What kind of landowner lets a tenant stay on his property for two decades without paying?
When Cliven Bundy’s standoff with federal land managers came up last weekend at a gathering of Republicans in the small farm and ranch town of Scobey, Mont., that was the prevailing question. And it was a rhetorical one.
Cut away the misplaced rhetoric about freedom (spouted mostly by people who wouldn’t know a steer from a heifer), the dangerous over-use of force by federal agents, the ludicrous spectacle of “free-speech zones,” and the situation is simple: Bundy is extracting a valuable use from land that does not belong to him, and is refusing to pay the owner (i.e., the American taxpayer) for that use.
He is a squatter, a right-wing version of the dreadlocked freegan who sets up living quarters in an abandoned building in Brooklyn. If everyone did as Bundy does, the concept of property rights would be diminished.
Testing Bundy’s claim is simple. If he has a right to do what he is doing on public land to which he does not have title, then so should you and I. What would happen if a hundred other people each put a hundred head of cattle on the same property? The grass would run out; every animal would, eventually, starve.
This “tragedy of the commons” — the depletion of resources that occurs when ranching, farming, timbering, or drilling happen on the same public land without a means to restrict and compensate for that access — is something that grazing rules on BLM property are meant to address. And it works pretty well. Most ranchers who lease BLM land pay a per-head fee (this year, $1.35 per animal unit month) and live a life with no armed standoffs.
Of course, an important corollary of this theory is that one need not pay anything for non-consumptive uses of the land, other than federal income taxes. Mr. Bundy and everyone else have a right to take a hike on it, ride a horse on it, and exercise First Amendment (and Second Amendment) rights on it. It’s just that he cannot unilaterally annex it to his modest one-quarter-section (160-acre) ranch to create a mega-ranch.
That said, Bundy’s truculence has created one positive outcome. It has focused the wider public’s attention on a fact that few in America’s urban centers have to grapple with: that in most of the largest states of the union, an enormous amount of land is publicly owned, and under the control of an alphabet soup of federal agencies.
How many people had never heard the abbreviation BLM before this episode? Yet this obscure outfit — along with the U.S. Forest Service, the U.S. Fish and Wildlife Service, and the National Park Service — calls the shots on millions of acres. Its bureaucrats have the power to make or break the livelihoods of both citizens like Mr. Bundy and entire communities in the rural West that depend on natural resources harvested from or raised on federal land.
How is it doing as the country’s largest landowner? Pretty darn poorly.
The BLM is hamstrung by vague and contradictory mandates. The BLM’s land-use decisions are controlled by policy documents called Resource Management Plans (RMPs). Each of the dozens of BLM field offices has one, and a typical RMP weighs in at about 1,000 pages. One representative example has a table of contents that alone runs to 38 pages, plus another nine pages simply to list the abbreviations used in the document.
One could hope that a document of such length would provide exacting clarity. Instead, it is an amalgam of administrative jargon and highly subjective judgments about the relative values of this or that minor archaeological site or view of the prairie. One can forgive a person who simply wants to be a rancher for not having patience for this rigmarole.
Sadly, buried in the fine print of these bureaucratic tomes are real inhibitions to making productive use of the federal estate. Most recently, the BLM has put the brakes on oil-and-gas drilling in the energy-rich West due to the possibility that it might disturb the breeding habitat of the greater sage grouse, which is just the latest in a long list of species used as an excuse to stymie America’s nominal commitment to energy independence. Then there are bars on developing wind energy (also a bird thing) and solar energy (a tortoise thing); unrealistic mandates to put electric transmission lines underground; and the perennial threat that a bureaucrat in Washington will one day wake up and, in a sweeping vision, decree that cows are out and wild bison are in. It all makes for a bureaucracy whose workings are not well understood by the people they most affect, and which deals a thousand cuts to development.
This is not the way it was meant to be. While national parks and wildernesses were consciously set aside for recreation and the preservation of their natural state, BLM and National Forest lands were meant to be productive. Too often, if someone like Bundy is not allowed to graze his cattle, then no one is — even if he is willing to cut a check for the lease.
Bundy has argued that the property under control of the BLM really belongs to the state government of Nevada. This is a dubious argument regarding the law as it is, but as a policy suggestion, it’s not so bad. States have an incentive to make productive use of these lands, and they are closer to the people those land-use decisions affect. And there are also solid legal arguments for it. As a recent Federalist Society paper has pointed out, it seemed the agreements under which western states were admitted to the union intended for many of these lands to be turned over to state or private ownership.
That wouldn’t give Bundy a right to be a freeloader. But it would surely make a lot more sense than having the feds let the commons lie idle.
— Travis Kavulla, a former associate editor at National Review, represents a large, rural part of Montana on the state’s Public Service Commission.