The once and future federal grazing lands.

• Author: Rundle, S.L.

INTRODUCTION

The most recent brawl amongst federal land ranchers, environmentalists, and bureaucrats to tumble through the louvered barroom doors of the Supreme Court was Public Lands Council v. Babbitt (1) (PLC), a challenge by federal land ranchers to federal grazing regulation changes during the first term of President William Jefferson Clinton. (2) Inadvertently fingering the root source of contention, Justice Breyer observed that the "enormity of the administrative task" (3) facing the Secretary of the Department of the Interior (DOI) under the Taylor Grazing Act (TGA) led to the further delegation of rulemaking to the ranchers themselves back in the 1930s, (4) when the first Range Code was written. (5) Whether Justice Breyer meant enormity in the disfavored sense (8) or in fact adopted the warning of classic liberal economists and theoreticians against the inherent flaw of planning/his import was clear. The Bureau of Land Management's (BLM)job--determining who should graze how many cows on which particular allotments (8) out of the more than 170 million acres of federal grazing land, and at what price looms enormous. (9) It is complicated by the competing goals of ranchers (to maintain or expand current grazing levels) and environmentalists (to decrease or eliminate grazing), as both groups have a say in the drafting of grazing regulations.

This Note argues that the BLM's judicially frustrated attempt to abnegate its regulatory responsibilities in the 1980s, (10) along with the holding of PLC that the BLM cannot lawfully transform itself into a national wilderness reserve, have limited the BLM to the narrow task of allocating grazing privileges and managing range health. If the BLM were able to discharge this regulatory assignment effectively, while complying with the statutory gamut of policy goals, environmental and otherwise, it would have succeeded only in providing a service which, although once perhaps necessary, has become unnecessary over time. The common understanding being, however, that the BLM has not and does not properly manage the public range, this Note argues that the response to PLC has focused wrongly on the efficacy or optimal mix of particular grazing regulations and enforcement procedures. This Note offers a different reading of PLC that goes instead toward a nonregulatory, nonjudicial solution to the problem of the federal grazing lands: their sale.

Part I outlines the history of the public domain, including a discussion of the shift in policy from disposal to retention of federal land holdings. Part II provides an overview of PLC. Part III surveys the common interpretation of PLC, which was that it generally affirmed the DOI Secretary's broad authority to regulate and that improved regulations can indeed solve the problems of the public range. Part IV then reviews some of the various proposals for range reform, especially one particular proposal that argues for maintaining federal land ownership and using lawsuits to achieve the policy goals of interest groups and private citizens. Part V offers an alternative solution based upon congressional reconsideration of the retention-disposal choice as it pertains to federal grazing lands. (11) The choice between state and private ownership (12) is a decision of pure, albeit highly politicized, legislative policy. (13) Ultimately, this Note argues that private ownership would resolve outstanding federal range issues without causing environmental disaster.

1. HISTORY AND DEVELOPMENT OF THE PUBLIC DOMAIN

   1. Early American Land Distribution

      Originally, the United States set out to transfer all of the "large part of the vacant Western territory ... by cession at least, ... the common property of the Union" (14) into private hands as quickly as possible. Although a few of the Founders argued for some federal land retention, (15) "[i]t is certain that the Founding Fathers had no intention of creating a large central government with huge land holdings." (16) The original public domain came into being after the seven colonies with western land claims acquiesced in the unified demand of the six colonies without claims, (17) and ceded to the new central government their western claims as a condition precedent to ratification of the Articles of Confederation. (18) Later, Congress rewarded veterans of the Revolutionary War, the War of 1812, and the Mexican-American War with roughly sixty-one million acres of land, or three percent of the U.S. landmass. (19)

      As the country grew through war, treaty, and purchase, so did the area to be defended against internal and external threats. To protect against foreign invasion, the government encouraged citizens to settle the lands west of the Appalachians. (20) The presence of cattle and sheep drovers decreased the threat of foreign occupation (21) and helped suppress the Indians who otherwise would have interfered more widely with transcontinental travel. (22)

      The greatest increase in grazing use came during the Gold Rush; heavy migration westward began in 1848, a year significant both for the end of the Mexican-American War and the discovery of gold in California. The disposition of federal lands unto the citizenry continued (23) pursuant to the Homestead Act of 1862 (24) and the Desert Lands Act of 1877. (25) The leading authority on federal land grazing, George C. Coggins, finds a direct causal link between the "rapid disposition of land" and the "patterns of western settlement that still impede coherent land management." (26) The United States continues to sell or transfer federal land, but at a relatively light pace and through a different process. In contrast to its past direct exercise of its Article IV, Section 3 powers, (27) Congress now allows agencies, with little oversight, (28) to exercise essentially unfettered discretion in leasing and selling government lands. (29)

      In the nineteenth century, homesteaders, especially in the arid regions, staked claims around riparian areas, while grazing their animals on federal land. (30) During the 1880s and 1890s, heavy grazing began to curtail the range's regenerative capacity. (31) Concurrently, public sentiment about federal land policy, influenced by systemic abuses and fraud in the land disposal process, began to shift. (32)

      In 1872, Congress withdrew Yellowstone from the public domain (33) and these lands became national forest. Thereafter, the western United States consisted of three components: public lands (34) grazed freely by all, privately claimed lands, and lands withdrawn from settlement. In 1890, the Supreme Court held that Congress, by its silence, had given anyone wishing to graze animals on the public lands the right to do so. (35) This was convenient for homesteaders, who "did not want title to ... the western range ... [except for] the best parcels." (36) Debra Donahue has asked the question as the homesteaders did: "Why pay taxes on these grazing lands if the federal government [would] allow their use for no charge or only a pittance?" (37) That is to say, there would be no federal grazing today, and none of the attendant regulatory disputes, if Congress had made taking title the rationally preferable, economically viable choice.

   2. Range Overcrowding and the Dust Bowl

      Congress closed the public domain under the TGA and parceled out limited grazing privileges because of decreased available forage caused by (1) range overcrowding and (2) the Dust Bowl. (38) After a successful congressional experiment with a restricted access grazing district in Montana in the early 1900s, (39) ranchers throughout the West asked Congress to expand the system. (40) DOI Secretary Harld LeClair Ickes (41) overcome whatever residual resistance to the TGA remained by promising to charge grazing fees sufficient only to recover administrative costs. (42) Ranchers, at least those who obtained grazing privileges, thus avoided the consequences of communal property without incurring the responsibilities of private ownership.

      The Dust Bowl, a term referring to an environmental disaster emanating from 150,000 square miles in the contiguous corners of Kansas, Colorado, New Mexico, Oklahoma, and Texas between the years 1933 and 1939, was the consequence of heavy sodbusting by farmers anxious to capitalize on high grain prices. (43) When the abnormally high rainfall of the 1910s and 1920s (44) gave way to drought, winds swept significant Amounts of topsoil into the air. (45) One dust storm in 1934 dumped "sands from Western deserts ... [onto] the sidewalks of New York and sifted them down around the dome of the [U.S.] Capitol." (46)

      This environmental catastrophe is frequently mentioned as a force behind the TGA, passed soon after that particular 1934 dust storm. (47) Just as frequently, it is omitted that the Dust Bowl was rehabilitated by 1941. (48) One explanation for this omission is that the range's quick recovery weakens the trump card--that of inevitable earthly disaster--in the hands of those who prefer the outcome if environmental and federal land policy decisions are made with greater rather than lesser precaution. The dubious cause/effect understanding of the current grazing system, that the "West had been turned into wastelands due to their unregulated use ... [and that] the abuse forced the federal government to change its land policy from one of disposal to one of federal retention and management," (49) takes too narrow a view of the situation as it was then and is now. Missing from this view are the considerations that (1) in private hands land is not necessarily converted to wasteland due to unregulated use (50) and (2) it was not the disposed, but the undisposed, lands which Congress retained for management and which have done so poorly. (51)

   3. Taylor Grazing Act of 1934

      The uncodified Taylor Grazing Act (TGA) preamble specified three purposes: preventing overgrazing and soft erosion, stabilizing the "livestock industry dependent upon the...