Privatizing America's Public Land

It goes without saying that in a democracy everyone is entitled to his or her own opinions. The trouble starts when people think they are also entitled to their own facts.

Away out West, on the hundreds of millions of acres of public lands that most Americans take for granted (if they are aware of them at all), the trouble is deep, widespread, and won't soon go away. Last winter's armed take-over and 41-day occupation of Malheur National Wildlife Refuge in southeastern Oregon is a case in point. It was carried out by people who, if they hadn't been white and dressed as cowboys, might have been called "terrorists" and treated as such. Their interpretation of the history of western lands and of the judicial basis for federal land ownership -- or at least that of their leaders, since they weren't exactly a band of intellectuals -- was only loosely linked to reality.

At least some of them took inspiration from the notion that Jesus Christ wrote the Constitution (which would be news to the Deists, like James Madison, who were its actual authors) and that it prohibits federal ownership of any land excepting administrative sites within the United States -- a contention that more than two centuries of American jurisprudence has emphatically repudiated.

The troubling thing is that similar delusions infect pockets of unrest throughout the West, lending a kind of twisted legitimacy to efforts at both the state and national level to transfer western public lands to states and counties. To be sure, not all the proponents of this liquidation of America's national patrimony subscribe to wing-nut doctrines; sometimes they just use them.

Greed can suffice to motivate those who lust for the real estate bonanzas and resource giveaways that would result if states gained title to, say, the 264 million acres presently controlled by the Bureau of Land Management (BLM). General combativeness and hostility toward government also play their roles, and the usual right-wing mega-donors, including the Koch brothers, pump money into a bewildering array of agitator groups to help keep the fires of resentment burning.

The louder the drum chant of crazy "facts" gets, the more the Alice-in-Wonderland logic behind them threatens to seize the popular narrative about America's public lands -- how they came to be and what they represent. This, in turn, prepares the way for the betrayal of one of the nation's deepest traditions and for the loss of yet more of its natural heritage. Conversely, those who value American public lands have been laggard in articulating an updated vision for those open spaces appropriate to the twenty-first century and capable of expressing what the unsettled "fruited plains" and "purple mountain majesties" of the West still mean for our national experience and our capacity to meet the challenges of the future.

The Malice at Malheur

The leaders of the Malheur occupation, Ammon and Ryan Bundy, are the sons of Cliven Bundy, a Nevada rancher and public lands scofflaw who gained notoriety two years ago following a standoff with federal law enforcement officers. Back in the 1990s, the elder Bundy had stopped paying grazing fees, claiming that the federal government had no authority to regulate the public lands where his cattle fed. In 2014, with Bundy $1.1 million in arrears and his grazing permits transferred to the local county government, the Bureau of Land Management moved to round up and confiscate his 400 head of cattle.

Via social media, Bundy appealed to militia and "patriot" groups for support, and hundreds of armed resisters rallied to his ranch 90 miles north of Las Vegas. When the ensuing showdown threatened to become a bloodbath like the Waco siege of 1993, the authorities withdrew.

The government's retreat and its failure to arrestmembers of the Bundy family or their allies for acts of armed resistance set the stage for the Malheur takeover, but the roots of the incident go back to the Sagebrush Rebellion of the 1970s and 1980s and the Wise Use Movement that succeeded it. The Sagebrush Rebellion was triggered by a national inventory of public lands to identify areas appropriate for designation as "wilderness" (under the National Wilderness Preservation System). Its advocates also protested the enforcement of government protections for archaeological sites and endangered species. Wise Use groups echoed those complaints and essentially argued against anything the environmental movement was for, urging the amped-up exploitation of natural resources on western lands.

Ammon Bundy put his own rogue-Mormon spin on that message by claiming divine inspiration and sanction for his actions. Ostensibly, the Malheur occupation was intended to show support for nearby ranchers Dwight and Stephen Hammond, who faced jail terms for setting illegal range fires (and who immediately distanced themselves from the occupation). But Bundy didn't stop there. He called on "patriots all over the country" to join his cause and help "free up" federal land for ranching, mining, and logging, pointedly adding, "We need you to bring your guns."

Malheur was an odd place for white guys to make a stand in favor of "returning" federal land to its "rightful owners" -- that is, themselves. The refuge was established in 1908 when Teddy Roosevelt declared a modest area of public domain to be a wildlife refuge. If anyone then occupied the land, it was members of the Burns Paiute tribe, not white settlers. In the 1930s, the refuge expanded when the government bought the bankrupt remnants of a former cattle baron's empire. At the time, Malheur was its own mini-Dust Bowl. The purchase, which enlarged protection for once-fabulous wetlands supporting thousands of migrating birds, was essentially a bailout.

The people who joined the Bundys in the Malheur occupation were a strange lot. Few had any relationship to ranching or actual cows, aside from sitting down to eat a hamburger. Some were ex-military; others claimed to be (but weren't). Quite a few had links to Tea Party groups or to "patriot" organizations including the Oath Keepers, the Three Percenters, and an assortment of other militia outfits. One described himself as "an old hippie from San Francisco," jazzed by the excitement of the occupation and uncaring about its purposes. He also happened to be a convicted murderer (second degree) -- of his father.

Straight thinking was not a requirement for admission to the occupiers' cause. The fellow who photogenically rode his horse around the refuge while displaying a large American flag, for example, turned out to be acutely concerned lest the federal government divest itself of public lands. He feared the loss of access to cherished places where he liked to ride his horse. Because of that, he joined an armed effort aimed at forcing the government to do exactly what he didn't want. Go figure.

Following the shooting death of LaVoy Finicum, the Malheur occupier who committed suicide-by-cop at a roadblock on January 26th, the occupation unraveled. At last count, the Bundy brothers and 24 others had been arrested and charged with a laundry list of crimes, including conspiracy to prevent federal employees from carrying out their duties and destruction of public property. All but one or two of them are still in jail.

Nor did the feds stop there. They finally nabbed Cliven Bundy at an airport after he attended a memorial service for Finicum, and also charged 18 others in connection with the 2014 Nevada standoff. Some of the 18 were already in custody for their involvement at Malheur. Bundy's illegal cattle, which the government unsuccessfully tried to confiscate in 2014, remain at large.

More Mad Cowboy Disease in Utah

Despite the government's thorough, if belated, crackdown, the hostility toward public lands on display at Malheur has hardly been contained. Such resentments are of a piece with the anger suffusing the presidential campaigns, although paradoxically enough Donald Trump has spoken out in favor of retaining federal lands. (Ted Cruz, by contrast, campaigned against Trump in Nevada by promising to "fight day and night to return full control of Nevada's lands to its rightful owners, its citizens.")

The darkest side of this "movement" is undoubtedly its well-documented association with armed militia groups and their persistent threat of violence. Gunmen from the Oath Keepers, for instance, obstructed federal officials from shutting down mines violating environmental regulations in both Oregon and Montana. According to the Southern Poverty Law Center, the current, rapid growth of militia groups is unprecedented and appears to have been spurred by the 2014 standoff at the Bundy ranch. Notices for "meet-ups" among "patriots" to show support for the incarcerated Bundys and the "martyred" Finicum are abundant on social media.

A similar virus has infected several western state legislatures, including those of Montana, Oregon, Wyoming, and Nevada. Representative Michele Fiore, who hovered at the fringes of the Malheur occupation, for instance, introduced a bill inthe Nevada legislature to transfer federal lands there to state control, irrespective of federal wishes. Considered patently unconstitutional, it was quickly dismissed. A Nevada senate resolution calling on Washington D.C. to initiate action to transfer those lands received more serious consideration.

The game is being played more cagily in Utah. There, lawmakers approved legislation in March that authorized and partly funded the state's attorney general to sue the federal government for title to approximately 30 million acres of Utah public lands. The suit would pursue strategies advanced via a study produced by a New Orleans law firm outlining "legitimate legal theories" that, it contended, might lead to the wholesale transfer of lands to the state.

The expected cost of the litigation has been estimated at $14 million and Utah has sought allies among other western states. So far, they've found no takers willing to join the suit, possibly because other attorneys general have concluded that the legal theories behind it are rubbish.

Utah has also exported its anti-federalism to Capitol Hill. One of its congressmen, Rob Bishop, currently chairs the House Natural Resources Committee and sympathetically held hearings in February on several bills, introduced by representatives from Alaska, Idaho, and Utah, that would place federal lands under state control. Lisa Murkowski, a Republican from Alaska and chair of the Energy and Natural Resources Committee, has promoted similar bills in the Senate.

Hanging on to "the Solace of Open Spaces"

Lost among the headlines, sound bites, and posturing is any serious discussion of America's public lands and their purposes. Ammon Bundy was completely correct, early in the occupation of Malheur, when he said, "This refuge is rightfully owned by the people." His problem was that his definition of "people" only included people like him. The Burns Paiute tribe, whose ancestral homeland includes Malheur and whose sacred sites are protected by federal law, certainly did not figure into his plans. The thousands of annual visitors to Malheur, who appreciate its 320 bird species and other wildlife, and the millions more who support the National Wildlife Refuge System, also seem not to be the "people" Bundy had in mind. The same might be said for anyone attracted to the idea of intact natural landscapes and functioning ecosystems.

The greatest vulnerability of America's public lands is that the millions of their rightful owners scarcely know they exist. Ask the average New Yorker what the Bureau of Land Management is, and the odds are that you'll get a confused stare. Even many people in the West, who live close to those public lands, have trouble differentiating the National Parks from the National Forests, though those two classes of land are administered for substantially different purposes by two different government departments, Interior and Agriculture. Yet most people agree that the wild open spaces of the nation's grandest landscapes constitute a collective treasure.

In essence, they are our national commons, our shared resource, not just for material goods, like timber, clean water, and minerals, but for recreation and inspiration. Seventy percent of all hunters are said to use public lands, and the percentages of birders, campers, hikers, and other recreationists must be at least as high. Public lands also help buffer us against the uncertainties of the future. Only public lands, for instance, spread unbroken over great enough distances to offer the connectedness that many plants and animals will require to adapt, to the extent possible, to a warming climate. Moreover, as the struggle to wean the economy away from fossil fuels continues, only public lands, with their unified federal ownership, are susceptible to the kind of sweeping shift in national energy policy necessary to "keep it in the ground."

For all these reasons, the future of the nation's 640 million acres of public lands deserves a more prominent place in our national discourse. The patterns of the past, emphasizing extractive, industrial uses of those lands, have long been in decline. An alternate path focused on restoration and biodiversity conservation has instead steadily gained traction, and indeed, its priorities -- which include making room for endangered species -- have inspired many of the objections of the Malheur occupiers.

Two things are certain: when large acreages of public domain are transferred to the states, significant portions of them end up being sold off to private interests. That creates a new kind of inequality that, in the natural world, parallels this era's growing economic gap between rich and poor. It is an inequality of access to big, wild lands and to the ineffable something that Wyoming writer Gretel Ehrlich called the "solace of open spaces" and Pulitzer-winning novelist Wallace Stegner termed "the native home of hope."

Thanks to the great western commons, which the Bundys and their legislative champions would like to dismantle, all Americans still enjoy the freedom to roam on some of the most spectacular lands on the planet. That access and that connection have been part of the American experience from Plymouth Rock through the westward migration to the present day. It is part of what makes us Americans.

The Depression-era folksinger Woody Guthrie understood the issues attending the privatization of common land. He offered his opinion of them in the least sung verse of his most famous song:

"There was a big high wall there that tried to stop me
Sign was painted, said: "Private Property"
But on the back side it didn't say nothing --
This land was made for you and me."