Category Archives: Politics & Argumentation
It’s not fire season yet but it’s as busy as fire season. Preparation for seasonal firefighters coming on, for training, and for fire readiness reviews fill the days, but nothing looms larger than the budget. The fire management staff meets weekly if not more often to look at the budget and try to squeeze more proverbial drops of blood from this turnip. Can we bring someone on a pay period early? Can we afford another seasonal? Can we staff our engines with the required number of people or do we put one engine out of service?
Questions like these fill my mind. I think about budget more than I’d like and I’m always the bad news bear. Nine times out of 10 if the answer is no, it’s because of budget.
Last week I spent five days in Washington D.C. for training. I didn’t get a lot of time to sight-see but I did visit the Iwo Jima memorial at night. It was stunning. While riding the Metro to and from my training I listened to the audio book The Fire Line: The Story of the Granite Mountain Hotshots. Coincidentally, the following week I was in Phoenix for training and left town early enough to stop at the Granite Mountain Hotshots Memorial State Park. My mind jumped back and forth between the crisp and chiseled magnificence of the monument I stood before in D.C. and the wild mountain side I found myself on a week later. They are both memorials commemorating American heroism but Yarnell Hill lies within our borders, it happened here, not on a foreign shore and marks a decidedly western tragedy.
The mountain was covered in wildflowers so prolific it looked like they were trying to erase the remnants of the fire, but the charred trees, cactus carcasses, and black stumps are still there. The thick, hazardous fuels that burned in the fire left room for new vegetation to regenerate; the by-product fuels crews produce when there is money to do this kind of work before a fire ignites and wreaks havoc because it hasn’t been done.
A sweet honey suckle scent lilted on the air and I kept my nose up, sniffing like a dog following the scent of something fantastic. I bent to smell half a dozen flowers but never discovered the origin of the fragrance. There were so many flowers leaning into the trail and whipping my legs that I looked like a bee after it’s been in a flower, the powdery pollen making light lashes across my legs before exploding into fine particles stuck to and glowing on my black pants.
It was overcast and a cold wind blew hard from the south making the lonely landscape more subdued than it already was. It wasn’t hard to imagine that fateful day when the wind shifted and turned the fire on 19 men with nowhere to go. As I walked, my mind was like a teakettle blowing its whistle in alarm each time images of this event bubbled up and mixed with my anxiety over our anorexic land management budgets. With already strangled and anemic budgets handed down by Congress and hampered by conflicting policy within the BLM, the prospect of bigger budget cuts next fiscal year from the new Administration sends a chill through my blood; not just because there will be less money, but because we will have to do more with less and many things will fall off the table. This means that saving money will take precedence over having an adequate staff to do the job, to do it well, and to do it safely.
For people not aware of the business side of wildland fire – or public lands management, the few brief mentions of budget woes in the book about the Granite Mountain Hotshots probably wouldn’t register on the radar – but they did for me. I could relate and shared the frustration with those angry and frustrated by budget constraints when I listened to how cuts to wildland fire budgets had been off-set with prison crews because they were cheaper, and how State Forester Scott Hunt warned that the cuts would have a significant impact on public safety, namely through the devastating drop in the number and availability of personnel and resources to manage the lands and fight wildfires.
So often when tragedies occur we look to the decision makers on the ground for answers: Which policies did they break? What did they miss or ignore? Could they have made better decisions? We do this not only to assess blame or to understand, but to help ourselves believe that if something different had been decided, the tragedy would not have occurred. But rarely do we look at the pernicious root cause of so many of the decisions: budget cuts made in the chambers of Congress.
This is not to say that if we had adequate budgets no one would ever die, but to suggest that budgets do play a part in how decisions are made and how safe people are. In both the Yarnell Hill Fire and the South Canyon Fire, resources were scarce when they needed them most. Fires do not get in line to ignite, they pop off like popcorn in a popper; dozens of fires can be going at once and the resources go fast. Most Incident Commanders know to order every resource they think they might need to fight a fire because if they don’t get those resources first, they might not get them at all.
Part of the problem for the BLM in particular is the policy determining which fund pays for what. There are two main pots of money: preparedness and suppression. Policy clearly defines what both are for. In the Interagency Standards for Fire and Aviation book (Red Book) preparedness is defined as the state of being “ready” to provide an appropriate response to the wildland fires based on identified objectives and is the result of activities that are planned and implemented prior to fire ignitions. It states that preparedness activities should focus on developing interagency response capabilities that will result in safe, effective, and efficient fire operations aligned with risk-based fire management decisions.
Suppression is putting preparedness into action to fight the fire in a safe, effective, and efficient manner. Preparedness dollars are given to the district as part of their budget on an annual basis. Suppression dollars come from a national emergency fund.
The NWCG Interagency Incident Business Management Handbook (Yellow Book) states that any time worked in support of the incident will be charged to the incident. Hours worked performing regular home unit duties will be charged to the employee’s home unit funds. In other words, when you are on a fire, your time should be charged to the fire – or suppression.
Most labor costs go to preparedness, but strangely firefighters have to charge their base eight hours to preparedness even when they are suppressing fires per policy in the BLM Standards for Fire Business Management (Orange Book). Aside from the fact that this conflicts with policy outlined in the Red and Yellow books, it basically means that preparedness dollars, those set aside to get prepared for a fire, are being used for suppression, or for fighting the fire. This is detrimental for several reasons.
First, it fixes money given to the district and locks it up, giving very little wiggle room for decision-makers to make sound decisions based on the best tactics to fight the fire or be prepared for the fire season. Second, it means that regardless of where the firefighters are working, be it out of state or in a different region, that district is paying to have the labor used elsewhere. This means they not only lose the labor, but those dollars are not going to their own district – perhaps for hazardous fuels reduction. And third, this means less hiring and thus less people to manage very chaotic and complex situations, less equipment and tools for getting the job done, and less stewardship of the land being managed for the citizens of this country.
Policy states that budget should not determine how a fire is fought and yet it was on Yarnell Hill.
As I walked on that hallowed ground, an entire hill set aside in remembrance of the firefighters who died there, I thought about the American landscape and what it holds, how our Republic was literally built upon it and that people across the centuries have put sweat, labor, toil, fought for and even burned and died on it. Our lands tell these stories, they are living memorials from coast to coast, but particularly in the West where the land is the defining factor of the people, the communities, and the culture. If land management agencies lose funding, public lands will be no more.
Walking down the deserted and lonely hill, I thought of something said in the book, “We’re the front line,” Danny said to Wade. “On September eleventh, 2001, they didn’t call the navy. They didn’t call the Marine Corps. They called the policemen and the firemen. We are the soldiers of our community.”
Our public lands are the Homeland; they tell the story of our Nation and the people who built it. If we do not adequately fund land management agencies, who will manage and be stewards of our public lands, and further, will there even be any lands left to manage?
We are told that absolute power corrupts absolutely. It’s a line used so often it’s easy to dismiss. But with a Republican controlled congress and a Republican administration in the White House, we are beginning to see what virtually unchecked power can produce. Many important issues are under attack, one of them being our public lands and how we manage them.
Jason Chaffetz (R-Utah) has introduced two bills aimed public lands and he is not the only one. He belongs to a large cadre of Republicans not only in Utah but across the West leading a concerted effort to dismantle open access and management of iconic American landscapes and open spaces.
House Bill 621 would direct the Secretary of the Interior to sell 3.3 million acres of land that “serves no purpose for taxpayers.” That of course begs the question: Whose purpose do they serve? (See post script)
H.R. 622, the Local Enforcement for Local Lands Act, first introduced last year, removes the law enforcement function from the Bureau of Land Management (BLM) and U.S. Forest Service. According to Chaffetz’s website, the bill calls for deputizing local law enforcement, combined with block grant funding, to empower existing duly elected law enforcement offices to carry out these responsibilities. Posse comitatus come to mind?
In Nevada, Representative Mark Amodei introduced H.R. 243, The Nevada Land Sovereignty Act (it is also in the Senate) to prohibit the further extension or establishment of national monuments in the State of Nevada except by express authorization of Congress.
Alaska Senator Lisa Murkowski introduced Senate Bill 33, the Improved National Designation Process Act. This bill provide for congressional approval of national monuments and restrictions on the use of national monuments, to establish requirements for the declaration of marine national monuments, and for other purposes.
Similar bills from across the West are being sponsored in Congress by those irked by the constraints of federal law and public lands. Like many before them, these opportunistic representatives see this moment as their time to do away, once and for all, with lands set aside for the enjoyment and use of all Americans. In Utah alone they want to undo Grand Staircase Escalante National Monument, the newly designated Bears Ears National Monument, and they want to do away with the Antiquities Act.
While giving away three million acres might not be a big deal in the grand scheme of things, and trying to help local communities is important, it is also important to understand that public lands and the conservation and management of them carry forward the long American tradition of striving for the social democratic ideals of equality and commonwealth. Retaining the last remnants of our great heritage of land benefits us all.
The sad truth about local groups or users is that they often look only at their own needs. All people do this. It takes discipline to commit in a very real way to ideals and principles, especially when they do not produce immediate benefits. Having a perspective based solely on limited local experiences ignores the rest of the country and the Nation as a whole. Everyone struggles economically; everyone wants the benefits of the government while maintaining autonomy without constraints. But there are limits to freedom and there is no guarantee in life that you will always have a thriving economy or that your way of life will never change.
As Garrison Keiller recently said in a Washington Post op-ed, “Jobs are lost to automation, innovation, obsolescence, the moving finger of fate. The carriage industry was devastated by the automobile, and the men who made surreys and broughams and hansoms had to learn something new; the Pullman porter union was hit hard by the advent of air travel and the porters sent their sons to college; the newspaper business was hit hard by Craigslist. Too bad for us. Who doesn’t get this? The idea that the government is obligated to create a good living for you is one the Republican Party has fought since Adam was in the third grade. It’s the party of personal responsibility. But there they are, promising to make the bluebirds sing. As if.”
One of the last great bastions of equality is public space, open and accessible by all. That those lands are not owned and controlled by the few is a testament to the tenacity and forethought of people who saw not only the potential benefits of preserving them, but the potential loss of not preserving them. Martin Luther King said, “Capitalism does not permit an even flow of economic resources. With this system, a small privileged few are rich beyond conscience, and almost all others are doomed to be poor at some level. That’s the way the system works. And since we know that the system will not change the rules, we are going to have to change the system.”
Changing the system is not voting for politicians who tell you what you want to hear so that you can win in Congress at the expense of others. That is the system, and to continue on that path will be to witness the tides turn and see another group gain at your expense. Changing the system is working with people you might not otherwise work with to find solutions that benefits everyone to some compromised level. Survival happens through compromise not through hard lines and competition. Compromise is how you don’t lose it all.
Furthermore, to suggest or believe that one group deserves special protection by a majority in Congress, not for ideals of equality or justice but to maintain a status quo, is privilege. That privilege has run its course. Not because monuments have been designated or there are restrictions on industry, but because that is how life and the economy and progress work. Nothing is static. That is not to say that rural communities do not matter or deserve the Nation’s care like all other groups, it just means that old ways give way to new.
The right way to move forward is not to go backward to the “good old days” but to accept the march of time and adapt and move with it by being creative and open-minded, by working with others to find solutions that maintain traditions but also embrace progress, and by caring for others by putting yourself in their shoes and allowing them to step into yours. Different user groups who come to the table and work together have the ability to not only address local needs, but to address local needs while ensuring that National traditions and principles form the foundation of the work.
A perspective on public lands that takes into account the entire nation, our whole country, is what’s required. The long view that includes all people, the entire economy; that seeks to balance the costs and rewards among user groups equally – to say nothing of the redemptive act of restoring a respectful relationship with Native Americans – as well as the scientific benefits, the historic preservation of artifacts, and the health of ecosystems, watersheds, and biodiversity, is the hard work many ignore and some members of Congress are shirking for short term benefits at the expense of our posterity.
Our public lands embody American ideals and principles of stewardship and responsibility, the history of a young Nation’s wild and audacious drive to expand westward, of the awakening that preservation for the benefit of current and future generations is the moral thing to do, that equal and open access for all regardless of economic class is an American birthright, and yes, the economic growth that built this nation into what it is and provides benefits and quality of life we all enjoy. But they also embody this Nation’s dedication to the ideal, the ethic, that some things have value far beyond monetary worth and that they are worth preserving and protecting as they are.
Though rural people may not feel privileged, they are fortunate in ways others are not. They have open land and the freedom to roam unhindered right outside their door, they have clean air to breath and clear vistas to see, and they wake to beauty every morning. They are not encumbered with overcrowding, traffic, or pollution.
Struggling financially is never fun, but it’s easier to handle when you can escape into paradise and forget your worries for a while – to enjoy a picnic with your children in the shade of a ponderosa pine because it’s all you can afford and be queen for an afternoon knowing it’s not the lack of money, but this that your children will remember. Open spaces soothe the soul and enable one to clear their head and face the realities of life rejuvenated and refreshed. Not everyone has this at their fingertips. It is wealth that no amount of money can compensate for and yet it’s so easy to forget when the worries of life overwhelm.
The people who live near such places know this. Many claim that the best protection is no protection; don’t put it on the map in other words. There is some truth to this idea. We have all witnessed a special, secret spot get shared on social media and then watch its exposure change it into a popular destination, to our chagrin. But we don’t own these places, no matter how much we love them; they belong to everyone, young and old, rich and poor, urban and rural, and from all backgrounds, genders, cultures, religious or political viewpoints, and walks of life. And without proper protections and management they are vulnerable in un-imagined ways.
Tourists and outfitters will come with or without designations and protections, and so will the oil and mining companies – but with the help of short-sighted and opportunistic politicians, the influx will not be managed well, if at all, and the aim will be profit. Those who stand in the way of that, who aren’t profitable, will be expendable.
Political expediency is the act of using forethought only when it coincides with one’s own wishes, where the most blatantly obvious facts can be dismissed or ignored because they are simply unwelcome. It is this above all else that we should be most wary of.
U.S. Congressman John F. Lacey said in 1901, “The immensity of man’s power to destroy imposes a responsibility to preserve.” This was the prelude to the Antiquities Act that the Iowa congressman sponsored and put before Congress and ultimately saw enacted into law in 1906. Lacey was a Civil War veteran who had seen first-hand the destruction perpetrated by man against man, but he also lived at the heyday of man against nature, when wildlife such as bison and the passenger pigeon were being hunted to extinction and the West was not only open to expansion but to wanton greed for resources such as timber and minerals, and for ancient artifacts of American antiquity.
While these places and artifacts belonged to native tribes and peoples, they had no voice in the discussion taking place between the European-American factions discussing their fate. The landscapes that held their stories, sacred sites, histories, and surviving culture would be determined by greedy businessmen, hungry ranchers, worried anthropologists, determined educators, and warring politicians. What was happening across the Southwest, whether intentionally or not, was the white-washing or cultural cleansing of pre-settlement history as sites and artifacts were looted and sold to the highest bidder.
Regimes throughout history have sought to wipe out the memory, beliefs, and histories of opposing cultures and ethnicities through book burnings or destruction of cultural and historical sites thereby making the destruction of their opposition complete. To destroy places, writings, and texts not only destroyed the physical existence of these cultures, but also their cultural knowledge. German Nazis and the Taliban in the Middle East offer a couple of examples. It became such a problem during World War II that in 1954 the U.N. adopted the Convention for the Protection of Cultural Property in the Event of Armed Conflict to protect cultural heritage. They explain that cultural heritage reflects the life of the community, its history and its identity. Its preservation helps to rebuild broken communities, re-establish their identities, and link their past with their present and future.
While no one here in America is engaging in intentional cultural cleansing, our history with Native Americans is well-known and documented. Our actions have bespoken an arrogance and preference for our own history over theirs, or even worse, the seizure and ownership of their history as our own, using it for prestige or profit. Like putting a new coat of paint across a mural, we have been writing over the rich history of those who came before us, and thereby in small measure, erasing their presence and cultural identity.
Despite the reality of the spoils of conquest, where we said, “This is now mine,” we eventually embraced a more communal view of natural resources and lands with the designation of public lands for the use and enjoyment of all Americans as a National Heritage and birthright.
The designation of Bears Ears National Monument was an historic if not redemptive event, not just in terms of designating the monument, but in terms of healing broken relationships and a scattered and broken past. Allowing Native Americans to co-manage the monument and have a say in the destiny of their homeland and history not only enables them to reconnect to their past, but in a significant way, to join in the present and move into the future with the rest of Americans as equals.
With a reconvening Congress meeting under new leadership and power, the ever insidious threats to the Antiquities Act and the rich heritage public lands provide is as imperiled as ever. If Congress succeeds in disposing of public lands or undoing the designation of Bears Ears National Monument, it will not only be a slap in the face to Native Americans who have long been waiting to be recognized and treated with dignity and respect, but a slap in the face to all of us who share in the communal access public lands afford. Those landscapes now hold our shared cultural heritage and our identity as well.
Despite his valiant efforts and success at getting the Antiquities Act passed, Lacey’s game and bird law came too late to save the passenger pigeon, with the death of the last bird marking the species extinction in 1914. It was a stunning symbol of the squandering of America’s natural bounty. In a speech to the League of American Sportsmen in 1901, Lacey revealed the depth of his concerns about such waste and misuse of natural resources—about, as he put it, mankind’s “omnidestructive” ways wherein he warned that if the destruction was allowed to continue, the world would “become as useless as a sucked orange (Sellars, 2007).”
If we are not vigilant, we may live to see the extinction not only of the Antiquities Act, but the extinction of our access to public lands and the natural bounty they still hold in wildlife, recreation, solitude, beauty, healing, and history. We may also let the opportunity pass to lock arms with our Native brothers and sisters and create a shared future where their voices add to the depth and meaning of our own.
Post Script: Rep. Chaffetz has withdrawn H.R. 621
Written by Dallas Hyland. First published in The Southern Utah Independent.
It can be reasonably stated — and anyone would be hard-pressed to disagree — that on Sept. 12, 2001, there were no Republicans or Democrats in the United States. In the wake of the worst attack on American soil since Pearl Harbor, the only people you could find in this country were Americans, united in our grief and our resolve to defend not only our country but every single person in it.
While from a historical perspective that unity was somewhat short-lived, it was poignant and something to be remembered. Sometimes, as Americans, we need to set aside lesser differences and keep our eye on the ball together. Our enemies do.
Fifteen years later, America has a new common enemy. But uniting us on that front will be much more difficult than in the wake of an attack, because it is being meticulously carried out by measured and calculated individuals who wish to keep us divided on the matter for the purpose of their success.
There are some individuals who guise themselves as Constitutionalists. But they are in fact proverbial wolves in sheep’s clothing who, if successful in their plans to transfer federally managed lands to individual states’ control, will set into motion an irreversible devastation on our country.
First, it is important to clear something up. While the terminology in the public lands battle varies from “take back” the lands to “transfer control” of the lands, neither has any legal ground whatsoever. The Constitution does not state that the government is under any compunction to comply with these demands, and the legislators and lobbyists who propose so know it.
In fact, as a condition for entering the union, ten states have disclaimed all legal rights and titles to unappropriated public lands. And at least two of the ten, Nevada and Utah, have it in their state constitutions. The other states are Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, Washington, and Wyoming.
So why, for instance, is Utah mounting a taxpayer-funded $14 million lawsuit to transfer control of the land? Is it because it, like the embroiled and possibly justifiably angry ranchers, needs someone to fight the big government bad guys and “defend freedom?”
Sincere and heartfelt empathy for that iconic group of Americans who are in the twilight years of their relevance notwithstanding … ranchers, you are being used. Used to ratchet up the emotion and embolden a cause that, if successful, will leave you even worse off than you are now.
Want to know how that might be true? Just look at what western states have historically done with the “trust lands” awarded to them by the federal government in exchange for relinquishing claims to public property. The lands are by and large utilized for extraction industries, logging, mining, and real estate development.
To be clear, that is what the trust land is for. But there is no indication that the legislators who wish to push this land war are telling ranchers — or any of us, for that matter — that their mandate is to maximize profit. The only way to do that is to sell to the highest bidders, and ranchers simply won’t be at that auction. None of us will.
Ken Ivory, the former executive director of the Americans Lands Council and Republican member of the Utah House of Representatives, recently left his post at the ALC to take his public-lands message to an even larger national audience with the South Carolina-based group Federalism in Action. It’s a group, mind you, that is affiliated with extreme right-winged agendas and organizations funded by the Koch brothers.
The bills and litigation the likes of what Ivory pushes literally have not a chance of succeeding in federal court, but perhaps that is not their intent. Remember that “keep your eye on the ball” thing? Their intent is to rally support in Congress where a majority vote for a proposal — like the one from Sen. Mike Lee that would have, in essence, gutted the Antiquities Act — could aptly be a huge victory for their greedy plan.
Are you following here? The state of Utah is waging a frivolous $14 million lawsuit that it knows it has no chance of winning in the name of something it touts as in the best interest of the public when, in fact, the real agenda is to rally support from its misinformed constituency. It’s called a successful loss, and this is because $14 million is a small price to pay to keep a Republican majority in Utah, one that will be led blindly into the trap of taking over the land, only to see it sold off to extraction companies that will yield trillions for themselves and their bought-and-paid-for politicians.
Who most wants control of these lands? Commodities exploiters.
And if they succeed, the use of these lands that are guaranteed and protected for all Americans will be available to less of them and at a prohibitively higher cost to them than it has ever been under federal management.
The people waging this land war have their eye on the ball for sure. They’re hoping we don’t.
Think about it.
See you out there.
Utah politicians in particular, western lawmakers generally, and Congress as a whole will be in breach of their fiduciary duty to the American people if they allow Utah and other western states to succeed in their illegal land grab for public lands.
It is often claimed that the federal government is “land grabbing” but the only way for that to be true is if the federal government is grabbing state or private lands. The real culprit in the land grab scheme here is the state of Utah and other western states joining their crusade to take public lands.
There are a lot of claims being made about what the Constitution says, how it should be interpreted (strict or loose), and what the intent of the founders was. The Constitution spells things out explicitly and implicitly, but interpreting it isn’t as simple as many claim.
According to Robert G. Natelson, University of Montana School of Law, “Scholars across the political spectrum agree that for purposes of constitutional interpretation, the legally relevant issue regarding a particular clause of the Constitution is not the original intent of the drafters, but the clause’s objective meaning to the ratifying public.”
Furthermore, he goes on to state that “although in its fundamentals eighteenth century English was the same language we use today, there were many subtle difference, and those differences can deceive. One trying to deduce original meaning, therefore, should possess a good eighteenth century dictionary, a working knowledge of Latin, and access to contemporaneous legal materials.”
In other words, it’s not as straightforward as it sounds and even constitutional scholars struggle with it. Justice Stephen Breyer once said that the “general purposes” behind the constitution – the values underlying it – should assist courts in construing the document.
According to the article, “Federal Land Retention and the Constitutions Property Clause (hereafter referred to as “the article”),” federalists and anti-federalists were surprisingly unanimous in the political values they were trying to promote, and wanted a charter that would realize those values. The Constitution was ultimately a political bargain (the grand bargain) between the American public and soon to be federal government.
The political values unanimously agreed upon and which underlie the Constitution include but are not limited to: 1. Republicanism or popular government under the rule of law, 2. Decentralization or limited federal jurisdiction to enumerated powers, and 3. the ideal of fiduciary government, i.e., that public officials were unanimously seen as “guardians, agents, servants, or trustees of the people.”
There are a lot of loud voices making claims about the government’s responsibility to the people and making claims of the government not working for the people. Right now those claims are largely coming from ranchers, militants, and partial politicians who believe the government (meaning actions by the government they don’t like) is not taking care of them, or not doing their bidding.
But this view of government responsibility is flawed, biased, and narrow in a historical and constitutional context which was heavily influenced by the legal concept of fiduciary responsibility. The ideal of fiduciary responsibility was founded in a strong public trust doctrine which at the time of the founding was meant in a legally binding way as a universal responsibility to act as “guardians, agents, servants, and trustees” for the American public as a whole, not for special groups.
As stated in the article, this meant that “officials were to act with care and loyalty, in good faith, within their instructions, for the general good, and impartially.” The article goes on to say, “If, for example, a legislative body passed a law that benefited some citizens at the disproportionate expense of others, that legislative body violated its duty of impartiality.”
In other words, doing that would be a government breach of trust. And serious breaches were considered ultra vires – or in the language of the constitution, they were not proper and were therefore void. Attempting to wrestle public lands for ranching would be such a breach.
The western attempt to grab public land that doesn’t belong to them is a breach of that trust to the American public. Today we are witness to a block of western lawmakers pushing for an agenda that benefits a small minority at the expense of the majority. Those lawmakers, while they do have a duty to the people of their state, also have a larger duty to the nation and the American public as a whole which they are violating.
The claim being made from the lowest to the highest levels that the federal government is not allowed to own large swaths of public land as stipulated under the enclave clause is false. If we take the Constitution at face value, what we find under the Property Clause is that the government explicitly has the duty to manage and dispose of land. Implicitly, this reveals that the government can own land as long as it is managed according to the enumerated powers of Congress.
While the Constitution does not state that the government “must” dispose of the land, the case could be made. During the drafting of the Constitution there was widespread belief that the government would accrue land either by purchase or through treaties and that it would be disposed of for westward expansion via homesteading and for economic development.
Based on that, one could argue that all public lands should be disposed of to the highest bidders, either individuals or industry, and in the 1700s that might have been appropriate. Over time, however, disposal of land for the benefit of the American people expanded to include many purposes.
That being said, no one could make the claim that the land was supposed to be disposed of to the states. It isn’t stated, implied, or hinted at in the Constitution anywhere.
The founding generation of the Constitution sought to build the nation by land privatization, not through state land holdings. According to the article, “The ratification record suggests that gratuitous transfer of lands to state governments would have been seen as a partial act, and therefore a breach of public trust.”
It goes on to say that, “Value was to be derived from land for the benefit of all Americans, not merely those who lived in the vicinity. During the ratification debates no one suggested deeding western land to new state governments.”
In fact, “Participants in the ratification debates took firm stands against any land disposition that would benefit one part of the nation at the expense of other parts.”
Therefore, nowhere in the Constitution does it say that the federal government is required to dispose of land to the states. To suggest otherwise is a gross misinterpretation of the Constitution.
The Property Clause of the Constitution dealt with territories from which all public lands came to be. The Enclave Clause on the other hand deals with property within established states. There is a huge difference between those two classes of land. In terms of public lands in Utah, those lands never belonged to the state. They were in fact territorial lands owned by the federal government before Utah became a state; therefore, the Enclave Clause has no bearing on them.
Furthermore, the territorial lands within Utah’s borders upon entrance into the Union were forever relinquished to the federal government upon statehood under the Enabling Act of the Utah state Constitution.
The ensuing assault by Utah Congressional and Senate members is a gross abdication of their fiduciary duty to the American public, and their proposed bills: The Transfer of Public Lands Act and this year’s Utah Public Lands Initiative Act are both improper under their duty and therefore ultra vires breaches of the public trust.
These Congress members and politicians are not only attempting to steal land from the American public via their power in Congress, they are usurping the federal government’s role to manage those lands as a trustee and in so doing are violating their own duty as standing Congressmen to do their jobs for the American public and the nation at large.
They cannot point their fingers at the federal government as some distinct entity that they don’t belong to. They cannot cite that the government is abusing its power or not listening to the people without pointing their fingers at themselves. Furthermore, it could be argued that the abuse of power within the government is coming from these very people.
Public land was not meant to be held for unenumerated purposes. “The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers.” However, Congress has considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion are respected and supported by the public.
Under Congress’s enumerated powers, they have determined over the years that national objectives include environmental concerns, recreational opportunities, wildlife, scientific purposes, economic benefits, and natural resources and have given power to manage the public’s land to land management agencies. That is consistent with their Constitutional powers.
It is outside of Congress’s enumerated powers, however, to act on behalf of special interests or one group (ranchers for example) over others. Their actions regarding public land must consider all Americans.
The Federal Government has a long history of disposing of public lands which includes attempting to give the lands to the states and to ranchers under President Truman, which both entities declined. Things changed in the 1970s however. Under the Federal Land Policy Management Act (FLPMA), disposal guidelines were explicitly spelled out (see link below), which is legally binding today. Like the Constitution, nowhere under FLPMA does it say land must be disposed of to the states.
Congress passed this law under their enumerated powers listed in the Constitution, which means these lands are being managed Constitutionally and within the scope of our form of governance.
Under Constitutional authority, Congress has continued the tradition of making laws that govern the management of public lands in a way that is consistent with ensuring those lands are used and managed as a trust for the benefit of the American public, the nation, and for future generations.
What Utah politicians are doing, if not in outright cahoots with the Bundys’ militant standoff for public lands, is just a smarter version of it and is just as wrong, if not more so because their positions as standing members of Congress requires a high standard of fiduciary duty to the nation.
Federal Land Policy and Mangement Act , Disposal: http://www.blm.gov/pgdata/etc/medialib/blm/wy/programs/planning/rmps/rawlins/rod/appendix.Par.42703.File.dat/Appendix06_Disposal_Criteria.pdf
Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005), Available at: http://scholarship.law.umt.edu/faculty_lawreviews/73
Photo Credit: Colorado Guy
The cowboy west is full of ironies, half-truths and exaggerated myth. It’s filled with stories of good guys and bad guys, small, hard scrabble farmers and cattle barons; it’s the fertile ground where law battles the lawless, where wealth is made and dreams are dashed. It’s part of the allure of the west. It’s thrilling to be a part of, and audience to, a grand theater filled with dramatic action, and we lap it up.
The truth, on the other hand, is more like dust that settles after the scuffle has ended. It is no less entertaining but it doesn’t capture the imagination like myth and legend does and so those looking for a cause, looking for something to get mad about or to become a hero over, dismiss the truth in favor of fiction. It is more fun after all. Who doesn’t like to sit around a campfire and spin yarns about shadowy government agents out to get the little guy? Talking about over-due grazing fees and court proceedings is just life.
Nowhere is this happening more prolifically than at the Malheur Wildlife Refuge.
The greatest irony of the rag-tag, rebel rousing cowboy revolt coming out of Bunkerville, Nevada, is that they are displaying the very reason the government has had to step in and regulate time and again. Like being able to hit rewind and go back in history, we are seeing in real time how the laws and places that are so contentious today were created by people just like the Bundys and their cohorts.
The Malheur Wildlife Refuge was set aside by Teddy Roosevelt in 1908 to protect bird species that were being over-hunted and reaching extinction levels. Teddy Roosevelt was an avid hunter, and a romantic about ranching. But he was also ethical and a firm believer in the law. He is the president that brought about the National Parks, National Wildlife Refuges, and laws such as the Antiquities Act. The reason he did this was two-fold: 1. He knew that without government regulation people would not self-regulate, and 2. He believed we have a moral obligation to ensure resources exist for future generations.
He knew that if you kill everything, there will be nothing left to hunt and that if you destroy something, it will be gone forever. Thus, conservation and preservation were born.
The creation of the BLM came about for those reasons as well. Ranchers of sheep and cattle could not self-regulate or get along, much like the Bundys today, and asked the government to intercede. Over-grazing was decimating the range and they knew this in the 1800s. Thus, the BLM was created to regulate grazing and to ensure that it happened equally and fairly.
The Antiquities Act was created for much the same reason. Many people had no respect for ancient cultures or artifacts and were stealing, selling, and destroying these artifacts of antiquity at an alarming rate. Teddy Roosevelt was an educated man and believed in preserving these antiquities for science and education. He saw them as cultural and national treasures.
The irony is that the Malheur Wildlife Refuge has both antiquities (to say nothing of the fact that it is considered a sacred site by the Paiute Indians) and wildlife in abundance. Ryan Bundy showed he had no respect for ancient artifacts or other cultures when he led his illegal ATV ride through Recapture Canyon in Blanding, Utah, but he has sealed his sectarian and arrogant stance in Oregon by stating:
“Cattle ranchers and loggers should have priority when it comes to land use. Before white man came, so to speak, there was nothing to keep cattle from tromping on those things. We also recognize that the Native Americans had the claim to the land, but they lost that claim. There are things to learn from cultures of the past, but the current culture is the most important.”
Funny enough, white man brought the cattle and ranchers, like the Native Americans Bundy referred to, no longer have sole claim to the land – but beside the fact, this is the crux of the Bundy Bonanza:
The Bundys believe they are a special class that deserves special treatment. They believe their rights take precedent over everyone else. They want the land for themselves, continued to be paid for by the American people, so that they can continue their way of life unhindered by rules, regulations, fair play, fees, ethics, or personal responsibility. In other words, they are like spoiled children who will throw a temper tantrum if they don’t get their way.
If you look back through history and wipe away the dust and cobwebs, what you find is that more often than not, laws, rules, regulations, and policies were implemented for good reasons. Some stand the test of time and some don’t. Land management agencies in particular were created to enforce laws governing public land and are bureaucracies beholden to those rules, regulations, policies, and laws set forth by Congress.
Federal employees work for the government and are meant to objectively do their jobs to fulfill mandates set forth by the government. It is not their job to be friends with individuals or to do their bidding at the expense of policies they are required to enforce. Federal employees are not public servants like politicians are; they are civil servants.
Many people working for land management agencies come from ranching and farming backgrounds and are sympathetic to rural concerns. Most are just average citizens trying to do their jobs. It is sickening to hear supporters of the Hammonds and the Bundys decry the injustices done to these “good, rural ranching families” while ignoring the vigilante threats, intimidation, and violence perpetrated by the very same “good, rural ranching families” against federal employees who also happen to be good American people with families.
The Hammonds (and Bundys for that matter) have decades of criminal behavior and law breaking behind them. To only look at the charges brought against them and for which they were convicted is to look through a very narrow scope. It is called cherry picking and selective fact finding and typically is used when engaging in confirmation bias. Looking through that narrow view ignores the whole picture that adds up to 45,000 acres of arson and lawbreaking over a 30 year period.
If we only looked at Al Capone’s tax evasion charge we could easily make the case that the government unjustly went after him too, but we all know he committed many crimes and broke the law for years before being charged and convicted of anything.
In looking at similar arson cases across the west it is clear that a five year sentence is not only consistent with other cases, but is at the low end of sentencing. Other cases reveal charges ranging from two years to the death penalty. People who think the Hammonds have been unjustly charged do not know their history, don’t know fire, and don’t know about other arson cases or who has also been charged.
This may be shocking to those who believe land management agencies are biased against ranchers, but many arsonists charged and convicted were federal employees working for land management agencies. They did not get a pass because they worked for the government. For a case in point, a wildland firefighter who did a prescribed burn without authorization got charged and sentenced to two years in prison.
On the other end of the spectrum, an arsonist in California got the death penalty because a wildland fire crew died trying to put out the blaze. Whether it’s for a firefighting paycheck or for green grass to improve grazing, arson is a real and violent crime. You cannot control the climate, weather, or landscape that fuels fire behavior and makes it dangerous and hard to control.
Laws dealing with arson have evolved with the culture. While burning used to be considered acceptable in the past when the land was less populated, it is now considered a threatening and expensive crime. In other words, it’s not victimless. It costs considerable amounts of money (money that comes from the taxpayers) to put the fire down and to protect homes and residences, to say nothing of the threat to and/or loss of resources, life, and safety.
The fact of the matter is, the old west is lashing out at the new west and they are doing it in the same way that they have been doing it for a century. Bullying, intimidation, and law breaking are as much a part of the culture as cows and cowboy hats. This stunt in Oregon is not being done for the ideals these people purport, for constitutional principles or American values. It’s simply motivated by delusional dreams of heroism, greed, and self-interest.
The people who are really concerned with their way of life and their traditions are doing it through cooperation, the right channels, and by the law. These people understand the complexities of this land, that it is a melting pot of people, cultures, and ideas and know that there must be an equal and fair balance among them. There are bad eggs in every group including government. When bureaucracies screw up there is legal recourse available, government oversight, and many layers of checks and balances to keep them in check. Land management agencies have lost many cases in court.
Smart people accept things as they are and work within reality. They do not over-simplify complicated issues into value-laden, emotional appeals driven by self-interest or ideology. The drama unfolding in the west right now is the age-old struggle between fact and fiction, desire and reality, the past and future. Facts might not be as exciting as fiction but they are relevant and there for all to see.
What the Bundys and their merry band of patriotic posers need to realize is that striking at the heel of the government without the moral high ground is a fools errand. If your revolution does not inspire the nation and its just you and your buddies huddled over a fire patting each other on the backs while pleading for snacks, chances are your cause is yours alone. The garbled, half-cocked constitutionese used to appeal to “We the people” has a major blind spot and it’s the other side of that coin.
Teddy Roosevelt said, “The government is us; we are the government, you and I. No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.”
We are the people and we are the government and public land belongs to us all, managed for various reasons by laws enacted by Congress and the President who were elected by us, backed up by the courts to be enforced by land management agencies that again, were created by Congress. It is not a conspiracy, it is law and history, enacted, shaped, and forged by the citizens of this country. And it is knowable.
The west may be filled with legend and lore, but at the core is the truth. Wyatt Earp, arguably one of the greatest legends of the west, was a real person who brought law and justice to lawless cowboys in a lawless west. What is happening today is, in many ways, not much different.
While we have advanced beyond shootouts at the O.K. Corral (hopefully), the theme today is much the same. It boils down to a struggle between law and lawlessness in the epic battle for the west and its mad march onward.