• Large proportions of land in the states are controlled by the federal government even though states are typically better at doing so.
• Utah attempted to convince the U.S. Supreme Court to hear a constitutional challenge to federal control of unappropriated lands but the court has declined for now.
• There are still many things Congress can do such as transferring control of unappropriated land to the states, sharing revenue from the management of land with the states, and allowing state and local governments to help the federal government to take care of lands.

Smokey Bear has been pointing his finger at us for decades, insisting that “Only YOU can prevent wildfires.” As the devastating Los Angeles fires fade from prominent national attention and the focus turns to cleanup, there are many fingers ready to assign blame – but where should they point? It may take years to answer that question, but a lawsuit brought by the state of Utah against the United States points to one step toward better fire prevention: put Western states in charge of more of their own land.

The federal government is the owner of just over half of all land west of the Rockies. For decades, states have complained that the federal government is not a good neighbor because it does not care for this land to reduce wildfire risk, through thinning, controlled burns, and so on. Land agencies like the National Forest Service often lack enough funding to handle the huge backlog of forest restoration projects that must be done to reduce wildfire risk, and when federal land agencies propose projects to ease the problem, environmental review rules and litigation often slow these projects to a grinding halt.

By contrast, the state governments are better at managing land to reduce wildfire risk. A 2018 survey of California wildlands found that “average annual fire probability was nearly always higher for points with federal ownership” than the nonfederal land. The researchers attributed this to “greater fuel accumulation on federal lands” and less “active vegetation management.”

If the federal government wants to prevent calamities like the tragedy that unfolded in Los Angeles, it might start by handing off some of the hundreds of millions of acres it manages to the states, which have proven to be better stewards.

In fact, the state of Utah, supported by other Western states, recently petitioned the U.S. Supreme Court to decide whether the federal government has the power to indefinitely hold onto land in Utah without any intention either of using it for federal purposes or disposing of it, as contemplated by the U.S. Constitution. The court recently declined to take that case. This is a setback not only for federalism but for the ongoing campaign to prevent the West from going up in flames.

But the states can still focus the attention of Congress and the new administration on a serious question – is our system of federalism really working as intended when the national government prevents a state from managing a massive amount of the land in that state?

For perspective, the federal government owns only small proportions of land in the Eastern states. As Utah points out, “less than 1% of the land in Connecticut, New York, and Rhode Island, and less than 3% of the land in Delaware, Maine, Massachusetts, Ohio, and Pennsylvania.” The situation is dramatically different in the West, where more than 85% of Nevada land is owned by the federal government, as is almost 70% of Utah land and over 60% of Idaho land.

Some of these federally owned lands are used for designated purposes, like national parks, or used for constitutional powers delegated to Congress, such as military bases. In Utah, however, almost half of the land held by the federal government is “unappropriated,” meaning they are administered by the Bureau of Land Management, “which earns significant revenue by leasing those lands to private parties.”

This, of course, means that the citizens of the state are prevented from managing these lands through their elected representatives. Our organizations filed briefs in support of the state of Utah that explain some of the serious constitutional problems of this arrangement.

The Pacific Legal Foundation brief explains that where the federal government excludes a state from management of its land, it usurps the traditional functions of a state government, creating and enforcing its own civil and criminal codes governing everything from horses to homelessness. This means that in most of the Western United States, an unelected federal bureaucrat is the only sheriff in town.

Sutherland Institute’s brief points out that the current federal approach to land management in Utah undercuts the constitutional principle that decisions impacting day-to-day experiences of Americans will be made by elected representatives closest to them and whom they can readily hold accountable rather than by unelected and distant decision-makers.

The tragic problem of wildfire underscores the wisdom of our federal structure of government. Our Constitution divided power between federal and state governments for a reason: to ensure democratic accountability and curb abuses of power. States do a better job of managing their lands to prevent wildfire because state officers are accountable to the people who live there – often their neighbors and friends.

By contrast, members of the U.S. Congress who represent Western states are a small minority. To ensure that federal land agencies get the money and tools they need to manage the 640 million acres they own west of the Rockies, a small handful of Western state representatives must persuade the rest of Congress to spend precious political capital on an issue that does not affect the constituents who elect them. State and local governments, meanwhile, understand the issues their constituents face and are beholden to them. It’s no surprise, given these incentives, that state lands are better managed to reduce wildfire risk than federal land.

It’s a shame that the Supreme Court has declined to address an issue that could offer a salve to Westerners at risk of devastating fire. But Congress and the incoming administration can still act. Congress should amend federal land law to encourage public land agencies to gradually transfer land that is not dedicated as a national park or a similar federal purpose to the states over a specified time period. Meanwhile, revenue gained from commercial use of federally owned land – such as through mineral leases – should be shared with the states and local governments. The administration should also encourage “good neighbor” agreements that allow state and private groups to engage in clearing of vegetation on federal lands.

Smokey Bear did not point to distant federal bureaucrats and assure us that THEY alone can stop wildfires. He pointed to us, the people who live on and use the land. That means that the people who represent us should be the ones in charge – so that Westerners have a say in how the West is run.