Federal Policy, Western Lands, and Malheur
At the root of these controversies was not just “interest” in the conventional sense of an economic stake but values. The economic interest of producers undergirded their opposition. But at a deeper level of human response was the degree to which producers’ values were offended. They could not accept the notion that what environmentalists thought was useful and valuable was, in fact, so.
The federal government administers a lot of Western land.
To people like those occupying Malheur, that large portions of the West are under the administration of the federal government is an affront to their sensibilities. These lands, they would contend, deserve to be opened up and sold to private entities, to expand private property ownership in the West and allow the land to be put to “productive” use. The continued presence of federal ownership, they’d argue, threatens the sovereignty of states and individuals. But these lands were never meant to be a “theft” from production. Quite the opposite. Except for wildlife preserves, most federal land management encourages the use of these lands—for recreation, grazing, military testing, and so on. Although these lands are regulated in the kinds of use they contain, they are, ultimately, used.
But that very use introduces a complex political problem referred to as “multiple use.” The western federal lands have many interests that need to be served. Multiple use urges “harmonious and coordinated management of the various resources” to “give the greatest dollar return or the greatest unit output.” By and large, although both sides might grumble about each other, public land officials and ranchers tend to work together—and must if we hope to reach a balance between the protection of land and its use for production or leisure.
The militants represent a long debate in the West. Many are pointing to the Sagebrush Rebellion. An apt comparison, in this case. At the policy level, public grazing law underwent dramatic changes beginning in 1970 with the National Environmental Policy Act, followed by the Federal Land Policy and Management Act of 1976 and the Public Rangeland Improvement Act of 1978. The combination of these legislative actions endorsed the environmentalist critique of livestock on the public range and sanctioned the reduction of livestock, which prompted a sharp reaction among ranchers in the West. In the late 1970s and early 1980s, what became known as the “Sagebrush Rebellion” called for the privatization of public lands.
The development of modern rangeland policy dates to 1934 with the passage of the Taylor Grazing Act, which placed all public domain lands under the control of the Department of the Interior that had been previously managed by the U.S. Forest Service. Furthermore, the act formed grazing districts under the control of local ranchers that had the power to issue, deny, and admit new grazers to the range. Secretary of Interior Harold Ickes formed a Grazing Division to monitor the grazing boards, which became the Grazing Service in 1939 before it was dismantled in 1946 and replaced again by the Bureau of Land Management. Although the Grazing Service was under the control of local ranchers, they nonetheless lacked the sort of control over public lands they desired. The Forest Service, which was not under local rancher control, administered greater regulatory services on the public range. Administrators in the Forest Service maintained that grazing permits were government-granted privileges for ranchers using public lands, and the permit did not grant ranchers private claims. This conflict—over who controlled the public lands—formed the basis of disagreements well through the 1970s and 1980s. The Taylor Grazing Act and the bureaucratic battles that emerged from it fueled early resentment towards government regulation of the land.
If the 1930s stirred western resentment, the 1940s placed ranchers on the defensive. Early in the decade, the House Appropriations Committee demanded an increase in grazing fees from the Grazing Service, followed by the Forest Service calling for herd reductions in National Forests in the years after World War II. Ranchers criticized the activist federal government as a giant leviathan encroaching on private property rights and free enterprise. As evidence of this growing controversy, government hearings over public land disputes ran almost continuously between 1941 and 1948. Public land controversies died down in the 1950s and remained relatively quiet until the 1960s and 1970s as the polarized politics between organized ranchers and environmentalists exploded over the issues of grazing on the public lands.1
The first stage of the battles between environmentalists and ranchers emerged with the implementation of the National Environmental Policy Act (NEPA) in 1970, which allowed federal agencies to take “actions significantly affecting the quality of the human environment” to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings” and required agencies to provide detailed assessments of environmental impacts.2 Environmental impact statements, or EISs, became a source of legal conflict as environmentalists filed suits against the Bureau of Land Management (BLM), challenging their ecological assessments of the impact livestock grazing had on public lands. The first of these came from the Natural Resources Defense Council, which filed suit in 1973 to contest an EIS the BLM completed in evaluating its grazing program. The National Resource Defense Council argued the EIS insufficiently detailed the specific impacts at the local level. In December 1974 a federal judge agreed, saying that the EIS was not “fine-tuned” and failed to account for “individual geographic conditions.”3 The mounting pressure from environmentalists forced the agency to react and set in motion tremendous changes in public grazing policy to such an extent that a group of legal scholar noted “future historians may date the beginning of modern rangeland management from December 1974 when a federal district court ordered the BLM to comply with the NEPA.”4
The management and regulation of public grazing felt the impact of two more legislative measures before the close of the decade. The Federal Land Policy and Management Act (FLPMA) passed in 1976 addressed a series of issues related to Bureau of Land Management lands. Specific to grazing, the act took into greater account wildlife and recreation interests in setting range policy and declared that “the public lands be retained in Federal ownership.” Thus, the possibility of privatizing federal land was removed from consideration. Two years later, Congress passed the Public Rangeland Improvement Act (PRIA) that gave priority to range management, directing that range plans be “tailored to the specific range conditions of the area to be covered by such plan” and whether the plan would “have been effective in improving the range condition of the lands involved.” Legislation and federal rangeland administration gave rise to western resentment over land management.
The emergence of federal rangeland legislation in the 1970s coincided with the growing environmental movement and the concerns of consumers. Consumers questioned the application of chemicals to the foods they ate, such as growth hormones for beef and dairy cattle or genetically modified crops. Farm researchers at the end of World War II believed the use of chemicals would solve production problems and stressed technological efficiency that would improve crop and stock production.5 By the 1970s consumer-interest groups lobbied for food-processing companies to halt their purchases of agricultural commodities they concluded were unsafe, even if scientific evidence was inconclusive about the long-term health effects on humans. Consumers also expected safe drinking water uncontaminated by agricultural pesticides, herbicides, fertilizers, and runoff from large cattle and hog feedlots. Natural resources in the West were, in the words of Arizona Senator Paul Fannin, being “revalued in a Nation where open space, clean air and room to stretch and roam are becoming priceless commodities.”6
To western ranchers, environmentalists were conspiring to upend rural communities. In 1974, the South Dakota Stockgrower, a publication of the state’s cattle interests, wrote that “[ranchers must] become involved in plan policy making for his own well-being, otherwise, he may discover that pressure groups, technical planners and government agencies have established the policies for him.” The heated debates between ranchers and government regulation arose from a belief among ranchers that public lands were their land rather than land privileged to them. Ranchers complained that land planning threatened the “time-honored concept that the land-owner may do with his land as he ‘darn well wishes.’”7 Complicating matters further was the process of range permits that appeared to confer a right to use property. Thus, when environmental and rangeland regulations emerged from Congress, ranchers asserted their rights against what they saw as an oppressive federal regulation of public grazing administration. The lack of local input and perception of endless bureaucratic red tape fueled the call of ranchers accusing the federal government of replacing law with overarching administrative power and bowing to the interests of an environmental lobby.8
But it’s not just about the Sagebrush Rebellion, or the ones that preceded it in the 1920s, 1940s, and 1950s. The anti-government militants are tapping into a mythology almost as old as the West itself: that these small-time farmers are simply watching out for themselves and hoping to keep federal power from encompassing their lives and liberties. The militants in Malheur point to a “golden age” when the lack of federal oversight meant unfettered access to their lives and land. But that story overlooks a long history in the West of a few large land interests monopolizing thousands of acres to control access to water and rangeland. In the process, these cattle barons locked settlers out of vast territories. Only during the anti-monopoly age of the 1880s and 1890s were these empires dismantled as tensions and violence ran high among small farmers and ranchers, furious at monopolistic interests that tied up the West’s lands.
Yet this very concern over the government’s overreach collides with a dissonance that the federal government massively subsidizes production on the nation’s public lands. Ranchers pay low fees to work the land administered by the Bureau of Land Management (BLM). At market prices, most small-time ranchers would be looking for other work. Land subsidies mean ranchers often receive a 93% discount on the land. Not to mention that the federal administration of public lands saves states massive amount of money they otherwise would spend on administrative costs, and much of the money collected by the government is funneled back to states to cover the possible loss of taxes they would’ve levied otherwise.
And let’s not forget: this is Pauite land, whose land claims were dismantled and eventually transferred to public domain as retribution after an uprising in the late nineteenth century. But the militants are not so concerned about the loss of Native sovereignty.
Ranchers deserve some empathy. They’ve been asked to adapt continually to changing political pressures and land management regimes. But the stridency of resistance has grown more violent, as High Country News reported last summer. And the militants in Malheur have claimed they don’t intend harm unless there are threats to remove them from the building. Ranchers have their place on the nation’s public lands, but those lands are subject to multiple interests—wildlife, recreationists, and so on all use these lands, and no group has exclusive use of the lands. We cannot forget that we, as a society over time, decided that these lands are worth protecting.
The complexities of the past have been replaced by the tidy myths of the present. We should continue striving for the equitable and collaborative use of public lands.
Karin Merrell, Public Lands and Political Meaning, 12-13; William Rowley, “Open Range to Closed Range,” 106-109. To complicate matters further, the Interior Department’s first director of Grazing, Farrington Carpenter, interpreted the Taylor Grazing Act as establishing range rights for ranchers, an interpretation Secretary of Interior Ickes stridently disagreed with. Ickes recognized the local autonomy in the grazing districts, but sided with the Forest Service in maintaining that ranchers had not gained any rights to the public domain. See Merrell, Public Lands and Political Meaning, 135-168. ↩
42 U.S.C. §§ 4321-70a (1988). The quoted language is from 42 U.S.C. §§ 4331(b) (1988). ↩
Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829, 840 (D.C. Cir. 1974), Pacific Legal Foundation v. Natural Resources Defense Council, Inc., 427 U.S. 913 (1976). ↩
Merrill, Public Lands and Political Meaning, 206; Charles Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West (Washington, D.C.: Island Press, 1992), 95-98; George Cameron Coggins, Parthenia Blessing Evans, and Margaret Lindberg-Johnson, “The Law of Public Rangeland Management I: The Extent and Distribution of Federal Power,” Environmental Law 12 (1982): 535, 554. ↩
James Sherow, “Environmentalism and Agriculture in the American West,” in The Rural West Since World War II, ed. R. Douglas Hurt (Lawrence: University Press of Kansas, 1998), 61. ↩
Fannin, quoted in Brian Q. Cannon, Reopening the Frontier: Homesteading in the Modern West (Lawrence: University Press of Kansas, 2009), 154. ↩
“Land Use Laws Are Here To Stay, So Get Involved In Planning,” South Dakota Stockgrower (June 1974): 18. ↩
R. McGreggor Cawley, Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics (Lawrence: University Press of Kansas, 1993), 4-5; Merrell, Public Lands and Political Meaning, 202-204. ↩