PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Wednesday, April 27, 2011

Who Owns the West, Ctd

There's a really nice discussion going on in the comments about the role of the fedeal government as a landowner in the West.  Eric Biber, who has written widely about conservation biology and public lands, splashes cold water on my idea that federally owned land in the West should be auctioned off:

... many important constituencies in the West don't want the lands privatized or turned over to state ownership. Those interests like the free access to the land (for recreation), the subsidies for exploitation (for mining or timber), or because if the states owned the land, they would lose money from it (as opposed to the feds who lose money right now) and they don't want the burden. There's a strong cultural element in the West that values having public land that is "open" for people to do what they want (hike, ORV, pan for gold, hunt) without anyone telling them what to do or to get permission (although this is changing with greater environmental regulations).   . . . . Personally, I think privatizing these lands would be a terrible mistake (including for the reasons that Paula indicates -- that the government is more likely to squander the money from selling the lands than squander the lands themselves).

There's a lot of great stuff in both Eric's writing and in the other comments.  However, I think the commentators do a better job with the descriptive arguement -- explaining why the public lands haven't been sold -- rather than attacking my position on a normative level. 

It may very well be true that the federal government has a role to play in the preservation of some truly wild and open spaces.  However, the Bureau of Land Management (BLM) alone controls 250 million acres - that's one-eigth of the county's land.  Should all of that be in a wilderness "lockbox?"  Moreover, agencies like the BLM are involved in lots of other activities besides preservation.  The BLM, for example, sells minerals from federal lands to the public, it sells timber, it sells grazing rights, and enters into oil leases.  And it seems to go about these things in a very "pro-business" way; The Grazing Service has traditionally been heavily influenced by ranchers, who have succeeded in keeping grazing fees so low that the BLM spends far more managing their grazing programs than they collect in fees (pdf).  If we don't trust the federal government to conduct an auction to sell this land, why do we trust them with complicated management tasks that seem better suited to the private sector?         

Steve Clowney

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So there's at least three normative arguments I would make off the top of my head:

(1) Coordination of low-intensity uses. Our property system does a great job of allowing high-intensity single uses -- the paradigm is intensive agriculture or industrial use. But what if the "best" use of the land is multiple different uses that are all low-intensity conducted by a range of different users? In such a situation, common ownership or state ownership may make more sense. The best analogy I can think of here is how many Native American tribes used land ownership (see Changes in the Land). The coordination and transaction costs may not be feasible for individual landowners to conduct, instead of a communal or state ownership system. And many of the lands in the West are best suited for this kind of use.

(2) Related to (1) is environmental protection. There is arguably a great deal more potential to manage exploitative uses in a way that results in more environmental protection on communal/state land than on private land -- both because of law (think of the Takings Clause) and because of politics (people may think they have less of an entitlement on public lands compared to private lands). That allows us to better balance different uses and allow for "buffer" zones around key reserve areas (something that conservation biologists regularly call for). The legal argument here I think is pretty strong (only mining claims have property protection on public lands), the political argument seems weaker since exploitative users have been pretty successful in protecting their interests -- but not entirely! And of course, the question is always relative to how they do on private land, where they may be subject to much less regulation.

(3) The normative desirability of open access. For many people -- particularly people who have lived near public lands -- there is a strong benefit to having land that you can go to and use without asking anyone's permission. This is not just limited to hiking and ORVing and other recreational uses (which is what many of us urban folks are most familiar with today); think also about all the "mythology" about the miner with the burro and pickaxe who goes to prospect, or the cowboy who gets to go out and graze his cows, or (in the context of the oceans) the rugged fisherman who gets to make a living on the sea. Of course, many of these are today myths, relied upon by strong political/economic interests in ways that I think are problematic. But nonetheless, I think they do reflect a strong underlying preference that we have to be able to make our own way in the world without anyone telling us what to do -- and public lands help allow for that. Whether that is particular to a frontier culture like the US or is more generalizable I don't know.

Of course, you might still conclude that we have too much public lands, that half of what we have would be more enough to accomplish these goals. But I do believe that the fact that no one else would really want the land anyway strongly indicates that we probably don't. One of the reasons that the states don't want them is because they would lose lots of money on them, just like the feds do. As for whether you'd get private buyers for many of the lands, I'm skeptical. Or at least, you would get a buyer, but the value would be very low -- I don't think the revenue from the sale plus any additional benefit from improved management (which I would question, see points (1) and (2)) would offset the loss of open access.

Posted by: Eric Biber | Apr 27, 2011 8:58:17 AM

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