I am a blue collar progressive. It’s kind of exactly how it sounds. Both descriptives represent a paradigm or worldview rather than being literal. By blue collar I mean that I come from humble beginnings and still live in the economic lower to middle class. My parents didn’t make a lot of money. Both were government workers, my dad a city planner and my mom an assistant to the attorney general. It sounds pretty good right?
While my parents were technically white collar professionals, their income more closely resembled that of blue collar workers and so did our home life. We didn’t take fancy vacations, have a swimming pool or nice clothes, or get vehicles when we turned 16. We always knew we weren’t rich and we always knew the people who were.
Education was paramount in our home. Having open minds and thinking forward as well as questioning traditional lines of thought or those in authority was encouraged. A liberal education was a thing of great value. Being able to intelligently discuss ideas and argue logical, well-founded points of view was the currency we bought and traded with. Culture was something to be cherished, preserved, and enjoyed. Civilization was the idea that people working together could create a society that was great for everyone, and everyone mattered. Nature was something to enjoy, respect, and to run to for solitude and prayer. Wilderness was where God lived.
This upbringing inadvertently taught me how to find riches in simple pleasures and it taught me how to become secure in who I was rather than in what I owned. My status resonated from within rather than from without. I lived countless lives and discovered cities and places around the world through books. It is where I learned to love the outdoors whether it was lying in the cool grass in my backyard or fishing from a canoe at Strawberry Reservoir and grilling and eating the fish we caught afterward. My entertainment was humble and inexpensive. It included taking drives through the mountains, hiking, and star gazing.
Now that I am an adult and I have a career and children and make that same lower to middle class income I find that I struggle with the same things I did as a kid: not having enough money to do the things I want to do, not having all the things I’d like to have, and not having the ability to give more to my children than I had growing up. I have limits.
I struggle with finding joy and satisfaction in the life I am living. I teeter between the joyful surprises life offers and longing for a life I don’t have. It is a mentality to be happy with what you have and with where you are in life. It requires having control over your thoughts in what is literally a constant mental exercise. Learning to be happy with what you have requires finding or seeing other types of wealth. I call those things simple pleasures. Mostly for me it boils down to three things: time, people, and nature. We have unfettered access to all three; it’s what we choose to do with them that makes the difference.
We have all heard that time is love or time is money. What this implies is that time is valuable and how we spend it determines the outcome of the budget of time allotted in our life, it determines our state of mind, our successes and regrets, and our overall well-being. Our choices can produce wealth, the lack of wealth, comfort, excitement, an enjoyable job or a miserable career. We can use our time to enjoy life or we can squander it. Time is a choice. Who we choose to spend our time with is another form of currency.
People can be a blessing or a disease in your life. For me, finding people who are fun, intelligent, and humble to go through life with adds immense value to my life. People are an ingredient so easy to forget and yet so dire when they’re missing. Good people add the substance, support, and spice to life that makes it worth living. They can be the difference between getting through hard times or succumbing to them. The older I get the more aware I become that the idea of rugged individualism, doing things on your own, is a myth and a stupid and detrimental one at that. Life is hard, it’s harder alone. Having community and support can be the difference between a good life and hard and miserable one.
The last thing is nature. It is all around us all the time. It can be comforting and terrifying. It requires nothing of us. Sometimes it infringes on us without our consent, it blesses us always, and it provides nourishment to the soul. You do not have to go to nature to find it or experience it. While I would argue that you get more from it if you get into it and really experience it, I would never say that basking on a lawn chair in your backyard on a sunny afternoon is less than backpacking in Glacier National Park. One’s preference for how to experience nature is as varied as people are. It’s the value you get out of it that matters.
That being said, I would argue that getting out into open space far from city life is priceless. I harp on the value of public lands a lot and it is because having public lands around you is a treasure not to be taken for granted. There is of course real value in public land and open spaces, just look at trends in real estate around public lands, open spaces, or the ocean to see what I mean – or the politics surrounding what can happen on public lands or whether they should be public at all. But really, the value of public lands is something you can’t quantify.
Going back to my declaration of being a blue collar progressive, what makes public lands and access to them so valuable to me is that those lands offer a place free from economic status. Going into them gives one dignity and equal footing. It is free from shops and trinkets and glittery objects and costs. It is the place where worry and doubt and fear can be shed and the soul can breath and the body and think and the mind can rest. It is where rejuvenation and peace are found. It is a place where you can’t hide from yourself, you can’t compensate with money or house size or bank account, but you can be you. You can escape the charade, the keeping up with others, and unmask yourself. It is the ultimate form of freedom. It doesn’t require a flag, a constitution, or military service. It doesn’t check party affiliation or voting record. You can just be. It is existence free from the weight of the world.
Public lands make up 30 percent of the land mass of this country. Does that surprise you? It surprised me. We think of public lands as these huge chunks of land mass, but in context, they are really small islands in this country. One could argue that our public lands should not be developed at all but instead should be preserved as they are indefinitely. One could argue that the loss of economic value due to the existence of public lands is not the real loss, but rather the infringement of anymore development on those existing landscapes as they are is. We have plenty of opportunities to make money in cities and on private lands. The real threat is to our public lands.
That threat includes finding solitude 100 yards off a road. It includes the residual effect of remembering how your body felt after a 12 hour hike. It includes the enhanced refreshment of a cold drink after a grueling bike ride. It includes the studied and tested psychological benefits of being away from man-made civilization that nature provides. It includes the memories invoked when you are sitting in your office day dreaming about your next outdoor adventure or trail run or canyon. Just ruminating over it now with my fingers on the keyboard brings a soothing calm to my soul.
So now I’m sitting on my back patio, cold beer in hand, basking in the warm, amber glow of evening. A cool autumn breeze plays with the precariously dangling leaves clinging to the last hand-holds of summer and arouses goosebumps on my skin. Like the leaves in my trees I’m clinging to the quickly fading hues of the day before the purple shades of twilight creep across my yard and swallow it in darkness. It is a maddening practice to try to stop time, to enjoy the moment before it slips through my fingers, but it is the waltz of my life right now, stealing moments of glory in between work and soccer practices.
I take a sip of my IPA and the fresh, citrus flavor explodes on my tongue and sets off a storm on the distant horizon of my mind. The sensory response uplifts a swell of an idea that gains momentum as it breaks into my consciousness. With each gulp I fall from the wave into the iridescent green underworld of sublime imagery that has been lapping at the sandbars of my mind.
A couple of days ago while researching some detail online I stumbled upon this quote by Henry David Thoreau: “Instead of water we got here a draught of beer…a lumberer’s drink, which would acclimate and naturalize a man at once—which would make him see green, and, if he slept, dream that he heard the wind sough among the pines.”
The imagery of a lumberman’s hard and toilsome work ending with a cold beer in the cool shadows of green light with the sound of the wind in the trees sends my synapses into frenzied motion mixing a concoction of remembered experiences and sensations with an anticipatory longing and desire for more. It’s more than just the words; it’s the knowing. I know exactly what he is talking about and that knowing is what keeps my mind in a state of agitation until I can experience it again.
The juxtaposition of sensory delight and nature has got my mind in a lather. I am intrigued that so often natural phenomenon is used to convey our verbal explanation or description of a sensory experience. But even more is Thoreau’s injection of hard work thrown into the mix insinuating that through it the joy of simple pleasures is enhanced. I would argue that often it is only through toil that we truly understand the subtle joy that simple pleasures hold.
Whether it is toiling under a hot sun with a chainsaw and the reward of 20 foot winds moving through the tree tops or toiling to control my mind and thoughts when life feels like drudgery, the reward is knowing that the balance between culture and nature, between civilization and wilderness, between development and public lands is still there and that despite monetary limitations I still have the options and the ability to live a simple, abundant life.
“Demands for public land use are constantly escalating, and priorities for use of these lands have shifted significantly in recent years. The changes are most pronounced with respect to lands managed by the Bureau of Land Management.” ~Deborah L. Donahue, The Western Range Revisted
***New Information at the end of the article***
Two Oregon ranchers, a father and son, Dwight and Steven Hammond, were tried and convicted for arson under the Anti-terrorism and Effective Death Penalty Act of 1996 in 2012 after igniting fires without required permits and/or during burn bans that spread to public BLM land in 2001 and 2006.
The mandatory minimum sentence under the anti-terrorism law is five years. On October 30, 2012, U.S. District Judge Michael R. Hogan gave the Hammond’s lesser sentences than the required mandatory minimum under the law because he believed their actions were not consistent with the intent of the law by citing the Eighth Amendment (cruel and unusual punishment) and that to sentence them according to the letter of the law was “grossly disproportionate to the severity of the offenses here (Capitol Press)” and would go against his conscience (see court transcripts). He sentenced Dwight Hammond to three months in prison, Steven Hammond to one year and one day, and fined them $400,000 for damages.
Unfortunately for the Hammonds, changing the sentence was outside of the Judge’s purview and the government lawyers appealed. In February 2014, a three judge panel of the 9th U.S. Circuit Court of Appeals (see Hammond Opinion) ruled in favor of the government saying, “A minimum sentence mandated by the statute is not a suggestion that courts have discretion to disregard,” and stated that the Hammonds must be returned to court for resentencing. That sentencing took place in October 2015.
According to an article on Oregon Live, Judge Stephen J. Murphy III said in his opinion, “Even a fire in a remote area has the potential to spread to more populated areas, threaten local property and residents or endanger the firefighters called to battle the blaze.” He noted that a teenage relative of the Hammonds was nearly burned by the fire and pointed out the damage to grazing land as well.
“Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense,” the opinion states, in sending their cases back to the district court.
The article went on to quote Kelly Zusman, the appellate chief for the U.S. Attorney’s Office, who applauded the decision saying, “The Hammonds’ actions in setting all of those fires and endangering their teen relative and BLM firefighters fell squarely within the type of conduct Congress wanted to see punished with a five-year sentence,” she said. “It’s important that the public know that setting fires to public lands — regardless of whether it’s a building in a city or sagebrush in Eastern Oregon — will result in federal jail time.”
At first blush this case seems ridiculous, but does it signify the increasing value of public lands and that to devalue or destroy them is an act of domestic terrorism?
If this is the direction the government is heading, and hotly contested controversy over a commodity is any indicator, one can reasonably come to the conclusion that land management issues are going to continue to surface and legal action is going to increase. The Bermuda Triangle that is land management, formed by the government, traditional users, and new progressive users, may have just produced a precedent setting case that rather than being ridiculous is indicative.
Land management has always been controversial, but the tide may be shifting on a much more significant level. Whereas the interests controlling land has largely been that of the extractive industries, such as mining, timber harvest, and cattle grazing, the economic driver today is overwhelmingly environmental and recreational tourism. This economic shift is putting power into the hands of new, progressive industries and people, many of whom have an environmental bent or ethic, who are shaping the debate over the use and management of public lands, marked by a growing interest in conservation and ecosystem management, and it reveals itself through changing priorities within land management agencies.
As Deborah L. Donahue states her book, The Western Range Revisited, “Today millions of people use the public lands for recreation; federal grazing permit holders number about 20,000. Recreational users of BLM lands generate hundreds of millions of dollars in taxes and revenues for local businesses and equipment manufacturers and retailers. Livestock are permitted to use more than two-thirds of all public lands, yet those lands contribute but a tiny fraction of national livestock production. Revenues to the federal treasury from fees paid by stockmen fail even to cover the BLM’s costs to administer grazing activities.”
When we look at policies through the American paradigm of providing the greatest good for the greatest number of people, we are now seeing, more than ever before, that a healthy environment, abundant recreational opportunities, and human health and well-being are significant goods, and those goods are driving a huge economic sector. As a result, industry leaders and the public within this growing sector have more clout and support in shaping policy decisions.
Using this case as the litmus, this essay will look at the actions of the Hammonds, the anti-terrorism act as a legal tool for public land managers, and the consistent application of the law across states, specifically in the Cliven Bundy case.
While all land management agencies have to deal with competing interests and conflict, none have to more so, seemingly, than the BLM. One of the reasons for this may be the changing management requirements and priorities of the BLM to include protection.
BLM land is largely rangeland, which refers to lands that are, or have historically been, used by domestic livestock, and that until recent history was undesirable interior land managed for grazing and mineral extraction. Because it wasn’t National Park quality land or forests, the users were small in number and had the land to themselves. The BLM had no real reason to strictly regulate or restrict users because there weren’t a lot of them and there weren’t diverse groups competing for use.
That all changed in the 1970s with the Federal Land Policy and Management Act (FLPMA) and the Public Rangelands Improvement Act, but it really came to a head in 1996 when President Clinton designated Grand Staircase Escalante National Monument, creating the first National Monument managed by the BLM. That designation instituted protection as one of the BLMs managing mandates. He went on to designate 14 more national monuments on BLM land.
All of the above, set forth by Congress or by presidential proclamation, required the BLM to consider the health of the range and manage the land in a manner that would improve the quality of rangelands. But special designations bring not only new users to include environmentalists, recreationists, and scientists, but also increased awareness and scrutiny.
Suddenly those who heretofore had unfettered access to the land had to share with a diverse group of users; furthermore, they were slowly limited in their uses of the land as well. This, not surprisingly, has made many of those traditional users angry, leading them to level charges of government land grabbing and over-reach. But according to the article, Clinton’s National Monuments: A Democrat’s Undemocratic Acts, by Albert C. Lin:
“There was [is] little substance to the “land grab” charges, as the land in question already belonged to the federal government and was therefore subject to disposition under the Property Clause. What such characterizations emphasized, however, was that certain state and local parties were accustomed to using the public lands as their own-and viewed them as such-and that the new land designation had suddenly disrupted their expectations concerning permitted uses of those lands.”
While one can only speculate as to how the Hammond’s viewed the public land their cattle grazed on, their actions are quite revealing and leave little room for doubt. It appears that their troubles came to a head in 1994 when they were arrested for blocking the Fish & Wildlife Service for building a fence that would keep the Hammond’s cattle out of the Malheur Wildlife Refuge. The Hammond’s claimed that they had water rights to the watering hole being fenced out and that they had a right to use the road through the refuge because it was a historic right-of-way. Because they had never been required to have a permit to use it before, they believed they had historic rights to use it.
It appears, however, that prior to this blowup the Refuge managers had had many run-ins with the Hammonds. According to a High Country News article published in 1996, “Hammond allegedly made death threats against previous managers in 1986 and 1988 and against Cameron, the current manager, in 1991 and again this year.” The problems managers at the refuge had with Hammond was that they did not follow the rules and regulations for grazing or moving cattle through the refuge and that because they had repeatedly ignored the FWS’s requests to abide by the rules, the FWS had no choice but to build the fence.
The High Country news article goes on to say, “According to the Fish and Wildlife Service, Dwight Hammond had repeatedly violated a special permit that allowed him to move his cows across the refuge only at specific times. In June, refuge manager Forrest Cameron notified Hammond that his right to graze cattle and grow hay on the lush waterfowl haven south of Burns was revoked. The feds also said they planned to build a fence along the refuge boundary to keep Hammond’s cows out of an irrigation canal.”
When the feds showed up to build the fence the Hammond’s placed their Caterpillar scraper on the boundary line in their way and disabled it. Only after a tow-truck arrived to remove the Caterpillar did Hammond jump in and move it, almost hitting an agent with it, all while yelling obscenities at the federal agents.
Not unlike the situation in Bunkerville, when the Hammonds were arrested, local ranchers rallied to their cause. The High Country News article states that around 500 “incensed” ranchers showed up at a rally in Burns, OR, to protest. Furthermore, the speaker of the American Land Rights Association, formerly the National Inholders Association, Chuck Cushman, “…issued a fax alert urging Hammond’s supporters to flood refuge employees with protest calls. Some employees reported getting threatening calls at home.”
Cushman also planned to print a poster with the names and photos of federal agents and refuge managers involved in the arrest and distribute it nationally. According to the article he said, “We have no way to fight back other than to make them pariahs in their community,” he said. Due to the pressure of these ranchers and groups, nothing much came of the situation.
This leads us to 2001 when Dwight and Steven Hammond lit a fire on their property allegedly to kill invasive species in order to improve the grazing conditions for their cattle. They burned down 139 acres of public BLM land on Steens Mountain next to their property that happened to be a part of their allotment. According to the testimony of grandson and nephew, Dusty Hammond, who was 13 years old at the time and present for the burn, however, Steven handed him matches so as to “light up the whole country on fire.”
According to Dusty’s testimony he walked the fence line dropping matches. When the flames got to be eight to ten feet tall he almost got burned over by the fire and had to seek shelter in a creek. Over lunch Dusty’s grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”
Later, Dusty said that his grandfather flew his Super Cub over the scene to gauge the effect the fire had on juniper there. The burned land was taken out of production for two growing seasons as a result of the fire. A Utah man, Dennis Nelson, testified that he and his son Dusty Nelson met a hunting party, presumably the Hammond party, on the BLM tract that morning. Both men described a clear day marred by smoke that grew heavier as the morning wore on (OPB).
While Dwight and Steven claimed the fire got out of their control and that they intended for the fire to only burn on their property, the account by Dusty not only contradicts them, they clearly had something to gain by burning the adjacent BLM land. According to range cons working for the BLM, the fire did improve grazing conditions on the land – land mind you that the Hammond’s had grazing permits on.
It must be noted here that there are questions as to the credibility of Dusty’s testimony. According to the Bundy Ranch blog, Dusty had been “suffering with mental problems for years.” They further state that “the Judge noted that Dusty’s memories as a 13 year-old boy were not clear or credible” and claim that the “Hammond family believes he was manipulated and expressed nothing but love for their grandson.”
Dusty lived on the Hammond ranch until he was 15 and then distanced himself from the family.
In 2006, after lightning strikes ignited wild fires on adjacent public land near the Hammond ranch, the Hammond’s back-burned on their property to protect winter feed. They did this during a burn ban and did not give the BLM notice of their intent to burn. They ended up burning an acre of public land on Krumbo Butte. The indictment alleged that the fire threatened to trap four BLM firefighters, one of whom confronted Dwight Hammond at the fire scene.
According to The Oregonian, the U.S. sued the Hammonds and their ranch in July 2011, saying the government spent $600,000 battling the blazes they set, which “endangered individuals, wildlife, structures, equipment and threatened the public health, interest and safety.”
A superseding indictment accused the men of setting fires to interfere with BLM employees and firefighters trying to stop the spread of wildfires. They also were accused of using fire to destroy U.S. property, witness tampering, conspiracy and other charges.
Government court papers suggest the Hammonds’ were displeased that the “BLM ‘takes too long’ to complete the required environmental studies before doing controlled rangeland burning.”
In 2012, after deliberating for several hours, the jury returned a partial verdict. They found the two men guilty of intentionally and maliciously damaging real property of the United States by fire, in violation of of 18 U.S.C. § 844(f)(1), based on their respective roles in the 2001 Hardie-Hammond Fire near Steens Mountain, where BLM leased grazing rights to them. Steven Hammond was also convicted of arson in the 2006 Krumbo Butte Fire on the Malheur National Wildlife Refuge and Steens Mountain.
The jury also acquitted the Hammonds of some charges and failed to reach a verdict on others, including conspiracy charges brought against Steven and Dwight. The government also dropped other allegations of setting other fires in 2006.
Update 1/11/2016: I decided to look into wildland fire arson cases to compare against the Hammond case. Arson is a real crime with real damages and dangers. According to this article published in 2010, the Hammonds have burned 45,000 acres over 28 years. High Country News, Some notable arson wildfire cases in the west: http://www.hcn.org/issues/42.13/some-notable-arson-wildfires-in-the-west
The U.S. Attorney in Oregon wrote a letter to the people of Harney County, OR in regard to the Hammond case. It appears that the Hammond’s illegally slaughtered seven deer before setting fire to the BLM land. Two Utah hunters witnessed it and testified to it. Here is the letter:
There is something rare and notable about spending time in places not transformed by civilization; far out places where you can be alone. I’m not talking about the jewels of the country, a Yosemite or Grand Canyon. I’m talking about the places that some might consider ugly or barren, that don’t draw the crowds, and which more than likely require dirt roads and contingency plans to visit. These places are the ones that most have never heard of and even less will ever see. In a sense, they are secret places held in trust and loved by locals.
There are large swaths of “unremarkable” land that are our last hope for refuge and sanctuary, that are not loved and visited for their majestic peaks and valleys but rather for the blessings they bestow on the visitor. And while going to these places is a physical experience, it is not just the act of being there that is special; it’s the power of the place to seep into your soul that is most salient. All the notes and nuances of such places strum the spectrum of senses and produce a music you can only hear there: the sound of silence below a high wind blowing in the trees, the scent of unspoiled earth and vegetation, the sensation of being alone, but not. It is those things that stay with you and haunt your dreams long after you are gone and which leave a longing for the impossible: a reversal of time and a repeat of what has passed in order to feel it again.
The good fortune of being able to encounter such places, depending on what happens there, determines the experience of reliving them because they are both wonderful and dangerous, which is what makes them so enticing. I would echo what Gandolf said in The Hobbit but with a twist, “There are no safe paths in this part of the world. Remember you are over the edge of a remote, vast, rugged, and virtually inaccessible wild now. But there are pockets of wonder that exist here which seemingly only exist in literature until you discover them. And you are lucky to be here.”
I’m not sure if it was fate, destiny, or just plain luck that got me out to such a place, but I found myself in a far-away forest of juniper, pinion, and ponderosa pine high up on a desert plateau. The sound of a dozen chainsaws ripped through the still air and released a fragrance that only mythology can describe. While everyone worked, their minds far away, lost in the physical labor of cutting, I was intoxicated by the scent released from the freshly cut softwood of juniper, my mind grappling with the juxtaposition of the mechanized saws and the natural and surprising scent that followed their roar.
As I worked pulling branches away for my sawyer my mind dove into the pages of literature. I recalled Edward Abbey’s description of burning juniper and argued to myself that if burnt juniper rivaled Dante’s smoking censers in paradise, fresh cut juniper must rival ambrosia of the gods, a divine exhalation of the earth meant for immortals. And of course being mere mortals we must cut it open to get it, plunder to steal for ourselves that which is meant for the gods. Oh the mysteries Prometheus revealed when he stole fire.
I let myself sink into the thick, sweet, and sticky air, nearly drunk from the pungent aroma rising off the trees at my feet. It smelled of birth, of time, and awoke in me the visceral act of inhaling life and being filled by it. It’s a scent that visits you in your sleep and elicits a longing for damp earth and shaded forests. I closed my eyes and thought, everyone should be so lucky.
My stay in the juniper fields ended in a hazy, fire induced sunset that acted like a shade tree cooling off the sultry landscape. The physical ache in my muscles and the smell of juniper stuck to my skin was proof enough that I had really been there. But would I ever smell it again? Perhaps. Perhaps only in slumber. When I zipped into my sleeping bag, exhausted and ready for sleep, I let loose a wish that Morpheus would periodically ride in on the cool breeze and fill my dreams with wind-swept dirt roads, quiet meadows and the scent of juniper.
“The sagebrush rebels may have peddled legal theories based on a mendacious myth about the Constitution and federal power. But myths exert great power over the way people understand the world and its conflicts (1).” ~ Fischman & Williamson
What is the lie-laden myth that Utah and many western politicians like Governor Herbert, Senator Lee, Washington County Commission hopeful Victor Iverson, Utah Representative Noel, and pretty much the entire Republican Party are peddling? It is many things but they all fall under the ‘government overreach’ umbrella. The rally cry comes in many forms which includes but is not limited to:
||5. States would use the land differently and better|
||6. The fight to take back federal lands is for the people|
||7. The ‘equal footing doctrine’ means equal economic footing|
||8. Local or state governments have no say or control over land management decisions|
Left to right, top to bottom: Gov. Herbert, Sen. Lee, Victor Iverson, & Rep. Noel
Some argue that the issue of states’ rights and government over-reach is not about fact but about principle (the assumption being that somewhere along the way something unconstitutional happened). That’s possible, but what this statement over-looks, is that laws represent the concrete reality of principles – and the law and supporting facts can be examined.
For example, some claim that if you only look at the legality of the Cliven Bundy case, then yes, he is in the wrong; but, if you look at the principles, then you will see that the federal government is wrong. They state that the federal government “shouldn’t” have passed environmental laws to begin with (this points us back to the underlying assumption). Others assert that Bundy has neither the law nor principle on his side. The question is: Can one be legally wrong but principally right? We all know that laws can be unconstitutional, as can behavior, so how does one determine which is right and which is wrong when the issue is as convoluted at state verses federal power? Thankfully for us, some things can be known.
Since a principle is a primary source or ingredient that forms the basis of something, in this case, what is constitutional, and behavior is limited by law (which upholds constitutional principles), then we have two options to explore: The constitutionality of the law and the constitutionality of the individual, the group, or the state. Since the constitution is used as the ‘source’ or foundation for law in the U.S., let’s start there.
Federal land ownership began when the original 13 states ceded their “western” lands (between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Substantial land acquisition in North America via treaties and purchases began with the Louisiana Purchase in 1803 and culminated with the purchase of Alaska in 1867. In total, the federal government acquired 1.8 billion acres in North America.
The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation (2).”
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Two court cases, Kleppe v. New Mexico and the Sagebruch Rebellion case waged by Nevada, Nev. ex rel. Nev. State Bd. of Agric. v. United States, were both beaten by the Property Clause of the Constitution. But not only that, the ‘equal footing’ doctrine, which is touted as a reason the states should get public lands back on economic grounds, was explained:
“The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. The policy question of whether to acquire more, or to dispose of any or all, federal lands is left to Congress to decide. The doctrine means that equality of constitutional right and power is the condition of all States of the Union, old and new. It does not mean that physical or economic situations among states must be the same (2).”
As for the U.S. government promising they would give all federal lands back to the states; that was never the case, though it may have been the states’ understanding, or standing interpretation. “The initial federal policy generally was to transfer ownership of many federal lands to private and state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.275 billion acres. However, from the earliest times, Congress also provided for reserving lands for federal purposes, and over time has reserved or withdrawn areas for such entities as national parks, national forests, and wildlife refuges (2).
Believe it or not, the first direct authority for federal management of these lands, and implicit shift toward ending disposals and retaining lands in federal ownership, was the Taylor Grazing Act, enacted by Congress at the behest of western ranchers. The end of disposals came a few decades later following two laws that were passed in 1964: the Public Land Law Review Commission (PLLRC) and the Classification and Multiple Use Act, which directed BLM to classify lands for retention or for disposal and to manage the lands for multiple purposes, whose recommendations culminated in the Federal Land Policy and Management Act (FLPMA).
FLPMA was passed in 1976 wherein Congress formally declared,
“It is the policy of the United States that the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”
FLPMA also, however, required more cooperation between federal and local and state governments in regard to land use decisions. In other words, the local and state governments are allowed in the decision making process. This is the right and legal way for local and state officials to address land use plans. It may not win them any political points, but it is the best avenue available. That being said, Congress and the states exercise concurrent, not mutually exclusive, jurisdiction over the public domain. To the extent that the laws of each conflict, federal law is supreme and preempts inconsistent state law.
Back to the divestiture of land by the Federal Government to the states, it began in 1800 in the state of Ohio which led to the establishment of the General Land Office created in 1812 to administer the disposal of federal lands (which as has been stated in previous posts, led to the creation of the BLM).
Congress enacted numerous laws to grant, sell, or otherwise transfer federal lands into private ownership, including the Homestead Act of 1862 and the General Mining Law of 1872. Grants to railroads in the 1870s gave them incentives to create much of the nation’s transportation system. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006.
The federal government also granted 328 million acres to the states, the largest tract given to Alaska. As can be seen, much of the public domain was given back to the states. One of the biggest land grants came in the form of state trust lands, meant to provide funding for schools via revenues made from land development.
State trust land managers lease and sell these lands to generate revenue for current and future designated beneficiaries. Predominantly found in the western United States, 46 million acres of land are currently designated as trust lands and the proceeds from the lease and sale of these lands are distributed into a state’s permanent fund and used for many purposes. In Utah these lands are managed by the State and Institutional Trust Lands Administration (SITLA). From the SITLA website:
“Starting in 1785, the Founding Fathers created a plan whereby territories were granted land before statehood to support schools. In 1894, shortly before Utah became a state, Congress created a land trust including one-ninth of the land of the state to support our public schools. Today, schools still have 3.3 million acres scattered around the state. If these scattered parcels were combined, it would make a parcel of land about the size of the state of Connecticut. These lands are held by the state as trustee for our public schools, which are the beneficiaries (or those that benefit from the proceeds from the trust). The lands are managed by the School and Institutional Trust Lands Administration (SITLA). All net revenue is saved in the permanent State School Fund, which is now over $1 billion. Since 1995, when SITLA was created by the legislature, net revenue has increased from $15 million to about $80 million annually through prudent and profitable management of the lands (3).”
SITLA is very similar to the BLM except in one way (Use of Trust Lands): it is run like a business. In other words, they manage lands for virtually the same purposes, but charge fair market value. For example, fair market value for grazing is $16-$20 a head of cattle on state land, whereas the federal price is roughly $1.30. Politics are what keep the prices at pre-1930s rates on federal land. If Cliven Bundy really had his way, and the lands he grazed were state land, he would be paying upward of 16 times what the government charges. In Utah, SITLA just recently voted to raise grazing prices.
As one author asked, “Why would the commodity interests—ranchers, loggers, et al.—want to own federal lands that already offered such a bounty of subsidies?” The reality is that ranchers did not really want to own the federal lands. Instead, ranchers and their representatives sought to stifle the effects of the 1970s federal legislation increasing environmental restrictions on and competition for the use of the public lands (7). In other words, they didn’t want to share. They did not want equal rights afforded to other stakeholders with interests in the land.
Furthermore, the state of Utah claims it is unfairly being cheated out of economic benefits due to federal lands, but when Grand Staircase Escalante National Monument was designated, the land exchange greatly benefited the state. In fact, one oil and gas parcel acquired by the state in this exchange provided 60% of all state trust land oil and gas revenue in 2006. Furthermore, the United States essentially wrote Utah’s school kids a $50 million check. (4). While the designation at first appeared to be devastating for the state, it turns out, it has been incredibly profitable.
So profitable in fact, that the governor is skimming the first $1 million off the top annually to go into a legal account to sue the federal government for control of federal lands (5). To be clear, $1 million annually is going into a fund to sue the federal government, from profits gained via land the federal government gave to the state of Utah. All of this despite the legislative council stating it is a frivolous and wasteful endeavor. In other words, the legislature’s and governor’s own legal team has advised them that they have a slim to no chance of winning.
So based on this history, and current state of land management, is the federal government acting unconstitutionally? I think not. The dishonest players are the states and local politicians. They know that if they keep peddling this mendacious myth, they will continue to keep their base and continue to gain political points. It is manipulative and dishonest.
But a `states’ rights, un-cooperative federalism, Sagebrush Rebellion, and anti-environmental’ rhetoric certainly pays dividends at the polls, just ask Senator Mike Lee. Mike Lee represented Kane County in their legal battle over road closures and then ran on getting public lands back, and as a result, beat Senator Bennett. Now his natural resource adviser, Victor Iverson, is using the same tactics running for Washington County Commission. It is such a political lottery ticket that federal overreach was the primary theme at the Utah Republican Convention (6). Clearly there is a political incentive to continue these tactics, but let’s not suggest it benefits the citizens.
While we can certainly question the constitutionality of laws and argue constitutional principles, it should not be aimed solely at the federal government. In light of the facts, it appears that not only do the states’ right activists not have the law, the facts, or the constitution on their side, they do not even have the foundational principles they lay claim to. It is time to turn a critical eye toward state and local politicians who are peddling lies, wasting money, and who amount to little more than used car salesmen pushing a sour deal. Their shenanigans are helping no one but themselves.
This is not to say that states should not keep the federal government in check, because they should. But in doing so, their attempts should be justifiable, feasible, and reasonable. Furthermore, they should publicly note and acknowledge current law and legal standing in an act of good faith and honesty. They owe that not just to their constituencies, but to all citizens of all political persuasions who deserve to know the truth. That way the citizenry can be informed and possibly support the state when it deserves it. As of yet, all of the above mentioned seems to be lacking from the Sagebrush rebels’ battle with the federal government.
In the end, it may be time for the federal government to take a cue from such institutions as Utah’s SITLA and allow the market to set prices on land deals and uses. Allowing the market to work may be more equitable for all parties, and may even put money back into the pockets of tax payers via the discontinued use of subsidies. Who knows, maybe then our public lands will make a profit rather than continue to incur a deficit.
***May 10th a Utah county commissioner in Blanding, Phil Lyman, is going to illegally lead an OHV ride through Recapture Canyon in defiance of government overreach. http://www.sltrib.com/sltrib/politics/57890003-90/blm-canyon-ride-lyman.html.csp ****
- not telling the truth; lying.
“politicians and their mendacious spin doctors”
- Synonyms: lying, untruthful, dishonest, deceitful, false, dissembling, insincere, disingenuous, hypocritical, fraudulent, double-dealing, two-faced, two-timing, duplicitous, fictitious, falsified, fabricated, fallacious, invented.
- Antonym: truthful
(2) Federal Land Ownership: http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf
(3) School Land Trust: http://www.schoollandtrust.org/school-trust/school-lands/
(4) Governor Herbert got it wrong: http://suwa.typepad.com/blog/2011/03/governor-herbert-got-it-wrong-protecting-wilderness-helps-utah-school-children.html
(5) Land Exchange Distribution Account: http://le.utah.gov/lfa/reports/cobi2014/fundinfo/fund_1335.pdf
(6) Combatting federal overreach primary theme at Utah Republican Convention: http://www.stgeorgeutah.com/news/archive/2014/04/27/mgk-combatting-federal-overreach-primary-theme-utah-republican-convention/#.U2PSkld435c
(7) The Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub