Below is a good article from a local law professor that explains the evolution of western public lands policy. For decades that became centuries, the federal government encouraged families to use western lands, and, of course, gave much of the land away as well. The intent and understanding was to use this valuable resource for the benefit of the families involved, which, in turn, benefited the region and the country. Legally, the government can change its mind and reduce or eliminate the use of such lands, but given the history, this is breaking a promise, just as cutting Social Security benefits would be considered breaking a promise. There was a deal, and one side met its obligations and the government changed its mind. The Social Security deal won't be broken because there is too much political clout, but rural westerners have no such political leverage and their livelihoods are determined by people like us, who sit in comfortable offices and know little to nothing of what it takes to make a living there, and apparently don't have much of a knowledge of the history of the deal.Go ahead, I'm listening, let's hear them.
By James Huffman
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
