Wednesday, February 3, 2016

Public lands, common ground, and the smell of sagebrush after the rain

Jon Sagebrush

(photo by Jonathan Long)

The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.

But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.

A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.

Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).

But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.

Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.

Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.

Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.

With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.

So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.

I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.

We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.

 

 

https://lawprofessors.typepad.com/property/2016/02/public-lands-common-ground-and-the-smell-of-sagebrush-after-the-rain.html

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Comments

I have problems with your statement, “These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history.” I think in many cases ranchers are being hurt by contemporary public lands management, but in a fair manner.

While I am not a lawyer, my understanding is newer laws take precedence over older laws. In Western Oregon due to the O&C act most BLM forest land is “dominant use” land for the production of timber. However a newer law, the Endangered Species Act, took precedence and forced a forced a massive reduction in cutting on O&C Land in an attempt to protect the spotted owl. This reduction in cutting was devastating to rural communities in Oregon but was it “unfair”? As a former forester I think they reduced cutting more than what would be beneficial to the spotted owl, needlessly causing harm to people in the wood products industry. However wildlife biologists had the final say about what would be done protect the spotted owl. For that reason I think the process in making the decision was fair; technical decisions should be made by technical specialists, not politicians or somewhat knowledgeable people like myself.

My understanding is that the Malhuer refuge in Burns is an analogous situation, and fair for other reasons. I read they stopped grazing on the Malhuer Refuge when the desert tortoise was listed as a threatened species. Hurting ranchers over the Endangered Species Act is just as fair as hurting people in the wood products industry. I am sure the ranchers believe grazing is compatible with the desert tortoise, but I will take the opinion of wildlife biologists over their opinion. Supposedly the spark that caused the ranchers to go to Burns was the extension of the sentences to the Hammonds. While I think minimum sentencing laws are unfair, I also think making exceptions for ranchers is unfair.

In some cases ranchers have been historically unfair to the general public, and that needs to change. Cliven Bundy historically never paid his grazing fees, therefore stealing from the American people. His refusal to pay his grazing fees is no different than refusing to pay taxes.

I do not think the solution is to dispose of lands. Some people actually favor selling federal land as a way to get around these newer laws. For example Oregon either sold or is selling Elliott State Forest since it is prime timber land that cannot be cut due to the presence of marbled murrelets. I may seem hypocritical since I favor selling state forest but have huge problems with the federal government doing that. But in this case the state is selling land to allow the land to continue to be used the way the state wants it to be used. In the case with the federal government, I feel that land management laws need to be changed. The US government is not being told by a higher power what to do, and selling the land would not align the use of the land with the will of the people. Selling land would be way to favor a special interest group or groups.

Posted by: Alan | Feb 5, 2016 12:41:23 AM

Alan, I generally agree with you. The statement you are referring to is not *my* argument, but rather my description of how *reasonable* people who are dissatisfied with public lands management might feel (I don't pretend to know what people like the Bundys are thinking).

There are a lot of rational, law-abiding, and public-lands-loving people that are upset about public lands management, and my point here is simply that we should try to understand the origins of their concerns, even if we disagree with them.

Posted by: Jerrold Long | Feb 12, 2016 4:53:23 PM

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