There are real and deeply serious issues underpinning the “standoff” at the Malheur Wildlife Refuge in Oregon — both having to do with the idea that liberal appellate court judges, at the behest of federal prosecutors and agenda-driven bureaucrats, can send people back to jail after they have completed their initial sentences, and with the more general issue of the public policy problems surround federal ownership of massive amounts of public lands in the West.
It must be stipulated at the start, however, that the armed occupation of an empty federal facility is fundamentally unhelpful to the process of finding solutions to either, and, in fact, is nothing more than a distraction to serious discussions of those solutions. But solutions need to be found, since the problems surrounding the standoff (especially those pertaining to public lands) have been festering for decades.
Decades. Decades of inherent tension stemming from the federal government’s continued ownership of massive amounts of land west of the Rockies. Regardless of how one feels about whether the Constitution permits the federal government to own such enormous parcels of land, the reality is that there is an impact on local governance that, if ignored, creates the very issues that are coming to a head in Oregon today. The reality, of course, is that whether or not the founders envisioned a situation in which upwards of fifty percent of a state’s land mass was federally-owned, the principles of good governance and civil society point to how problematic such ownership can be.
But how did we get to this point? How did we get to a point where the federal Bureau of Land Management owns more than sixty percent of Harney County, Oregon? The answer is complicated, but can be summed up in this way: upon becoming a state, the former Territory of Oregon stipulated that all “unappropriated public lands” would be turned over to the US Government for disposal. They did this for a variety of reasons, among them being to clear title in order to facilitate the sale of those lands (a good discussion about the importance of title clearance can be found in Hernando de Soto’s The Mystery of Capital).
Those lands were to be sold. Like other western states’ “enabling acts” (which all share similar language), the federal government agreed that it would sell these lands, and then turn over a percentage of the proceeds from these sales to the states for their use (sometimes for education, other times for public improvements). But the word “shall” in all of these agreements makes it clear: the federal government was agreeing to sell these lands, not retain them in perpetuity.
In other words, it was a contractual obligation, one which the federal government breached the moment the Federal Land Policy and Management Act was passed in 1976, which changed this “duty to dispose” of these lands into a “duty to retain.” And this breach has had enormous impacts for the communities which sit amidst federal lands in the West.
The results have been devastating — not just in Harney County, but in counties throughout the west!
Twenty years ago, Nevada’s Nye County, the third-largest county in the United States (the size of Vermont and New Hampshire combined!), was sued by the federal government over an incident in which county officials, acting under the color of state law, re-opened an essential county road that crossed federal lands and had been closed by the U.S. Forest Service when a section in the Tonopah National Forest was washed out. The opening of the road was the expression of frustration of a local government that had been forced for far too long to have local government decisions second-guessed by bureaucrats 2,500 miles away, since the federal government owned a whopping ninety-three percent of Nye County!
In the case of the closed road, the federal government had unilaterally decided that the washed-out road would remain closed, forcing Nye County’s residents to go miles out of their way to travel between points in the county. Elected officials within the county had grown tired of such draconian actions, and having to have their governance essentially hijacked by federal officials in Washington. The county, for instance, had to submit their plans to run a phone line to the county’s dump to the U.S. Department of the Interior because the line ran across 100 yards of federal land. What should have been a simple decision (vote yes or no to the phone line, appropriate funds for it, contact the phone company to install) became a months-long process as the wheels of the D.C. bureaucracy ground slowly onward. Nye eventually was forced to go with a much-more-expensive (at the time) cellular service because of federal inaction.
The point is, land-use policy has long been the purview of local governance, by both logic’s sake and necessity. Forcing communities to have someone constantly second-guessing the decisions of their locally-elected officials is not only frustrating, but fundamentally compromising to the effectiveness of those governments, sometimes to the detriment of public health and safety.
The historic city of Tombstone, Arizona, found itself faced with such a crisis when a fire in 2011 damaged a pipeline carrying the city’s water supply from springs within the Huachuca Mountains. The pipeline crossed federal “wilderness,” and despite the necessity of the water to the very life of Tombstone, onerous federal rules stood between the citizens of Tombstone and the essential repairs to the pipeline. It has been nearly five years since the fire, and the situation still isn’t entirely resolved!
Clearly, this is a problem that had been allowed to fester for far too long, and we cannot allow ourselves to be distracted by irrelevant debates over the propriety of an armed group occupying an empty federal facility. The longer our attention is diverted, the more-serious these issues become. Whoever becomes President next will have to take an in-depth look at the problems surrounding federal land management in the West, and offer solutions. Whether it is an assessment of the obligations of the United States vis-à-vis land disposal, or the adoption of a “no net loss of private lands” stance, it is entirely clear: something comprehensive must be done.