The Problem of Enclosing Western Public Lands: Working Locally to Preserve our American Commons

The Problem of Enclosing Western Public Lands: Working Locally to Preserve our American Commons

BY MARIA E. MONTOYA

Ethically speaking, how should federal and state governments manage western public lands on behalf of American citizens? And who specifically ought to decide on what the ideal use of those lands may be? Activists and lobbyists tend to focus on the first question, but the second is just as important for successful management of these lands. One’s ideal moral theory about how humans ought to interact with the land will matter little if that theory lacks a well-organized group to champion, implement, and defend it.

We should pay more attention to local communities and foster their ability to lobby for a place at the table when it comes to managing public lands. Their close geographical proximity to these lands gives them the political clout and the rational self-interest to defend their turf. As I explain below, in recent decades the Hispano communities of northern New Mexico have increasingly relied on this clout to fight both preservationists and developers where local interests may be threatened. Whether or not one shares a specific community’s moral vision, one must come to terms with its political efficacy. In this essay I suggest that local communities can be a bridge between extreme market- or ecology-based moral visions that, when pressed beyond abstract rhetoric, are often self-defeating.

One local community’s effective contest against outside investors should be situated within a more familiar story—the management of western lands as a rivalry between competing moral visions. The first vision is grounded in the idea that nature has rights, or at least intrinsic value. The logical management extension of this biocentrism is that the land ought to be maximized for its preservation. On the other side of the scale is a market-driven vision based on the idea that land ought to be managed according to free-market principles. But the first has little policy power currently, and the second, while ideologically claiming to be a free market, instead pushes for policies that sell or lease lands at below-market rates to subsidize powerful constituencies. 1

Land management is a pendulum swinging between these two extremes, depending on the values and ideologies of individuals making decisions. In his recent book, This Land, the journalist Christopher Ketcham explores the tensions between these two visions. 2 Ketcham, a self-proclaimed devotee of Edward Abbey and adherent of the ecology-based vision of land management, points to and derides the relationship between capitalism, corruption, and development on public lands. 3 Ketcham’s verdict is that the federal government has become, in the last three decades, more interested in aiding corporations and individuals who want to use public lands for profit and personal benefit through lease or sale than it is in preserving land from development for its natural beauty and ecological value. This is evident with the Trump administration’s shrinkage of Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by 51 percent. And, in 2017, Alaska senator Lisa Murkowski attached a rider to the GOP tax bill that allowed oil and gas drilling in the Arctic National Wildlife Refuge. This past September, the Department of Interior presented the final plan to open the area to the petroleum industry.

The nation’s public lands, with origins in the Articles of Confederation and the Northwest Ordinance and later codified in federal law, are what may be termed an American Commons: lands collectively owned. 4 Managed by the U.S. Forest Service and the Bureau of Land Management under multiple-use mandates, they provide for a variety of economic and preservation-type uses. Land managers have the unenviable task of balancing these competing uses. As a result of the Progressive policies set in place by President Theodore Roosevelt and his head of the newly created Forest Service, Gifford Pinchot, Americans assumed that the federal government would conserve and manage a portion of the public lands for recreation and public use. 5 Later legislation passed during and after the 1960s required land management agencies to consider not merely economic interests but ecological ones as well—bringing even more plurality and contested values into land management decisions. Americans generally hold the consensus that federal management ought to balance economic uses and preservation on public lands. In the current federal bureaucracy, with an emphasis on clearcut timber production and strip-mining minerals by large corporations, the focus is more on intensive development. More precisely, federal land policy favors national interests at the expense of local conditions when determining the highest and best use of the national commons. We may want to rethink that balance.

Given the swinging pendulum that currently emphasizes development over preservation, a historical approach is helpful in understanding the dynamic between federal ownership and local control of public lands and conceiving of the many ways to empower others, not just duly authorized federal authorities, to manage lands for the public good. 6 One strategy for mitigating development has been through private purchase for preservation. For example, Ted Turner purchased a 590,000-acre parcel known as Vermejo Park in northern New Mexico. It is three-fourths the size of Rhode Island and functions as a private nature preserve that is home to elk, bear, buffalo, and some of the most spectacular fishing holes in the state. It is, however, entirely private. Only those who have permission to enter the property gratuitously or are willing to pay the $1,200 per night accommodation rate can enjoy the nature reserve. Turner’s private reserve is not the only model for private land preservation: private charitable foundations such the Grand Canyon Trust, the Wilderness Society, and the Nature Conservancy have purchased lands that they then set aside for the public’s recreational use in ways that conform to the stipulations set by the Wilderness Act of 1964. Given the limitations of funding sources, however, these purchases result in relatively little land that is open and accessible to the public.

The inadequacy of federal and private efforts to successfully protect large swaths of public lands, then, gives rise to the question: Is there some other institution that can succeed where federal and private decision-making has failed? Which institutions will protect the interests of local cultural and economic stakeholders?

I want to discuss a set of institutions that are sometimes neglected when these questions arise: state and local governments. Sitting between the federal government and private organizations, state and local governments can provide a management structure that takes into account the complex needs of the local people who use public lands by balancing competing demands, relying on indigenous knowledge, and providing for ecological protection even as it makes room for development interests. Local state governments occupy a unique—and I would argue underutilized—position for managing public lands for the benefit of those who need and use them the most.

The Case of Stanley v. Mora County Board of Commissioners

The citizens of New Mexico have had a long and often troubled relationship with the federal government when it comes to the management of public lands. For example, in October of 1966, Reies López Tijerina and five hundred others, part of La Alianza Federal de Mercedes, occupied the Echo Park Amphitheatre in the Carson National Forest in protest of the federal government’s role in dispossessing Hispanos and Native Americans from their homelands. They reclaimed the forest lands for themselves as reparations for their ancestors’ land losses. 7 In a place where people define their relationship to the federal government through land loss, it is no wonder that many farmers and ranchers had and still have a hostile relationship with the Bureau of Land Management (BLM) and other federal agencies. They balk at paying fees to graze animals and day-use fees to collect piñon nuts, herbs, or kindling on lands they believe had belonged to their ancestors before being taken from them by “legal” means. The purpose of federal land management, whether for preservation or for development, makes little difference to the New Mexicans who had land taken from them in the mid-nineteenth century. What they experience, regardless of intention, is the loss of local resource use previously available to their ancestors. As in other cases where local Hispano and Indigenous peoples are involved, federal agents often do not understand the local history and land-use patterns. This lack of knowledge often leads to mismanaged lands and unhappy local users.

The only people who encounter more derision from local New Mexicans than federal land managers, however, are outsiders who purchase and privatize large tracts of land. These buyers, like Ted Turner and Jack Taylor, who, in the early 1960s, purchased 56,000 acres that sat on the Colorado–New Mexico border, acquire land and then exclude locals from their traditional practices of clearing downed timber, hunting, fishing, and gathering herbs and medicines. 8 It is within this historical context—the combined federal takeover and privatization of land that boxed out local hunters, hikers, backpackers, ranchers, and farmers from their historic lands—that the Stanley case was dealt with by the Mora County and state of New Mexico officials.

For decades, David Stanley, a private land owner who resides in Texas, had been at odds with local ranchers and hunters, as well as the state and local officials, over roads that cut through his private property but that also provided access to New Mexico State Trust Lands open to the public. Stanley owns about 15,000 noncontiguous acres in parcels that sit on the boundary of Mora and Colfax counties just north of Las Vegas. His property is interspersed within the 53,000 acres of state trust lands known at the White (or White’s) Peak Area. In 2009, the State Land Office proposed a land swap with four private owners, including Stanley, in an attempt to resolve issues about whose land was where and who had access to the public lands that surrounded their private property. The state’s goal was to better consolidate private holdings and separate them from public lands. But Gary King, then the New Mexico attorney general, questioned the legality of the land swap, and the state courts eventually ruled the swap illegal. 9

In July 2010, in response to the failed deal, David Stanley threatened to permanently close the roads and, consequently, access to the public lands that surround his property. He put up gates with locks across the roads that entered his property (but led to public lands), and had his employees patrol some of the roads. He also sued the Mora County Commission in 2011 to privatize the road through a quiet claim action. Without admittance to those public roads, the public lost access to tens of thousands of acres of state trust lands. 10 By closing the roads, Stanley essentially enclosed public lands within his control. All of the White Peak lands, both his private lands and the state trust lands, could be accessed only by his private clients who paid high prices for hunting licenses and packages to roam the high altitude range in search of elk, bear, and turkey.

This was a lucrative business for Stanley. To hunt in the White Peak area, hunters need a license from the New Mexico Department of Game and Fish, which costs between sixty-five and ninety dollars per tag. Local families use their tags not just for sport but often to supplement their larder. For many families, hunting is an essential part of their culture and household economy. In 2017, the state issued 450 elk licenses to the public for the White Peak area. That same year Stanley purchased 253 additional licenses for his clients to use on his property, as well as on the adjacent state lands. He paid the same fee but then sold them to his clients for $8,500 a piece, which also included guides and vacation packages. In 2017, Stanley made a half million dollars from his hunting operations. 11 He had every incentive to make sure that his clients had exclusive access to the adjacent state lands not easily accessible to the public.

After his attempts to close the roads, local and state officials worked together to challenge Stanley’s claims that the roads were essentially unused and had been abandoned by the state and the public. 12 The Mora County Commission and the New Mexico Attorney General’s Office countered Stanley by arguing that Native Americans, Hispanos, and Anglo traders had been using those roads consistently for generations. Jicarilla Apaches had first traversed the area since the eighteenth century, making paths and roads that they used for resource (trees, food, herbs) collection, hunting, and trading. Later, Hispano and Anglo settlers followed these trails and expanded them by creating a thriving trade network between Taos, Mora, and the eastern plains toward Bent’s Fort in Colorado. These trails eventually became graded and paved roads in the early twentieth century, used for trade as well as for transporting lumber from an emerging market in timber cutting. Local communities thrived until the mid-twentieth century when residents increasingly moved to cities like Pueblo, Denver, and Albuquerque. In the last fifty years, the roads have been used mostly by hunters, campers, and hikers. 13

The attorney general’s office also argued that the public roads had been made, improved, and paid from state funds. In 1929, the state legislature passed a comprehensive law establishing the state’s road system that was meant to improve public safety as well as enhance travel and trade. In 1985, because the roads in the remote White Peak’s region were being used less, the state highway office quitclaimed roads in the region to the State Game Commission, which agreed to maintain them for public use. Over the years, the State Game Commission, along with local agencies such as the Mora County Commission, had agreed with private property owners in the area to an open gate agreement on most of the roads to allow free passage for all hunters between public and private lands. In the minds of local users and officials, Stanley’s closing of those roads was a breech of the public trust.

In the summer of 2018, after a protracted legal process that lasted eight years, the county and state prevailed over Stanley, as the court ruled that the roads were open to the public. Stanley could not impede the free passage of the public across his lands. The more than 50,000 acres of New Mexico State Trust Lands would continue to be open to those who wanted to hunt, camp, picnic, and hike on them. This case was watched by both large private landowners and environmental groups, who saw it as a test case of whether the state could protect public lands from efforts of private enclosure.

Empowering Local Communities

The Stanley case suggests that networks of elected local and state officials and their constituents have the capacity politically, legally, and legislatively to contest exclusive use of public lands by landowners. The federal government, by contrast, only has a legislative mandate to protect lands. Federal government officials cannot mobilize political forces. Because they lack, by design, access to these networks, federal agencies and bureaucrats are more likely to be influenced by national lobbyists and corporations. Local field agents of federal bureaucracies such as the Forest Service and BLM, no matter how well intentioned, lack any practical capacity to mobilize locals to protect those residents’ interests.

As any politician knows, it is difficult to organize people to show up for hearings, making sure they understand the law. This kind of local grassroots movement takes organizational skill, time, and money. Best equipped to overcome hurdles effectively are politicians with electoral ties to voters: county commissioners, state attorneys general, (Indian) Pueblo councils, and city councils. In the Stanley case, local users agitated for their county commission to challenge Stanley’s lawsuit to privatize the roads. Those county commissioners, in turn, mobilized their political networks in Santa Fe to get the New Mexico Attorney General’s Office to intervene in the case and give its political and legal backing to the local fight.

The grassroots fight to protect public lands has become more difficult and ineffective because of the need to rely on federal agencies and bureaucracies, which may or may not be sympathetic to local conditions. Historically, public lands have been polarized in a number of ways: private versus public, wilderness versus development, state management versus federal management. One way to break through the political and bureaucratic stagnation may be to empower and pay more attention to local conditions. After all, land-use decisions about federal lands are often made in Washington, D.C. or in regional offices with little consideration of the impact on and traditional practices of local families. These federal bureaucracies are more easily captured and influenced by lobbyists and industry insiders who have the means to persuade them to open these lands for development. As the Stanley case demonstrates on a small scale, perhaps it is time to put effort into strengthening local and state democratic institutions that are better informed about what is best, not only for local communities, but also for the long-term health and vitality of the American commons, our public lands.

Notes

1 For the ecology-based vision, see for example, Roderick Nash, The Rights of Nature: A History of Environmental Ethics (Madison: University of Wisconsin Press, 1989).

2 Christopher Ketcham, This Land: How Cowboys, Capitalism, and Corruption are Ruining the American West (New York: Viking Press, 2019).

3 In particular, Ketcham cites and engages most directly with Abbey’s The Monkey Wrench Gang (New York: Lippincott Williams & Wilkins, 1975). Ketcham praises eco-warriors for challenging private landowners, corporations, and government agencies. Ketcham would easily place himself on the side of the wilderness preservationists.

4 The English term commons was popularized by Garrett Harden, “Tragedy of the Commons,” Science, December 3, 1968, 1243–49. See also Frank van Laerhoven and Elinor Ostrom, “Traditions and Trends in the Study of the Commons,” International Journal of the Commons 1, no. 1 (October 2007): 3–28.

5 There is a deep literature regarding the development of progressive legislation, which had to balance these competing interests. See, in particular, Benjamin Johnson, Escaping the Dark, Gray City: Fear and Hope in Progressive-Era Conservation (New Haven: Yale University Press, 2017), and Louis Warren, “Owning Nature: Towards an Environmental History of Private Property,” in The Oxford Handbook of Environmental History, ed. Andrew Isenberg (New York: Oxford University Press, 2004) 398–425.

6 Jim Robbins, “Open for Business: The Trump Revolution on America’s Public Lands,” Yale Environment 360, October 9, 2019, accessed February 7, 2020, http:e360 .yale.edu.

7 For background on Tijerina and La Alianza, see Lorena Oropeza, The King of Adobe: Reies Lopez Tijerina, Lost Prophet of the Chicano Movement (Durham: University of North Carolina Press, 2019). For background on how many New Mexicans lost their claims to private property, see Maria E. Montoya, Translating Property: The Maxwell Land Grant and the Problem of Land in the American West, 1840–1920 (Berkeley: University of California Press, 2002).

8 Maria E. Montoya, “Dividing the Land: The Taylor Ranch and the Limited Access Commons,” in Land in the American West: Private Claims and the Common Good, ed. William Robbins (Pullman: University of Washington Press, 2009).

9 “Landowner, State Finish White Peak Trial in Taos Court,” Taos News, May 14, 2018.

10 “Landowner Threatens to Block White Peak Access” Santa Fe New Mexican, August 28, 2010.

11 David N. Stanley vs. Mora County Board of Commissioners, et al., Eighth Judicial District Court, Colfax County, August 29, 2018, 32, 42.

12 Although he did not, Stanley could have made a plausible claim that the roads ought to have been recognized under the R.S. 2477 statute.

13 Maria E. Montoya, “Expert Witness Written Testimony,” March 27, 2017, in author’s possession.