I wrote in Part I that the Bundy crisis is not about grazing fees. That means two important things. It means that Cliven Bundy’s decision not to pay grazing fees to the federal government is a flawed method of forcing a debate – or a legislative or judicial decision – about the underlying issue. It also means that imposing a decision of some kind on the specific question of his grazing fees doesn’t settle the issue.
What the issue is not
This point will disappoint partisans on both sides. Those who back Bundy’s refusal to pay grazing fees to the federal government – while trying to pay them to Clark County, Nevada – have in mind a conclusive reading of the Founders’ intent: that the federal government is not and should not be, by virtue of sovereignty, the “authority of last resort” over all the land in the United States.
On the other side are those who say that Bundy should just pay the fees he has been assessed by the federal government, and should also get his cattle off the grazing area at the north end of Gold Butte when he’s ordered to.
Both sides are wrong about what the issue is. This is a particularly hard problem, because the issue isn’t properly framed through a test in court. The courts over the years have actually given heart to partisans on both sides. They have upheld arbitrary, sovereign actions by the U.S. government. But they have also upheld private property rights, as traditionally understood, against those exercises of arbitrary sovereignty.
What the issue is
The actual issue at stake is what the scope of sovereignty is. Are the purposes of sovereignty unbounded, by any philosophical or rule-of-law-type limitation? If they are unbounded, what does that mean about the people’s security in our rights?
The focusing lens for this question is the environmentalist movement for ecosystem or region-wide management of natural resources. It has come up now, where it didn’t come up in 1789, because men imagine themselves today to have the knowledge and foresight to manipulate the life of their fellows on the land in the name of abstract, theoretical goals.
But the laws of land and property, as they exist in the United States today, don’t support executing policy that way. Basically, being able to just move people around, withdraw their property rights from them, confer those rights on others, and exclude everyone but a few insiders from private use of the land, is a kind of “Obamacare”-like form of governance: one that produces winners and losers.
With Obamacare, we rightly object to having losers designated for government policy. The same is the case with land law and the evolution of new policy. The people don’t agree with changing the law so that government can designate a new crop of losers every decade or so. So the law isn’t changed to explicitly give government that power.
Many environmental activists want it to be changed, of course. But it hasn’t been, so instead, the power is exerted through various kinds of collateral pressure, once a new law on a related matter, such as protecting a threatened species, has set a public purpose that seems to demand it. The Endangered Species Act is one such law, and until the Obama administration, it was probably the biggest source of policies that deliberately produce losers from land management. (The Clean Air and Water Acts seem likely to overtake the ESA in the next couple of years.)
The indirect approach to obfuscating land-use law and property rights
But the pressure that’s exerted isn’t applied through clear-cut use of the law. Cliven Bundy’s is a case in point. If the law were as clear as anti-Bundy partisans suggest, Bundy would have been arrested somewhere between 15 and 20 years ago, and his property sold off to pay a lien that would have been slapped on it for non-payment of his fees and fines. That’s what happens when the law is clear.
The problem is that it isn’t clear. The case of Wayne Hage, also in Nevada, suggests the real possibility that Bundy does actually have vested rights in his use of federal land for grazing. It’s an extremely rare rancher who takes on defending those rights as a lifetime project, basically giving up everything else to prove them. But there is no towering body of jurisprudence weighing against the rancher. It’s not court decisions that have forced almost all the ranchers in northeast Clark County to give up on their use of public lands – and hence, for the most part, on ranching. It’s a campaign of pressure and buy-outs from government agencies, interest groups, and politicians.
The approach of environmental activism isn’t to assault land-use or property rights head-on. That makes the approach harder to fight. Instead of settling the matter through a decision, a rancher has to withstand a relentless process that’s weighted against him.
The few ranchers who do try to fight have to pick an approach of their own. Wayne Hage picked an assertion of “preemptive rights” in the use of public lands, accruing to him through usage over time. (And it’s worth noting that he, personally, didn’t do much of the using over time, as he bought his ranch just months before the federal authorities started trying to force him to sell out, in 1978.)
Cliven Bundy took a different tack, asserting that the federal government doesn’t have authority over the land; rather, it’s the state of Nevada that holds public-land authority. This has become something of a red herring, in my view, although it can justly be argued that the question, per se, has not been conclusively settled by the courts. (The courts have ruled on a number of occasions as if the federal government holds such authority, either without treating the question at all, or without examining it in depth.)
Only the states have the standing, in any case, to bring suit over this particular exercise of authority. Until recently, they have had little motivation to mount such a challenge.
Why the problem here is different: The environmentalist vision
But the main issue is exceptionally hard to define in the framework of land law anyway, because it’s not about who has the authority to do “land law stuff.” It’s about what “land law stuff” is. A good way to put it in context is to look at the framework used for a discussion of the “Property Clause” in the U.S. Constitution by Thomas W. Merrill for the Heritage Foundation. The Property Clause authorizes the federal government to own and administer real property throughout the United States. But what does that mean, and how does it relate to the authorities of the individual states, as well as of private citizens?
We needn’t rehash the whole discussion here; you can read it at your leisure. What I want to call out is the fact that none of the three theories outlined by Merrill encompasses the issue posed by environmental activism. The least limiting theory for the federal government – which Merrill calls the “police-power” theory – falls short, because even it assumes implicitly that the rights of the people impose limitations of some kind on federal sovereignty.
Federal sovereignty may mean that the federal government has police powers that trump the states’. But it doesn’t mean that the federal government isn’t bound by rule-of-law limitations like consistency, good faith in executing contracts, and equality of application. (Or, for that matter, that the feds aren’t simply bound by the Bill of Rights).
The kind of federal sovereignty sought by environmentalists does mean exactly those things – and more. This is the crux of the matter. In the activists’ view, you can’t meaningfully execute what they call large-landscape-level management – or sometimes ecosystem management – if you have to be limited by the rule of law and the people’s private property rights.
The only way to have a healthy ecosystem, in their view, is to be able to, among other things, arbitrarily ruin ranchers’ livelihoods. The federal government must have the authority to be capricious over time: to encourage one thing today, and take it away tomorrow, regardless of the impact on people’s lives. No right of the people to be secure in their property can trump the need for this authority.
In a society of small landowners, which America still is, this view can’t gain political popularity. So it has to be implemented indirectly through regulatory processes. What has been obscured about the Bundy case is that that’s exactly what it is: a case of long-running resistance to regulatory process.
The Bundy case and Clark County
The groundwork for it was laid in 1976, with the Federal Land Policy and Management Act (FLPMA), which codified a basis for “intensive management” of federal lands, as opposed to merely exercising a largely quiescent custody of them. As discussed in this paper, the FLPMA was a legislative game-changer for the management of federal lands. It is thus noteworthy that it was only two years later that the federal government began trying to drive Wayne Hage off his ranch.
Significantly, the FLPMA requires the Bureau of Land Management to adopt “resource management plans” (RMPs) for each of a set of defined regions. (Before 1985, the plans were called “management framework plans,” and some still bear that title.) Resource management plans meet the criteria of environmentalists for the building blocks of landscape- or ecosystem-level management. The one affecting the Bundy ranch is maintained by the BLM’s Southern Nevada Field Office, and is called the Las Vegas RMP. It’s a big, 2-volume document running to over 700 pages, and it prescribes, among many other things, the BLM grazing policy for the RMP area. (Access the 1998 RMP via the links here. A new RMP is in draft at the moment. Caution: these are very large files.)
Running alongside the RMP is the specific focus on the habitat for the desert tortoise, as well as other habitat issues for species managed by the U.S. Fish and Wildlife Service (USFWS). The legislative authority for declaring the desert tortoise “threatened,” which was done by USFWS in 1990, is the Endangered Species Act of 1973. The finding for the desert tortoise prompted BLM to adopt a new RMP for the Las Vegas area, to replace an older plan from 1985.
It was also the basis for a new undertaking by Clark County, Nevada: a Desert Conservation Program, which for the first time ranged the county and the BLM on one side, with environmental activists, against the interests of ranchers, miners, developers, and some recreational users of federal lands (e.g., off-road vehicle users) on the other.
Enter the process
In 1991, Clark County published its Habitat Conservation Plan (HCP) for the desert tortoise. The mechanics here are important, because BLM itself doesn’t take on all the bureaucratic responsibilities. There’s a network of career professionals, lawyers, and activists that brings together government agencies from different levels to “collaborate” with other stakeholders on these policies.
That’s something of which advocates for landscape-level management are very proud. And what it does is set property rights against a juggernaut of bureaucratic logic, group dynamics, and political urgency. It’s not a negotiation; it’s a method of papering over the fact that property rights are being overridden, not by a clear legal decision but by force majeure: the weight of political momentum and determined advocacy.
Most ranchers give up the fight under this assault. We have unique insight into the case of the Clark County grazing allotments in the 1990s because of an article written by Merrick Hoben in 1999 for the University of Michigan’s Ecosystem Management Initiative, based on a study of the Clark County HCP case and interviews with the participants.
Clark County planned from the outset, as recorded in the 1991 HCP, to buy out grazing allotments from the ranchers to make way for the desert tortoise. This is stated on p. ix of the 1991 HCP. Clark County and the BLM agreed that grazing allotments would have to be drastically reduced. On p. x, the 1991 HCP identifies The Nature Conservancy as the agent for the buy-outs.*
The Hoben piece narrates the drama. The “collaboration” process began in 1990, when the first meeting of stakeholders was held. Out of it came the initial 1991 HCP, and the finalized HCP produced in 1995. Hoben (whose sympathies lie with the environmental activists) describes the early meetings:
In 1990, the first open, voluntary and consensus-based Steering Committee meetings of the HCP planning process began. With Clark County straddling the roles of stakeholder and facilitator, initial meetings were characterized as “violent”… Threats were screamed at the committee from all directions. Front door weapons checks were a standard procedure in the first 2 years. (p. 7-4)
The committee decided to bring in a facilitator, Mr. Paul Selzer: an environmental lawyer with experience of shepherding such negotiations in California. (Interestingly, although it appears unrelated to the HCP process, Selzer was indicted by the feds for money-laundering in 2005, and took a plea in 2008.)
Selzer brought order basically by putting any argument with the process off-limits (p. 7-4). Although Hoben found stakeholders who spoke afterward of negotiation and compromise, it was clear from the beginning that there would be no compromise for the ranchers’ needs. Their only options were trying to fight the whole process, or accepting grazing-allotment buy-outs and losing their livelihoods. Cooperating with the process merely meant accepting the latter:
Absence of cattlemen at the table is also considered particularly “lamentable,” according to Sid Sloane, given their large community voice. However, as Clark County representative Chris Robinson remarked, “it was at their own cost…. BLM had no qualms about taking away grazing allotments, and by going to court, many ranchers gave away their only chance to be bought out. This was at their own expense, not that of the process.” (p. 7-9)
The ranchers didn’t think it was in their interest to sit down and “negotiate” the end of their trail. They still hoped to escape seeing their lives uprooted forever. Hoben recounts the view of others in the process, however:
Ranchers were the only exception to this broad acceptance of the collaborative process. Accustomed to favored agency treatment, they believed their best interest lies in appealing the potential loss of their grazing rights. As one participant put it: “Having endured a long track record of privileged use of public lands to supplement their cattle operations, there was no incentive for [ranchers] to give up their golden egg.” (p. 7-7)
This attitude from other stakeholders does seem to help explain why ranchers “left the process early” (Selzer quote, p. 7-8).
In the early 1990s, moreover, the ranchers could still legitimately hope that the absence of conclusive, empirical evidence about the threat of grazing to the desert tortoise would weigh on their side. Given the regulatory success of the habitat conservation process, it will probably come as a surprise to many readers that the tortoise’s advocates acknowledged there was no conclusive evidence. Hoben is worth quoting in full:
Nevada Division of Wildlife Representative, Brad Hardenbrook summarizes Clark County’s scientific dilemma: “The problem with desert tortoise is that the relationship between habitat need and grazing impact is uncertain. Going out and actually scientifically proving a negative relationship would take many years and probably millions of dollars. Moreover, the nature of the Mojave Desert, long life of the tortoise and climatic variation year to year all make it difficult to produce reliable studies. In hindsight, it would be nice to have better information but that’s impossible at the moment.”
Lack of data
Indeed, even nine years after the first meetings in 1990, an exact population count [of the tortoise] is still unknown (Hardenbrook). As a result, the process can only rely on relative understanding of how habitat loss is impacted by development, ranching and ORV use in order to gauge conservation measures.
No peer review
Lack of a scientific peer review mechanism is also a ‘weakness’ of the process. As TNC representative Jim Moore notes, “we rely heavily on the USFWS as a source of expertise because everyone knows that the USFWS would not accept a plan whose science ran contrary to what they knew was necessary to the recovery of the tortoise or would make them look like fools. In other words, there is a bottom line for conservation of the species and we rely on it.” (p. 7-14)
Notably, this passage from Hoben is echoed by BLM’s 1998 Las Vegas RMP, the one that is currently in force. On p. I-2 of Volume 2, the RMP asserts the following:
In light of these points, it may have been politically naïve of the ranchers to think they would get a fair shake from the government agencies, but it wasn’t unreasonable of them to want to press for one. Who would imagine that his property rights and livelihood would simply be swept aside, without due process, for the consideration of “no definitive studies”; indeed, without conclusive evidence at all, because obtaining it would be “logistically difficult, expensive, politically contentious, and statistically indefensible”?
Hoben, in any case, clarifies one more time that the ranchers faced certain doom in the HCP process. He quotes one of the participants, a representative for mining interests, on the value of bringing in a land-rights lawyer to act as go-between with the ranchers in the ensuing buy-outs:
These abilities [of the lawyer] were particularly important in the eyes of miner Ann Schrieber: “Karen Budd-Fallon’s role as a legal representative of rural interests and the grazing community has been essential. I’m not sure we could have done it without her. We were struggling with allotment acquisitions and frankly it was a matter of learning that we were doing it the wrong way. We were knocking on door to door saying ‘let us buy your allotment’ and ranchers just didn’t want any part of that. The reality in the end was that we were too anxious. BLM was going to close those allotments in the end so it was clearly in their interest to sell rather than be shut down. But you can’t just go in and tell people that. You have to wait and stand ready. Karen was very helpful in that aspect of communication. She served an invaluable liaison role.” (p. 7-17)
This, in the view of HCP advocates, is what passed for “collaboration” with the ranchers.
The big toss-off
There is no comprehensive account that I can find of the Clark County ranchers’ stories as they were bought out, or otherwise had to throw in the towel, after the ESA designation of the desert tortoise. Some of the attrition had begun before the tortoise decision, in the 1980s. (For a general discussion of this, and a good, extended summary of the Hage case, see Chapter 12 of Elizabeth Nickson’s Eco-Fascists: How Radical Conservationists are Destroying our Natural Heritage. New York: Harper-Collins/Broadside, 2012.)
The 1998 Las Vegas RMP, on p. 3-43 of Volume 1, alludes to six grazing allotments having been purchased by that time under the provisions of the Clark County HCP of 1991. (The year 1998 was also, of course, when Bundy lost his appeal against BLM in the Ninth Circuit Court of Appeals.) The rules governing administration of the allotments were changed in 1995 because of a new emphasis on “threatened” species, and a number of allotments were simply closed by the 1998 RMP, including the Bunkerville allotment on which the Bundy cattle had long grazed.
The new draft RMP, submitted for comment in 2013, says that another 16 grazing allotments were bought out under the Clark County plan between 1998 and 2006 (p. 436). With the six bought prior to 1998, that total is 22. Out of the 53 allotments carried over from the Taylor Grazing Act of 1934, the 2013 draft RMP shows only 13 still “open” (as opposed to having been permanently closed), and of those, only three were “active,” with authorized grazing use. Of the 18 other allotments, now closed, it’s not clear whether there was any compensation for affected ranchers.
Although it can be compelling to visualize geographically the receding allotments, another visual may be equally compelling: the remnant of privately owned land in the Virgin River Valley, where Bundy’s 160 acres are situated. Map 2, from a Clark County document dated 2012 – the Northeast County Land Use Plan – shows the splendid isolation of the Bundy ranch and the last few privately held properties around it. (The handful of small properties adjacent to it belongs to the Meadowland Farm, which seems to raise horses.) The regulators and activists have done their work well.
The reality of being regulated out of your rights and off your land
This, then, is what we are actually talking about in the case of Cliven Bundy and other ranchers being squeezed off their land. The method isn’t a straightforward application of law. It’s a regulatory process in which a new standard is proclaimed, and regulators and advocacy groups, using a combination of threats and bribes, try to make it seem as if compliance is voluntary, even on the part of those “stakeholders” who lose everything that matters to them.
If American voters were asked to approve this plan – if it were explained to us honestly – we wouldn’t do it. If we were asked whether property rights should be breachable for whatever arbitrary reasons a panel of environmental experts might at any time come up with, we would say no.
But with the concept of landscape-level management, we’re not, so to speak, in Kansas anymore: we’re not all talking about the same thing, when we bring up “law,” and what it’s supposed to mean to protect the people’s rights as individuals, as well as the interests of the public collectively. Americans need to understand this. We still think of property rights and federal sovereignty in traditional terms. But environmental activism has adopted a very different view. And, in conjunction with proliferating federal agencies, and state and local commissions, it has put together a buzz-saw into which small property owners like the ranchers of Clark County are being slowly and relentlessly fed.
Next: Part III.
* Note: very few of the ranchers have enough land of their own to sustain a commercially viable herd if they can’t graze the cattle elsewhere. Cliven Bundy’s 160 acres can’t come close to supporting 1,000 head of cattle. Losing grazing allotments almost always means losing the rancher’s livelihood. It drives his land’s value down as well, since there’s little he can do with it that’s commercially profitable.