Western Rebellion

Who Owns the West?

Christopher A. Simon, Erika Allen Wolters, and Brent S. Steel

Introduction

Many rural western groups have been active in promoting county and local control over federal public lands. The movement has been called “county supremacy,” and it is considered to be a foundation of the wise use movement. The beginnings of this movement can be found during the early 1900s, when the federal government began reserving public lands and developing water supplies for settlements (High Country News 2016). The movement ramped up during the Sagebrush Rebellion of the 1970s, when Congress passed the Endangered Species Act, the Clean Water Act, the Clean Air Act, and other environmental legislation that affected how public lands are managed in the West. At the basis of this movement is the notion that management of federal public lands should emphasize “a preference for extractive (e.g., mining, oil drilling) or utilitarian (e.g., grazing) uses over ecological, scenic, wildlife, or aesthetic values” (Pollution Issues 2019). This chapter discusses the law and policy context of western rebellion and then provides some case studies to illustrate the dynamics of the conflict.

Law and Policy Context

The evolution of laws and policy governing public land management has been shaped by the values of policy actors, contextual considerations and circumstances, and the dynamics of policymaking. Land management has played a prominent role in the United States since its colonial period. The vast tracts of wilderness that greeted the early European colonists, who either bartered, often in bad faith, for land ownership or confiscated land from Native American tribes through force of arms, were then organized into privately owned parcels and lands reserved for public purposes, such as government lands for public schools. The Land Ordinance of 1785 and the Northwest Ordinance of 1787 are two early examples of land policy in the United States. Many individuals known through historical accounts as the founders—white European American men such as Thomas Jefferson and James Madison—played a prominent role in shaping the new laws governing land policy as it related to US territorial expansion.

The founders and those white European American men who followed were driven by a vision to expand the United States through territorial expansion into western lands controlled or influenced by European powers, such as France and Spain, and inhabited by indigenous native peoples. Through the Louisiana Purchase in 1803, the United States acquired from France approximately 827,000 square miles of land, and the US victory in the Mexican War of 1846-1848 resulted in the expansion of US lands by approximately 529,000 square miles. Enormous pressure was left to bear on land policy enactments governing the organization and parceling out of public lands to private individuals and states. In the case of lands ceded after the Mexican War and lands purchased from Mexico, the passage of the Homestead Act of 1862, the General Mining Law of 1872, and the Taylor Grazing Act of 1934 played prominent roles in the governing of the vast amount of acquired territory.

The values of political actors during this period were largely shaped by a desire to significantly increase the size and influence of the United States. Circumstances of the time period were largely shaped by the needs of a rapidly growing nation with a high demand for agricultural resources for domestic civilian use, to feed and clothe an increasingly powerful military, and for export to overseas markets. Resources extracted through mining were also in high demand—metals for building materials or for use in coinage for economic exchange or demanded purely for numismatic value, and extracted subsurface or surface fuel resources used as energy sources for heating or for powering equipment. Land management law was therefore largely intent on creating those mechanisms necessary to meet social and economic demands through distribution policy.

Homestead Act of 1862

The Homestead Act of 1862 distributed free, publicly held land to settlers who agreed to build a home on it and farm the land for a minimum of five years. Each settler was offered 160 acres of land. After the five-year period elapsed, the settler could purchase the land for $1.25 per acre. In the century that followed passage of the act, nearly four million individuals lay claim to more than a quarter billion acres of public land that would eventually become private land under the terms of the Homestead Act.

Not all of the available lands were claimed under the Homestead Act. Some lands were not farmable owing to poor soil quality and lack of readily available sources of water, thus making it nearly impossible to raise sufficient food to support a family or for commercial purposes. Other lands were not available for claim staking because they had been designated as public lands, national parks, or national forests, or they were reserved for military reservations or designated as Native American reservation land. Military reservations were often sited on lands of strategic importance with access to needed resources. Conversely, Native American reservations were often sited on less valuable land with more limited resource availability (see Simon 2015).

General Mining Law of 1872

In the nearly eight years following the discovery of gold in California, there were no federal laws or regulations governing mining on public lands. The gold miners in California were, for the most part, operating on US-occupied land following the Mexican War, yet without federal laws in place, it was impossible to regulate gold mining claims, and without a well-ordered regulatory bureaucracy, royalties were not paid to the federal treasury for the extraction of a valuable public resource used for private commercial purposes. Two other landmark federal statutes—the Lode Mining Act of 1866 and the Placer Mining Act of 1870—preceded the General Mining Law of 1872, which still governs mining on public lands in the West.

The 1872 law established the process and costs associated with staking a claim. Mining claims involve surface rights to mining development and subsurface rights to mineral exploration. As per the 1872 law, mining claims involve annual payment of between $2.50 and $5.00 per acre. While Congress has attempted to impose royalty charges on hard-rock minerals extracted by miners, the bills have failed to gain passage. As a result, miners and mining corporations do not pay royalties on the precious minerals extracted from beneath public lands (US Department of the Interior 2019). Depending on the nature of ownership—in other words, if the mining concern holds title to lands being mined—miners or mining corporations may be subject to state and local property taxes. While royalties are not paid, hard-rock miners and mining corporations are subject to income taxes on the goods they produce and sell. In the case of fossil fuel exploration, however, extractive resource firms do pay a nominal royalty (Bowlin 2019).

As a policy designed to distribute public goods to private concerns, the General Mining Law has been effectively reformed or curtailed through the passage of other landmark legislation. The Mineral Leasing Act of 1920, for example, more clearly defined mineral development by separating claim staking of previously unknown mineral deposits from the development of known mineral deposits. The 1920 law established that the latter would be subject to a competitive leasing process. Additionally, the 1920 law developed rules governing the management of petroleum and gas, which would be subject to royalty payment based on their gross value (see Bernell and Simon 2016). Subsequent to the law’s passage, presidential directives and the Department of Interior, which governs public lands, have established rules to protect lands and promote conservation of resources. While there were laws governing the extraction of hard-rock minerals and petroleum and gas resources, the Minerals Materials Act of 1947 allowed for the extraction of sand and gravel resources. These resources became particularly important in the postwar period. Sand and gravel are important components for the development of roads and the manufacture of building materials such as concrete. Despite the passage of landmark legislation, such as the Federal Land Policy and Management Act of 1976, which sought to restrict environmentally harmful mining practices, critics would argue that the evolution from near-pure distributive policy to one that focuses on the social and environmental costs of extractive industries has been far too slow and offers much in the way of recompense via royalty to the general public.

Taylor Grazing Act of 1934

The Taylor Grazing Act of 1934 is a distributive policy that provided for the grazing of privately owned livestock on public lands. Under the Homestead Act, not all available lands were able to support a family of homesteaders owing to the quality of the land and the lack of a readily available source of water and timber needed to construct homes, outbuildings, and other structures for farm development, fuel, and sustainability. Some of these lands, however, were suitable for rangeland for livestock grazing with sufficient sources of water, and federal policy was created to provide for a grazing permit system. With access to these grazing lands, ranchers and farmers were able to provide additional feed to their livestock so as to make homesteading in semiarid or arid regions more feasible.

Through a permitting process, grazing rights were based on available feed and restrictions on the number of animal units allowed to graze on various grazing tracts. In the case of cattle grazing, for instance, an “animal unit” is considered to be one cow and her calf. The intent was to limit the possibility of overgrazing and land and vegetation degradation. The permitting process did not grant a property right to the permit holder—it simply provided access to a resource under strict terms. The permits are “non-transferable and revocable . . . granted for a period of 10 years, and may be renewed” (US Department of the Interior 1959, p. 204).

The Taylor Grazing Act, which is administered by the Bureau of Land Management, was intended to provide access to grazing lands, but it was also believed that the quality of the land would be improved through the permit process. Permit holders were required to maintain fencing and water availability through wells and reservoirs, and they would be reimbursed for these improvements by subsequent permit holders. The improvement of a grazing tract through good grazing management would likely lead to increased animal units permitted to graze on a grazing tract, which meant more money in the pockets of a livestock rancher (Donahue 2000).

Policies such as the Homestead Act, the General Mining Law, and the Taylor Grazing Act established new policy constituencies who benefitted from federal policy governing the public lands of the western United States. Farmers, miners, and ranchers owed their livelihood to these largely distributive policies. Federal agencies tasked with managing the distribution of these public goods imposed limited restrictions on their clientele, in large part because there were limited statutory powers granted to the agencies to do so. Additionally, the public lands of the West, while mostly governed by the federal government although there are state lands as well, were overlaid by maps of political representation—local, state, and federal politicians represented the constituent interests of farmers, miners, and ranchers in local, state, and federal government. In 1934, the year the Taylor Grazing Act gained passage, forty of the then ninety-six senators represented states that contained the grazing lands. While the population-based representation in the US House of Representatives was certainly not in their favor, the nature of politics and political compromise meant that western states were able to protect the increasingly powerful interests who had a stake in maintaining the status quo in the land management arena. State legislatures, too, were constructed to protect the interests of ranchers, miners, and ranchers. Until the 1970s, state senate representation was often based on geography rather than population, thus overrepresenting the rural interests of agricultural and extraction-based industries and effectively shielding them from the often progressive-minded reformers in the cities.

Public Land Management in the 1970s and Beyond: A Shift toward Greater Environmental Regulation

The 1970s witnessed a growing concern about environmental quality. Rachel Carson’s landmark book Silent Spring (1962) detailed the horrors of environmental degradation in the United States and reflected the values of the post-World War II generation. The National Environmental Policy Act of 1969 (NEPA) established federal standards governing the impacts of human activity on the environment. NEPA encompasses a wide range of environmental issues to include both natural and human-made environments in urban as well as rural areas in relation to air, land, and waterways. In the case of public lands, NEPA served as the starting point of a broad policy dialogue about the nature of public lands and their use. Whereas nearly a century of policy had focused on the distribution of public lands for private use, the policy dialogue now shifted toward issues of marginal social and environmental costs associated with private activities on public lands. This shift, as rapid as it was, was undoubtedly enhanced by a shift in public values reflected through the entrance of often young and enthusiastic progressively minded institutional actors into elected office, and the rise of powerful environmental interest groups.

Within a dozen years of the passage of NEPA, several other environmental laws were passed that had a direct impact on the use of public lands for private purposes. Included among those landmark federal laws were the Clean Air Act of 1970, the Endangered Species Act of 1973, and the Clean Water Act of 1977. Other landmark laws of the period, although not always directly related to public lands policy, include the Occupational Safety and Health Act of 1970 and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (known as CERCLA or Superfund). Late to the move toward increased environmental regulation was the Pollution Prevention Act of 1990. All of these laws can count NEPA as their parent law in moving public land management policy from purely distributive toward a greater focus on regulation of use (see Simon 2017).

One of the purposes of regulation is to impose on the private sector the true cost of accessing a public good. In other words, regulation was intended to recover for human society, nonhuman species, and the environment the marginal social and environmental costs imposed by the private sector when it uses public goods in the pursuit of profit. Coincidentally or not, the first moves toward a “wise use” reaction by farmers, ranchers, and miners occurred following the passage and implementation of 1970s environmental regulations. The wise use movement intended to reverse progressive public land management policies of the 1970s and 1990s, effectively returning the US public land management to its nineteenth-century laissez faire distributive policy roots.

The passage of landmark environmental legislation took a brief hiatus during the Reagan administration. Reagan was a strong supporter of free market economics and distributive policy approaches in the use of public lands and natural resources. With a Republican-controlled Senate from 1981 to 1987, progressive public land management advances were stymied. Reagan appointed conservatives to head the Department of Interior—James Watt, followed by William Clark and Donald Hodel. Reagan’s first appointee to head the Environmental Protection Agency (established in 1970) was Buford, who sought to reduce federal regulation of environmental quality.

The 1990s, however, led to a major shift back to the priorities established in the 1970s, albeit constrained by the Republican resurgence in the 1994 congressional elections. A baby boomer-era progressive governor, William J. Clinton, was elected to the presidency in 1992. President Clinton appointed Bruce Babbitt to serve as US Secretary of the Interior. Babbitt, an ardent environmentalist, focused a great deal of attention on reforming the Mining Law of 1872 and Taylor Grazing Act of 1934. In terms of mining reform, Babbitt sought an increase in the royalties and fees paid by mining companies to the US government, as the royalty and fee schedule had not changed in nearly 120 years. Babbitt expressed similar concerns about grazing fees. Babbitt argued that neither miners nor ranchers were covering the marginal social and environmental costs associated with their activities. Particularly in the case of mining, Babbitt’s policy reforms focused on nonrenewable high-value resources practically being given away to private profit-driven firms. A pro-business Republican-controlled Congress in the late 1990s meant that Babbitt’s efforts to reform mining law and grazing policy fell on deaf ears in the national legislature (CNN 1998).

Clinton and Babbitt’s efforts to catalogue biodiversity in the United States were also constrained. In 1993, Secretary Babbitt created the National Biological Survey (NBS). An idea first conceived in the late 1970s, NBS was to be a new agency headed by personnel from existing federal agencies such as the FWS, BLM, NPS, and USGS (Krahe 2011). The primary mission of the NBS was of “collecting, analyzing, and disseminating scientific data without any entanglement in the regulatory and managerial responsibilities of its sister agencies” (Krahe 2011). In reality, the agency suffered from not being managed by seasoned administrative leadership, budget constraints, and a lack of administrative cover provided by more established administrative agencies. The agency survived the Republican 104th Congress and actually grew in terms of budget following its relocation to the National Park Service, which provided experienced administrative leadership (Wagner 1999). Now called the Biological Resources Discipline (formerly known as the Biological Resources Division), the agency focuses on wildlife conservation through “consultation, technical assistance, and policy guidance to manage native and exotic wildlife species in parks,” as well as provides animal health services and manages national park landscapes (Biological Resources Division 2019).

While Congress has failed to act on mining and grazing reforms, in part because of well-organized business interests in the mining, oil and gas, and livestock industries, the president has discretionary policy tools to be used for the protection of public lands. The Antiquities Act of 1906, which was signed into law by President Theodore Roosevelt, authorizes the president “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands that are owned or controlled by the Government of the United States to be national monuments.”1 Since the passage of the act, “16 presidents have designated 157 national monuments under this authority” (National Parks Conservation Authority 2019). In 2017, in a highly controversial move, President Trump used the power of executive order to reduce the size of Bears Ears and Grand Staircase–Escalante National Monuments, a move that was supported by extraction industries (Lipton and Friedman 2018). In response to Trump’s actions, New Mexico Senator Tom Udall and Representative Debra Haaland introduced legislation to prevent presidential action to reduce the size of national monuments (Udall 2019).

In the 1980s and 1990s, the management of publicly owned forest witnessed one of the most successful efforts to reduce the impact of extractive industries on public lands and to direct policy to reduce marginal social and environmental costs. In 1987, a citizen petitioned the US Fish and Wildlife Service (FWS) to list the northern spotted owl as an endangered species. In that same year, FWS determined that such a listing was not needed because the owl was not threatened with extinction. The decision led to the 1988 case Northern Spotted Owl v. Hodel,2 in which a US district court judge determined that the FWS did not conduct a proper study in arriving at its conclusions about the owl and its status as a threatened or endangered species. The court ordered that further and proper scientific study was needed prior to any conclusive decision.

After further study, the federal agency found that the northern spotted owl was threatened. As was found in further court decisions at the district court level and at the Ninth Circuit Court of Appeals, however, the agency response to this finding did not follow proper administrative procedure and was unlawful and inadequate. In making their determination that the owl was threatened, federal land and wildlife management agencies had failed to define the owl’s habitat, a critical aspect of protecting the owl from extinction. Furthermore, the guidelines for timber sales that might threaten owl habitat (the owl nests in old-growth forests in California, the Pacific Northwest, and parts of Arizona, Colorado, New Mexico, and Utah). In further court action, Northern Spotted Owl v. Lujan,3 a US district court in Washington State found that in order to adequately protect the owl, further sales of timber on public lands within its habitat region would be halted. Through judicial action, a major shift in public land management was accomplished (Sher 1993; Verner et al. 1992).

From Sagebrush Rebellion to Militia: Conflict in the West

The evolution of land management in western states from one of distributive to regulatory policy (Simon 2015) has instilled deep divisions among some in the West whose livelihoods depend on unfettered resource use. The Endangered Species Act (ESA), access to federal lands for grazing, water rights, and other challenges have come to a head in the last two decades with a new iteration of Sagebrush Rebels taking up the call to push back against a government they feel is overstepping its reach. The first Sagebrush Rebellions largely took place in the ’70s and ’80s as a reaction to the regulatory restrictions of laws like the Federal Land Policy and Management Act of 1976 (FLPMA) and the ESA of 1973, but rebellions in the ’90s and that continue today have become decidedly more confrontational and violent. The Sagebrush Rebellions of the ’70s and ’80s worked within the political process (even getting tacit support from President Reagan), and the rebellions of today work against the authority of the federal government by challenging the political process and even the constitutional authority in which laws were formed.

The following sections provide a brief review of recent, arguably more memorable, Sagebrush Rebellions. These cases illustrate the mounting frustration of resource-dependent individuals and communities over government regulation and oversight. They also demonstrate that there is a strong constituency (including local governments and law enforcement) that is sympathetic or supportive of these rebellions, casting a new light on the legal implications and consequences of the rebellions.

Klamath Water War

In 1988, the endangered species listing of the Lost River sucker and shortnose suckerfish went unopposed (and with minimal attention) by the California Department of Fish and Game, the City of Klamath Falls, and the Oregon Department of Fish and Wildlife (Doremus and Tarlock 2008). Almost a decade later (in 1997), Coho salmon were listed as threatened in the Klamath Basin. In 2001, after a particularly harsh drought season, water scarcity in the Klamath Basin forced a state of emergency in the region. The species previously listed under the ESA suddenly took on new significance for the Bureau of Reclamation (as well as for local farmers, ranchers, commercial fishers, and tribes), which had a legal requirement under Section 7 of the ESA that prohibited “any federal actions that further jeopardize a listed species” (Gosnell and Kelly 2010, p. 369). In the spring of 2001, the Bureau of Reclamation (BOR) in the Klamath Basin submitted a biological assessment of projected water management in the region for consultation (under Section 7 of the ESA) with the FWS and the National Marine Fisheries Service (NMFS). Both the FWS and NMFS “issued biological opinions that required the BOR to take a number of controversial actions, including the maintenance of higher water levels in Upper Klamath Lake (for the suckers) and higher in-stream flow levels in the Klamath River below the Iron Gate Dam (for the Coho)” (Gosnell and Kelly 2010, p. 369). In response, the BOR essentially cut off irrigation water to the 1,400 farms in the region, thus signaling the beginning of a water war in the Klamath Basin.

The decision to cut off the irrigation headgates in Klamath Falls, Oregon, in order to maintain water in the Upper Klamath Lake to protect the endangered suckerfish became the foundation of the modern Sagebrush Rebellion movement (Wentz 2001). Irrigators saw the move by the BOR as an effort to put fish over people and to reallocate water that many irrigators believed they had a legal right to (although four tribes in the region had senior water rights that allow them to maintain water levels to support fish populations for their use under existing treaty rights). The decision affected more than a thousand farmers with projected financial losses of “hundreds of millions of dollars” (Southern Poverty Law Center 2001). The farmers, incensed by the water cutoff and having failed to convince the courts that they would suffer substantial economic harm for a disputable biological solution to protect suckerfish, took matters into their own hands.

Protest began almost immediately after the water shutoff, with nationwide coverage of the event bringing supporters to the region to help the embattled farmers. In May, a symbolic “bucket brigade” was convened with thousands (estimates range from 10,000 to 13,000) of supporters drawing water from a nearby lake to distribute to the dry irrigation canals. Tensions continued to rise when in July “hundreds of farmers and their supporters used torches and crowbars to open the head gates of an irrigation canal four times in one week” (Clarren 2001). The presence of federal agents, who were guarding the headgates, set in motion other ways to illegally obtain water; namely, laying a pipeline to transport water from Upper Klamath Lake to irrigators (Clarren 2001).

Protests continued throughout the summer of 2001, as did legal challenges, but after the September 11th attacks, the focus on the Klamath water crisis began to wane (Southern Poverty Law Center 2001). With nonlocal antigovernment protesters gone from the region, the local farmers and ranchers agreed to a suspension of protests in order to try to negotiate an agreement with the government to resolve the water crisis. While efforts have been made (and even agreements reached) to find a manageable, equitable solution for all interests in the Klamath Basin (farmers, ranchers, commercial fisheries, tribes, and environmentalists), to date there is no water management agreement in place that could help avoid another economic, ecological, and cultural loss to the region.

It is estimated that farmers lost more than $35 million as a result of the irrigation water shutoff in 2001 (Jaeger 2004). While other stakeholders (tribes, commercial fisheries, etc.) certainly sustained losses, ranchers and farmers believed that the actions by the BOR were particularly misguided. The impacts to the broader community were also felt with dwindling supplies at food banks, shuttered businesses, and declining school enrollments (Clarren 2001). The hostility between stakeholders further affected the community with a breakdown of civility and fears over personal safety (Clarren 2001).

The protests that occurred in the Klamath Basin were in response to an event that affected the main industries and communities in the region. Illegal actions were taken by ranchers and farmers (and their supporters) in a desperate effort to provide relief from both the drought and withheld water. And the shutdown did little to reduce the antigovernment sentiment in the region that Sagebrush Rebellions are founded on. It is unsurprising, then, that one of the most notorious Sagebrush Rebellions, the Malheur Wildlife Refuge occupation, happened a few hundred miles away from Klamath Falls. But the differences between the rebellions are stark.

Fire Starters to Occupiers

In 2012, Oregon ranchers Dwight and Steven Hammond (father and son) were convicted on multiple counts of arson on federal land. The first incident occurred in 2001 in what became known as the Hardie-Hammond Fire in the Steens Mountain Cooperative Management and Protection Area in Oregon (land managed by the Bureau of Land Management, or BLM). The Hammonds intentionally started a fire in the area in an effort to cover up an illegal deer hunt (which several witnesses corroborated). The Hammonds claimed that the fire, which burned more than 139 acres of federal land, was done to control invasive species. In reality, the fire “destroyed all evidence of the game violations” (US Department of Justice 2015), which was the intent of the fire.

The second fire, the Krumbo Butte Fire in the Malheur National Wildlife Refuge, occurred in 2006. Although a burn ban was in effect (and firefighters were busy putting out wildfires in other parts of the refuge due to lightning strikes), Steven Hammond started multiple backfires to save the ranch’s winter feed (US Department of Justice 2015). The illegal backfires, which spread onto nearby public land, were conducted without consultation or notification of the BLM and presented an additional concern (and a safety threat) to firefighters already combating fires in the refuge.

Under the law, the Hammonds were to receive a five-year minimum mandatory sentence for their convictions. But the federal district judge presiding over the case found the mandatory sentencing “grossly disproportionate to the crimes” (Freda 2016), instead sentencing Dwight Hammond to three months and Steven Hammond to a year (Freda 2016). A federal appeals court, however, determined that the Hammonds were to be resentenced based on the ill-founded leniency the lower court applied when it did not uphold the minimum mandatory sentence. The Hammonds were then sentenced to the mandatory five years (with time served).

The convictions for these two fires represented the tip of the iceberg with regard to the Hammonds’ illegal actions. Court records show that the Hammonds set many fires, threatened federal officers and employees, and impeded efforts of BLM firefighters. In short, the Hammonds consistently and regularly engaged in illegal activities to fulfill their own goals or to coerce federal officials into backing down with threat of violence. Even so, the Hammonds became the government “victims” that antigovernment groups could rally around.

The resentencing of the Hammonds in 2015 was the spark that ignited one of the most notorious Sagebrush Rebellions in the West, the occupation of the Malheur Wildlife Refuge in Oregon. For roughly five weeks beginning in January 2016, militants, led by Ammon Bundy, took over the Malheur Wildlife Refuge in protest of the Hammonds’ sentencing and more broadly to challenge federal land management in the West. The protestors believed that the federal government did not have constitutional authority to maintain the land. Instead, they demanded the land be turned over to the states so the local governments could determine how to manage it. What started out as a protest in the town of Burns, Oregon, took an unexpected turn when organizers encouraged supporters to occupy the refuge.

The occupation of Malheur continued for a total of forty-one days, into early February 2016. During this time, militant occupiers (later known as Citizens for Constitutional Freedom) demanded the release of the Hammonds and that the federal government turn the Malheur National Forest over to residents so they could extract and utilize the natural resources of the forest for the local economy. Interestingly, neither the Hammonds nor even many people in the local community supported the militants in their occupation.

The lack of planning left the occupiers in a difficult position. But the government, wanting to avoid another Waco or Ruby Ridge, was hesitant to respond. The occupiers of the refuge sought to conflate their support by stating that 150 armed militia were on-site (Odinson 2016), but an on-site reporter counted between 20 and 25 (Zaitz 2016). Attempts at negotiations failed, and efforts by the occupiers to incite a reaction by the government (by purportedly removing fences, utilizing refuge vehicles, and vandalizing property) did little to garner sympathy for their cause. Opposition to the occupation from locals, other anti-government groups, as well as opponents in Oregon and Idaho who held rallies calling for an end to the occupation made clear the lack of broad support that the militants claimed to have.

During the occupation, militants were generally given the freedom to travel to and from the refuge. On January 26, however, several of the leaders of the occupation, including Ammon Bundy, were intercepted on their way to a public talk in John Day, Oregon. While Ammon Bundy and others were taken into custody without incident, another leader, LaVoy Finicum, was shot and killed as he was reaching for a weapon in his jacket. With most of the momentum taken out of the occupation, the remaining occupiers were cut off from supplies and from use of electronics, leading to their eventual surrender on February 11, 2016.

In total, twenty-six people were indicted for the occupation of the Malheur National Wildlife Refuge. Of those, there were a handful of convictions, but many were acquitted or had their case dismissed. Ammon Bundy was among those acquitted, leaving many to feel that justice was not served and, perhaps more concerning, setting a precedent for (and emboldening) anti-government groups who disagree with federal land ownership in the West.

With the election of President Trump, antigovernment Sagebrush Rebels found an ally. President Trump has worked to deregulate federal land, reduce federal land holdings (such as Bears Ears and Grand Staircase–Escalante National Monuments), and appoint industry allies to top resource positions (such as Ryan Zinke as head of the Department of the Interior). With the appointment of Karen Budd-Falen, a private property rights advocate whose concept of property includes public lands adjacent to privately owned land (Thompson 2018), to deputy interior solicitor for wildlife and parks in July 2018, Trump in essence appointed an opponent of public land to oversee the protection of public land. (Notably, Budd-Falen also once defended Cliven Bundy in a case against the federal government; see Thompson 2018). Similarly, William Perry Pendley, who once advocated for the sale of federal lands, is the most recent acting director of the BLM.) Further, President Trump pardoned both Dwight and Steven Hammond, with White House Press Secretary Sarah Huckabee Sanders stating the resentencing of the Hammonds was “unjust” and “overzealous” (Sullivan and Turkewitz 2018). The end result of the occupation of the Malheur Refuge (which began over the imprisonment of the Hammonds) was minimal convictions and little, if any, deterrent from engaging in similar actions in the future. In early 2019, as Zinke was leaving office, he reinstated the original 26,000 acres of federal land in grazing rights to Steven and Dwight Hammond (Wilson 2019). However, after an appeal by environmentalists, a federal judge revoked the grazing rights later that year.

Where to From Here?

The contrasts between the Klamath water war and the Malheur standoff are stark. In the Klamath, some farmers and ranchers took illegal action only after they had been denied water for their farms. Some would argue that these actions were taken out of necessity, as there was an impending financial loss to farmers and ranchers because of the shutoff. Protests to resume delivery of water to the farmers and ranchers focused on the inequitable favoritism for endangered fish versus the livelihood of the farmers and ranchers (recognizing, of course, that other stakeholders were affected; namely, the tribes and commercial fisheries).

In contrast, the Malheur occupation stemmed from illegal actions by the Hammonds on federal land. The Hammonds held grazing permits, which are essentially temporary access rights for a specific duration and under set guidelines; the Hammonds did not have ownership or the unrestricted use of federal land. The Hammonds’ use of federal land as their own (starting fires, illegal hunting operations, etc.) inherently challenged the authority of the federal government to manage public lands in the West (although the matter of who should manage these lands is a sticking point for those arguing for local control considering the amount of money required to fight wildfires, manage the lands, etc.). It was not a reactive response to resource distribution for competing interest. Rather, it is a proactive move to establish a consistent pattern of undermining federal authority for the grander purpose of getting the federal government to relinquish control and ownership of western public lands.

Each of these cases drew the interest of anti-government militants who came to the regions to join and in some cases escalate the already tense situation. What is potentially concerning is the lack of accountability for these illegal actions. The pardoning of the Hammonds, the few (and minimal) convictions from the Malheur occupation, and a presidential administration that overtly supports the actions of anti-government groups could potentially set the stage for more violent and disruptive actions.

Conclusion

As climate change continues to alter the landscape of the western United States, access to resources has the potential to become far more combative. Extended and intense periods of drought, combined with more frequent and powerful wildfires, will further exacerbate conflict over available resources. Some groups, particularly anti-government groups, are busy trying to dismantle federal land ownership in the West, while other stakeholder groups (ranchers, farmers, tribes, environmentalists, etc.) are desperately trying to create an environment of sustainability for current and future use. The current presidential administration is only adding fuel to the already simmering fire by overtly supporting actions that undermine environmental protections or access to resources for tribes, suggesting that things could get much, much worse in the future.

Legal Citation

  1. Antiquities Act of 1906, 16 U.S.C. §§ 431-433.
  2. Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988), November 17, 1988.
  3. Northern Spotted Owl v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991), February 26, 1991.

References

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Bowlin, N. 2019. “Judge Orders Industries to Pay Royalties for Public Land Extraction.” High Country News, April 25, 2019. https://www.hcn.org/articles/energy-and-industry-judge-orders-industries-to-pay-for-public-land-extraction. (↵ Return)

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The Environmental Politics and Policy of Western Public Lands by Christopher A. Simon, Erika Allen Wolters, and Brent S. Steel is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.

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