Defining Ideas

The New Sagebrush Rebels

Thursday, January 21, 2016
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Barbara Kelley

On January 2, 2016, a group of individuals from several western states took control of the headquarters of Malheur National Wildlife Refuge in southeast Oregon. The group’s leader, Ammon Bundy, declared that the immediate reason for the illegal takeover of the then-unoccupied facility was the imprisonment of Oregon ranchers Dwight and Steve Hammond for burning federal lands. But the group’s broader objective is the transfer of federal public lands to state and local governments, an objective shared by many rural westerners, though few agree with the group’s radical methods.

Seldom do the concerns of rural westerners attract the attention of their urban neighbors, let alone the national media. Give the occupiers of the Malheur National Wildlife Reserve headquarters credit for accomplishing that. They are not likely to accomplish anything else.

But that their methods are both clumsy and illegal should not obscure the symbolism of their confrontation with federal authorities. The conflict between public ownership of vast expanses of the American west and the aspirations of the relatively few people who call the rural west home has deep roots. While the farmers, ranchers, loggers, and miners still hanging on have legitimate complaints based on reasonable differences of opinion about natural resource policy, the solutions envisioned by the Malheur gang and most other protestors are wishful thinking reflecting legal misunderstanding, imagined history, and political naiveté.

On the political front, rural westerners are overwhelmingly outnumbered. Ever since the U.S. Supreme Court ruled in 1964 that legislators in both houses of state legislatures must be elected on a one-person-one-vote basis, rural communities have been ruled by urban voters. While there are still a few states (e.g. Idaho, Wyoming, and Utah) where rural citizens have political pull, the federal lands are beyond their reach for legal reasons explained below.

As for history, the protestor’s recurrent demand for the “return” of federally owned lands to the states or to the people reveals an absence of historical knowledge. Lands that were never possessed by the states or by private owners cannot be returned.

The only federal lands held originally by states were those ceded by some of the original states at or shortly after the founding of the nation, including lands in the Northwest Territories (present day Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota), present day Tennessee (ceded by North Carolina in 1790), and present day Mississippi and Alabama (ceded by Georgia in 1802). All other federal public lands were acquired by conquest (extinguishing many aboriginal claims of title), treaty (extinguishing other aboriginal claims of title), or purchase from foreign governments.

All of these lands were subject to the sovereign authority of the United States and by default the U.S. became the proprietary owner of all lands not already in private hands as a result of previous grants or purchases. From the outset, no one imagined that the United States would retain proprietary title to even a tiny fraction of these lands. One of the principal challenges of the new national government was to figure out how best to transfer its real estate empire to private owners.

Even before the establishment of the new federal government, enterprising individuals had settled (squatted) on lands that would become federal property. Many more followed over the succeeding decades leading Congress to enact the first general preemption law in 1830 pursuant to which settlers could acquire legal title to the lands they had occupied. This legislative confirmation of a government policy of disposal of public lands was renewed four times during the 1830s followed by the Preemption Act of 1841 that remained in force until 1891. Beginning with the Homestead Act of 1862 Congress enacted numerous laws encouraging private acquisition of land for farming, mining and forestry including, among several others,  the Desert Land Act 1877, the Kinkaid Homestead Act 1904, and the Stock-Raising Homestead Act 1916.

Congress also granted millions of acres to railroad companies to stimulate railroad construction and to states for the support of public schools and what came to be known as land grant colleges. In the case of grants to states, the presumption was that the lands would be sold to generate revenue for education. Along the way Congress convened two public lands commissions (one in 1879-1883 and the other in 1903-1905), both of which reaffirmed the default policy of public lands disposal.

But the 1903-05 commission, recognizing that the land disposal laws were being widely abused, also supported federal retention of particular lands, a process that had already begun with the creation of Yellowstone Park in 1872 and with the reservation from private acquisition of forested lands believed to be important for both timber supply and watershed protection. The latter had been authorized by an 1891 law enacted over widespread western state opposition. President Benjamin Harrison quickly made 13 million acres of forest lands off limits for private settlement and President Cleveland followed suit in reserving 21 million acres on a single day in 1897. The Montana legislature, in a sentiment shared by most westerners, protested “against the recent order of the President setting aside large timber reservations in this State, knowing that its enforcement would seriously cripple and retard its development.” The Malheur occupiers are not alone in holding that same view today.

The reservation of lands that would become the National Parks and National Forests marked the beginning of a fundamental change in federal lands policy. By the time a third public lands commission was convened in 1930 the default policy of federal lands disposal to private owners was a thing of the past. In response to uncontrolled grazing of unreserved and unclaimed federal lands, the commission recommended transfer of those lands to the states. Because, in the words of an Idaho senator, the overgrazed land was like “an orange with the juice sucked out of it,” there was widespread opposition from western states leading Congress to enact the Taylor Grazing Act of 1934. Like the reserved forest lands administered by the Forest Service and harvested by private interests, the grazing act provided for continued public ownership of land to be administered by the Department of Interior Grazing Service with private use of the resource.

With the birth of the modern environmental movement and new demands on the public lands from a growing population, a fourth public lands commission was convened in 1964. Again the issue of disposal versus retention was addressed, and when it issued its final report in 1970, the commission came down firmly on the side of retention with improved federal management. The national forests were already subject to the Multiple Use, Sustained-Yield Act of 1960, and the Wilderness Act of 1964 provided for the preservation of large tracts of federal lands. Following on the commission’s report, Congress further regulated Forest Service management with the Renewable Resources Planning Act of 1974 and the National Forest Management Act of 1976.

Congress also undertook in the Federal Land Policy and Management Act of 1976 to provide for structured management of the millions of acres of federal lands never claimed for private use and not reserved for special management, long under the purview of the General Land Office and later the Bureau of Land Management. Of course other federal laws like the Administrative Procedures Act and the Endangered Species Act added to the rapidly expanding federal land management bureaucracy.

The succeeding four decades have witnessed a steady and significant decline in private access to public lands for commercial purposes. Logging has been drastically curtailed while mining and grazing have been subjected to ever-more restrictive regulation. The Reagan-era sagebrush rebellion, today’s state legislative initiatives like Utah’s 2012 Transfer of Public Lands Act, and the occupation of the Malheur National Wildlife Reserve headquarters are all testimony to the resulting unhappiness in the rural west. But to the extent the plea is that lands controlled by the federal government were taken from the states and should be returned, there is simply no basis for the claim in the historical record.

The legal arguments for the judicially mandated transfer of federal public lands to the states are similarly dubious. While respected legal scholars, like Ronald Rotunda of the Chapman University School of Law, have endorsed legal action to force transfer of federal lands to the states on the basis of what might have been plausible legal arguments a century or two ago, their prospects for success in today’s courts are nil.

One theory is that the shift from a presumptive policy of disposal to one of retention (made explicit in the Federal Land Policy and Management Act of 1976) denies constitutionally mandated “equal sovereignty” to states where the federal government retains significant expanses of land. A second related theory holds that the equal footing doctrine, pursuant to which states newly admitted to the union have all the incidents of sovereignty including dominion over public lands, requires that later admitted states have the same control over lands as did the original thirteen states. Where the first theory allows that the federal government could retain ownership of lands, but having granted them to some states must grant them to all, the second argument implies that the retention of any federal lands would diminish the sovereignty of newly admitted states.

A third theory is that state enabling acts, which are enacted by Congress when new states enter the union, constitute compacts binding both the United States and the new state. Implicit in that compact, it is argued, is an obligation to dispose of the federal public lands, as was the established practice prior to the state’s admission.

All three theories have abstract plausibility, but any court called on evaluate them will do so in the context of over two centuries of history and legal precedent. There is no question that the United States holds legal title to the lands in question, and under the U.S. Constitution Congress has explicit power to retain or dispose of those lands. While there may be an occasional judge willing to ignore two centuries of precedent along with the practicalities and certain disruption of mandating the transfer of one third of the nation’s land from federal to state title, the vast majority of judges will have concern for the long settled expectations, if not hopes, of just about everyone. Faced with the lawsuits contemplated by today’s sagebrush rebels, even the most activist of judges will almost certainly become passionate advocates for judicial restraint.

So the symbolism of the Malheur occupation is twofold. On the one hand, the occupation of federal lands devoted to purposes largely inconsistent with maintaining a viable rural economy underscores the frustration and sense of powerlessness shared by many rural citizens, despite the protesters’ doubtful legitimacy as representatives of the rural west. On the other hand, the futility of commandeering an insignificant and unoccupied federal outpost highlights that both treasure and reputation are easily squandered on ineffectual means.

For two centuries the federal public lands have been, as economist Rick Stroup once observed, political lands. For most of the first century of the republic, few could imagine government as a large landowner and it was in almost everyone’s interest for abundant public lands to be transferred to private owners. Westward expansion placed competing demands on the public domain leading politically influential interests to see private advantage in public ownership. The railroads encouraged reservations for parks as potential destinations for customers. The timber industry supported forest reserves that excluded competition from farmers and ranchers and resulted in several decades of close collaboration between the Forest Service and timber companies. Mining interests had no objection to federal ownership so long as they had the right to explore and develop under the 1870s mining laws. Ranchers, too, were fine with federal ownership of grazing lands so long as their grazing leases were renewed year after year.

But popular interest in environmental protection and a growing demand for outdoor recreation shifted the balance of political power. Environmentalists, wildlife advocates, and recreationists saw that their interests could be served by public ownership. The Multiple Use Act was an acknowledgment that timber harvesting had become one among many competing demands on the national forests and the Wilderness Act granted effective monopolies over large areas to politically influential preservationists and rugged recreationists. The various planning laws of the 1970s gave noncommercial interests a significant role in decisions about public land use, while the courts became available to those wanting to delay or block the chosen policies. The economic interests of rural communities had a seat at the table, but they simply could not compete politically.

Without history or law on their side, the ranchers of eastern Oregon and other rural westerners are left to politics, and in that realm they’ve had scarcely a victory in a half-century. Urban Americans have laid claim to the resources on which rural economies depend, a claim made secure by simple election math. As long as the federal government controls half of the state of Oregon, the fate of ranchers dependent on public grazing lands is virtually sealed.

So there is little wonder that an occasional rebel flaunts the law while the law-abiding contemplate lawsuits seeking to overturn two centuries of history, custom and practice. But politics will, as it always has, govern the public lands. Any change in ownership will only be accomplished politically, and the odds of political success for those seeking state or private ownership diminish with each passing day as urban populations grow and rural populations decline. The policy arguments for transferring some federal lands to state ownership are strong, and they are even stronger for the transfer of other lands to private ownership, but the politics will never allow it to happen. The only real hope, though a long shot as well, is for Congress to mandate that federal land management agencies place greater reliance on the sort of market incentives that have contributed to more effective and efficient environmental regulation. 

The Malheur occupation will end sooner or later and will then be forgotten. But perhaps the protesters will have served a useful purpose if, for a few brief days, the sad plight of a few of our fellow citizens was made apparent to the nation.

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