The Return of the Public-Land Privatizers

Field and Stream by Hal Herring Published May 20th, 2015

Not more than a million years ago, in the spring of 2001, I wrote my first story for Field & Stream about the movement to privatize America’s public lands, chiseling the words onto an old granite slab by the light of a buffalo fat candle. 

The land grabbers seemed to have the world by the tail then. Gale Norton, a veteran of the anti-environmental law firm Mountain States Legal Foundation (MSLF), had been appointed the Secretary of the Interior. (James Watt, Reagan’s controversial and short-lived Interior Secretary, best remembered for his dislike of the Beach Boys, had been Norton’s boss at MSLF.) Norton’s colleague, Terry Anderson, had published his 1999 study “How and Why to Privatize Federal Lands.” Anderson had also been an advisor to George W. Bush on public lands issues, which was a bit like hiring a fox to consult on chicken coop management challenges. 

For those who had their hopes pinned on public land profiteering, 2001 was a heady, optimistic time, and much was accomplished--if not actual privatization, then at least the near-wholesale conversion of some of the West’s public lands into single-use energy fields, with exemptions from the Clean Air Act, the Safe Drinking Water Act, Clean Water Act, and from regulations meant to protect wildlife.  

The privatizers had been fairly quiet during the Clinton years, after raising a ruckus during the 1980s. The Sagebrush Rebellion burned hot and then fizzled out during the Reagan years when the leading rebels, faced with possible success in their goal of privatizing public lands in Nevada, suddenly realized that they were not the ones who would be buying or being given the lands; in fact, many of them were about to exchange self-employment based on one of the world’s cheapest grazing rates for a quick ticket to a scary job market, and a much smaller landscape on which to air their grievances against the “feds.”

The anti-public lands movement has never been about giving average American citizens more land or more access or more timber or gold or grass. From day one--as soon as the first lands were set aside—the movement has been about getting as much of the commonwealth as possible into the hands of the best connected and the most well heeled. But the land grabbers have learned a lot since the Sagebrush Rebellion and Anderson’s how-to paper on privatizing public land. It’s a high-stakes chess game now, where nobody says what they really mean, a game ruled by sleight-of-hand tactics backed with more money (some of it probably yours) https://www.hcn.org/articles/the-taxpayer-money-behind-local-control-dem... than ever before. 

The latest tactic is a smooth bit of word-jujitsu: “We would never sell your lands to the Chinese or to these software billionaires that fund our campaigns,” they assure anyone who will listen. “We just know for a fact that the states can manage these lands better than that big awful federal gubmint that we all hate so much. Now, isn’t that right?” It’s a good move, one that resonates with a lot of people who don’t have a lot of time to really think about it. So let’s take a few minutes and see how that would play out. We’ll leave out the fact that such a transfer would require a majority vote by Congress to divest the American people of their holdings once and for all (which those rascals did, just a month or so ago) and would open up a Pandora’s Box that would fundamentally change our nation. Let’s pretend that the grabbers are sincere, and really do want the land to remain in the hands of the states. What would change? Luckily for us, the National Wildlife Federation took on the task of analyzing that very question, basing the answers on current state land management. Here is a link to the report, which is illuminating. 

Among the findings: 

• In many Western states, state lands are not considered public lands at all. 

• In Colorado, 82% of existing state lands are completely off limits to hunting, fishing and camping. 

• In Idaho, recreation is allowed, with a permit, as long as it does not interfere with revenue generating activities. 

• In New Mexico, camping on state lands is allowed only with written permission from whoever is leasing them.

• Firewood cutting is prohibited in state lands in New Mexico and Montana. 

• Access to state lands in Montana, Arizona and New Mexico requires the purchase of a permit.

• Montana requires a special-use permit for trapping, or to camp for more than two nights. 

Western states have been selling their lands since they were awarded them at statehood. New Mexico has sold off 4 million of its original 13 million acres. Nevada, awarded 2.7 million acres at statehood, has 3000 acres left. Montana has sold 800,000 acres of state lands so far. Idaho has sold 1.2 million acres. Colorado has sold 1.7 million acres. Arizona has sold off 1.7 million acres. 

The report also compares the current management of federal public lands with the management that can be expected if the lands were under state control. And when you read it, you will see that the difference is very similar to the difference between being a citizen and being a subject (with a nod to Machiavelli, who allegedly uttered the truism that the armed man is a citizen and an unarmed man is a subject). 

Right now, we Americans own one of the most valuable assets on the planet. We are free to argue about their management, while we luxuriate in freedoms that most people on the planet can only dream of. In my 2001 Field & Stream story,  I wrote this, about the conflict over public lands management: “As when toys are taken away from children who won’t stop fighting over them, there are plans afoot to solve the conflict over the public lands by simply getting rid of them.” 

The debate today sounds just like it did back then, only much louder, and more the sound of a flood building upstream in a canyon. But the more things change--we’ve added 34 million people to the U.S. population since I wrote that story--the more they stay the same. Right? 

Wrong. When citizens forget what it is they fight for, things do change. They change big time, and for the worse. Transfer of America’s public lands to state control will be awful for hunting and fishing and access, not to mention the end of federal water and grazing rights for Western farmers and ranchers. It will be the short prelude to privatization. And that, my fellow American outdoorsmen and women, is the ultimate goal of some very unpleasant characters in our world today. That much has not changed since the very first day President Benjamin Harrison set aside the first forest reserve in 1892.

Nevada Rancher Has No Claim to Federal Land and Grazing

By Ralph Maughan and Ken Cole
Originally published on Wildlife News 4/15/2014

In the acrimonious case of Cliven Bundy, it is important that folks understand a bit about the history of the U.S. public lands.

Cliven Bundy, the rancher whose cattle were rounded up and then released by the BLM over the weekend, claims that his family has used the land in question since 1880 but the Nevada Constitution pre-dates this by 16 years. When Nevada became a state in 1864, its citizens gave up all claims to unappropriated federal land and codified this in the state’s Constitution. The Nevada Constitution states:

“Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; …..”

If Bundy “owns the land then where is the deed?  Where are the records he paid property taxes?

It’s not his land.

Bundy also claims that it his “right” to graze these BLM public lands.  This is not the case. The Taylor Grazing Act of 1934 specifically states that the issuance of a grazing permit does not confer any right to graze or right to own the land. The Taylor Grazing Act is the granddaddy of the U.S. laws governing grazing on federal land. “Taylor” was a rancher and a congressman from Colorado, hardly someone to want government tyranny over ranching.

So far as consistent with the purposes and provisions of this subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands.

In Public Lands Council v. Babbitt the U.S. Supreme Court upheld the new grazing regulations promulgated by the Department of Interior under former Secretary of Interior Bruce Babbitt to conform to Federal Land Policy and Management Act of 1976 (FLPMA) and found:

The words “so far as consistent with the purposes . . . of this subchapter” and the warning that “issuance of a permit” creates no “right, title, interest or estate” make clear that the ranchers’ interest in permit stability cannot be absolute; and that the Secretary is free reasonably to determine just how, and the extent to which, “grazing privileges” shall be safeguarded, in light of the Act’s basic purposes. Of course, those purposes include “stabiliz[ing] the livestock industry,” but they also include “stop[ping] injury to the public grazing lands by preventing overgrazing and soil deterioration,” and “provid[ing] for th[e] orderly use, improvement, and development” of the public range.

He has no “right” to graze it.

The federal courts have struck down every challenge Bundy has made about his claims, and has issued not one, but two, court orders to remove his trespass cattle. It’s not his land and he has no right to graze it.

The simple truth of the matter is that Bundy is a freeloading, welfare rancher who has an inflated sense of entitlement. It also appears that he and his supporters’ use of threats and intimidation likely violated several federal laws. Inasmuch as they used (such as pointed) weapons to cause the government back down, it can be considered an armed insurrection.

What about Bundy’s claim that his forebears bought the land he is now accused of trespass grazing upon?  This land was once Mexican land, and was won by the United States after the Mexican-American War. It is part of what is known as the “Mexican Cession.” All of Nevada, California, Arizona and most of New Mexico were part of the Cession. Much of this land was privatized under various grants and laws such as the Homestead Act and the Desert Lands Act, plus mining claims. Several million acres were granted to Nevada for state lands, but those lands that were not privatized have always been Mexican lands or United States lands owned by the U.S. government.

Before the Taylor Grazing Act, these government lands were called “the public domain.” They could be privatized, as mentioned, under the Homestead Act and such, but the acreage allowed per homesteader was limited to 160 acres. There were no 158,000 acre homestead privatizations and certainly no 750,000 acre privatizations. Livestock owners ran their livestock freely without a permit on the public domain. They didn’t even need a home base of property (a ranch). The result was disaster because the operator to find green grass and eat it first won out, promoting very bad grazing practices. That was the reason for Taylor Grazing Act — ranchers and others could see the public domain system led to disaster on the ground. Therefore, the more powerful ranchers with “base” private property received grazing permits. This got rid of the landless livestock operators.

Taylor Grazing was administered on the ground by the U.S. Grazing Service. Now, ranchers with grazing permits had to pay a grazing fee to use their permits. Bundy’s ancestors probably got one of these grazing permits, but they most certainly did not buy the land. That was not possible. The public domain was not for sale and ranchers generally did not want it. After all, if they owned it, they would owe local property tax.

In 1948 the Bureau of Land Management was created by executive order of President Truman to replace the Grazing Service. The Service had been defunded in a dispute between the House and the U.S. Senate. The BLM has since been affirmed by law rather than a mere executive order. It is supposed to manage the public lands for multiple uses and for sustained production (“yield”) of renewable resources such as grass. As before, you need a grazing permit for cattle, sheep, goats, or horses to legally graze. It is a privilege, not a right, and this has been firmly stated by the U.S. courts.

Hopefully, this explains why Bundy’s assertions are wrong. It is too bad that few citizens are taught public land law or history in high school or college. We think it is vital for everyone to know these things because these are in a real sense your lands, held in trust by the government. Yes we know the government often does a poor job. They did in Bundy’s case by letting this go for 20 years. He should have been gone before the year 2000.
End of story.