Magazine | May 19, 2014, Issue

Public-Land Colonialism

(AP Photo/Las Vegas Review-Journal, Jason Bean, File)
Of Cliven Bundy and the Bureau of Land Management

Cliven Bundy and his rogue herd of cattle burst onto the national news scene last month, and in doing so, he introduced the American public to an agency that many had never heard of: the Bureau of Land Management.

Out West, the acronym “BLM” is a fixture of the vernacular. It may well be the arm of government that has the greatest control over rural westerners’ way of life.

The BLM tends to an estate of dry prairie, desert, badlands, and sand dunes that was not high on anyone’s list of desirable acreage during the era of western settlement: too dry to be farmed, not enough grandeur to be designated a national park or wilderness. It was first open range and later became, after the federal government asserted its title over this land, the largest piece of leasable real estate in the American West — 245 million acres, an area bigger than the mid-Atlantic states and New England combined. The BLM is its landlord.

This public land remains a vast commons — but, today, it is a highly regulated one, subject to the codex of federal environmental laws. Most noteworthy is the Endangered Species Act, the regulatory emanations of which incorporate lowly critters into a growing canon of animals worthy of protection above all else. Some are called “endangered,” others merely “threatened,” still others “warranted but precluded” from being labeled endangered (that is, for the time being).

So long as these animals — the desert tortoise, the delta smelt, the sage-grouse — go unmolested as the public makes use of the public’s land, BLM land is mostly open to the public. You can take a hike on it, ride a horse on it, and fish and hunt non-endangered species on it.

It is also possible to apply for a license or lease to make productive use of this land. Just as national forests were created as repositories of the nation’s timber inventory, the West’s ranges were open to those who would take a crack at ranching, drilling, or mining them, and thereby eke out a living in a place no one else wanted.

That brings us to Mr. Bundy. Ranchers of cattle and sheep on BLM land are in the unique position of having hitched their fortunes, often over many generations, to federal land policy as decided and executed by the BLM. These families qualify for a grazing lease because they own adjacent land that is designated as a kind of home base for their livestock. Mr. Bundy owns only a modest “one quarter section,” 160 acres, not nearly enough for his herd. Ranchers who lease BLM land pay a per-head fee (this year, it is $1.35 per month) for this grazing right.

At least, they should pay, and virtually all BLM-dependent ranchers do pay. Mr. Bundy has not. There is little meaningful difference between Mr. Bundy and the leftist urban squatter who claims he has a right to others’ property because they aren’t using it in ways that are satisfactory to him. Add this to Mr. Bundy’s declarations on race, and he is a poor candidate for the lionizing treatment he has received in some quarters of the Right.

That is unfortunate, since the cause for reforming federal land management needs a good bannerman. The BLM’s leasing practices came to exist because of the potential for a “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. What has happened since is a reverse tragedy of the commons: The process of obtaining permission to use the commons has become so suffocating that often no productive use occurs.

The National Environmental Policy Act of 1969 (NEPA) requires an excruciatingly complex process before even mundane land-use decisions can be made. In fact, just to explain the NEPA process, the BLM has a 184-page handbook issued by the agency’s Division of Decision Support, Planning, and NEPA. The gist of NEPA is that the BLM, and all other federal agencies, must  draw up either a resource-management plan (RMP) or an environmental-impact statement through a years-long public process before practically any decision on land use is made.

The public’s practical access to this decision-making process is limited. That’s because the typical RMP is a thousand-page blizzard of administrative jargon. One representative example from the BLM field office in Billings, Mont. (one of several in the state), has a table of contents that alone runs to 38 pages, plus another 9 pages simply to list the abbreviations used in the document. The bulk of the document is everything from a summary of the academic literature on particular endangered species’ habitats and breeding rituals to a description of several alternatives (one of them is eventually selected in the final RMP) to using the swath of land to which the RMP will apply. Only well-organized environmental activists and industry groups have the means to comment on an RMP in the native tongue of land-management jargon that the BLM speaks.

#page#The positions of these two factions are often difficult to reconcile. And the BLM is hamstrung by a vague and self-contradicting mandate for “multiple use” that is defined by law (the Federal Land Policy and Management Act of 1976) as “harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”

This mumbo-jumbo means there is a lot of room for subjective judgment cloaked in the guise of by-the-handbook central planning. For instance, two draft RMPs released within 50 days of one another last year in Montana (one for the central north of the state and one for the southeast) came to entirely different conclusions about how wide a berth the sage grouse required from oil and gas activities in its mating habitat. One RMP said two miles. The other, one mile. Are the sage-grouse in the north less inhibited in their hanky-panky than their brethren elsewhere? The RMPs did not explain.

It is absurd, yet gravely important. That’s because the Greater Sage-Grouse is one of those special “warranted but precluded” species, standing in the queue for an “endangered” listing while the feds rescue other animals on the to-save list. In Montana, one county that is a traditional center of natural-gas production has a whopping 53 percent of its subsurface minerals controlled by the BLM. The agency’s opinion of how the birds get it on has thus become one of the most important questions concerning economic development in the area, and implicates millions of energy-rich acres throughout the West. The recent proposed RMPs in Montana more than quadruple the land off-limits to “surface occupancy,” which makes oil and gas drilling virtually impossible. Only about 1 million acres of a 10 million–acre federal estate would be open to drilling activities under standard leasing conditions.

Nor is it just oil and gas. Most land in those RMPs is closed or designated an “avoidance area” for wind-energy development (also a bird thing), and similar restrictions exist elsewhere for solar energy (a tortoise thing). There are also unrealistic mandates to put electric-transmission lines underground.

Even if the BLM bureaucracy itself doesn’t hinder a healthy natural-resources economy, there is always a chance the agency’s political superiors will. In his final days in office in 2001, Bill Clinton invoked the American Antiquities Act to designate a huge stretch of land the Upper Missouri River Breaks National Monument, taking almost a half million acres out of production to most uses, with no process other than his own signature. Public lands are fertile soil for such legacy actions, especially when presidents have been unable to get their legislative agenda accomplished the old-fashioned way (i.e., with the consent of Congress). Public-land-dependent communities out West are justifiably concerned that the waning days of the Obama presidency will see more decrees of this nature.

There is a word for this manner of controlling lands from afar, employing a bureaucracy whose workings are not well understood by the people they most affect, and that word is “colonialism.” People like Mr. Bundy (and a lot of people not like him) have long argued for greater local control of BLM and other public lands. This is an excellent policy suggestion. States have an incentive to make productive use of these lands, and they are closer to the people those land-use decisions affect. But will low-population western states have the clout to pull a local-management agenda off in Washington? Unlikely.

Another approach one state, Utah, has taken is to claim that BLM lands are subject to a legal “duty to dispose” of them (to the state or to private parties). A Federalist Society paper recently observed that this position is implicitly supported by language in the act that brought Utah into the union, which gives the federal government those lands “until the title thereto shall have been extinguished.”

The federal government at least has a duty to act like a reasonable landlord, out to use the land as the economic engine of the country that it could be. It is not doing so today.

– Mr. Kavulla, a former associate editor of National Review, represents a large, rural part of Montana on the state’s Public Service Commission.

Travis Kavulla is director of Energy and Environmental Policy at the R Street Institute. He is a former president of the National Association of Regulatory Utility Commissioners who held elected office as a Montana public service commissioner for eight years. Before that, he was an associate editor for National Review.

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