Boner Subpoenas Attorney General Over Decision Made In State Lands Office

in News/Legislature

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By Leo Wolfson, State Politics Reporter
Leo@CowboyStateDaily.com

The Wyoming Legislature’s Agriculture Committee has voted to subpoena Wyoming Attorney General Bridget Hill to compel her to appear before the committee after Hill declined an invitation to participate in its Nov. 14 meeting. 

At that meeting, the committee discussed a decision Hill made while she was director of the state Office of State Lands and Investments in 2018, concerning a particular state land leasing approval and the process of leasing lands.

Hill ‘Not Interested’

“The answer was simply, ‘No, we’re not interested,’” state Sen. Brian Boner, R-Douglas, said about Hill’s response to the committee’s request.

Boner chairs the Agriculture Committee and told Cowboy State Daily on Monday morning that Hill’s refusal to cooperate with a legislative body is “really why the committee felt to take the action that they did.”

Hill was director of OSLI from 2013-2018, and became the state’s attorney general when Gov. Mark Gordon took office in 2019.

When contacted by Cowboy State Daily on Wednesday afternoon, Hill said she had no comment about whether she will comply if subpoenaed.

Digging For Information

Boner said the committee wants Hill to help clear up some questions lawmakers have.

“This sort of testimony is so we understand the significant impact an agency like State Lands on our constituents,” Boner said. “These are really important issues and I think it’s important that we have an understanding of how contentious some of these cases can be.”

At the meeting, the Agriculture Committee voted 10-4 to subpoena Hill to testify.

Last week, Boner and Rep. John Eklund, R-Cheyenne, wrote a memo to the Management Council detailing why the committee is making the request.

“It’s important that she show up, or any agency show up, so we can make an informed decision regarding the bills before us,” Boner told Cowboy State Daily. “If nothing else, we need to understand the role the Attorney General’s office plays in this process.”

Management Council

On Thursday, Eklund will appear before the Management Council and seek permission to approve and pay for an extra day so the Ag Committee can meet with HIll. The Management Council is the approving body for funding all subpoenas issued by the Legislature’s committees. 

Specifically, the Ag Committee wants to study the processes used by state decision-makers when establishing state land agricultural and grazing leases and the mechanisms used for determining and addressing conflicts of interest. 

Although the Management Council won’t directly rule on the decision to subpoena Hill, it will take an indirect position on the matter by choosing whether or not to fund and OK the extra meeting and $250 subpoena that has not been budgeted. 

Boner and Eklund estimate the total cost of the meeting, including the subpoena, will run $12,085. If approved, Boner said the meeting would likely happen in late December or early January before the upcoming legislative session begins.

Any state leasing application goes before the OSLI for a first determination. After that initial determination is made, the application later makes its way to the State Board of Land Commissioners for a final decision. The Wyoming Attorney General’s office advises both parties on these matters.

Boner said he wants to ensure both parties are receiving fair and impartial legal advice in every step of the process.

Sen. Dan Dockstader, R-Afton, chairs the Management Council and told Cowboy State Daily on Wednesday that he will not vote to support paying for the subpoena and adding an extra meeting for the Ag Committee.

“It’s time to close out the old session and get ready to open the new session,” he said. “We’ve got a lot of new faces, we’ve got to get everybody on board and start up new.”

Motivation For The Subpoena

The primary motivation for getting Hill to testify before the committee is to have her explain some of the decisions made regarding a 2018 leasing appeals case.

In late 2018, applicants Wagonhound Land and Livestock Company LLC and John Leman submitted competing applications to lease a 146-acre parcel of state land in Douglas for 10 years. Wagonhound offered to lease the land for $1,360 a year while Leman offered to lease it for $348.84 a year.

Wagonhound was awarded the lease, a decision Leman appealed. 

Allegations Of Fraud

Leman claimed Wagonhound was awarded its bid based on fraudulent statements and that it did not have an actual or necessary use for the land, which Wagonhound disputes. Wagonhound said the area within the lease were fenced in with other lands the company owns west of the parcel. 

Under state law, grazing leases are to be awarded on actual and necessary use of the land. OSLI argued at the time the law only comes into effect as a tiebreaker when deciding between two bids of the same amount. 

Leman also argued OSLI helped Wagonhound obtain annual temporary use permits for grazing on the land for eight years prior to granting the lease without advertising this opportunity to him or verifying they were being used. 

Boner said a previous landowner before Leman had used the state land in the past, as it was not separated from their ranch property. Leman said he was previously told by OSLI the agency would not lease the vacant land to him because it was too small a parcel.

Land Wasn’t Used

Leman said Wagonhound eventually admitted during the appeals process it had not been using the land it was leasing because most of it had to be accessed through Leman’s land and would require building fencing to separate the two parties’ livestock.

A witness for Wagonhound during the appeals hearing said that although no grazing happened on the land from 2011-2017, it continued to lease the parcel out of the hope it would acquire other lands in the area in the future.

“Speculating on future acquisition of land is not a showing of actual and necessary use,” Leman wrote in his appeal.

In 2017, Wagonhound bought land to the west of the state parcel that is fenced in with the state lands and not separated because of an unmaintained fence.

Misleading Map

The Board of Land Commissioners agreed that a property map Wagonhound provided in its 2018 application was misleading, an action Leman asserted was used purposely as a point of leverage with OSLI. 

“If you’re an adjoining landowner you have an increased right or increased probability of getting that vacant land,” Boner said.

OSLI also argued it lacked authority to reject Wagonhound’s lease because its application did not contain any false statements that materially affected it. Wagonhound said because it showed intent to use the land it met the “actual and necessary” requirement. 

The Office of Administrative Hearings sided with Leman in January 2020 and recommended that he be granted the lease. The case was then remanded to the Board of Land Commissioners for a final decision. 

Both Parties Wrong

In April 2020, the Board of Land Commissioners sided with Hill and OSLI. The board argued that weighing the relative merits of each party’s historic use of the state lease was not necessary or appropriate in this case. 

It also mentioned how Leman used the state land without a lease in 2011 and 2012 because his property adjoined it, while Wagonhound did not make use of the land he said he would use. In the opinion of the board, those two wrongs made the parties equal.

“Under these circumstances, the board concludes that neither party should obtain any benefit from either their use without permission or their non-use despite permission,” the Land Commissioners said in their final decision letter.

A Teachable Moment

From 1998-2019, this was the only instance of the Board of Land Commissioners rejecting recommendations made by the Office of Administrative Hearings while upholding the OSLI Director’s recommendations. 

Boner said he has no expectations for a reversal of the Leman decision, but he wants the case to serve as a teaching moment for the Agriculture Committee to show how contentious and significant state lands use cases can be.

“In my mind, the most troubling part is how long this land sat vacant,” Boner said. 

State Treasurer Curt Meier and Interim Secretary of State Karl Allred accepted invitations to participate in the Ag Committee meeting earlier this month on behalf of the Board of Land Commissioners. Meier served on the board when deciding the Leman case, but Allred did not.

Ramifications

Boner said a subpoena has not been considered by the Wyoming Legislature or a legislative committee since 2013. 

While according to law, a subject must answer a subpoena or risk facing charges of contempt, Boner said it is unclear what legal ramifications Hill could face if she chooses not to answer the committee’s subpoena. 

“The Legislature has not used this tool in our toolbox,” Boner said. “I don’t have a good answer for that, and I think that’s a good reason to move forward because this is something we can legitimately use as an oversight function of the Legislature that we just haven’t used in recent memory.”

Boner said there is drafted legislation for the upcoming session that could be affected by Hill’s perspectives on the leasing matters. He mentioned one bill that would attempt to mitigate the quantity of vacant land, defined as state land not being used for grazing, by making changes to the leasing application and renewal process that would prevent land from going vacant because of a minor infraction in paperwork.

“When these bills hit the House or the Senate floor, we need to be able to explain the entire context of what these bills are operating in, and we can’t do that if agencies just don’t show up and frankly don’t make an effort to work with us either,” he said.

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