said. The federal outreach came as U.S. Secretary of Transportation Pete Buttigieg expressed his agency’s support for Wyoming’s emergency repairs in a post on X, the social media site formerly known as Twitter.

Rich Ochs, the county’s emergency management coordinator, outlined the difference between emergencies and disasters and told the board that the governor’s emergency declaration was the proper and sufficient reaction. Being a Wyoming highway, the incident is the state’s to manage, he said, and the appropriate venue for aid is through the Federal Highway Administration, another arm of the USDOT.

It’s not appropriate to pursue Federal Emergency Management Agency support, Ochs said. “We have one injury,” he said, a motorcycle rider who was unseated by a slump in the highway some time before it collapsed. “We have no deaths … no direct impact” to town and county finances.

While WYDOT works on a solution — a paved two-lane bypass to the missing highway segment that will require motorists to slow down from normal speeds — Ochs and his eclectic 10-person team of department heads and community organization leaders will continue their efforts.

While costs may accrue to state and federal coffers, “the impacts,” he said, “are our problem.”

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It’s been nearly five years since the U.S. Supreme Court issued a landmark decision recognizing tribes’ treaty-based hunting rights, and two months since a lower federal court issued an order related to tribal elk hunting in the Bighorns. Still, many of the fundamental legal and policy questions about where, when and if certain Native Americans are bound by state hunting regulations remain far from resolution. 

Meanwhile, the landscape of case law in which observers expected the lingering legal questions to be resolved has quietly, but meaningfully, shifted: Wyoming has dropped the charges in the partially remanded Herrera v. Wyoming case, meaning the case is dead and its unresolved elements will remain that way. 

That has elevated the importance of a case that began when Thomas Ten Bear, a member of the Crow Tribe, was convicted of elk poaching in the Bighorns in 1989. Though completely separate from the more modern Herrera case, Ten Bear’s shares a number of key elements: both center around Crow Tribal members being prosecuted for killing elk in a national forest in Wyoming without a state-issued permit.

Years before the Supreme Court’s Herrera ruling, Ten Bear asked a federal court to throw out his nearly 35-year-old poaching conviction. In late March, with the new precedent in place, U.S. District of Wyoming Judge Alan Johnson issued a 27-page order partially granting Ten Bear and the Crow Tribe’s requests for relief. While doing so, he hewed closely to the specific case before him. 

The judge made a couple of “important” judgements that helped establish consensus around “key legal questions,” said Sen. Affie Ellis (R-Cheyenne), an attorney and member of the Navajo Nation who has followed the issue closely.

“Unequivocally, [the order] says that statehood admission does not abrogate treaty rights,” Ellis told WyoFile. “The case unequivocally says that just because you create a national forest, [it doesn’t mean] that those lands are occupied.” The Crow’s treaty grants hunting rights in perpetuity on “unoccupied” lands.

But other important questions about off-reservation hunting remain unresolved, she said. 

Creating a national forest doesn’t make it “occupied,” but there are ambiguities about when portions of a forest — or any land — can be considered occupied and off-limits to treaty-based tribal hunting. Separately, there are unanswered questions about “conservation necessity,” and when the state could regulate or even prevent tribal hunting outside of reservation boundaries.  

Johnson didn’t definitively answer those questions. Ellis didn’t think he would. 

“If he made a blanket statement of how [off-reservation hunting] should look, it would probably have been treated as … an opinion, but not binding precedent,” she said. “There are limits on what a court can do.”

The judge was ruling on a narrow case, stemming from Ten Bear’s elk poaching conviction 35 years ago. Ten Bear and the Crow Tribe sued Wyoming using a 1868 treaty right argument, but lost. Then decades passed before the Supreme Court ruled the opposite in the Herrera case.

Wyoming dropped charges against Clayvin Herrera last year after an unrelated conviction on felony child pornography charges promised a long prison sentence. That means lingering legal questions about “occupancy” and “conservation necessity” will no longer be resolved through that case, Ellis said. The nation’s highest court had sent back those questions for the Sheridan County Circuit Court to answer. But with the charges dropped, the case is dead.

The Crow Tribe, meanwhile, has sought relief from the Ten Bear judgements, known as Repsis after the game warden who brought the original charges. That request was bounced from the U.S. District Court of Wyoming to the Tenth Circuit Court of Appeals and back to the federal district court, where Johnson ruled while considering the new Herrera precedent in late March. 

Agreement needed

Cheyenne attorney David Willms believes that Wyoming and tribal residents with treaty hunting rights in state bounds still lack a clear blueprint for resolving off-reservation tribal hunting.

“My read between the lines is the judge is saying, ‘The state and the tribes need to get together and work this thing out,’” said Willms, a former policy advisor for Gov. Matt Mead and an adjunct law teacher at the University of Wyoming. 

In his ruling, Johnson wrote that the two parties should “endeavor to strike a balance between treaty-based … rights and state sovereignty over natural resources.” 

The Supreme Court’s Herrera v. Wyoming ruling, he wrote, suggests that the two are “necessarily compatible.”

In the five years since Herrera, there has been one big effort to make off-reservation hunting compatible in the state of Wyoming.

During the Wyoming Legislature’s 2023 general session, lawmakers were advancing a tribal agreement bill that Wyoming Game and Fish Department Director Brian Nesvik described as his “biggest legislative lift” of the year. In essence, the legislation would have granted Gov. Mark Gordon the authority to negotiate state-tribal pacts for off-reservation hunting and angling seasons that went outside of Game and Fish Department regulations.

The Eastern Shoshone Tribe initiated the effort in 2022 and was initially on board. But then southeast Idaho’s Shoshone-Bannock — other tribes with treaty hunting rights in Wyoming — protested, arguing that they were cut out of the process and that the bill was too prescriptive, violating their sovereignty. Eventually the bill lost all tribal support. The legislation died, but not before “poisoning the well,” as one state senator put it at the time. 

Since then, the Wyoming Game and Fish Department has taken the position that tribal members can be cited for off-reservation hunting and angling that violates state seasons and regulations. 

“On the ground, it’s still not legal for tribal members [without standard permits] to hunt off-reservation in Wyoming on unoccupied lands,” Nesvik told members of the Legislature’s Joint Appropriations Committee in January. “That’s the way we’re treating it. We do know that the Supreme Court made some decisions that we need to deal with.” 

Nesvik cited the “gray area” left by the Supreme Court: “We believe that ‘conservation necessity’ exists, and until there’s tribal regulation that’s agreed upon with the state, those tribal rights can’t be executed,” he said.

The Billings Gazette reported this winter that Montana Fish, Wildlife and Parks responded to the Supreme Court’s decision very differently, instructing its wardens not to cite Crow Tribe members who violate state hunting laws in the Custer Gallatin National Forest east of the Yellowstone River. The state and tribe are discussing additional off-reservation hunting grounds in Montana, but have not asserted their treaty rights in Wyoming, Crow Tribal Fish and Game Director Ryan Fitzpatrick told the newspaper. 

“We didn’t want to get into an argument or court case,” he told the Gazette. “They said they want time to identify unoccupied lands. We didn’t want to go out there and say we have a treaty.”

Continued impasse

Meantime, there are few signs of progress toward resolving off-reservation hunting in Wyoming. 

Wyoming Game and Fish officials declined an interview for this story, deferring to Gov. Mark Gordon’s office, which released a statement. 

“To date, neither tribe has indicated a desire to continue the discussion on off-reservation hunting with the state,” the governor’s statement said. 

WyoFile was unsuccessful in its attempts to interview Eastern Shoshone and Northern Arapaho tribal leaders. The two tribes occupy the Wind River Indian Reservation in central Wyoming. Efforts to reach the Crow Tribe in Montana and Shoshone-Bannock tribes in Idaho were also unsuccessful.

Gordon desires “government-to-government negotiations” with the tribes to mutually agree on off-reservation hunting. That approach is more “positive and productive” than “unpredictable, expensive and contentious” litigation, he said in the statement.

“It is not, and has never been, the governor’s intention to unilaterally regulate tribal hunting on or off of the reservation,” the statement said. “Instead, the governor’s intention is to find common ground on shared values of wildlife conservation and responsible hunting.”

Ellis, the attorney and state senator, also believes that the best way to move forward is outside of the courtroom. Having a tribal member violate Wyoming hunting laws as a test case would subject that person to prosecution and “doesn’t seem appropriate,” she said. 

There are “important lessons” to be learned from Wyoming and the Eastern Shoshone Tribe’s failed 2023 effort to reach agreement, Ellis said. 

“The unfortunate thing is how that bill was drafted and the way it was negotiated,” she said. “We came to see that the Shoshone-Bannock tribes had concerns about the bill, as it was drafted, and not being included in the drafting of the bill.” 

Going forward, Ellis said, it’s important to have an agreement that includes both of the Shoshone tribes that signed onto the 1868 Treaty of Fort Bridger. Article 4 of the treaty states: “… they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.” 

Toward a resolution

It also makes sense for Wyoming to strike an agreement with the Crow Tribe, which has similar treaty language, over hunting in the Bighorn National Forest, Ellis maintains. 

Rep. Lloyd Larsen (R-Lander), who was the primary sponsor of the 2023 tribal agreement bill, told WyoFile that Johnson’s order “adds clarity” and will help the tribes and state understand what the courts will expect. At the same time, he said, it left a “lot of flexibility.”

Importantly, Johnson’s order did not end the Repsis case, Ellis said. Effectively, she said, that case has supplanted Herrera as the case where the particulars of “occupied land” and “conservation necessity” could be determined legally. 

There is a lot of legal precedent that will guide the resolution to those questions.

On the issue of occupancy, other courts have ruled that the presence of cattle, fences, cultivated fields and buildings can be a determinant, Ellis said. 

“If an area is open and available to hunting, it’s probably considered unoccupied,” she said. “But how do you parse that out when there might be signs [stating] that those lands have been leased? That’s a little unresolved.”

Resolving “conservation necessity” will be even more difficult in court, Ellis said. The status of a species or big game herd often changes one year to the next, whether from persistent winters that collapse pronghorn herds or drought-driven diseases that devastate deer herds.

“A court can only look at a snapshot in time with one case or controversy,” Ellis said. “To me the better solution would be a negotiated agreement.” 

The state senator reiterated her hope that Wyoming and the tribes can find common ground. 

“It’s important to let the dust settle and let the parties reevaluate where they are,” Ellis said. “I don’t think it’s necessarily going to be within the next year or two that people are ready to re-engage, but at some point in the future, hopefully all the parties will be willing to have these discussions again.”

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