Western Land Policy and Natural Property Rights

Over the last few months, Americans have been treated to news coverage about a standoff between federal authorities and Nevada rancher Cliven Bundy. The federal government revoked Bundy’s federal grazing permits in 1994 for nonpayment of grazing fees, but Bundy has continued to graze his cattle on federal land. The federal government has been litigating against Bundy for two years, and law enforcement authorities tried to impound his cattle this year, but Bundy has resisted. Bundy is not only a lawbreaker but also a troublemaker (he’s invited militiamen to help him) and a crank (he’s wondered in news interviews whether American blacks were better off as slaves).

Given how unlikable Bundy is, it’s telling that his standoff has gotten so much coverage anyway. There’s long been something dysfunctional about national policy toward western land. The federal government owns more than 80 percent of the land in Nevada and more than half of the land in the thirteen westernmost United States. Ranchers, developers, mining and timber companies, endangered species advocates, “green energy” companies, and many others have strong opinions about the use of public land, and their debates seem to have paralyzed public land management.

Western Land Policy and Natural Property Rights

America has a long and rich tradition of natural law and rights-based arguments about property. Might this tradition help cut through that dysfunction?

According to some prominent scholars, the answer is “No.” In a recent book, Jeremy Waldron (one of the foremost scholars on John Locke’s theory of property) recalls a talk he gave to New Zealand farmers who faced “a number of irksome environmental statutes.” Those farmers, Waldron reports, “wanted some philosophical vindication of their rights in their land as Lockean natural entitlements to set up against these legislative incursions. I told them I didn’t think it was possible.”

Waldron’s story raises two important objections to natural-law-based accounts of property rights. On one hand, rights-talk can lead to extremism. Those New Zealand farmers wanted Waldron to confirm for them that natural property rights were philosophical trump cards, giving citizens total immunity from government policies they disagree with. These kinds of rights-claims encourage people to take stances as extreme as Cliven Bundy’s.

On the other hand, if natural rights aren’t trumps, they can seem indeterminate. When grounded in natural law, natural rights must be qualified by responsibilities to neighbors and to the government. Bundy types could still construe these rights as consisting only of rights, devoid of any responsibilities; environmentalist-extremists could stress the public responsibilities and downplay private freedom.

If these are the choices, natural law can’t supply a civilized public discourse about property. Yet there is a middle ground. After all, the word “property” comes from the Latin word proprius, meaning “appropriate,” or “fitting.”

A Natural Law Account of Property

Understood reasonably, “property” consists of the resources over which a person deserves priority, on the ground that those resources seem likely to contribute to his individual flourishing in concert with community interests. Natural law and rights-based property principles may not fully resolve all property disputes, but that’s too demanding a standard by which to measure them. Natural law and rights principles satisfy realistic standards if they identify criteria for “appropriate” or “fit” policies—in land use management and elsewhere.

In natural law terms, “property” is a social right instituted to help citizens use resources productively. Like all natural rights, the rights to acquire and use property ultimately relate back to every person’s right to pursue his well-being. Different accounts of natural law speak of well-being differently—flourishing (Greek, Hebrew, and Thomistic sources), survival and comfort (Locke), or “safety and happiness (the Declaration of Independence). However well-being is grounded, people can’t pursue it without acquiring and using a wide range of external resources—land, personal articles, water, ideas, and so on.

Property reflects and harnesses important impulses. People have selfish but understandable desires to control and use resources for their own survival and comfort. Unstructured, these impulses can lead people to ignore the needs of others. Natural law principles provide moral justification and structure to the acquisition and use of resources. The principles of natural law give everyone an equal opportunity to acquire resources and use them productively. Thus, property rights come with responsibilities–to allow sufficient resources to be dedicated to other people’s needs, and to respect other owners’ use rights and choices.

Use-based natural law principles also justify different kinds of laws and policies for different kinds of resources. Some resources (think of air, common knowledge, or water) may be made available to all citizens without exclusive property rights—usually by having resources kept in public commons.

Land and most tangible personal articles stand at the opposite end of the spectrum. In these cases, strong property rights protect people who invest lots of time and labor for expected long-range uses. That security empowers different people to deploy their possessions to a wide range of reasonable, but differing, life goals. The same security also encourages owners to expand the store of resources usable by everyone, by producing new resources that may be shared with or sold to others. Still, even for resources like land and tangible objects, use-based principles also permit and encourage some government ownership and management. Private lots of land aren’t useful to their owners unless they’re connected to other lots and public spaces by public highways. And citizens may reasonably value some common uses of land, like the recreational and conservationist goals that make parks worth managing.

Land Ownership in the West

This justification avoids both of the problems Waldron identifies with natural law justifications for property. On one hand, it reinforces why Cliven Bundy’s conduct has been so extreme. After all, the federal government owned the land being grazed by Bundy’s livestock, and Bundy didn’t respect federal authorities’ conditions for continuing to use it.

On the other hand, this justification clarifies how natural law principles inform property policy. The principles don’t foreclose argument, but they do guide and limit it by focusing policymakers’ decisions on relevant but manageable questions.

With more than half the land in the western US being held and managed by the federal government, is land being used in a way that maximizes benefit to all citizens?

In the revolutionary era, it was taken for granted that there were natural rights to acquire and use property. That expectation affected land management: in the Land Ordinance of 1785 and later laws, Congress created a system that privatized ownership of most of the land in the Northwest Territories. In Indiana, Illinois, and Ohio (the core of those former territories), the federal government now owns less than 2 percent of the surface area.

But starting in the late nineteenth century, natural law and rights principles started dropping out of public discourse, and new opinion leaders started to insist that land was better held in trust for the people at large. That shift helps explain why state governments and (especially) the federal government continue to hold on to so much land in states west of the Mississippi River.

Is this government-held land being used as productively as it could be? Public ownership denies would-be private owners the power to convert public land to many legitimate uses—residential development, agriculture, industry, and so on. Government agencies are often not as attentive or proactive land managers as private owners are—as the federal government is now proving by taking more than two decades to deal with Cliven Bundy. More surprisingly, public ownership can also frustrate land uses that are often assumed to be “public” or “governmental” priorities, such as species conservation. In 1946, for example, the US Forest Service fenced off an overused patch of Arizona rangeland and left it alone to see if benign neglect would restore it. Unfortunately, the fenced-off land is in worse shape now than before. The Forest Service found that 90 percent of the plant species on the land before 1946 are now gone.

When the government controls the vast majority of the land in a jurisdiction, how does control affect the politics and the character of the community? Private property can improve public morals, but these benefits are lost when private property becomes hard to acquire and public land abounds. In John Locke’s terms, people don’t behave with “rational” and “industrious” spirits when they have to depend on benefits from government-owned land. Instead, they become “quarrelsome and contentious,” trying to extract from the government the biggest benefits they can get.

This contrast captures why western land policy seems so dysfunctional today. All of the land owned by the federal government is fair game for interest-group lobbying and political conflict. Most constituencies also seem to want benefits from the government without responsibility. A few environmental groups try to acquire and manage land, but more of them lobby for and enforce public laws that keep land in public ownership and prevent its active use. Similarly, the ranchers who supported the Sagebrush Rebellion don’t want the federal government to privatize federal land. They want the land to be transferred to state governments, where they believe they will have better access and more influence.

Natural Property Rights and Public Discourse about Property

Waldron is quite right that natural law principles aren’t perfectly determinate. Phrases like “productive use” or “equal opportunities to acquire resources” set forth general principles that can only be applied through particular laws and policies. Even so, these principles focus attention on the basic goals that government should be pursuing.

And that focus is quite an accomplishment, for it supplies a reasonable framework for argument. Right now, land management policy is hashed out in DC, where ranchers, energy promoters, and environmentalists argue with little regard for the interests of the states and citizens most affected. Citizens in those states have three bad options. One is to try to influence federal policy by joining a special interest with access in DC. Another is to take Cliven Bundy’s route and defy the government with title over the land in dispute. The last is to do neither and be ignored.

Assume, by contrast, that federal policies were informed more by natural law principles about equal and productive use. Land use debates would be delegated from the federal to state and local levels. More land would be in private hands. In different states, there would be ongoing, healthy political arguments about how to ensure that enough land was left for recreational, conservation-related, and other common uses of land.

That state of affairs would reduce the dysfunction evident in land use management today. And it would demonstrate that natural law and natural rights are still relevant in today’s debates about property.