A Top Trump Interior Official Once Pushed To Privatize Wildlife
In the 1990s, Karen Budd-Falen challenged Wyoming’s authority to regulate hunting on behalf of ranchers.
In 1993, property rights attorney Karen Budd-Falen submitted a complaint to a federal judge in Wyoming with a novel argument: State ownership of wildlife violated the U.S. Constitution. And by limiting access to big game hunting permits, Wyoming had trampled the constitutional rights of her clients — a Texas oil magnate and a pair of ranching families, who collectively owned more than 100,000 acres in the state.
“The elk, deer, and antelope, and other game, which live on and may be found on Plaintiffs’ lands are not the property of the State of Wyoming,” she argued in the complaint.
Budd-Falen ultimately failed to convince the judge. But the long-forgotten case marks a unique challenge against one of the bedrock legal principles of American wildlife conservation that is embraced across the political spectrum. The controversial lawyer who led that challenge now serves as a powerful leader of the Interior Department, where she wields enormous influence over wildlife policy and public land management.
Neither Budd-Falen nor Interior responded to Public Domain’s interview requests for this story, which is based on court filings retrieved from federal archives.
A fixture of the Sagebrush Rebellion of the 1970s and 1980s that sought to wrest control of public lands from the federal government, Budd-Falen is famous for taking big swings at environmental laws on behalf of ranchers and extractive industries — often in creative ways.
The self-described “cowboy lawyer“ once attempted to use the RICO statute, a federal anti-racketeering law, to sue Bureau of Land Management employees as extortionists over a dispute to reestablish an easement through a rancher’s property.
Her record of chipping away at environmental laws in the name of private landowners has made Budd-Falen a lightning-rod figure, reviled by conservationists and embraced by business-first conservatives. She first served at Interior during the Reagan-era rollback of environmental regulations piloted by then-director James Watt. She returned during President Donald Trump’s first term to serve as Interior’s deputy solicitor for wildlife and parks. Since March, she has held the title of associate deputy secretary to Sec. Doug Burgum — a position that does not require Senate confirmation.
The Trump administration appeared eager to coax Budd-Falen back to Washington. Days after Trump’s election victory, Randall Luthi, policy director for Wyoming Republican Gov. Mark Gorden, asked Budd-Falen if her bags were packed, according to emails that Fieldnotes, an investigative watchdog group, obtained through a public records request and shared with Public Domain.
“Haha. I don’t want to be State Lands Director and I certainly don’t want to go back to DC again unless I am the God of Interior which won’t happen!” Budd-Falen wrote back.
“I thought you always were?” Luthi responded.
Conservation groups widely panned Budd-Falen’s return to Interior, citing her long history of battling environmental protections and tussling with the agencies she now oversees.
Her 1990s push to privatize wildlife, however, remains a less-familiar part of her record that many in the conservation world view as a major concern for an official charged with steering the direction of the nation’s largest land and wildlife management agency.
“She does not believe that wild elk belong to the American people,” Dave Chadwick, a former executive director of the Montana Wildlife Federation, told Public Domain. “Does Budd-Falen really believe such a radically un-American idea, or was she just trying to make a buck by weaponizing the legal system against public hunters? Either way, this person should be nowhere near the management of America’s public wildlife or public lands.”
‘A Property Right In Hunting’
In the 1993 case, Budd-Falen represented three parties challenging Wyoming’s authority over wildlife. The most prominent was Clajon Production Corporation, a natural gas company owned by Clayton Williams, Jr., a Texas oil baron and rancher who died in 2020. Williams attracted national attention during his 1990 run for Texas governor, when he likened a rainy day at a campaign event to rape, saying “if it’s inevitable, just relax and enjoy it” — a comment that torpedoed his political career. Clajon owned 90,000 acres in Wyoming at the time of the lawsuit.
The other two parties were ranchers Marion and Mary Scott of Gillette, Wyo., and the Salt Creek Ranch owned by Ray Allemand in Douglas. The Scotts owned 8,400 acres. Salt Creek Ranch controlled another 40,000 acres. Mary Scott died last year. Marion, now 92, has since retired from ranching. A family member declined an interview request with Marion, citing his advanced age. Public Domain attempted without success to reach Salt Creek Ranch through the company’s accounting firm.
The economic incentives and challenges that prompted the landowners’ lawsuit, however, are common throughout the West. The vast acreage they held included a healthy share of habitat attractive to elk, mule deer and pronghorn antelope. Wyoming state officials estimated that the properties’ forage produced a “harvestable surplus” of hundreds of elk, mule deer and pronghorn annually, according to court records.
One of the most profitable ways to use large stretches of land in the arid west is to charge deep-pocketed out-of-staters for the privilege of hunting it. But a major bottleneck choked that revenue stream.
Like other western states, Wyoming has long held an annual drawing to issue a limited number of its coveted big game tags to nonresidents. Those who owned more than 160 contiguous acres could also apply for two extra big game permits per species, but only the landowners’ families or corporate employees were eligible for those tags, making them useless for selling hunts.
Hunting permit limits like those are typically set in all states by commissions working with state biologists, who aim to preserve the long-term health of wildlife populations. It’s a pillar of what’s known as the North American model of wildlife conservation, which uses fees generated from hunting licenses, excise taxes on firearm and ammunition sales and other hunter-derived revenue to support game populations and wildlife habitat.
The model is widely credited with pulling back a long list of species from the brink of extinction, from the American buffalo to the white-tailed deer, by stripping away the commercial value that incentivized their mass slaughter.
Budd-Falen and her clients tried to take a wrecking ball to that system, starting with a legal attack on the notion that wildlife belongs to the state — and, therefore, the public. Instead, she described hunting regulations and tag limits as an unconstitutional burden on interstate commerce.
“This was a challenge to one of the basic tenets of wildlife and land management in the west,” Aaron Weiss, deputy director of the Center for Western Priorities, told Public Domain. “It would have made wildlife management impossible.”
The plaintiffs “have a property right in hunting the harvestable surplus produced by their lands,” Budd-Falen co-wrote in a pre-trial memo. Letting wild ungulates graze on their land amounted to “an unconstitutional taking of their property, in violation of the Fifth Amendment.”
And by enforcing landowner hunting restrictions, including limiting her clients to the same number of non-transferable tags as smaller landowners, Wyoming had “unconstitutionally deprive[d] Plaintiffs of their profit a prendre or right of venery in the hunting on their land,” she argued, referencing common law doctrines invoking a landowner’s exclusive hunting rights on their property.
Bradley Jones, a Montana-based conservation advocate and lawyer, said that in taking aim at the public trust doctrine, the lawsuit “attacked a sacred idea this country was founded on.”
“We don’t give exclusive rights that affect the common good to the landed gentry,” he told Public Domain. “Unlike in medieval Europe, where some of the concepts in this lawsuit originate, we don’t delegate wildlife management and hunting privileges to landowners. It’s pretty nuts that [Budd-Falen and her clients] tried to reach all the way back to Anglo-Norman property law concepts to try to secure landowner-only tags in Wyoming in modern times. Nuts, and one might say, un-American.”
It’s not entirely clear how Budd-Falen and her clients envisioned replacing the model of wildlife management they worked to undermine. They did not go beyond asserting a vaguely defined “property right in hunting” emanating from ownership of the plants that wild ungulates ate and the land they roamed upon. “Elk, deer and antelope are large animals which, in the numbers present on Plaintiff’ lands [sic], consume enormous amounts of forage, browse and water belonging to Plaintiffs,” the complaint reads.
Her clients appeared at times to want the authority to set big game hunting limits for themselves, asking the court “to declare landowner hunting restrictions to be null and void” — a measure that would fully privatize the wildlife on their lands.
But even as the lawsuit challenged Wyoming’s ownership of wildlife, Budd-Falen’s clients specifically prodded the state to give them more landowner tags and to make them transferrable to nonresidents customers — a seeming recognition of the state’s management authority.
Attorneys for Wyoming appeared confused by the conflicting arguments.
“It is unclear whether Plaintiffs are seeking more landowner licenses and the opportunity to transfer them, or that the regulations be declared void so that no landowner licenses are issued,” lawyers for the state of Wyoming wrote in a court filing. “Plaintiffs, as the case develops, appear to be requesting some sort of privatization of hunting so that they control game management on their own lands and the number of licenses issued.”
The attempt to usurp public ownership of wildlife prompted some of the country’s most prominent conservationist groups to intervene in the case, including the National Wildlife Federation, the Greater Yellowstone Coalition, the Sierra Club and the late hunter-conservationist writer Jim Posewitz. Several individual public land hunters also intervened, saying they worried that a ruling in the large landowners’ favor would turn hunting into a privilege for the wealthy by making it harder for everyday people to draw tags.
“Our belief, and the theme of our educational efforts, is that wildlife conservation has been successful because wildlife are a resource held in common by all Americans,” Posewitz wrote the court in an affidavit. “Because Plaintiffs’ lawsuit seeks to establish the private ownership of wildlife we believe it threatens our rights as hunters and will undermine our efforts to encourage the public to conserve publicly owned wildlife.”
‘Well-Settled’ Law
U.S. District Judge Clarence Brimmer ruled against all of Budd-Falen’s arguments in a 1994 summary judgment order that halted the case before it went to trial. Budd-Falen’s attempts to appeal portions of the ruling to the 10th U.S. Court of Appeals failed the following year.
Brimmer’s order noted that the 10th U.S. Circuit Court of Appeals had upheld the longstanding constitutionality of public wildlife ownership a decade earlier, in a ruling against the Mountain States Legal Foundation — a conservative law outfit that had once employed Budd-Falen. That case had unsuccessfully argued that the federal government unconstitutionally deprived ranchers of healthy grazing forage for cattle by declining to remove wild horses and burros.
Brimmer cited that judge’s conclusion that “it is well-settled that wild animals are not the private property of those whose land they occupy, but are instead a sort of common property whose control and regulation are to be exercised ‘as a trust for the benefit of the people.’” Budd-Falen’s clients “cannot claim a property interest in these wild animals, which is essential to their takings claim,” the order said.
“This was a challenge to one of the basic tenets of wildlife and land management in the west. It would have made wildlife management impossible.” — Aaron Weiss, Center for Western Priorities
That order helped shut down attacks against the North American model of wildlife conservation before they gathered steam, said Craig Benjamin, the executive director of Wyoming Wildlife Federation, one of the intervenors in the case.
“It helped discourage future efforts to privatize wildlife and hunting rights,” Benjamin told Public Domain. “It was incredibly helpful.”
Benjamin did not see Budd-Falen’s role in the case as a major liability for taking a role at Interior. He credited her with understanding the west’s ranching culture and saw value in having a Wyomingite in a DOI leadership role.
Still, like other conservationists interviewed for this piece, Benjamin sees troubling signs of once unthinkably extremist attacks on the public domain gaining political traction — most notably Utah Sen. Mike Lee’s recent failed attempt to force through an unpopular transfer of more than 1 million acres of federal public land.
“The North American model remains strong, but there are modern threats that echo this case — the privatization of public lands and wildlife are still a real risk,” Benjamin said. “What makes America, America and Wyoming, Wyoming is our public lands and our public wildlife.”