The recent brouhaha over Nevada scofflaw rancher Cliven Bundy is chilling in revealing the degree of support that do-it-yourself constitutional interpretation has gained in our country and in the number of people willing to take up arms to defy the rule of law.
But the case also raises the issue of why the federal government owns large portions of land in some states while holding only miniscule amounts in others. Are there any important reasons why the government still owns 81 percent of the land in Nevada? If federal lands constitute only about 6 percent and 3 percent of South Dakota and North Dakota, respectively, why should 29 percent of neighboring Montana be designated federal land?
And what is it about Idaho, just to the west with more than 50 percent government owned? Why should Washington only be 28 percent federal land while Oregon, its neighbor to the south is 53 percent?
Is all of this an accident of history or are there underlying reasons for the common good? If the former, then should we sell off federal lands in Alaska and the 11 contiguous western states where federal lands constitute nearly half of the total? Should we perhaps use the proceeds to buy land in Connecticut and Rhode Island, where federal property is a miniscule 0.4 percent of all land?
Those of us older than 40 may remember this issue gained national prominence in the early years of the Reagan administration, when an outspoken secretary of the interior, James Watt, supported many of the themes of the “Sagebrush Rebellion;” opposing the hegemony in many communities of federal land-management agencies and their often apparently pointless policies.
Despite the attention Watt and his policy initiatives received, surprisingly little changed. And the environmental movement, which is an important, vocal lobby against privatization or transfer to state control, has gained strength in the intervening third of a century. So don’t expect any wholesale privatization of public lands.
As usual, a little history is helpful. So much of the West belongs to the federal government either because it was part of the Louisiana Purchase from Napoleonic France or was seized from Mexico in war.
That explains why Texas, which is only 1.9 percent federal or a third of that for Minnesota or Wisconsin, is a seeming anomaly. It wrested its own independence from Mexico and existed as an independent nation prior to joining the United States. So the federal government never had legal title to it.
When land had high value and relatively small acreages could support a household, much was transferred to individual ownership early on. That is why Minnesota and North Dakota, both part of the Louisiana Purchase, are 5.6 and 2.7 percent federal, respectively, while the proportions for Idaho and Oregon, also part of that deal, remain more than 50 percent.
A series of Homestead Acts, starting in 1862, gave ownership of one-quarter square mile tracts to individuals who met criteria, such as living on the land for five years and cultivating it or planting trees. Homesteaders naturally went for the best land first. Over time, the government had to sweeten the pot to get people to places like western Nebraska.
Wide swaths of land were given to railroads as subsidies for constructing main and branch lines. These needed cash for construction, so farmable lands were sold off. But these companies often hung onto timberland.
In many cases, effective use of the land took place without ownership. The family of Nevada rancher Cliven Bundy, now in the news, reportedly has run cattle on some of the land in question since 1870. That almost certainly started with them unilaterally putting cattle on open land unused by anyone else, rather than by their seeking formal federal permission. Agencies to manage federal lands, like the Bureau of Land Management and the Forest Service, came along decades later.
The legal situation in the Bundy case is clear. The land in question belongs to the people of the United States and Bundy must pay for its use. No one who claims to be for constitutionality or the rule of law has any ground to dispute that.
If you follow Nobel Laureate Ronald Coase in the belief that well-defined property rights are key to efficient use of resources, then the rights here are well defined, at least in law.
But in practice, grazing permit holders long were given de facto rights to treat this land practically as their own, particularly until the last 40 years or so.
The government has always asserted its ownership of the land and has charged for its use for a century, so ranchers cannot claim ownership via the old common law doctrine of “adverse possession.” But the federal government has “suffered” owners to treat it as their own on a day-to-day and year-to-year basis.
Note also that this worked to the great economic advantage of the initial permit holders. There was no rebellion as long as the system involved a one-way transfer of wealth from government to private individuals.
The very fact that the government allows permit holders to transfer these rights when they sell their operations represents an implicitly vested property right. The Bundys reportedly only own 160 acres outright. That is smaller than my hobby acreage in Murray County. But they have a multimillion dollar business.
The feds are not profit-maximizing landowners. Federal grazing permits have taken on a capitalized value because the amount charged is so far below market rates. States charge up to nine times as much for permitting grazing on their own lands as is paid for comparable federal land.
Yet despite the quasi-ownership that has developed over time, federally permitted grazing lands often are not well-managed and are overgrazed.
It is a classic case from farm economics: renters have inadequate economic incentives to invest in improvements or even defer current rates of use so as to have higher ones in the future. Across the West, privately owned land is managed more carefully than comparable federal land with grazing permits.
Of course, these lands provide value to society as a whole beyond private grazing. They serve as wildlife habitat and to preserve increasingly rare plant and animal species. Increasing federal restrictions to further this, at the expense of profit-maximizing grazing, is at the heart of Bundy’s rebellion.
There are other ironies.
People who trumpet their “patriotism” are ready to draw a bead on public officials doing their legal duty to Americans as a whole.
Others, who assert that 10 or 20 years productively spent here should give illegal immigrants the right to permanent legal status, argue that 140 years of productive use of land doesn’t give ranchers like Bundy, or thousands of other more law-abiding permit holders, any property rights at all.
This dispute is not likely to result in any big policy changes. But expect the issue to smolder for a long time.