Judging by the tone of Gov. Mark Gordon’s response to the 16 members of the Wyoming Freedom Caucus who sent him a critical letter earlier this week, the governor doesn’t seem to be persuaded by their arguments demanding he immediately sue the federal government over a new ban on coal production.
In fact, he blasted back at the group for its “sniping” over the issue.
Gordon offered a blistering response to the Freedom Caucus letter on Thursday about a new federal rule that would halt all coal production in the Powder River Basin by 2041.
“I ask, is it necessary to circle the wagons only to fire in on ourselves?” Gordon questioned.
Gordon finished off the letter leaving the harshest rebuke for last, questioning whether “the 16 sideline letter-writers would hit anything if they did not partake in friendly fire.”
“Let’s remember, Wyoming people cherish freedom from government overreach, not freedom from the facts,” Gordon wrote. “When the Freedom Caucus gets that right, maybe they can make a difference for the better.”
State Rep. John Bear, R-Gillette, chairman of the Freedom Caucus, did not appreciate the governor’s retort.
“It is not surprising that the governor makes it personal with ad hominem attacks while we are attempting to address a policy that will have the results Wyoming citizens are expecting from their leader,” he said.
Gordon also said he supposes he should be grateful the latest Freedom Caucus “sniping” gives him a chance to increase public awareness for his efforts to oppose the President Joe Biden’s management of public lands by the BLM. He described this management as an “effort to drive our nation back into the stone age,” which he believes the Freedom Caucus and the public should focus more of their attention on.
“As usual, with most Freedom Caucus commotion, it is also necessary to dispel misinformation and inaccurate claims in the letter,” Gordon wrote.
Bear said Gordon’s inaction leads the “radical bureaucrats” in charge to see his hesitancy as an open invitation to attack America’s energy independence in Wyoming.
The Urgency
The crux of the Freedom Caucus letter was a plea to file a lawsuit before it’s too late. Bear said after reviewing Gordon’s letter, he only wishes the governor would act with the same urgency in fighting the federal government.
That’s what the Freedom Caucus said did not happen as a result of Gordon’s delay in filing a lawsuit against a 2017 block the state of Washington put on Wyoming from using a port there for coal transportation.
In 2021, the U.S. Supreme Court refused to hear Wyoming and Montana’s lawsuit against Washington over its refusal to license the proposed coal export terminal.
“Each time Wyoming’s sovereignty is challenged, our leaders — at best — engage in lethargic legal challenges with an accompanying press junket meant to appease concerned Wyomingites, and at worst, wave the white flag and roll over hoping no one notices,” Bear said.
Gordon said he didn’t delay with the case, mentioning his vow to take action in the lawsuit during his first State of the State speech in 2019 and his actual filing of a motion before the U.S. Supreme court in early 2020. The Supreme Court subsequently requested the U.S. solicitor general weigh in, but this did not happen until after there was a change in presidential administrations.
“Thus, the statement made in your inaccurate and misleading letter that the timing of Wyoming’s entrance in this case was the cause of the final unfavorable ruling is categorically false,” Gordon wrote.
But the governor could have theoretically taken action earlier than he did on the case. In 2019, he vetoed legislation that would have provided $250,000 to pursue the lawsuit.
And by the time the solicitor general commented on the case, she mentioned how the company building the coal project had already declared bankruptcy about four months prior, so it should be dismissed.
The Freedom Caucus letter this week also mentions how Gordon vetoed legislation earlier this year that would have carved out $75 million for Wyoming to fight federal overreach in litigation.
In his Thursday letter, Gordon responds that this would have amounted to a “$75 million legislative legal slush fund” that would have done nothing to help fight the new BLM rule. On Monday, he released $300,000 in Coal Litigation Funds to the Wyoming Energy Authority to assist with the state’s litigation efforts.
The One In Charge
Bear said Gordon seems to want to make all the litigation decisions for the state himself but expects the Legislature to not hold him accountable as such.
Gordon describes his knowledge of the BLM’s final supplemental environmental impact statement (SEIS) that would end coal production in Wyoming's energy-rich Powder River Basin by 2041 as “acutely aware.”
In addition to his sharply worded press release issued in response to the new rule last week, Gordon mentioned how he sent comment letters to the BLM in 2022 and 2023 for the SEIS draft.
Gordon pointed out that none of the Freedom Caucus signees participated in this public comment period or were present at any public meetings on the matter in Gillette.
Bear countered that the Freedom Caucus was a strong instigator in drawing public outrage for a similarly controversial BLM plan proposed in Rock Springs in 2023.
“In the eyes of the Wyoming energy workers, results matter and halfhearted challenges will not work in this highly charged political atmosphere,” Bear said.
‘When Appropriate’
Gordon has 60 days to comment on the new rules from when they were first unveiled last week, while the public has 30 days to give its input. Using the formal comment period is critical to building the foundation for a potential future lawsuit against the federal government, Gordon said.
“Wyoming, you can be sure, will respond forcefully and strategically when appropriate,” Gordon wrote. “We are in the trenches fighting while some seem content to just make noise.”
Gordon said his administration is building the “most favorable administrative record possible” for the attorney general’s office to develop a strong case against the government in the future. Filing too early, he said, could cause the state to lose in court based on procedural grounds.
“Since the legal experts among the 16 honorable legislators have become so focused on the timing of case filings, perhaps they might comprehend that no legal action can be taken until a final record of decision is signed and the decision is finalized by the federal government,” Gordon wrote.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
