Goodbye to the public-private divide.

• Author: Freyfogle, Eric T.
• Position: Property rights

To live well on land has long been a challenge and a hope for people everywhere. It is the "oldest task in human history," (1) Aldo Leopold claimed, and he was in a position to know as a careful student of the land and the ways various peoples had misused it. In America today, we are having trouble at that task, according to many conservationists. A major cause of our trouble is the institution of private property rights in land. Too many landowners use their lands in ways that undercut the collective good, and their property rights shield them from accountability. In the American West we hear another complaint about land ownership, having to do with the massive federal land holdings. Federally owned lands are also being misused, many allege. Some say too many federal lands are off limits to the kinds of extractive land uses that produce jobs. Others contend that publicly owned lands should serve public purposes alone, and that the public's prime needs are to promote wild species and ecological processes while supplying places for recreation.

I want to address this subject of land ownership, with particular regard for the division between private and public lands. Given how lands mingle in the West, private with public, it is not possible to talk about one form of ownership except in relation to the other. So after exploring the institution of ownership generally, I propose to set these forms of ownership side by side to see how different they really are, asking why the two forms exist and whether the future of one form of ownership might depend closely upon the future of the other. Is it possible that the problems of one ownership form are linked to the problems of the other? Indeed, is it possible that the simple division of lands between private and public is itself a problem?

I.

The place to begin is with the private form of ownership. We need to pry open the institution of private rights in land and look at its inner workings. If we can do that, probing why private property exists and what it is supposed to accomplish, we can gain a sense of how property has changed over time and where it is heading today. Armed with that understanding, we can then turn to public ownership, to figure out how public land differs and why it too exists.

To start, let us set aside essentially everything that we know about land ownership and begin simply with the land itself, a natural scene. Imagine a valley somewhere, vast in extent and empty of people. Insert a river, meandering through the scene, along with a few hills or mountains, some patches of trees, and some fish and wildlife. It is a good place to live, with reasonably fertile soil, maybe a fair amount of rain, some timber and rock for building. Nature is at work, with its cycles of wind and water, of birth and death, of nutrients coursing through the system, and of plants and animals that, in their ceaseless competition, have formed a resilient biotic community.

Now let us add people to the picture, perhaps perched on a hillside looking out over the plain. These people have arrived from afar and plan to stay, settling in and making their homes. To do that, they obviously have to use the land. Perhaps they will not have many troubles as they go about their work, if the land is abundant and reasonably uniform in its attractiveness. But these assumptions are not realistic, so let us modify them. Let us assume the land is expansive but differs widely in its natural features. Some places are far better than others to build homes. Some places are rich in wildlife, or have more fertile soil, or bountiful grasses. Some lands are next to the river and have good water, while others are higher and drier.

These arriving people face a question: how are they to organize themselves so as to use the landscape successfully? If person A takes over one tract of land, making exclusive use of it, then other people will be unable to use the tract. That is, if we let A claim ownership over a particular piece of land, we have necessarily limited the ability, or we might say the liberty, of everyone else to use it. When everyone can use all land freely, the liberty of all is equal. But the moment we give A special control over a tract of land then we have done two things: we have increased the liberty of A, and we have decreased the liberty of everyone else.

Back to the question: how might the people organize their affairs to make effective use of the lands? The question is difficult and the possible answers countless. The people could divide the land into numerous small pieces, or they might instead keep the land undivided. They might use the land by laboring in teams or they might use it as individuals. A particular tract of land could end up, not with one user, but with several people holding use rights in it. One person might gain the right to graze animals, for instance, while someone else holds rights to use the timber, hunt wild animals, extract water, or merely walk across the land. Use rights could go to families instead of individuals. They could be limited in duration or unlimited. Perhaps some places will be set aside and not actively used by anyone. To add to the complexity, let us recognize that one person's land uses can easily disrupt the activities of other people, and so there are countless questions about how the use rights of A fit together with the use rights of B and how the ensuing conflicts will be resolved.

As the people go about deciding how to use this bountiful land they will no doubt consider the human side of the issue--their needs for food, fiber, and shelter, as well as their desires for recreation and social interaction. Some needs are basic to all people, but many needs will depend upon the peculiarities of the arriving people, including their social values and structures, their religious beliefs, their senses of individual autonomy and equality, how much they value privacy, what weight they give to future generations, and so on. Along with these human needs will be the many factors that relate to nature itself, to the variations in the land and its ecological functioning. Some lands will tolerate human use without much effect; other lands will not. Some lands will have special value in supporting wildlife or sustaining ecological processes. Good land use will take these natural variations into account.

As the people think about their work they will be wise to explore all of these factors. Even so, they will make mistakes. Much about the land's natural features and functions will be unknown or misunderstood. As for the people, their numbers no doubt will change, and so will their technology, their values, and their dreams. Patterns of land use that make good sense at one time might not make good sense years later. Change is inevitable, on both the human and the natural sides. As people alter the land, they may come to see it differently. Parts of nature they once viewed as common or unimportant may become scarce or otherwise highly valued. If our people are particularly wise they will anticipate such change by crafting mechanisms to adjust their patterns of owning and using land over time.

Let us set this scene aside and turn to three others, which we can sketch more quickly. Scene One: Hunter Albert for years has used a vast forest to find game for his family's table. He is a skilled hunter, and knows animal ways. One day he leaves home to enter the forest and is greeted by conspicuous "no hunting" signs. Albert asks what this is all about, and he receives an answer: the land is now privately owned, and the owner wants Albert to stay out. Albert goes away, but the next morning he rises early and re-enters the forest to hunt without gaining permission. As he leaves around mid-day, police officers stop him. The officers arrest him for trespassing and take him to a police station.

Scene Two: Farmer Barbara has lived on bottomland for many years, growing food for home use and for the market. She grazes cattle and sheep on several pastures. One morning she rises to find the air filled with smoke and soot. Investigating, she learns that neighbors upwind are burning their fields. They have gone into the business of producing grass seed, and need to burn their fields regularly to do so. As she investigates, she realizes that the grass burning not only sends smoke and soot into her house but significantly affects grassland birds that inhabit the region. When she makes inquiries at the state natural history survey she is told that wide-spread burning is likely to stimulate many ecological changes. Insect species could rise in number, perhaps to pest levels, harming Barbara's crops. The grass growers are likely using chemicals to keep out weeds. These pesticides will also have ecological effects on plants, insects, birds, and rodents. But the truth, according to one scientist, is we really do not know what will happen as a result of the new grass seed business, given the ecological complexity of the bottomlands. Discouraged, Barbara drives home. On the way, she thinks about her long-held plan to divide her far pasture into building lots to sell for vacation homes. She fears her land will be worth much less if buyers must put up with smoke and soot and if their homes look out, not upon natural-looking grasslands, but on monocultural fields.

Scene Three, further back in time: Harold is the head of an extended family clan, which tills its land using oxen. The land has been productive and yields a good surplus. One fall day armed men on horseback show up, carrying a strange banner. They are knights in the service of a nobleman named William, and they announce sternly that William has proclaimed himself owner of all he surveys. Henceforth, the knights assert, all land will be held subject to William's superior rights as lord and owner. All tillers of land will owe one-half of their produce to William in recognition of his superior rights. The tillers...