This Land Is Whose Land? Part 2

The Antiplanner understands politics well enough to know that polarization is sometimes useful. But I still find it annoying when people who don’t understand an issue use it to create unnecessary hysteria. On one hand Senator Harry Reid calls people protesting federal land policy “domestic terrorists.” On the other hand, some people hope that rancher Bundy’s stand will be the first shot in a “war on federal bureaucrats.”

The Bundy issue is neither war nor terrorism. It is a simple case of trespass. It won’t be solved by turning federal land over to the states or selling it. Nor will it be solved by demonizing ranchers, property rights advocates, or federal land managers.

For one thing, we can’t give the land “back to the states,” as some people advocate, because it was never state land to begin with. With the exception of Texas and a few Spanish land grants, pretty much all land west of the Mississippi River was, at one time, federal land. When Congress made Nevada a state, it offered it 4 million randomly selected acres. The state asked if Congress would be willing to give it 2 million but let it select the acres it wanted, and Congress agreed. The state eventually sold all but 2,500 of those acres.

Nearly all the rest of the state, around 89 percent, is federal, partly because the land was such poor quality that no one really wanted it and partly because federal laws limited the amount any one person could claim so as to prevent the creation of a landed aristocracy. Whether you agree that it should be federal or not, it is federal land, and believers in property rights should respect it as federal property.

No, there really isn’t anything in the Constitution authorizing the federal government to own any land outside of Washington, DC. But that didn’t stop Thomas Jefferson from making the Louisiana Purchase 211 years ago, and until we get a Supreme Court willing to overturn more than two centuries of judicial history, there’s not much point in arguing that Bundy should be able to do what he wants because the feds shouldn’t own it.

Nor is this a case where the rancher has some sort of claim to the land through “adverse possession” (a.k.a. “squatters’ rights”). It may be true that Bundy’s family has been grazing on the federal land since 1877, but they knew it was federal then and never tried to claim it, probably because they had already claimed as much land as they were allowed to claim under federal law. (Their descendants were no doubt very happy they didn’t have to pay property taxes on all that land.) The BLM wasn’t created until 1946, but it was preceded by other federal agencies–the Grazing Service and the General Land Office–that were responsible for monitoring and collecting fees for ranchers’ use of the land.

Really, there are just two issues here. One is the Endangered Species Act, which led the BLM to reduce Bundy’s allotment from 500 cows to just 150. That law, which sometimes requires private landowners to protect habitat at their own expense, works about as well as quartering soldiers in people’s homes, something that is clearly unconstitutional under the Third Amendment.

But, again, this isn’t private land, and if the federal government has decided that land that was once used for grazing cattle is more valuable for tortoises, then property rights advocates should support that decision. Moreover, it is hard to argue that it is a bad decision, as the lands in southern Nevada are particularly submarginal for domestic grazing. Well over 90 percent of cattle in this country are grown without ever seeing public lands, so federal land in general and this land in particular are hardly critical to America’s food production.

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Bundy claims he is willing to pay Clark County, Nevada, for the use of the land. But Clark County (founded in 1909) didn’t even exist when his ancestors settled in southern Nevada. Bundy’s argument that the land should belong to the state or county has been rejected by the courts for good reason–whether you like it or not, the title to the land is held by the federal government.

The people who claim to care about property rights and justice for taxpayers should be upset that the federal grazing fee is so low. Back in 1991, liberals in the House passed a bill to raise the fee to fair market value. At the same time, conservatives in the Senate passed a bill to forbid the National Endowment for the Arts to fund “obscene” art. In a famous deal that became known as “corn for porn,” both of these reforms were dropped. The question is why were conservatives, who claim to be guardians of the public purse, supporting subsidies to ranchers?

In any case, we have a situation where a rancher is grazing more than three times as many cattle on someone else’s land than they are allowed to graze. That’s a clear case of trespass. Moreover, although the rancher once agreed to pay a nominal fee for that grazing, he hasn’t paid in more than twenty years. Again, trespass.

Instead of sending in armed federal agents, Judge Napolitano says the BLM should have put a lien on Bundy’s ranch. That might have been appropriate if it was just a case of him not paying his fee. But he is also grazing far more cattle on the land than the BLM says the land can support. That’s not something can be solved with a lien. At some point, the cattle have to come off, and since Bundy promised he would resist federal efforts to remove them, it was probably appropriate to send in armed federal agents.

What would you do if it was your land and someone was allowing their cattle to trespass on it? Under adverse possession laws, you have to resist or risk losing your land. Simply filing a lien against isn’t going to do it.

Even if Congress decided to privatize the land, there is a good chance that Bundy wouldn’t get it. If privatization takes place, pressure to sell to the highest bidder in order to help pay the federal debt is likely to exceed pressure to please special interest groups such as ranchers. The highest and best use for this land, which covers more than 150,000 acres, is not growing 150 or even 500 head of cattle. I wouldn’t be surprised if environmental groups could outbid Bundy without even straining their budgets.

Despite all the rhetoric, some cooler heads are speaking out. “True patriots pick their battles wisely,” says one conservative writer, “and know when to concede.” Rand Paul urged “all parties [to] calm the rhetoric a little bit.”

Considering the state of the federal budget, growing deficits within the Department of the Interior and other federal land agencies, and the poor record of federal land management, it may be appropriate to re-open the question of selling federal lands or turning them over to the states. But advocates of private property and smaller federal budgets need to find a better poster child than a rancher who is overgrazing, trespassing, and refusing to pay the already below-market fees.