Land-Use Control

THE WEST WRESTLES WITH WASHINGTON

Beginning in the 1990s, a number of controversial clashes over federal authority have concerned the use of federally owned land. One such struggle, between the Clinton administration and western states, for example, covered a variety of issues: fees for ranchers; water, timber, and mining rights; and environmental restrictions on land use. Each issue was part of a more fundamental question: Who has authority to regulate use of the land—federal or local officials? Challenging the administration in Congress and fighting the federal government in court, a broad coalition of western governors, lawmakers, and business interests sought autonomy and relief from outside regulation. More than 60 western counties asserted legal authority over federal lands within their borders. As political tensions heightened, acts of violence aimed at federal officials raised the stakes in what the media called the county supremacy movement, and the U.S. JUSTICE DEPARTMENT brought suit to stop it.

The western conflict had been simmering for two decades. A rise of environmental concerns in the 1970s had created a strong lobby that pressed for stricter controls on land use, a demand especially relevant to the millions of acres of federal land in the U.S. West. This development affected western ranchers, who lease federally owned land for their livestock. Early on, environmentalists spurred the passage of the 1971 Wild Horse and Burro Act, 16 U.S.C.A. § 1332 et seq. This law protected wild horses, but at the same time caused deterioration to land on which livestock graze. Private landowners also chafed under the ENDANGERED SPECIES ACT (ESA) (16 U.S.C.A. § 1538(a)(1)(B)). Passed in 1973 to preserve specific vanishing species, the ESA restricted their right to develop their land.

Western quarrels with federal management of the land grew into the socalled Sagebrush Rebellion of the late 1970s and early 1980s. This was an attempt by several states to wrest control over land management from the federal government and turn it over to state authorities. The rebels argued that local control would mean less bureaucracy and more responsiveness than could be offered by the federal Bureau of Land Management (BLM), which manages 177 million acres in the western states. Some went further. For instance, in 1979, Nevada declared legislation that the state owned and had control and jurisdiction over all "public lands" within it (Nev. Rev. Stat. §§ 321.596–.599). This claim was largely symbolic in that it excluded federal land such as parks, forests, and wildlife refuges.

Although the rebellion gained slight support from the Reagan administration—whose anti-regulatory stance allowed grazing on nearly all public lands—it failed to lead to the transfer of power that its proponents wanted. Discontent among western political and business leaders remained.

The conflict came to a new crisis in the early 1990s. The election of President BILL CLINTON in 1992, and his choice of the environmentally minded Bruce Babbitt as interior secretary, quickly heightened among environmentalists expectations for tougher restrictions. The administration promised broad rangeland reforms. It favored raising the grazing fees charged to cattle ranchers from $1.86 to $4.28 per animal unit month (AUM) (the amount of forage needed to feed one animal for a month) in order to bring the fees closer to the average $8.00 to $15.00 per AUM charged on private land. The proposed reforms also asserted that the federal government would hold title to any water sources developed on federal lands. They imposed more stringent ecological standards and called for ranchers who abused land to be punished by measures that ranged from reductions in the length of grazing permit terms to outright disqualification from the permit program.

The proposals drew praise from environmentalists. They hailed the administration for trying to bring needed protection to western ecological systems and for trying to cut what they argue is a federal subsidy to ranchers. The National Wildlife Federation called the reforms long overdue. To more radical groups like Rest the West, whose slogan was Cattle-Free by '93, the Clinton administration's efforts were a step toward eliminating ranching on public lands altogether.

But among western business and political interests, the proposals caused an uproar. Opponents called the increase in grazing fees unfair, arguing that it failed to take into account that the more expensive private lands offer ranchers superior grazing as well as improvements such as fences and water sources. Industry representatives claimed the fee hike would crush already struggling ranchers. The American Sheep Industry Association, for example, estimated that a quarter of its members would be driven out of business, at a loss of $1.68 billion in revenues. In public statements and at meetings throughout the West, ranchers and politicians decried the effort as a giveaway to environmentalists by out-of-touch federal bureaucrats.

The administration tried several times to make the reforms stick. President Clinton originally wanted to make higher grazing fees part of his first budget, but western lawmakers protested. The administration compromised on water issues and the size of the grazing fee, but to no avail. In October 1993, an attempt to pass the reform package was blocked by several filibusters in the U.S. Senate. Although opponents declared victory, Babbitt plowed ahead with a plan to bring the reforms into effect through changes in BLM regulations. Known as Rangeland Reform '94, the revised regulations were put into place in February 1995 after the interior secretary conducted numerous public meetings with ranchers and environmentalists (BLM Grazing Administration Rules and Regulations [60 Fed. Reg. 9894]). The sharp fee hike was shelved in favor of a customary twelve-cent annual increase. Another significant compromise was the establishment of grassroots resource advisory councils, made up of ranchers, environmentalists, and other citizens who would advise the BLM on policy decisions.

The issuance of new regulations, even sweetened by compromise, hardly quelled western opposition. While fighting the rangeland reform battle, western lawmakers had also grappled with the administration over the issue of mining rights. The dispute centered on an 1872 law that allowed mining companies to snap up federal land at $2.50 to $5.00 an acre (the Mining Act of 1872 [30 U.S.C.A. § 22]). The administration said foreign companies were exploiting the law, originally intended to help small prospectors. Nevertheless, western states refused to budge on demands that a higher royalty fee be imposed to compensate the federal government for the incredibly low price for land. Any increase, they said, would cost their states revenue from the mining industry.

Meanwhile, a more radical element in the western conflict had appeared. Between 1991 and 1995, nearly 60 western counties asserted in ordinances that they—not the federal government—had control over federal lands. As this trend grew and became known as the county supremacy movement, the National Law Journal noted that it took two legal forms. One was typified by Boundary County, Idaho, whose 1991 ordinance cited local custom and culture as reasons for requiring all federal and state agencies to comply with its land-use policy plan. The second originated in Nye County, Nevada, where two resolutions in 1993 declared that the county owned all public lands and public roads.

Nye County became a focal point of the new movement. Many of its constituents openly resented federal control of nearly 87 percent of the county's land. In 1994, it became the scene of concern after Dick Carver, a Nevada rancher and Nye County commissioner, used a bulldozer to plow open a forest road over the objections of an armed U.S. Forest Service agent. The incident made Carver a sort of folk hero, and he began delivering lectures in more than 20 states. Hostilities erupted in Nye County, and bombs in New Mexico and Nevada and gunshots in California were aimed at federal employees.

Determined to stop the rebellion and reassert federal authority over federal lands, the U.S. Department of Justice joined one lawsuit and filed another. In March 1996, it won both. In the first, Boundary Backpackers v. Boundary County, 913 P.2d 1141, the Idaho Supreme Court invalidated Boundary County's ordinance as unconstitutional. In the second, the U.S. district court in Nevada struck down Nye County's ordinance (United States v. Nye County, 920 F. Supp. 1108).

In the new century, one of the biggest land-use battles in the West has been over the proposed use of Yucca Mountain in Nevada as the storage site for the nation's nuclear waste. The plan is to build a nuclear waste repository facility 1,000 feet below the mountain. While the Congress and the president signed off on the decision to use the mountain in 2002, the state of Nevada has filed a lawsuit to stop it. Landowners and Native American tribes have joined this legal fight, and it was expected to be years before the courts made a final determination on this issue. Despite the federal government's victories on some fronts, the West's desire for greater independence and its distrust of federal authority indicate the likelihood of further struggles.