Congress’s Impossible Mandate, States Playing Politics, and Tragedy on the Range
We are witnessing the passing of an era, a changing of the guards if you will. Like the change our country went through from being an agrarian society to an industrial one, we are witnessing the slow but steady transition from the Old West to the New West. Like a train gathering speed, this change has been in the process and happening for a long time. The Bundy standoff is just one episode, happening in real time, in the long struggle of those fighting to keep the Old West. Those clinging to the past feel the change acutely as their way of life gives way to the new. Though it feels like an anomaly, it is not. Many throughout our history have been caught in such transition zones and either had to adapt to the tides of change, or suffer while tenaciously refusing to give. But it is worse than that, Bundy and those like him are pawns in the ruthless game of politics in this stage of the game. They are not real players.
Right now Utah is in a legal battle against the U.S. Government for control of its federal lands. The Governor of Utah is spending $3 million dollars of the state’s school trust fund to fight a legal battle that does not stand a chance at winning, and they know this, so why are they doing it? In the The Story of Kleppe vs. New Mexico Robert L. Fischman and Jeremiah I. Williamson say,
“Why would Utah throw millions of dollars down the drain of futile litigation? Indeed, why even promote end-run tactics around federal authority instead of employing existing statutory avenues to influence public land management? The answer, of course, is politics. Utah is investing in fuel to stoke the fires of local frustration with federal control over public natural resources. The political movement feeding on this frustration, compounded by judicial setbacks, goes by many names today. But the original label is the Sagebrush Rebellion.”
Fischman and Williamson go on to say that, “…litigation itself, even when it yields no judicial relief, can serve as a powerful organizing tool for political movements.” They go on to explain that the process of fueling anti-federal social and political movements can be sustained through “successful failure.” They don’t care if they are engaging in a frivolous lawsuit that wastes precious money that could be spent in better and more responsible ways, they don’t care about the ranchers and people supporting their cause, they don’t even care that they are going to lose since they know they are going to; they care about their own political expediency and agendas.
After the Civil War, when the western territories were being admitted into the Union, Congress had specific stipulations for their entry based on a real fear of loyalty, or lack thereof. Given that most of the Eastern U.S. is private land, they could secede from the Union. But, if Western states were largely federal land, it would be much harder to secede. Congress was particularly worried about territories with people who were seen as outside of the mainstream. In The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union Eric Biber states,
“A review of the types of conditions that have been imposed on admitted states, and the historical context for those conditions, reveals a significant pattern: Congress has imposed conditions on the admission of states where it has concerns about whether the citizenry of the new state can be assimilated as a loyal, democratic unit of government within the United States, sometimes because that citizenry has been perceived as fundamentally different from mainstream American politics and society. For example, admitted states that had conditions imposed upon them for their admission (or in some cases, readmission) to the Union include Louisiana (predominantly French at the time of its admission in the early 1800s), the Southern states during Reconstruction, Utah (populated by Mormons that were perceived as disloyal and different from the rest of the Union), and New Mexico (with a substantial Mexican population). These conditions have also often been part of a broader process of assimilation and “Americanization” which the admitted state went through-voluntarily or not-in order to become a member of the Union. (2)”
When the Sagebrush Rebellion was at its heyday, it lost in court because it was literally a rebellion against the United States by the states themselves. They pitted their rights and powers against the Federal Government’s and lost. They lost under the Property and Sovereignty Clauses of the Constitution and that is why they will continue to lose, to say nothing of the relinquishment of the lands within their borders as stipulated in their own state constitutions in exchange for statehood. It is troubling, however, because this started over bad law and legitimate complaints by ranchers in the beginning.
In the early 1950s the American public became outraged at what was happening to wild horses and burros on the western range lands by profiteers rounding them up, often utilizing appalling tactics, for pet food (1). “Low-flying airplanes drove the wild horses towards mounted cowboys who fired shotguns at the horses to make them run faster. Captured horses were tied to large truck tires to exhaust them and make them easier to handle. Exhausted, they would be packed into trucks so tight that only their weight against each other held them up. Foals, weighing less, often were abandoned to die. Seeking maximum profits, often six and a half cents a pound, the hunters seldom fed or watered the horses and many died en route to the slaughterhouse.”
When these tactics were exposed by the media, the American public demanded action and Congress passed the Wild Horse Annie Act, which prohibited poisoning watering holes and hunting horses on motorized vehicles. But it wasn’t enough because hunters then just went out on foot. Because these hunters would not abide by the law, and for whatever reason could not be held accountable under the law, Congress passed a protective law: The Wild and Free Roaming Horses and Burros Act (WFRHBA). In essence, the WFRHBA made the wild horses and burros property of the United States that could only be managed and handled by federal land management agencies.
There are many problems with this law, first and foremost being that Congress did not consult ecologists, and thus protected what has become an invasive, non-native, and destructive species on the range. But furthermore, the horses started competing with cattle on the range for forage and water. While the ranchers were paying for grazing permits, learning to rotate their cattle to ensure the health of the land, and paying for range improvement projects and drilling for water, the horses were using those lands and resources at the ranchers’ expense. “While rangeland reform of the 1930s aimed at soil conservation imposed new regulations on public land graziers, that purpose served the long-term interest of ranchers. In contrast, the 1971 Wild Free-Roaming Horses and Burros Act displaced ranching as the de facto priority use of public rangelands and helped trigger the Sagebrush Rebellion. The Act indirectly required ranchers to subsidize horse and burro access to water with extra fuel to run well pumps and repair horse and burrocaused damage, thus increasing the operating costs of an already marginally profitable industry.(1)”
Furthermore, the ranchers were not being compensated for this added expense. The ranchers were legitimately concerned. They didn’t have any problem with the horses, only the management of them. In New Mexico a local rancher named Kelley Stephenson, appealed to the BLM to handle the horses, who told him no. So he went to his state for help and they rounded up the horses under state sovereignty. But when the BLM heard of it, they demanded the horses back. Under the WFRHBA, only the BLM can remove the horses. Of course the rancher sued. The problem, in my opinion, with the argument brought before the courts is that they argued the limits of federal power. They based their argument on state’s rights, not individual rights. And of course they lost.
I am no lawyer, but I would argue that the ranchers are getting unfair treatment under the WFRHBA. They are currently a minority in this country and their rights are being trampled on by horses. When they pay their grazing fees, they have a right to their grazing allotments and resources on it and therefore, the horses and by proxy the U.S. government, is taking their property without due process. It is not about the states, it’s about the individuals. I would argue under the 14th and 5th Amendments. Furthermore, let’s talk about the conflicting and impossible mandate that Congress has given the BLM and Forest Service to manage rangelands for optimum health and to protect endangered species, while also protecting and managing a species that does not belong there. They cannot do both in the same time and space. And all without adequate funding!
As Fischman and Williamson point out, “The new law could not change the fact that wild horses and burros alter the ecosystems by consuming native plants, competing with native mammals such as the Desert Bighorn Sheep, fouling springs, and contributing to erosion by wearing trails on the steep desert hillsides (1).” Furthermore, they are 10,000 head over the carrying capacity of the land (1). Congress is being delinquent in its duties by letting the BLM and other land management agencies take the brunt of it. While they may have jumped on the public bandwagon against brutal hunting practices against horses, they have also trampled on individual rights and current environmental law in the process. Should all invasive species be given protection under the law? How about kudzu, cheatgrass, or the quagga mussel? Should tumbleweeds, also a symbol of the west, get special protection? You see how absurd it is. The Federal Government stands to lose nothing by letting the states handle the horses. Where the states went wrong was when they got into a pissing contest with the Federal Government over whose power supersedes whose.
But if Congress were to pass the Ranchers Heritage and Tradition Act, they would be in virtually the same place, passing law that conflicts with current law which cannot be carried out adequately. While it is true that no livestock is native to the West, and cattle and sheep do immense damage to the range, I would make the distinction that the people have rights to be there and unlike the wild horses, can be held accountable for their livestock. It is the native species such as buffalo, bighorn sheep, and mule deer that deserve the protection as native, indigenous species. While I think that grazing is immensely harmful and economically unsustainable, I do believe that the traditions and heritage of ranching have immense value and should be given some credence. The American public can decide if the massively subsidized grazing industry is worth continuing to pay for. According to the U.S. Government Accountability Office, in 2005 the program brought in $21 million in fees paid by ranchers, but cost $144 million to run (Think Progress Article.) Perhaps we could let the free market decide, but that being said, we subsidize a whole lot of industries, which leads me back to the reality that the government cannot please everyone, hence giving credence to law being the final arbiter.
The problem with politicians is that they are always playing politics. Of course, part of that role is legitimate when the public demands legislative action, as they are beholden to represent their people, but part of it is playing and maneuvering for political gain. It seems that they largely due this with the Nation’s purse strings. We saw this in the battle over the Affordable Care Act in 2013 when the government got shut down over it. I suppose that sometimes it works in their favor, otherwise they wouldn’t do it. But when one of their favorite departments to hold hostage is the Department of Interior, it hurts all of us. It seems to be first on the chopping block when important legislation must be passed. That being said, the general sentiment amongst ranchers that “the policy arena was distinctly biased in favor of environmental values,” arose for a variety of reasons, including the fact that the BLM’s only effective tool for managing horse and burro populations in accordance with the law was to reduce livestock grazing allotments.
But what fundamentally stoked the rebellion was the ranchers’ loss of control over federal lands. Until the WFRBHA, “overt competition for use of specific areas of public lands was rare, and local ranchers held sway over rangelands (1).” Congress had, under the Federal Lands Policy and Management Act (FLPMA), the drafting of which was dominated by westerners, “peppered FLPMA with several provisions inviting states to influence federal management through the tools of cooperative federalism. The BLM resource management plans, in particular, must be attentive to state and local management goals. The legislation promotes consistency in planning between levels of government. But the Sagebrush Rebellion had little patience for jumping through the hoops to qualify for FLPMA consideration. What distinguished the Sagebrush Rebellion from other efforts to promote traditional and local economic interests was its rejection of cooperative federalism. (1)”
FLPMA was the attempt to consider all levels of government in deciding how to use and manage public lands. Indeed, FLPMA placed new environmental restrictions on BLM authority, including limits on grazing that caused unnecessary and undue degradation. Sudeenly ranchers had to compete not only with wild horses and burros, but also with anyone else who wanted to use the public lands, including recreationists and environmentalists. In addition to providing the BLM with expansive rangeland management authority, including the ability to designate and regulate areas of critical environmental concern, FLPMA explicitly affirmed that the public lands [will] be retained in Federal ownership. (1)”
What is unfortunate, however, is that land management agencies cannot do their jobs without adequate budgets, and then get caught in the crossfire between Congress and the public, often suffering lawsuits that further dwindle down their already insufficient budgets. It is time to hold Congress accountable. If they are going to continue passing laws that require adequate funding to accomplish, especially conflicting laws, then they need to back it up with a realistic budget. It is time to look at who routinely slashes budgets for the Department of the Interior and hold their feet to the fire and then maybe, just maybe, these range wars can be put to bed. Perhaps we the people can do something that helps the ranchers, the rangeland ecosystems, and this country. The states have not done a very good job, and are now actively trying to stoke the flames of angst and unrest rather than work to really help the people they represent.
Because states have these avenues to work with the federal government over public land management, yet continue to pull the wool over the public’s eyes in regard to public land management, they are partly to blame for encouraging people like the Bundy’s in their brazen stands against the government. They are selling misinformation and misleading the public for their own political gain at the expense of the ranchers in these standoffs who will certainly pay the price. This is how Bundy and those like him have gone wrong and actually hurt their own cause. They are not sympathetic characters; they are scary and irrational people who are terrorizing the country. The law does have avenues for addressing these issues, though it does not guarantee you will get your way. Law abiding ranchers and all citizens are being hurt by the actions of this radical minority.
What we need are people with solutions, not people who insist on settling disputes with guns. This is not the Old West anymore. Federal land management employees should not be thrust onto the front line and put into harm’s way because Congress is derelict in its duties, and ranchers should not be pushed to the point of desperation or led to believe in false notions and wishful thinking by their own representatives who are only looking out for their own political future and gain. With the changing times we may decide that range health is the most important mandate, thus trumping all livestock on the range, but until then the land is managed on a multiple-use mandate. Right, wrong or indifferent competing interests must learn to compromise and work together under the law. Perhaps someday the Brave New West will set out on uncharted territory by implementing a suggestion that someone who commented on this blog suggested, “One New West solution would be to let market forces sort things out by legalizing permanent retirement of grazing permits by buyout.” We shall see.
(1) The Story of Kleppe vs. New Mexico: The Sagebrush Rebellion as Un-Cooperative Federalism: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub
(2) The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2031&context=facpubs
Nevada Cattleman Association Press Release on Bundy: http://www.nevadacattlemen.org/CMDocs/NevadaCattlemen/NCA%20Post%20Gather%20Statement.pdf
Posted on April 18, 2014, in Nature and the Environment, Uncategorized and tagged congress derelict in duties, facts about cliven bundy, governor gary herbert, grazing allotments and bunkerville, HB 143, iron county and feral horses, is cliven bundy right, kleppe v. new mexico, ranchers vs horses, range wars, Sagebrush Rebellion, the wild and free roaming horses and burros act, truth about cliven bundy, utahs eminent domain over federal lands. Bookmark the permalink. 14 Comments.