Public Lands Rebellion

Public Lands Rebellion

BY JAMES R. SKILLEN

Geographer John Wright once wrote that land tenure in the American West is a Darwinian struggle, meaning that “places are best seen as shifting stages where the exercise of power and resistance to it vie for dominance. The matter of land tenure will always form the spatial musculature of this fractious region.” 1 Land tenure conflicts take on a distinctive character in the West precisely because they often focus on public lands, and have coalesced periodically into collective challenges, or rebellions, against federal authority.

Historian William Graf describes some of the most significant early rebellions. The first focused on the adequacy of land grant authorities and the need for irrigation, and it ended with the General Revision Act of 1891. The second dealt with forested lands, particularly after presidents in the 1890s and 1900s reserved millions of acres of what we now call national forests in the West, and it ended around the time of the Weeks Act of 1911. The third focused on grazing land and mineral rights, and it calmed considerably after the Taylor Grazing Act of 1934. 2

The last three rebellions—the Sagebrush Rebellion (1979–1982), the War for the West (1990–1999), and what I’ll call the Patriot Rebellion (2009– 2016)—fit into the historical pattern of conflict, but they also reveal an important evolution in the political geography of public lands. Whereas the Sagebrush Rebellion was a regional conflict rooted in states’ rights and waged by those with material interests in public lands and resources, the Patriot Rebellion was a national challenge rooted in states’ rights, gun rights, private property rights, and even religious expression, waged by a broad, national coalition of conservatives. Through this evolution, conservative westerners have gained national support and resources to defend their interests, but it has come at a cost.

The Sagebrush Rebellion

The Sagebrush Rebellion erupted in the late 1970s in response to the environmental movement and its expanding influence in public lands law and management. 3 For example, in the Federal Land Policy and Management Act of 1976 (FLPMA), Congress declared for the first time that the United States would retain public lands permanently and manage them for multiple uses, affirming the BLM’s growing managerial power. Indeed, Congress signaled this clearly in FLPMA by granting the BLM law enforcement authority. 4 In this new context, ranchers were frustrated with increased grazing fees and reduced grazing permits; miners and county officials, particularly in states such as Utah and Nevada, were frustrated with restrictions on road construction and motorized vehicle use on public lands; and timber workers were frustrated with reductions in federal harvesting. 5 And they were frustrated more broadly by the ideological shift in public lands management toward environmental protection. Having once stood at the top of a multiple-use hierarchy, they felt they were being shoved to the bottom by eastern and urban environmentalists. 6 By turning to their state legislatures, they hoped to contract the boundaries of public lands decision-making to the state level where they maintained greater influence.

Newsweek cover, September 17, 1979, “The Angry West.” Used with permission of Newsweek Copyright© 2020. All rights reserved.

Nevada launched the Sagebrush Rebellion in 1979, when 85 percent of the state legislature cosponsored a bill asserting state ownership of all unreserved public lands within its boundaries. 7 They argued that the U.S. Constitution’s “equal footings” clause prohibited the federal government from owning a disproportionate amount of land in the West. Arizona, New Mexico, Utah, Washington, and Wyoming all followed suit, and most other western states at least debated this type of legislation. Western delegations to Congress also introduced federal legislation, unsuccessfully, to transfer public lands to the states. First-term Utah senator Orrin Hatch, who spearheaded introduction of the bill in the U.S. Senate, complained that the “BLM is oppressive. Where there used to be one BLM man per county, now there are 60 of them, stumbling over each other, acting like little gods.” 8 It was time, he said, to end this federal tyranny.

The Reagan administration, swept into power in 1981, effectively ended the Sagebrush Rebellion, not by transferring public lands to the states but by showing greater deference to western state governments. President Reagan’s first Interior secretary, James Watt, later recalled, “I met with the governors in September 1981. . . . I said, ‘Whatever you guys want, you get. We were going to be good neighbors.’ They didn’t know how to handle that. They had been fighting so long. They couldn’t cope with a Secretary of the Interior who said, ‘Take it.’” 9 Watt meant what he said, and during his brief tenure as secretary he eased restrictions on extractive uses of public lands.

The Reagan administration did more than simply address the rebels’ concerns, however; it helped integrate the rebels into a new conservative coalition that formed in the late 1970s around a shared antipathy toward federal regulation, whether of public lands, education, worker safety, guns, private property, or religious expression. This coalition modeled itself after the progressive rights revolution of the 1950s and 1960s, both in organization and argument, but it used the language of constitutional rights to defend economic activities and conservative cultural values. 10

The War for the West

The War for the West, 1990–1999, erupted in response to ecological emphases in public lands management and attending restrictions on grazing, logging, and road access. Congress had not passed any significant new legislation, but judicial rulings under the National Environmental Policy Act of 1969 and the Endangered Species Act of 1973 were forcing the Bureau of Land Management and the U.S. Forest Service to focus less on resource outputs and more on ecological health. This was evident in the growing emphasis on riparian protection in range management, protecting viable populations of all vertebrate species in forest management, and adoption of a new paradigm called “ecosystem management.” 11 Westerners interested in natural resource development once again believed that they were being shoved to the bottom of the multiple-use hierarchy.

The War for the West, it should be noted, was really less a rebellion and more a decade of political unrest. Sometimes also called Sagebrush II, the name War for the West came from a cover article in Newsweek, and it was embraced by those in Congress who were fighting to restore higher levels of natural resource outputs from the public lands. The name, in other words, served as a broad umbrella, particularly in Washington, and less as an organizing or animating movement for public lands users in their individual conflicts.

The War for the West was broader than the Sagebrush Rebellion in at least two important respects. First, it reflected a broader anxiety about government control. Many rebels saw public lands restrictions as evidence of both federal tyranny and a growing international threat from the “new world order.” Said another way, anxiety focused on more than regional autonomy; it focused on the very survival of national sovereignty. 12 Second, and closely related, the scope of the rebellion expanded from a campaign waged primarily by state legislatures in 1979 and 1980 to one also waged by county governments, national conservative organizations, and a broad swath of the Republican Party.

Put in constitutional terms, the Sagebrush Rebellion had been a Tenth Amendment challenge. The War for the West, since it was supported by a broader political coalition, challenged federal authority using almost the entire Bill of Rights. The Wise Use movement of the 1990s illustrated this clearly. Led by Alan Gottlieb, Ron Arnold, and Charles Cushman, the movement raised funds and built support by connecting anger over public lands management with national frustration with restrictions on private property use and guns (Fifth and Second Amendments, respectively). Indeed, the War for the West was what the columnist Garry Wills called an expression of “constitutional anti-governmentalism,” which transcended regional boundaries. 13

Just as the War for the West reflected a broader constellation of issues than the Sagebrush Rebellion, it was advanced by a much broader range of conservatives. Rebels had powerful new advocates in the media, such as Fox News and Rush Limbaugh, who forged a common anti-federal narrative that Republicans used to retake the House of Representatives in 1994. A number of western members, such as Helen Chenoweth (R-ID), rode the War for the West to Washington, where they found sympathetic eastern colleagues. The War for the West also included a more extreme end of the conservative spectrum, namely the resurgent militia movement comprised of people who were prepared to “kill and die for the Constitution.” 14 Militias and their congressional defenders were animated by particularly dark conspiracy theories about federal plans to disarm Americans, imprison them, and cede their freedoms to the United Nations.

The War for the West swept through state legislatures, this time with national support. The American Legislative Exchange Council (ALEC), a libertarian advocacy organization for state legislators, offered model legislation with titles such as the “Constitutional Defense Council Act,” “Resolution to Restate State Sovereignty,” “Joint Committee on Federal Mandates Act,” and “Federal Mandate/Federal Encroachment on State Sovereignty Act.” 15 Western states, including Utah, enacted several of these model bills.

The War for the West also swept through county governments. Lawyer Karen Budd- Falen, who worked in James Watt’s Interior department and the Mountain States Legal Foundation, helped convince western county governments that federal law protected their “customs and culture.” As long as they passed ordinances that clearly identified resource development on public lands as a core feature of their identity, she explained, federal agencies would be forced to support those activities. In what became known as the County Supremacy movement, many counties produced land use plans or ordinances that identified grazing, mining, and logging as pillars of their culture and rejected federal authority to reduce or constrain them. Utah counties featured prominently in the War for the West, particularly in their battles over road rights-of-way across public lands. 16

The War for the West lost momentum after President George W. Bush took office, though it did not end as decisively as the Sagebrush Rebellion. This stemmed partly from ongoing tensions between conservative user groups (such as energy and ranching interests), partly from judicial rulings that upheld environmental protection, and partly from the fact that public lands issues were politically integrated with other important issues that remained contested.

The Patriot Rebellion

Unlike prior rebellions, the Patriot Rebellion did not start in the West or with public lands. It started in the Tea Party and Patriot movements, which exploded after President Obama’s election and passage of the Affordable Care Act. This national rebellion against federal power started with marches and rallies on the Washington Mall, with Fox News personalities such as Sean Hannity and Glenn Beck, and with the formation of militia support groups such as Oath Keepers and the III% Patriots. It focused on public lands in the West, not because of any significant new conflicts, but rather because public lands are such visible representations of federal power in the region.

The Patriot Rebellion had multiple fronts. In 2010, Governor Gary Herbert signed a law that purportedly authorized the state to exercise eminent domain power over public lands unless the federal government had purchased those lands with the state’s consent. 17 ALEC adopted this as model legislation, entitled the “Eminent Domain Authority for Federal Lands Act.” ALEC approved another piece of model legislation in 2012—the “Disposal and Taxation of Public Lands Act”—which the Utah State legislature passed almost immediately. The act, echoing legislation from the Sagebrush Rebellion, demanded transfer of federal lands to the state. 18

Western counties joined the fray, demanding that federal agencies accommodate county demands in their land use planning. Attorney Fred Kelly Grant traveled the West, encouraging county governments to pass what became another piece of ALEC model legislation: “State Sovereignty through Local Coordination Act.” 19 The Federal Land Policy and Management Act and the National Forest Management Act require the BLM and the Forest Service, respectively, to “coordinate” their land use planning with local governments. While the agencies and the courts interpreted this to mean a coordination process, Grant argued that it meant the two agencies had a legal obligation to align their land use planning substantively with county demands. This was simply a variation on the County Supremacy movement of the 1990s.

Cover image of High Country News dated February 8, 2016, showing an armed member of the Oath Keepers standing guard at the Sugar Pine Mine in Josephine County, Oregon, in an operation aimed at defending the constitutional rights of two miners last April. Photo by Jim Urquhart/Reuters. Used with permission.

The Patriot Rebellion also included an extreme element: militias and county law enforcement officers calling themselves “constitutional sheriffs.” Both argued that they could disregard federal laws they believed violated the Constitution, and both argued that the Second Amendment protected their right to resist federal authority with force. These two groups played key roles in a variety of armed standoffs on public lands, including a standoff in 2014 at Cliven Bundy’s family ranch near Bunkerville, Nevada, and an armed occupation of the Malheur National Wildlife Refuge in 2016.

These disparate interests and actions—county and state legislation and militia action—were given a common narrative through national conservative media and the Republican Party, even though the tactics or even aims of the Bundy family and the wildlife refuge takeover were not embraced by all supporters of the Patriot Rebellion. Fox News hosts Greta Van Susteren, Neil Cavuto, and Sean Hannity all covered public lands issues during the rebellion, and Hannity initially treated Cliven Bundy as a heroic patriot. 20 Opposition to public lands ownership was so well-established in mainstream conservative circles that the Republican National Committee made transferring public lands to the states a priority in its 2016 platform. 21

The Patriot Rebellion quieted to some extent with President Trump’s election in 2016, primarily because the new president validated it at every turn. The Trump administration reduced the size of two Utah national monuments; pardoned Arizona sheriff Joe Arpaio, who had been held in criminal contempt of court for ongoing racial profiling; appointed Karen Budd-Falen and William Pendley, who both had worked for the Mountain States Legal Foundation, to prominent positions in the Interior Department; moved the BLM headquarters to Colorado to make it more responsive to western interests; denigrated federal bureaucracies repeatedly; and, most important, promised to crush environmentalists and the liberal elite. The “constitutional anti-governmentalists” had a champion in the White House.

President Trump’s election reflects a remarkable nationalization of sagebrush rebellion politics, which has undoubtedly given western conservatives more resources with which to defend their interests. But it has also come at a cost. Public lands issues are now bound so tightly to national partisanship that there is little room on the ground for constructive compromise. Just as local chapters of environmental organizations sometimes find that their particular desires are vetoed by their organizations’ national priorities, conservatives working on local compromises sometimes find those interests thwarted by national conservative demands. The people of Burns, Oregon, adjacent to the Malheur National Wildlife Refuge, experienced this in 2016. They had developed a constructive working relationship with federal land agencies and achieved several compromise land use plans as a result. They did not, in any collective way, ask for or support the armed occupation of the wildlife refuge. Indeed, their elective officials repeatedly asked the out-ofstate occupiers to leave. Though this was an extreme case, it illustrates ways in which a national rebellion can trump local or even regional interests. 22 In a general sense, the tactics and demands of some within the movement have poisoned the well for other voices and goodfaith approaches to the management, development, preservation, and control of public lands.

Conclusion

Public lands conflicts continue to form part of what Wright called the “spatial musculature” of the American West. But evolution from the Sagebrush Rebellion to the Patriot Rebellion shows that the underlying challenge to federal authority has lost its regional distinction. Indeed, the public lands have become a regional stage for conservative challenges to federal authority.

The most recent evidence of this comes from the Bureau of Land Management, which is in the process of moving its headquarters from Washington, D.C., to Grand Junction, Colorado, where it will share an office building with oil and gas companies. Interior Secretary David Bernhardt explained that the move would provide increased accountability and resources to the “front lines” of public lands management. 23 Since the vast majority of BLM employees— over 95 percent—already work on the “front lines,” adding a few hundred additional employees from the Washington office is primarily a symbolic gesture. The agency’s other top priorities for 2020 include increasing oil and gas production and reducing regulations. 24

To a certain extent, the Trump administration is simply repeating Secretary Watt’s pledge to western communities that depend on federal resource development: “Whatever you guys want, you get.” 25 But two caveats are in order. First, the West has changed since the Reagan administration, becoming increasingly urban, and many westerners now appreciate the amenity values of public lands more than the economic values. The Trump administration, then, is not so much showing regional deference as it is showing deference to particular conservative constituencies and exacerbating the partisan tensions over public lands management.

Second, the Trump administration reflects an anti-governmentalism that has deepened among conservatives since the Reagan administration. President Trump’s former chief strategist Steve Bannon explained that the president’s goal was nothing less than “deconstruction of the administrative state,” and moving the BLM’s headquarters to Grand Junction serves this goal by encouraging some of the agency’s most senior career staff to quit. 26 This interpretation isn’t reading between the lines. Chief of Staff Mick Mulvaney explained that “it’s nearly impossible to fire a federal worker,” but if you tell them that “we’re going to take you outside the bubble, outside this liberal haven and move you out into the real part of the country . . . they quit. What a wonderful way to streamline government and do what we haven’t been able to do for a long time.” 27 For Mulvaney at least, relocating the BLM’s headquarters will have the desired effect of reducing the BLM’s most experienced professional staff, which will ensure that more power flows to rural western communities and political appointees in Washington. 28

If a Democrat wins the White House in 2020, the BLM can expect its priorities and its staffing to shift dramatically once again. The agency will still prioritize energy development, issue grazing permits, and offer timber sales; and it will continue to consult with local and state governments. Still, its priorities will shift toward greater ecological protection and amenity values of the public lands. If this happens, another wave of conservative rebellion is almost sure to follow.

Notes

1 John B. Wright, “Land Tenure: The Spatial Musculature of the American West,” in Western Places, American Myths: How We Think about the West, ed. Gary J. Hausladen (Reno: University of Nevada Press, 2003), 85.

2 William L. Graf, Wilderness Preservation and the Sagebrush Rebellions (Savage, MD: Rowman & Littlefield Publishers, 1990).

3 The Wilderness Act of 1964, National Environmental Policy Act of 1969, Wild and Free-Roaming Horses and Burros Act of 9171, Endangered Species Act of 1973, the Federal Land Policy and Management Act of 1976, the Public Rangeland Improvement Act of 1978, etc. R. McGreggor Cawley, Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics (Lawrence: University Press of Kansas, 1993).

4 Dennis McLane, Seldom Was Heard an Encouraging Word: A History of Bureau of Land Management Law Enforcement (Guthrie, OK: Shoppe Foreman Publishing, 2011), 223–47.

5 See, for example, Jedediah S. Rogers, Roads in the Wilderness: Conflict in Canyon Country (Salt Lake City: University of Utah Press, 2013).

6 Leisl Carr Childers, The Size of the Risk: Histories of Multiple Use in the Great Basin (Norman: University of Oklahoma Press, 2015), 228.

7 Lee Adler, “‘Sagebrush Rebellion’ Soldiers Open Fire,” Reno Gazette-Journal, April 5, 1979.

8 Margot Hornblower, “The Sagebrush Revolution,” Washington Post, November 11, 1979.

9 James Watt, “Interview,” ed. Patty Limerick (Boulder, CO: Center of the American West, 2004), 9.

10 Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (New York: Oxford University Press, 2016), 3.

11 See James R. Skillen, Federal Ecosystem Management: Its Rise, Fall, and Afterlife (Lawrence: University Press of Kansas, 2015).

12 William Chaloupka, “The County Supremacy and Militia Movements: Federalism as an Issue on the Radical Right,” Publius 26, no. 3 (1996).

13 Garry Wills, “The New Revolutionaries,” New York Review of Books (1995).

14 Jared A. Goldstein, “To Kill and Die for the Constitution: How Devotion to the Constitution Leads to Violence” (February 26, 2015), Roger Williams University Legal Studies Paper No. 158, https://ssrn.com/abstract =2570893.

15 Dana R. Bennett, “State Sovereignty” (Reno, NV: Nevada Legislative Counsel Bureau, 1995), 99.

16 Bret C. Birdsong, “Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Land,” Hastings Law Journal 56 (2005); Scott W. Reed, “The County Supremacy Movement: Mendacious Myth Making,” Idaho Law Review 30 (1994).

17 Utah Code Ann. §78B-6-503.5 (2010).

18 See H.B. 148: Transfer of Public Lands Act and Related Study, http://le.utah.gov/~2012/status/hbillsta/hb0148 .htm; Nick Lawton, “Utah’s Transfer of Public Lands Act: Demanding a Gift of Federal Lands,” Vermont Journal of Environmental Law 16, no. 1 (2014): 13–14.

19 “State Sovereignty through Local Coordination Act,” ALEC, approved September 19, 2010, https://www.alec .org/model-policy/state-sovereignty-through-local -coordination-act/.

20 See, for example, Erik Wemple, “Fox News on the Colorado Cabin: A Case Study in Land-Use Coverage,” Washington Post, May 9, 2014.

21 “Republican Platform 2016” (Washington: Republican National Committee, 2016), 21.

22 See, for example, Peter Walker, Sagebrush Collaboration: How Harney County Defeated the Takeover of the Malheur Wildlife Refuge (Corvallis: Oregon State University Press, 2018).

23 Scott Streater, “BLM Picks New Headquarters,” Greenwire, July 15, 2019.

24 “Internal Email Lays out BLM Goals—Including Heading West,” Greenwire, November 20 2019.

25 Watt, “Interview,” 9.

26 Philip Rucker and Robert Costa, “Bannon Vows a Daily Fight for ‘Deconstruction of the Administrative State,’” Washington Post, February 23, 2017.

27 Eric Katz, “Mulvaney: Relocating Offices Is a ‘Wonderful Way’ to Shed Federal Employees,” Government Executive, August 5, 2019.

28 Scott Streater, “80% of D.C. Staffers Could Leave BLM,” Greenwire, December 12, 2019.