Wednesday, May 1, 2013

Private Capture of Federal Public Lands: A Brief Overview

By Jim Bailey, Wildlife Biologist

Our federal lands are an important public trust resource. They are owned by the public and managed by trustees (government agencies) to benefit current and future generations. Some refer to the public lands as “commons”. They note a tragic history of such lands. Without regulations, competing individuals have trashed the commons as each tried to obtain more than their share of benefits. Today, this threat to federal public trust lands is supposed to be controlled with prudent management by our trustee agencies, mostly the Forest Service, Park Service, Bureau of Land Management and Fish & Wildlife Service. 

About 30 percent of Montana is federal public land. These lands are essential to the quality of life in our “Big Sky Country”. They are the scenery, the backdrop to our lives. They are vital components of the habitat for fish and wildlife that we treasure. They are places for all sorts of outdoor recreation. They are essential to tourism, our state’s largest industry. Public benefits from Montana’s federal lands are large and diverse. They must be protected for use and enjoyment by the people.

But, the tragedy of the commons is still with us. There are individuals and industries hell-bent on turning our federal lands into private profits. Their strategy is capture and control. Capture special or exclusive access to the land. Control the trustees, our government agencies and legislatures, to bend management policies in ways that favor special interests on our lands.

Capturing the public resource

Industries and other special interests have used laws, government policies and historical precedent to capture permanent, often exclusive, access to our federal public lands. 

The 1872 mining law is one example. Mining interests extract $2-3 billion annually from the public trust, mostly at the minimal cost of $2.50 to $5.00/acre. The 1872 mining law is a blatant case of private capture of the public trust. Results can be locally devastating. Yet, the amount of land involved is small by comparison with other private uses of the public land.

The most widespread capture of public land is the federal livestock grazing program. Over 14,000 square miles, about 10 percent of Montana, is federal land grazed by private livestock. Most of this land is managed by the BLM and Forest Service, but National Monuments and Wildlife Refuges are included. Grazing fees are low and have not kept pace with inflation. In some programs, half the funds from grazing fees must be reused to further enhance the private grazing. But, taxpayers pay most of the costs from the federal grazing program. 

Many public-land livestock operators believe they have a permanent “right” to their allotments. Banks often recognize this idea by considering the value from using the public land as private loan collateral. While legal standards proclaim that a public grazing allotment is a “privilege”, not a right, our land-management agencies rarely revoke the permanent connection of an allotment to a landowner’s private land. Moreover, new laws, such as wilderness designations, and court decisions often provide exceptions for livestock operators to use the public lands in contrast to the rights of all others. Each such new law or court decision strengthens the legal argument that the public’s right to determine how the public land will be used has been diminished.

Other federal lands are dedicated for coal and petroleum production. Impacts of these industries are large and growing in some parts of Montana. Wildlife populations have been decimated and rivers degraded. Historically, reclamation following these projects has often been lacking. Industry lobbyists in Congress and in the state legislature always oppose industry restrictions or regulations. Industry propagandists tell us that their impacts upon our landscape are minor while their contributions to the public welfare are large. Usually, as we look farther, in both space and time, from each industrial project on the public land, the costs increase and the benefits decrease for a larger number of the owners of the public land.

Ultimate control of federal land can be contrived by arranging for private access to land where public access has been eliminated. Small units of the federal land trust are isolated by private land and inaccessible without permission. The Forest Service and BLM have little say in managing many of these parcels. 

Many larger units of federal land have only a few public roads for access across adjacent private land. Private interests often seek to close these public roads. Limiting public access may provide an adjacent landowner with special benefits - without the tax assessments - from our public land. Such combinations of private and otherwise inaccessible public land can be a valuable commodity when sold to a hunting outfitter who will treat the public land as a private hunting reserve.

Controlling the public trustee

Private interests control our government trustees of the public lands in very many, sometimes obscure, ways. The most obvious approach is to fund the elections of friendly legislators and governors. However, the tactics of the resulting trustees of our public lands are often far from obvious. Uses of the public lands are skewed toward private benefits and away from long-term public values in very many ways. I can only refer to a few examples.

The ultimate government policy statement is a budget. Special interests contrive for Congress to fund the leasing of public lands while restricting funds for monitoring or regulating these uses. For many federal grazing allotments, there has not been a review of the allotment management plan in over a decade. Some have never had environmental costs and benefits analyzed under the National Environmental Protection Act. Congress has said that federal agencies may not diminish grazing allotments on public lands just because monitoring and review have not been completed. Then Congress fails to adequately fund the agencies for monitoring and review. Impacts to wildlife habitats are, at best, unknown or, at worst, serious.

Special interests routinely seek to weaken the Endangered Species Act. Since its inception, it has been our nation’s most powerful tool for preserving species and their habitats. The Act is the only institution providing consistency of restoration effort across state boundaries and across changes in state and federal government administrations.

I recently visited National Grasslands in other states. They are managed by the Forest Service. According to the National Forest Management Act, the Forest Service is to provide suitable habitat for native species, well distributed across its lands. I asked why the Grassland had no bison. One district ranger replied: “We can’t have bison because we are a multiple-use agency.” Another ranger said I should discuss bison with the local grazing association whose cattle use the Grassland. I wondered what “multiple use” meant to the Forest Service, and why private grazing associations had replaced the trustees of our public trust land.

Even state laws and policies contrive to limit wildlife possibilities in favor of private uses on our federal lands. Montana law requires that wildlife transplants are prohibited unless the commission determines there is no threat of harm to agricultural production. First, this is an impossible standard. Second, since livestock grazing on federal lands is “agricultural production”, it prohibits the public from deciding that a wildlife herd can be more publicly beneficial than a private grazing allotment on any federal land. As a consequence, FWP policy is that “any localized removal, transfer, or conversion of established domestic sheep allotments on public lands for the benefit of bighorns” should only occur if agreed to by the sheepherder. In the cases of bighorn sheep and bison, the Beaverhead National Forest and the C. M. Russell National Wildlife Refuge, respectively, use this law as an excuse for not having adequate bighorn herds on the Forest or any bison on the Refuge. Thus, private interests capture uses on our federal lands by controlling the trustees of our public wildlife and our federal lands.


These are but a few examples of private capture of our federal lands and control of our public trustees. Such activity is abundant, widespread and relentless. Each special-interest project seems small or perhaps moderate in scope. Consequently, public awareness of the threat is limited but the cumulative results are enormous and increasing. Meanwhile, public options for using our lands are being constrained or eliminated, diminishing our legacy to future generations of Montanans.