Western grazing: the capture of grass, ground, and government.

I.   INTRODUCTION
II.  AN OVERVIEW AND CRITIQUE OF PUBLIC-LAND GRAZING POLICY
III. THE RULE OF CAPTURE
     A.  Background
     B.  Public Domain Grazing
IV.  THE CAPTURE THESIS
     A. Background and Criticisms
     B. Capture Theory Expanded to Fit Public Land Ranching
        1. Capture of the Grazing Service and BLM in the Taylor Act Era
        2. Capture in the Modern Era: FLPMA and PRIA
V.   THE CAPTURE METAPHOR: THE EXPANDING CONTOURS OF CAPTURE, 1980 TO
     THE PRESENT
     A. Cowboys in the White House
     B. Cowboys in the Agencies
     C. Cowboy Myths--and the Realities
VI.  CONCLUSION

I. INTRODUCTION

The western range livestock industry is a uniquely western American institution. It provides a context for examining three separate but interrelated aspects of the broad concept of "capture": 1) the legal rule of capture, as it relates to establishment of property rights in resources; (1) 2) the capture thesis of interest-group liberalism, which recognizes the ability of narrow interest groups to "capture," or co-opt, the agency and institutions charged with their regulation; (2) and 3) the phenomenon by which the "cowboy myth" has "captured" so many facets of American life and culture. (3) My objective in this article is to explore what I will call the "capture metaphor," which incorporates, or is informed by, all three aspects--the property law concept, the agency capture thesis, and the cowboy cultural phenomenon. This exploration will reveal not only that the three concepts share similar threads, but that together they go a long way toward explaining why the unsound and anachronistic policy of federal public-land gazing has persisted into the twenty-first century.

The article thus begins with a brief critique of public-land grazing policy. (4) The article then examines, through the lens of the capture metaphor, how livestock owners in the late 1800s and early 1900s employed and modified the rule of capture to control the range and its non-mineral resources. It notes the irony of the industry's immense impact on public lands and resources, despite lacking any property interest in those resources. The article probes the disproportionate political clout of public-land livestock producers, revealing how they acquired and have maintained their hold on the range--even to the present time--by capturing the law, government regulators and politicians, the range science discipline, popular culture, and even some conservation organizations. This appropriation of range policy-malting and decision-making is aided greatly by the manipulation and uncritical acceptance of western myths rooted in the ranching way of life. Having donned cowboy mythology as if it were a Stetson, President Bush and his public lands appointees are perpetuating the capture tradition through their initiatives, language, and role-playing. The result has been to jeopardize further the ecological health of public lands and the legal system in place to protect them. The paper concludes that the extent to which the range livestock industry has exploited the capture metaphor is unequalled and that, unless checked, it is likely to be disastrous for the pubic lands. (5)

II. AN OVERVIEW AND CRITIQUE OF PUBLIC-LAND GRAZING POLICY

Livestock grazing has long been the most widespread commercial use of federal public lands, currently occurring on approximately 270 million acres that the Bureau of Land Management (BLM) and the U.S. Forest Service manage in the western United States. (6) But livestock production-both grazing per se and "improvements" (7) undertaken for the benefit or management of livestock---can wreak havoc on the environment. Impacts are both direct and indirect, and include the following: 1) introduction and spread of nonnative plant species (invasive weeds) and diseases, 2) competition with native species for habitat, 3) destruction of rare or sensitive native plants, 4) intentional elimination of native predator and "pest" species, 5) soil compaction, drying, and excessive erosion, and 6) disruption of aquatic systems and hydrological patterns. (8)

According to the Department of the Interior, BLM riparian areas are in their worst condition ever; the dry uplands have not improved under BLM management, and "[w]atershed and water quality conditions would improve to their maximum potential" if livestock were removed from public lands. (9) Similarly, the Forest Service concluded that livestock grazing is the primary cause of species endangerment in arid regions of the West, such as the Colorado Plateau and Arizona Basin. (10) Others have suggested that "livestock grazing may be the major factor negatively affecting wildlife in the 11 western states." (11) Grazing has also been identified as the number one cause of nonpoint source pollution of surface waters in the western states (12) and the principal cause of desertification in North America. (13) Ungrazed sagebrush steppe in the Intermountain Region is among the "most critically endangered ecosystems." (14) The most severe vegetation changes of the last 5400 years on the Colorado Plateau have been attributed to grazing in the last 200 years. (15) Plainly, western livestock grazing is endangering species and disrupting ecosystem processes on landscape scales at unprecedented rates. (16)

These findings are explained in large part by evolutionary ecology. Within the past two decades range ecologists have come to understand that traditional theories of vegetative succession do not hold true on arid and semiarid lands, (17) particularly where precipitation patterns are highly variable and where the native vegetation and soft micro-organisms did not evolve with abundant large ungulates. (18) Current models explain that prolonged or excessive disturbance often by livestock grazing, in combination with altered fire cycles or other factors--can cause vegetation and soft conditions to degrade beyond certain threshold conditions, making the reestablishment of pre-disturbance conditions infeasible. (19) In other words, grazing can cause, and has caused, irreversible ecological changes across much of the West. (20)

This knowledge is of special significance for BLM rangelands: The vast majority qualify as arid or semiarid, and native soil micro-organisms and plant species on most of these lands did not co-evolve with large numbers of large ungulates. (21) It should thus come as no surprise that with continued grazing, the condition of these areas has not improved under BLM management. (22) Nevertheless, federal range managers continue to adhere to outdated theories of vegetative succession in environmental assessments and planning documents, disregarding now widely-accepted state-and transition models of vegetation change. (23) Even when the agency acknowledges the new thinking, it fails to apply it. (24) The conclusion is inescapable: Much of the range science literature, and many agency publications, are propaganda or apology, not sound science or management advice. That "rangelands" will or should be used for livestock production has been an implicit premise of range research and management decisions. (25) Only rarely have researchers or managers considered whether livestock grazing is an appropriate or sustainable land use.

Congress, however, was well aware in 1934 that western ranges were severely degraded by overgrazing and that many desert lands were simply unsuited to livestock use. (26) For this reason Congress, in the Taylor Grazing Act (TGA), authorized the Secretary of the Interior to establish grazing districts on lands "chiefly valuable for grazing or raising forage crops," (27) or, as the legislative history reveals, lands not more valuable for other uses. (28) While grazing continues to be allowed on 170 million BLM acres, the Interior Department has never determined which of its lands are "chiefly valuable" for grazing. (29) Indeed, it seems certain that, while livestock grazing is the most widespread commercial use of public lands, it is by far the least valuable. (30) Federal grazing fee revenues (recently increased to $1.79 per animal unit month (AUM)) (31) are swamped by the costs of administering the range program. (32) Average returns to ranchers range from negative to two to four percent. Only two percent of U.S. beef cattle production is attributable to public lands, an amount easily replaceable by other regions and private-land operators. (33) Similarly, the 18,000 low-wage jobs directly related to federal land grazing could be replaced in a matter of days by normal job and income growth in the national economy. (34)

Nor have the agencies reasonably justified livestock grazing under the planning or management criteria of their principal land management statutes, the Federal Land Policy and Management Act (FLPMA) (35) and National Forest Management Act (NFMA), (36) both passed in 1976. (37) Instead, grazing is rationalized as a means of sustaining small communities, maintaining open spaces on private lands, and preserving an important western way of life and culture. (38) The governing statutes, however, confer on the BLM and Forest Service no authority, much less a mandate, to promote local economic or lifestyle concerns or to regulate development on private lands. (39)

Furthermore, the agencies' asserted justifications are belied by the facts. First, few if any western communities are dependent economically on public-land grazing. (40) On the contrary, the services and employment opportunities afforded by small towns help sustain public land ranchers. (41) Livestock production comprises a small fraction of the economies of most Western states, with public-land livestock production comprising an even smaller part. (42) Seventy percent of western cattle producers own all the land on which they operate; fewer than 23,000 livestock producers (about two percent of one million nationwide) possess federal grazing permits. (43) Second, keeping ranchers on public lands plays no demonstrable role in maintaining private-land open space. Private ranch land comprises a tiny fraction of the West's land area, and an even smaller fraction enjoys federal gazing privileges. Absent state or local land-use restrictions, nothing prevents ranchers--including those with federal grazing privileges--from subdividing or developing their private lands. In fact, according to surveys, the loss of federal grazing privileges would not induce most permittees to sell or develop their lands. (44) Even assuming that public-land grazing privileges do play a role in preventing the development of some associated private ranch lands, the "open space" thus preserved is hardly desirable ecologically. As indicated above, livestock grazing in the West promotes the spread of normative species and disease, pollution and depletion of water supplies, soil erosion and compaction, and other environmental damage. (45) More appropriate mechanisms for preventing the subdivision of ecologically important private lands include local and state land-use regulation and public incentives, including tax breaks. (46)

The agencies' final justification also lacks merit. There never has been a single identifiable ranching "way of life." (47) Federal grazing permit holders include banks, large corporations, grazing associations, wealthy individuals, and small family operations. Only a minority of permittees have been in the business for more than a generation. (48) For some, ranching is a hobby or a tax write-off. Even though most are small operators, nearly all of them depend on other, non-ranch income to support themselves. (49)

The foregoing facts literally cry out for an accounting: Why does public-land livestock grazing continue, given its minimal benefits, our current understanding of its huge ecological costs, and the absence of a legal mandate? The following parts of this article attempt an explanation.

III. THE RULE OF CAPTURE

A. Background

The rule of capture, though of ancient origins, is a property law concept familiar to all first-year law students (50) and of continuing fascination to legal scholars. (51) A "first-in-time allocation scheme," (52) the rule is based on the maxim that "first possession is the root of title." (53) Thus, a person acquires possession--a property interest--of a common-pool or fugitive resource (54) by capturing and holding it. At common law, one who captured a wild animal, for example, thereby acquired "occupation" or possession of it (though not an absolute interest in it). (55) Similarly, groundwater may be claimed by pumping and removing it from an aquifer. (56)

As Professors Goble and Freyfogle have pointed out, no one questioned that property rights could be established in the fox in Pierson v. Post, the only issue was what acts were sufficient to demonstrate possession. (57) Mere pursuit was insufficient. The court ruled that possession required acts manifesting a person's "unequivocal intention of appropriating the animal to his individual use"; such acts demonstrated that the appropriator had "deprived [the animal] of his natural liberty, and brought him within his certain control." (58) In other words, a wild animal becomes the property of the first person to trap or kill it or to mortally wound it, so long as that person does not abandon pursuit. (59) The rule was justified in part on "certainty, and [on] preserving peace and order." (60) Further, it rewarded those persons who, "by their industry and labor," apprehended the animal. (61) Professor Rose summarized Pierson's "two great principles" for defining possession as: "(1) notice to the world through a clear act, and (2) reward to useful labor." (62)

The act of obtaining possession of something pursuant to the rule of capture is commonly phrased as "reducing it to possession." (63) This common-law expression can be seen as arising directly from the meaning of capture: "to take, seize, or catch esp. as captive or prize by force, surprise, stratagem, craft, or skill as ... to subdue into surrender and loss of independence ... to get control or secure domination 0f." (64) The aptness of the expression becomes apparent when one contemplates the transformed state of the thing thus possessed or subjugated. A loose fish becomes a fast fish; (65) a live animal is caught or killed. Whether foxes or wild birds or water in a stream, the thing captured becomes less than it was--diminished in freedom or mobility, in range of functions, in naturalness. Land itself--staked out, fenced off, plowed, leveled, or burned--becomes a fragment of a prior whole, disconnected and potentially dysfunctional. (66) As explained earlier, the implications of using livestock to "reduce to possession" arid and semiarid lands include the loss or diminishment of native species, soil, and water, leading potentially to desertification. (67)

Capture is also a self-help rule. (68) Professor Krier explains that the "law of self-help is chiefly concerned with considering which acts of bypassing the formal legal system are to be privileged, which are not, and why." (69) Selfhelp miles can arise when no law governs the acquisition of property interest in a particular resource, or when the applicable law is not enforced or perceived as inappropriate.

Wild animals are not the only captive resources. In the West, both historically and today, the rule of capture also has been applied to land, water, timber, and minerals. On the frontier, the rule evolved naturally to a "law of the rush:" (70) the rush to acquire the first and, hence, best rights to bison, water, grass, gold, the land itself. The rushes of the 1800s and early 1900s were undertaken by persons seeking to exploit free resources for profit, as well as by emigrants seeking new homes. (71) The "vacant and unenclosed" public-domain lands were irresistibly attractive to those who would produce cattle and sheep--whether for profit or subsistence--from free federal grass and water.

Unregulated operation of the rule of capture results in depletion and eventual extinguishment of finite, common-pool resources, such as off or gas. Even renewable resources, such as animal populations and groundwater, will be depleted if consumed at rates that exceed the recruitment or recharge rate, or will be degraded if used injudiciously (e.g., animal populations can be weakened by overharvest of certain age classes or by isolation from other populations; aquifers can be polluted). This phenomenon is known as the "tragedy of the commons," named for the classic explanation by Garrett Hardin. (72)

Hardin's prime example of the tragedy was "a pasture open to all." As he explained it, every herdsman with access to the commons will attempt to "maximize his gain" by continually adding another animal to his herd. "Each man is locked into a system that compels him to increase his herd without limit--in a world that is limited.... Freedom in a commons brings ruin to all." (73) In other words, a resource available to all, without regulation, will be overused because it is in no one's interest to conserve. Some other user will simply appropriate to himself what another user doesn't take. Consistent with this principle, the western-range version of the capture rule contained an implicit prerequisite "a prior and better right" existed, "at least if the [range] wax stocked to its fair capacity." (74) It also suggests an additional reason for the overgrazing usually attributed to the "tragedy of the commons" principle: the notion (widely held among stockmen) that grass not grazed is "wasted." (75)

As discussed more fully below, even stockgrowers admitted that the public domain was overgrazed by the early-1880s. (76) Writing in 1968, Hardin asserted: "Even at this late date, cattlemen leasing national land on the western ranges demonstrate no more than an ambivalent understanding [of the logic that leads to the tragedy], in constantly pressuring federal authorities to increase the head count to the point where over-grazing produces erosion and weed-dominance." (77) Unfortunately, all parties involved have misunderstood both the extent of the "tragedy" and the ecological realities that combine to produce it. Overgrazing is not simply the over-use of forage. The feeding and other behavior of a non-native ungulate in an arid environment, if sustained long enough or at high use levels, can result in erosion, soil compaction, reduction of soil microorganisms, depletion and degradation of scarce water supplies, displacement of or disadvantage to native animals, weakening or removal of preferred native plants, introduction of non-native plants and pathogens, disruption of nutrient and fire cycles and, ultimately, desertification. (78)

In the control of ranchers motivated by short-term profits and lacking an understanding of ecology, livestock became an inadvertent instrument, if not a willfully wielded tool, for capturing not just forage but entire ecosystems and landscapes. (79) Within the bounds of his "spread"--which included both privately owned land and government-owned lands used without permission--a rancher claimed full rights to the land, his own and all unbranded livestock, all wild animals, all vegetation, and any water source. These rights included the right to exclude (or in some instances to Kill) trespassers, including Indians; to kill wolves, coyotes, eagles, and prairie dogs, indeed any native animal deemed to be a nuisance or a livestock competitor; to remove undesirable native vegetation (e.g., sagebrush) and replace it with more useful plants (i.e., livestock feed); and to divert streams from their channels.

Viewed as something to be captured and possessed, land and its produce are valued not for themselves but as a means to wealth. Thus, economists have referred to "captur[ing]" the "value of these assets [livestock and arid land]" and "captur[ing] gains from economies of scale in certain activities [e.g., roundups]." (80) Commodified in this way, soft, water, plants and animals, and the land itself, become mere currency. (81) When the land is plentiful and perceived as inexhaustible, as it was on the frontier, it is plundered all the more rapidly, by the most efficient, if wasteful, means. (82)

Hardin, a biologist, not a lawyer, did not explicitly invoke the rule of capture. His concern was with the causes of the tragedy, which he traced chiefly to lack of regulation coupled with overpopulation, and with potential solutions, for which he turned to the law and to education. (83) As we shall see, developments in the law since Hardin wrote in 1968 have done little to ameliorate conditions on the western range, and time is running out for education to play an effective role in averting tragedy.

As suggested by the question "first in time to do what?," (84) the particular formulation of the rule of capture varies by resource or activity and by jurisdiction. (85) Applied to public-land gazing, the rule fits somewhat awkwardly. First, vegetation, which is rooted in the soil, is not exactly "fugitive" in the sense of wild animals or mobile oil and gas deposits. Nevertheless, early cattlemen and sheepmen understandably desired to make use of the forage before someone else did. The forage was fleeting in another sense: it was seasonal. Production in the next year might be poor, and whatever might remain of the prior year's forage would be less palatable and nutritious. Second--and ironically--while current grazing on federal lands can be traced to the historical "capture" of forage on those lands, neither that capture nor the future exercise of "rights" by the initial captors' successors resulted in the acquisition of a property interest in the forage or the land. (86) In other words, the serf-help customs by which stock producers acquired privileges to use public forage (87) failed to achieve the rule's object--"possession" or ownership. Still, ranchers have not been ousted from public lands. They define their "ranch" in terms of both their private holdings and the federal allotments on which their stock is permitted to graze. Their grazing permits have value, which is capitalized into the value of the ranch. (88) Finally, this tenure has immense physical ramifications for the land and other land uses. (89)

This minimal introduction to the rule of capture and use of common-pool resources provides a framework for examining the public-land forage resource.

B. Public Domain Grazing (90)

The western range livestock industry got its start in the 1870s following the Civil War. (91) Cattle, initially longhorns, from Texas and Mexico, were driven north and west for sale--to towns, railroad crews, other cattle operations, and to Midwestern markets via the railroad. (92) The industry operated first in the Great Plains, from Texas to Nebraska, Wyoming, Montana, and the Dakotas, on lands belonging to the federal government but by and large in the possession of no one. They fed along the way on public-domain forage. Indeed, the earliest cattle drovers wanted only the water and forage on which to sustain and fatten their animals until they could be sold. Cattle were a relatively efficient means of capturing a resource grass--which otherwise would have gone to waste. (93) Cattle and sheep gazing were seen as appropriate uses of land perceived as "not good for anything else." (94) Before long, however, operators sought land of their own and/or secure rights to government lands on which they could produce livestock.

The livestock industry is a frontier phenomenon whose roots can be traced to the Louisiana Purchase and Lewis and Clark's epic expedition. Historian James P. Ronda described "America's triumphant westward expansion [as] a movement that brought civilization and progress to a savage wilderness." (95) To Meriwether Lewis and William Clark, the "vanguard" of that movement, and their contemporaries, "civilization and progress" meant making the West "safe for cows, corn and capital at the expense of bison, prairie grasses and cultures not fitting the expansionist agenda." (96) An 1889 Wyoming territorial document was typical of this prevailing sentiment. Entitled Resources of Wyoming, 1889: The Vacant Public Lands and How to Obtain Them, it advertised to "homeseekers and investors" the availability of "Millions of Acres [of] Free Land in Wyoming." (97) Oblivious of the irony, the report's author also noted that the "vacant" and "unoccupied" public lands of the territory were home to 125 species of birds, "peaceful" Indians, and abundant wild game. (98) The author proclaimed that "the greater part of Wyoming is adapted to grazing" and the "chief industry" was "stock raising." (99) Furthermore, "[f]armers can pasture their stock on the Government land free of expense." (100) The report was submitted "with the sincere hope that it may attract the intelligent interest of capitalists and progressive settlers." (101)

The report's distinction between "farmers" or "settlers," on the one hand, and the "industry" of "stock raising," on the other, was not accidental. Range livestock production was widely considered an industry; indeed, the large cattle operations smacked of monopolism. (102) Stockmen, moreover, were merely a "temporary first wave of settlement." (103) In contrast, agriculture was the settlement vision of national policy--the peopling of the West by Jefferson's yeoman farmers. (104) The distinction was prominent in federal land policies. Until 1862 the public domain was open to all, free to use, if not actually take. In that year the Homestead Act (105) made lands free for the taking as well, but only by small farmers and with certain preconditions. Despite early and persistent lobbying by stockgrowers for some form of federal protection or largesse, (106) Congress did not pass homestead legislation for stockraising purposes until 1904, and this law (the Kincaid Act (107)) applied only to Nebraska. Not until 1916 did a general law authorize homesteads for ranching, rather than farming, purposes. (108) Even then claims were limited to 640 acres, far less than the thousands of acres required by many ranches. (109) Stockmen had to wait for a general leasing law until 1934. (110)

Meanwhile, the federal government "suffered," but never officially invited, open-range grazing. (111) As the Supreme Court put it in 1890:

<pre> We are of the opinion that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use. (112) </pre> Stockowners needed no formal invitation to take what was plainly available for the taking. (113) The implied license was exercised by large operators in the cattle and sheep industries, as well as by small homesteaders. Some operators held or claimed land under the homestead or preemption laws; others were exclusively itinerant. All attempted to establish "range fights" to lands they did not own. (114) These circumstances were--as countless western films and novels have dramatized--a recipe for trouble.

The operation of the two principles of capture--"notice to the world through a clear act," and "reward to useful labor" (115) were plainly evident in the establishment of range rights. (116) The following discussion draws heavily from a 1967 law review article about the early range cattle industry. (117) The author was not concerned explicitly with the rule of capture, but her descriptions of industry customs and practices illustrate graphically the influence of the rule on this era and on the law. Early stockmen, she suggests, were the prototypical rugged individualists, possessed of an independent nature, a spirit of adventure (or avarice), the ability to "rough it," and a disregard for federal land laws. (118) This individualism "resulted in a lack of solid social institutions or restraint and [in] new, simple kinds of rules and laws" on the western range--rules developed and enforced by the stockmen themselves. (119) Put simply, the western "cattle industry developed outside the law"; (120) its proponents adapted the rule of capture to fit unique, western conditions. (121) Stockgrowers "learned how to take and hold the grazing land they needed by a system of dividing land according to range rights, by controlling the land by water rights or by force, by taking land first and possessing it physically." (122) "Finally, if there was no other way to preserve the needs of the cattle industry, the participants ignored or disobeyed positive laws that did not conform to those needs." (123)

Stockmen were thus able to establish operations over millions of acres, while acquiring legal title to only a fraction (if any) of the total ranch area. (124) The wealthiest bought lands from railroads, states, or the U.S. government, but most "defied and evaded laws, and set up an extra-legal system of landholding." (125) Stockmen arriving in an area might publish "notices" of their land claims in local newspapers. (126) They asserted rights to streams or springs, legally or by force, thereby controlling large areas in country where water sources are few and widely scattered. (127) Sometimes the entire flows of streams were diverted to force out downstream settlers.

Stockgrowers subverted the homestead laws by using various tactics, including establishing claims in the names of fictitious entrymen or family members and ranch hands who promptly transferred title to them. (128) They falsely asserted prior claims to lands claimed by homesteaders who could not afford the administrative or court costs of proving their claims. (129) They cut homesteaders' fences or ran them off, using force, violence, or intimidation. (130) They constructed fences of their own, sometimes enclosing vast areas that they did not own. (131) Stockgrower associations sometimes hired gunmen to preclude outsiders and protect members' claims to their land, or they passed illegal regulations declaring a range "closed." (132) One association required that anyone wishing to run cattle in an area must post a $3,000 deposit, thus preventing entrance by homesteaders and small operators. (133) More subtle tactics included the exclusion of newcomers from membership in stockmen associations and sharing in benefits, such as use of corrals. (134) Large operators built hundreds of miles of barbed-wire fence, obstructing access to millions of federal acres, even after Congress banned the practice in 1885. (135) By simply keeping livestock on the lands he claimed, a rancher could maintain "possession" of the land. Indeed, by buying a herd in situ, one acquired possession and "ownership" of both the stock and the land on which they grazed.

These practices can readily be seen as instruments of capture: livestock were used not only for laying claim to the forage per se, but also for capturing the water and land needed to sustain the stock. Fences "captured" the enclosed lands, physically excluding others and their livestock. Dikes, ditches, and dams diverted or otherwise captured water. In this dry country, the person who controlled the water would control potentially vast areas of land.

At its simplest, the range capture rule recognized "a prior and better right in the first occupants of any range." (136) In practice, however, operation of the rule could be a bit messy. False assertions or brute force could trump prior, legitimate claims. Even the Wyoming Supreme Court acknowledged that the "moral obligation supposed to rest upon one owner of livestock ... did not prevent the territory of a prior occupant from being more or less invaded, if not by former neighbors then by strangers or newcomers." (137) Moreover, a requirement to graze lands to their capacity, in order to maintain range rights, sprang up in certain areas and was endorsed by some courts. (138) This unique, utilitarian variation on the rule of capture allowed a subsequent "captor" to oust the one currently in possession of the land and the forage. Such competition and "claim-jumping" were, along with overgrazing and land abuse, the inevitable consequences of the dearth of regulation on the public domain. (139)

As noted earlier, the rule of capture has been modified to fit different resources in different places and at different times. Unique adaptations were required for public-domain grazing. Arguably, the range livestock version of the rule looks more like the view of the dissenting judge in Pierson v. Post, "who would have made the definition of first possession depend on a decision of [the fox] hunters"--or, in this case, the decision of those engaged in livestock production on the land. (140) "The [Pierson] majority's clear act rule," Professor Rose explains, "undoubtedly referred to a wider audience and a more widely shared set of symbols." (141)

<pre> The common law gives preference to those who ... have caught the fish and hold it fast. This may be a reward to useful labor, but it is more precisely the articulation of a specific vocabulary within a structure of symbols approved and understood by a commercial people. It is this commonly understood and shared set of symbols that gives significance and form to what might seem the quintessentially

individualistic act: the claim that one has, by "possession," separated for oneself property from the great commons of unowned

things. (142) </pre> Range customs developed as they did in part because there was no commonly understood and shared set of symbols. No other resource resembled the western forage resource--valuable only if it could be captured over large areas.

Furthermore, due to the size and seasonality of livestock ranges, many early livestock operators were essentially nomadic pastoralists. (143) Professor Rose expressed doubt as to "whether the claims of any nomadic population could ever meet the common law requirements for establishing property in land." (144) North American Indians are a prime example. Those who moved seasonally to resources were viewed by early Europeans as lacking "ownership" of the lands used because the lands were not "possessed," nor had sufficient labor been invested in them. (145) Frontier experiments in nomadic pastoralism--large, itinerant sheep operations being the prime example--also generally failed to establish any rights in federal lands. Operation of the range rifles described above, progressively favored the landed stockmen as, ultimately, did federal law. (146)

Overstocking and deteriorating range conditions became increasingly apparent. While free grazing was halted on forest reserves by the turn of the century, a laissez-faire regime prevailed on the public domain until 1934. (147) When Congress finally passed the Taylor Grazing Act (TGA), (148) it had long been aware that portions of the West were becoming deserts as a result of grazing and drought. (149) Numerous factors had forestalled efforts to correct the situation. (150) Members of Congress and stockgrowers disagreed as to appropriate solutions. Some groups favored disposal of public domain lands either to the states, which presumably would sell them to private interests, or to livestock operators directly. Others favored retention of federal rifle, with grazing authorized by lease or permit, as in the forest reserves. Which camp one was in depended, of course, on the perceived benefits or disadvantages. Many stockmen preferred a leasing system that would allow them to avoid property taxes, but views and interests varied between landed and itinerant stockgrowers, and between farmers and ranchers. Some states preferred privatizarion for the potential tax revenues, but they uniformly rejected a proposal by the Hoover Commission to transfer the public domain lands, sans minerals, to states. General economic conditions and a rivalry between the Departments of Agriculture and Interior also played roles. (151)

In the end, the congressional solution, the TGA, authorized a permit or leasing system administered by the Secretary of the Interior, on areas he deemed "chiefly valuable for grazing and raising forage crops." (152) The statute, which conferred broad discretion on the Secretary of the Interior, directed him to "do any and all things necessary" to "stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, [and] to stabilize the livestock industry dependent upon the public range." (153) Preference in issuance of permits would be given to persons engaged in the livestock industry who owned private land and/or water rights--arguably, a new rule of capture--and only permit holders (or lessees of isolated parcels) would be allowed to run stock on federal lands. A fee would be charged, not to make a profit but only to recover administration costs. (154) The TGA might have been seen as a legislative ratification of the rule of capture, as translated into range rights. But section 3 of the TGA (should have) laid that notion to rest: Grazing was deemed a privilege; establishment of a grazing district or receipt of a permit would "not create any right, title, interest, or estate in or to the [federal] lands." (155) Permit renewal, like permit issuance, would be at the Secretary's discretion. (156)

Most stockmen who received permits, however, undoubtedly believed that they had won rights to the forage and to the land that produced it. (157) And even if the range users had failed to capture a property interest in the forage, they accomplished the next best thing: capture and control of the officials assigned to govern their use of it.

IV. THE CAPTURE THESIS

A. Background and Criticisms

My task here is modest: I hope to demonstrate anecdotally and by deductive reasoning the fact of public-land ranchers' domination, by enumerating the "institutions" which they influence and the mechanisms of that influence, and to relate that domination to our short-sighted and foolhardy public-land grazing policies. (158) Yet, in another sense my goal is ambitious because I do hope to affect an outdated policy that directly affects more than 260 million public-land acres in the West and, indirectly, the broader landscapes in which those lands are found. Accordingly, the following brief comments concerning capture theory focus on assumptions and features that lend themselves to the circumstances of public-land grazing. (159)

The notion that industry can "capture" or co-opt Congress or an agency--specifically, an agency that Congress establishes, nominally to regulate the industry's activities, but actually to perpetuate the capture (160)--has waxed, waned, and evolved since its origins in the 1950s. (161) Initially applied to business lobbies and independent regulatory agencies, interest-group theory was extended by public choice scholars (162) to other interest groups and to all political institutious. (163) The logic has since been extended by some scholars to courts and to the market. (164) Common wisdom seems to be that the influence of capture theory has waned. (165) Nevertheless, it has "had a pronounced influence on public law" (166) and continues to be popular especially among law and economics scholars, as well as the public. (167) I believe that the basic theory illuminates the mechanisms by which public-land ranchers dominate federal policies affecting their operations.

Viewed broadly, capture refers to the ability to influence, if not actually dictate, policy. The policy preferences of industries, agencies, legislators, and voters depend on the values held by each and on the information each possesses. (168) The agency capture theory is one of "three discrete [public choice] arguments about why agency values do not conform to public values"; the other two are agency self-interest and agency policy bias, or "tunnel vision." (169) The self-interest school of thought posits that agencies are motivated to maximize their budgets or to interpret their statutory mandates to expand their discretion. Agencies' values will thus diverge from those of voters, leading agencies to act in ways contrary to the public interest. (170) At least two scholars have pointed out the lack of "empirical evidence to support the notion that self-interest actually determines [agency policy] choices," and they argued that "strongly held policy values and professional norms are at least as likely as any resource implications to guide [agency] decisions." (171) The self-interest argument may or may not be consistent with the capture theory, depending on whether the regulated industry considers itself benefited by greater agency resources and management discretion. (172) The "tunnel-vision" view, on the other hand, is in tension with capture theory. (173) It stems from the premise that an agency's values are also affected by its structure. Bureaucrats will adhere to the mission of their agency and thus be loyal to the values of the legislative coalition that succeeded in establishing the agency's mission. (174) Spence and Cross interpret this to mean that "the statutory mission locks in agency values over time," whereas the values of politicians "remain unconstrained by any particular institutional focus." (175) The result is that, "[a]s time passes, agencies may become populated by an unrepresentative sample of the population, a sample that is more dedicated to the agency's mission than [is] the population as a whole." (176)

The third explanation as to why agency values do not conform to public values is the one of interest here, the capture theory. There are various versions of the theory, and I will suggest that another, broader version applies in the arena of public-land grazing. "One variant of capture theory focuses on information [as a determinant of preferences], suggesting that industry captures an agency by virtue of the pervasive presence of industry information in agency policymaking proceedings over the long term." (177) Another points to "the complicity of congressional committees" that oversee the operations of the agency and their efforts on behalf of the regulated industry. (178) In my view it elevates theory over fact (or form over substance) to suggest that, because elected politicians may be more susceptible to capture than agencies, the agency capture thesis is irrelevant. (179) As Spence and Cross acknowledge, regulated groups "not confident of their prospects in the agencies" also rely on their congressional representatives and the courts to further their interests. (180)

Plainly, not all groups or industries are (equally) successful at capturing political institutions. Free-rider problems, for instance, hamper the ability of large, loosely organized (or unorganized) groups to influence policy malting. (181) Some scholars believe that "interest group politics is skewed dramatically toward narrow economic interests." (182) According to Professors Daniel Farber and Phillip Frickey: <pre> Group influence is likely to be strongest when the group is attempting to block rather than obtain legislation; when the group's goals are narrow and have low visibility; when the group has substantial support from other groups and public officials (who are themselves important figures and not merely referees of the group's struggle); and when the group is able to move the issue in a favorable forum such as a sympathetic congressional committee. "Depending on the configuration of a large number of factors--among them the nature of the issue, the nature of the demand, the structure of political competition, and the distribution of resources--the effect of organized pressure on Congress can range from insignificant to determinative." (183) </pre> As we shall see, the factors that, according to this view, tend to foster group influence describe the public-land grazing arena remarkably well.

B. Capture Theory Expanded to Fit Public Land Ranching

Marion Clawson, the BLM's first director, once opined that the range livestock industry's "influence is probably greatest in a negative way, in the prevention of the measures it opposes." (184) This insight is consistent with the first of Professors Farber and Frickey's observations, i.e., that group influence will be strongest when the group is "attempting to block rather than obtain legislation." (185) It also greatly reduces the force of one argument against the capture thesis: that "interest groups do not generally rush to Congress and plead, 'Regulate us!" (186) Thus, while ranchers have failed to secure property rights in federal rangelands, they have largely succeeded in resisting grazing fee increases and in preventing or undoing more stringent land-use regulations. Public-land ranchers also conform to the second factor above; their "goals are narrow and have low visibility" among the general public. (187) Public-land ranchers are a small group, and their goals are essentially to maintain (and to strengthen, if possible) their privileges to use public lands, to keep fees low, and to minimize federal regulation of their use of public lands. Relatively few Americans outside the West have heard of the Bureau of Land Management, FLPMA, or the Taylor Grazing Act. Fewer still are aware of the ecological impacts of grazing or understand that ranchers lack any property interest in the federal lands. "Low visibility" on such matters is bound to make it easier for regulators and congressional representatives to ignore or gloss over the consequences of maintaining the status quo.

Third, ranchers also enjoy substantial support from public officials (who are themselves important figures). (188) They have long had powerful supporters in Congress, especially in the Senate and on the relevant committees, (189) as well as in western governors' mansions and state legislatures. For years, permittees essentially dictated whether and how they would be regulated by BLM and its predecessor, the Grazing Service. While national forest grazing was regulated at an earlier date, in general graziers on both sets of lands have been and continue to be subject to lax regulation, at least until the managing agency is sued to enforce its rules or the mandates of other environmental legislation. But public-land ranchers' influence is enhanced, and uniquely so, by "substantial support from other groups." (190) The Sagebrush Rebellion, wise-use, and county movements represent coordinated efforts by commodity interests, including (if not led by) ranching, to oppose perceived overregulation by federal management agencies and the ascendancy of environmental interests. (191) There is ample reason to believe that commodity interests, such as the minerals industries, try to associate their aims with the historically favored livestock industry, whose icons are the cowboy and the family rancher. (192) Still more recently, public-land ranchers have "captured" the hearts and minds--and thus garnered the political support--of The Nature Conservancy and various local conservation groups. Specifically, these groups have bought into ranchers' culture and open-space arguments, (193) which has resulted in collaborative ranching efforts, a burgeoning literature, and increased support for ranchers at the federal, state, and county levels.

The foregoing application of Professors Farber and Frickey's first three factors largely explains why ranchers also demonstrate the fourth, the ability "to move [their] issue in a favorable forum such as a sympathetic congressional committee." (194) Due to the industry's hefty, ff variable, influence, ranchers have been able to advance their agenda, or resist environmentalists' reform efforts, through:

* congressional committees, as when livestock interests convince appropriations committees to attach riders exempting gazing permit re-issuance from environmental assessment requirements;

* land management agencies, e.g., through both general rulemaking and monitoring and enforcement activities in particular field offices; and

* some lower federal courts, for instance, when efforts to resist unwanted rulemaking fall.

Paul Culhane conducted empirical research in the 1970s on the BLM and Forest Service and their constituencies--including grazing interests--and essentially rejected the theory's applicability to these agencies. After defining "capture" as meaning that "an agency faced by a hostile and homogeneous constituency has come to identify with its captors and abandoned the pursuit of its proper mission," Culhane concluded that the "behavior of neither the Forest Service nor the BLM fits that description." (195) Somewhat inconsistently, however, he conceded that his study results "confirm that a large local livestock constituency (or one with very well developed access or very strong views) can stave off reductions in range use down to carrying capacity. (196) Culhane got it right, however, when he concluded that the "simplest version of the capture thesis, as applied to public land management, is plainly wrong." (197) A more complex and realistic version of the capture thesis, applicable to public-land ranching, emerges from the preceding brief consideration of interest group influence factors. (198) The rest of this part details how public-land grazing conforms to this version of capture theory, and expands the analysis to encompass the still-broader implications of the metaphor propounded in this article.

I. Capture of the Grazing Service and BLM in the Taylor Act Era

Clawson's insights again provide a useful starting point. Although he observed that ranchers' political influence "differs in no essential respect" from that of other economic groups, he did note that their influence is "more powerful, in relation to the number of people involved," and he suggested a unique, social origin for that influence: <pre> Many of the oldest and best known families ... are and always have been identified with range livestock production. The early pioneers were frequently ranchers.... Some of the families established then have remained active in the range industry, or sympathetic with it if engaged in other business.... These old and prominent families give the limited population engaged in the range industry more leadership, more prestige, and more political influence.... (199) </pre> This influence was "powerful," even "decisive at times, over government within [the stockmen's] states and over their Congressional delegations." (200) It is significant for our purposes that ranchers retained this stature and the accompanying influence, even as newcomers to the West and those with no ties to original settlers acquired ranches and federal grazing permits. (201) As two agricultural economists put it in 1972, ranch buyers hope to "'capture' the social benefits of ranch ownership." (202) To this day ranches are acquired or retained in part for the prestige that accrues to the owners. (203)

The Taylor Grazing Act (TGA) (204) institutionalized the industry's social status and political power. Considered the first regulation of grazing on the public domain, the TGA was largely ineffective--its impotence due primarily to the inordinate influence of those it aimed to regulate. Phillip Foss was a prominent critic of the early BLM, and his study of the agency and its "capture" by the livestock industry is a classic. (205) He described the stockmen's political power as a "monopolitical" system, (206) and grazing decisionmakers (advisory boards and permittees, agency managers, and western legislators) as "a special private government," which in many ways "functions as a private, commercial organization." (207) "There are few groups of comparable size, if any," Foss asserted, "which are as politically powerful as are the western stockmen." (208)

Many other scholars and commentators have described the capture of the BLM by those it regulates (and, not incidentally, the capture by those regulated of rights in the land). Even capture theory critic Paul Culhane wrote: "For many years Grazing Service, and later BLM, field managers stood in [a] vassal relationship to the district advisory boards...." (209) Grant McConnell described the TGA system as a "capture of formal power for the benefit of established stockmen." (210) It was "the best of two worlds for established stockmen: it secured the benefits of the public lands as though they were privately owned, but largely avoided the costs of private ownership." (211) Moreover, fees were "largely spent for improvements on the land for the users' benefit." (212) Christopher McGrory Klyza said bluntly that the TGA was "designed to give ranchers control of grazing policy." (213) He explained: "passage of the Taylor Grazing Act resulted in policies that were controlled by the regulated interest group and the local elites that comprised the livestock industry, establishing a captured policy regime justified by the privileged idea of interest-group liberalism." (214) In other words, "the grazing lands were managed as if they were private property." (215) Similarly, Wesley Calef concluded from his studies of grazing in the Middle Rocky Mountain basins that "permittees with individual allotments use them almost exactly as if they were private property; that is, they turn out as many stock as they wish at any time." (216) Calef reinforced Klyza's point about "local elites" with the observation that many of the larger ranchers elected to advisory boards "were urban dwellers--bankers, real estate dealers, lawyers, lumbermen, or merchants. They were active in political life and alert to legislative actions affecting their interest." (217) Foss too described stockmen as "rank[ing] high in wealth, prestige, and influence." (218) That most TGA permittees were the wealthier stockmen was in part a product of the operation of the range-rights version of the rule of capture and in part due to the date of the Act's passage: smaller, marginal operations had gone out of business during the Great Depression. (219)

It is unnecessary here to describe Taylor Grazing Act provisions in detail or to provide a thorough account of the Act's implementation. (220) For our purposes, the most significant features of the Act, as implemented, include:

* low grazing fees; (221)

* preference to existing, mostly large operations; (222)

* appointment of district range advisory boards, filled with permittees elected by their peers, which determined who would receive permits and subsequently oversaw administration of grazing; (223)

* maintenance of the same stocking levels for decades, while "adjudication" proceeded; (224)

* the lack of adequate resources for agency supervision; (225) and

* the lack of trained range professionals until at least the 1950s. (226)

These features combined to produce "home-rule on the range," maintain the status quo in terms of users and stocking levels, and entrench the power of range livestock producers. (227) Advisory boards, whose recommendations "were almost always followed," (228) were particularly instrumental. According to Gary Libecap, advisory board "influence over almost every aspect of range management made them essential institutions for advancing the interests of ranchers and for restricting bureaucratic authority." (229) Indeed, the boards' "political power gave stock owners formal, near proprietary rights to federal lands for nearly thirty years" after the enactment of the TGA. (230)

Even though the TGA limited the number of operators using public domain ranges, it "institutionalized [the pre-existing] high level of use for many years." (231) The Interior Secretary never made the "chiefly valuable" determinations envisaged by the Act, (232) and grazing continued in essentially all areas where it had been conducted prior to 1934, despite erosion and resource degradation. The range science profession began to develop in the 1950s, and by 1960 most BLM technicians were required to have a degree in range management. (233) Nevertheless, range decisions continued to be dictated by the permittees themselves, via advisory board "recommendations," (234) or imposed from without, usually via pressure from congressional offices. Professor Charles Davis cited one-sided "congressional hearings on proposed grazing fee hikes in 1963" to demonstrate that the ranchers' "subgovernment was clearly in control of the [range] policy agenda." (235)

The TGA authorized the reduction of livestock numbers or the termination of grazing, (236) but that authority was "used with the utmost circumspection." (237) Cuts in numbers were "rarely made unless there [was] almost universal approbation from the permittees concerned." (238) Even permittees who seldom used their full AUM authorization vehemently resisted any cuts, as AUM numbers were capitalized into the value of the permit and would enhance the price that could be received for the ranch if it were sold. (239) Any reduction in grazing levels proposed by the BLM was automatically opposed. Permittees sometimes attempted to avoid cuts by arranging for an independent survey of range conditions to counter the results of a government study, (240) but their usual strategy was political. When permittees "directly and through their state and national livestock associations [brought] sufficient pressure to bear on their U.S. senators," the reductions would not be made. (241) Calef offered Wyoming's senators as an example: "[They] are completely responsive to and sympathetic with the objectives and interests of the livestock growers in Wyoming." (242) Indeed, both the BLM and Interior were "thoroughly aware of the possible effects of senatorial hostility. In short, only under the most extreme circumstances would the [BLM] oppose its views to those of the [livestock] association." (243)

Neither the Grazing Service nor the BLM was ever well staffed, and limited resources have constrained the agency's ability to manage. (244) Stockmen were influential here too, because they wielded tremendous influence over the agency's budget through their connections with congressional committees. (245) Klyza claimed that low budgets and inadequate personnel forced BLM to rely on ranchers "because their cooperation is required to implement" grazing programs. (246) Such reliance indirectly, of course, enhanced the political power of grazing permittees. Scarce resources and stockmen's political clout resulted in lax enforcement. Livestock trespass was "difficult to detect, hard to prove, and difficult to punish." (247) Managers shied away from taking action against trespass, knowing that any such efforts would be resisted by stockgrowers and denounced by their powerful advocates. (248) Thus, few trespass actions were brought; punishment when it occurred was mild and scarcely served to deter such conduct. (249) Noting that "permits are rarely revoked even under the most extreme provocation," Calef concluded: "The impotency of BLM officials to enforce legally the range rules ... is disgraceful." (250)

Another product of stockmen's political influence was continued low grazing permit fees. (251) Calef concluded that "government forage was being leased for only a third or a fourth of its minimum value," and the revenues produced fell far short of covering administration costs. (252) Overgrazing also continued in many areas---a result of a lack of range inventory data, inadequate agency resources and personnel, and permittee noncompliance. (253) Concerning Wyoming's Bighorn Basin, where "heavy grazing pressure ha[d] resulted in widespread induced erosion" and halogeton invasion, Calef wrote, "[t]o the observer, it appears that the ranchers administer the range about to suit themselves, at least so far as stocking rates are concerned. It is also my distinct impression that the district technicians think the range not just overgrazed, but so seriously overgrazed that ... the situation is practically hopeless." (254)

Calef provides a thoughtful and realistic explanation as to how and why early "relationships between the BLM and western ranchers [were] ... biased in a way favorable to the ranchers." (255) Among other factors,

<pre> nearly all [BLM] technicians are hired from agricultural colleges of the western states. Some BLM staff members are former ranchers, while others are ranchers' sons. Nearly all are westerners.

Consequently there is among most BLM personnel a strong feeling of identification and solidarity with the ranching interest, and a latent feeling of being westerners as opposed to easterners. So

basic and pervasive is this identification with the range livestock

industry that many members of the bureau in all probability are

wholly unaware of it most of the time. Since much of their time is spent in "negotiating" with ranchers about one problem or another,

they probably feel consciously antagonistic toward the latter more

often than otherwise; but such differences are analogous to quarrels

within a family. Fundamentally the point of view of both parties is the same. (256) </pre> Calef's studies led him to conclude that the BLM "did not exert sufficient control over range grazing use" to ensure conservation of federal resources in the Middle Rocky Mountain basins and, further, that this lack of control resulted chiefly from BLM's "political weakness." (257) He also sounded another warning: "Western range livestock ranchers are slowly building proprietary rights to the Taylor lands through use, and the assignment of individual allotments will accelerate the trend." (258) Developments over the ensuing forty-five years seemed to validate Calef's prediction. (259)

This early period of range regulation reveals a striking convergence between the process and consequences of 1) capturing range rights, and 2) capturing the agency charged with administering the range. Both phenomena involve graziers making use of the political system while operating outside or at the edges of the law; both favor the strong (economically and/or politically) over the weak. Each resulted in wreaking havoc on the land. By neither means did graziers secure a legal property interest in public lands, but each contributed to the appearance of such an interest and to ranchers' conviction in the justness of their claims. In other words, with respect to the range resource, operation of the property rule of capture and the agency capture thesis differ more in their labels than in their function or effect. (260)

2. Capture in the Modern Era: FLPMA and PRIA

"Political pressure from the livestock industry from 1934 to 1976 effectively hamstrung implementation of the [Taylor Grazing Act]." (261) Negative reactions to this overt political influence and to continued overgrazing, along with increasing interest in other public land resources, led politicians and other public land users and interest groups to call for reforms. Between 1964 and 1980--the heyday of the environmental movement (262)--Congress enacted several pieces of relevant legislation. (263) While all of these acts affect livestock interests directly or (more often) indirectly, most significant for our purposes are the National Environmental Policy Act (NEPA) and BLM's organic act, FLPMA. This section considers whether these "environmental" laws and other events of this period enhanced or undermined either the degree to which the BLM remained captured by public land ranchers or the legitimacy of ranchers' claims to public rangelands. It demonstrates that the range livestock industry's political clout--and the agencies' concomitant subservience--have persisted both because and in spite of FLPMA. (264)

One might have expected that growing environmental awareness, greater experience and better scientific education of agency officials, and increasing recreational use of public lands would have led to a decline in the ranching industry's influence. (265) Paul Culhane's research in the late 1970s compiled some evidence in support of this conclusion. Notably, he reported that the power of the district advisory boards had been "undermined," apparently as a result of the BLM finally making headway in the 1960s on stocking reductions--the boards' "primary issue"--and because of the agency's broadened constituencies. (266) But livestock interests retained the influence they had long held in many other respects:

<pre> Many local government officials ... , including a number of town mayors and most county commissioners, were stockmen; almost all the irrigation groups, and many of the conservation ... districts

were led by or primarily served stockmen. Finally, stockmen were a primary constituency or customer group for all the local government

officials, local businessmen, and realtors in the sample, irrespective of formal affiliations with the livestock industry. (267) </pre> Moreover, Culhane reported, the livestock industry had a new role and a new source of influence: it was "usually at the center" of "important alliances" of public lands "consumptive users, including loggers and miners." (268) Culhane believed that the U.S. Forest Service and BLM were using the environmental movement as a "tool" to "reinforce the resource-protection half of the multiple-use policy." (269) But he also asserted: "Forest Service and BLM officials had a real commitment to accommodating economic uses of the public lands or 'economic demands' or the 'needs of the people.' They were not committed to recreation or Wilderness as primary uses of the public lands." (270) Culhane concluded that the two agencies were "variably captured" by their interest groups, and that the livestock industry's "influence was on the wane." (271)

The push-pull between environmental and commodity interests, which Culhane observed, was a sign of the times. Shortly after passage of NEPA in 1969, the Public Land Law Review Commission (PLLRC) released its monumental report, One Third of the Nation's Lands. (272) Congress created the Commission to review all federal land management laws and make recommendations, (273) but the Commission's report had special significance for the BLM. (274) The PLLRC recommended, inter alia, that Congress give the BLM a multiple-use mandate, like that possessed by the Forest Service. It advised that lands "chiefly valuable for specified purposes," including grazing, "be made available for disposition on certain conditions and to a limited extent." (275) But it urged that retained federal lands should be managed for the "broadest range of values they can produce," "to encourage the highest and best use," and to obtain fair market value for resources, including forage. (276) The Commission further advised that "frail and deteriorated lands," including overgrazed lands with steep slopes and those "in delicate ecological balance," be "classified not suitable for grazing." (277)

The PLLRC report led to passage of FLPMA in 1976, although few of the Commission's grazing-related recommendations were enacted in the legislation. (278) On the other hand, the Commission's pointed criticism of district grazing boards (279) helped prompt passage of the Federal Advisory Committee Act (FACA) in 1972, (280) which in turn led to significant changes in the BLM advisory board system. (281) District grazing boards were terminated at the end of 1974, and new multiple-use advisory boards were set up administratively. (282) Livestock interests unsuccessfully challenged these changes in court. (283) In 1976 Congress authorized multiple use "advisory councils" in FLPMA; (284) two years later it made consultation with the councils mandatory in the Public Rangelands Improvement Act of 1978 (PRIA). (285) FLPMA also reauthorized district grazing boards (renamed district advisory councils), but their role was watered down--confined to advising on allotment management plans (AMPs) and use of range-betterment funds-and temporary. (286)

Passage of general management authority for BLM was nearly thwarted by one narrow interest group--the range livestock industry. Klyza explained that the House Public Lands Subcommittee was dominated by westerners in the mid-1970s (as it had been for many years), and that this subcommittee disproportionately influenced the character of the bill that became FLPMA. (287) Livestock interests opposed three provisions in the House FLPMA bill: a fee formula tied to private forage costs, a $2.00 per AUM grazing fee "floor," and a provision for AMPs. (288) The grazing fee formula proved the final sticking point. The issue was resolved in conference largely in the industry's favor, but still there were "rumors that disgruntled grazing interests would attempt to have the bill killed on the floor of the House." (289) Even after Interior Department support for the compromise secured its passage in Congress, die-hard grazing interests tried, but failed, to convince President Ford to pocket veto the bill. (290)

FLPMA, which passed in October 1976, seemed to bear out Clawson's explanation of ranchers' political influence as "greatest ... in [the] prevention of the measures it opposes." (291) Referring to the livestock industry, Klyza opined that FLPMA "represented cracks in the privilege of interest-group liberalism. But not severe ones." (292) The statute neither curtails grazing on any lands nor directs any specific changes in grazing management practices--despite the recommendations of the PLLRC (293) and some environmental groups, and Congress's express acknowledgement in the Act that "a substantial amount of the Federal range land is deteriorating in quality." (294) On the other hand, the Act does nothing to change the nature of the interest in a grazing permit; it reiterates the Taylor Act pronouncement that a permit creates no right, title, interest, or estate in or to the lands. (295) In essence, FLPMA's grazing provisions, which apply to both BLM and the Forest Service, clarify the TGA. (296) FLPMA specifies general permit terms and conditions and provides further that grazing permits may be cancelled, suspended, or modified; that grazing may be discontinued to devote the land to a public purpose; and that a permit holder has first priority for renewal ff the land remains available for grazing, the permittee accepts the new conditions, and the permittee is in compliance with regulations. (297) FLPMA set forth provisions for AMPs, which are discretionary, (298) and maintained grazing fees, pending completion of a comprehensive study of the value of grazing on federal lands. (299)

On the other hand, FLPMA contains numerous prescriptions for public-land management, several of which should have implications for grazing management. Its policy and planning provisions are particularly noteworthy. Lands are to be managed in the national interest, for the sustained yield of multiple resources--including grazing, wildlife and fish, watershed, recreation, and natural scenic and scientific values--without impairing the land's productivity. (300) The Act directs the BLM to weigh long-term benefits to the public (versus short-term private benefits) when it allocates lands for various uses, (301) and to consider the "relative scarcity of values" and the availability of alternate means and sites for realizing those values. (302) The Secretary is authorized to "totally eliminate[]" so-called "principal" uses (including grazing) from areas of public lands. (303) FLPMA's "bottom line": in managing the public lands the BLM must "take any action necessary to prevent unnecessary or undue degradation." (304)

As I have argued elsewhere, these and other provisions of FLPMA authorize, if they do not mandate, the cessation of grazing on a sizeable portion of BLM lands. (305) But the statute has not been employed to that end, nor has the BLM justified livestock grazing using any of these criteria. Indeed, despite the ecological impacts and miniscule economic importance of public-land grazing, the agency and others rationalize its continuance as a means of sustaining small communities, preserving an important western way of life and culture, and maintaining open space. (306) None of these justifications can be found in FLPMA or other authorizing legislation, and (as we will see shortly) none survives critical examination.

Recognizing that "vast segments of the public rangelands [were] producing less than their potential for livestock, wildlife habitat, recreation, forage, and water and soil conservation benefits," (307) and perhaps realizing that FLPMA would be ineffectual in reversing these trends Congress took action again just two years later. In PRIA (308) it declared that "the goal of [public rangeland] management shall be to improve the range conditions so that they become as productive as feasible [for all rangeland values]." (309) But despite its continuing, serious concerns about range conditions, Congress provided the agencies no additional authority in PRIA to achieve "the goal" of public rangeland management--perhaps because it believed none was necessary, (310) but more likely because it was unable to reach agreement on stiffer measures to address the ongoing problems. (311) In other words, PRIA too reflects Clawson's view of the livestock industry's influence. (312) The dithering that characterized the grazing fee debate throughout this period makes it painfully obvious that Congress would have been unable to achieve consensus on any substantive grazing reforms. (313)

On the other hand, stockmen did succeed in PRIA in convincing Congress to rely even more heavily on "range improvements." (314) PRIA authorized the appropriation of federal funds for these improvements, providing that such funds would be in addition to the fifty percent of grazing fee revenues, which FLPMA had directed be devoted to such purposes. (315) Despite the statute's broad definitions of "range condition" and "range improvement," (316) the lion's share of funds (by one account, 96.5% of accounted funds (317) has gone, not to improve overall range conditions, but to enhance livestock forage production or otherwise improve conditions for livestock. (318)

PRIA and its aftermath further reflect the industry's stranglehold on the national government with respect to grazing fees. Recall that in FLPMA Congress had frozen grazing fees, pending completion of a study of the value of federal-land grazing. (319) The resulting report was ineffectual, concluding only: "The fee system should collect fair market value for use of the forage resource." (320) It documented the "many other users of the Federal lands in addition to grazing permittees," noting that these "segments of the general public are also concerned about grazing fee levels." (321) The BLM and Forest Service then proposed raising the grazing fee to $1.89, with annual increases thereafter of no more than $0.12 per AUM until a level of $2.38 was reached. (322) National stockgrower associations objected that the proposed increases were "unfair and unrealistic," even though the agencies countered that rates the next year would be even higher if the then-current formula were left in place. (323) In PRIA Congress passed another one-year moratorium on fees and ordered a new study. (324) The study confirmed that federal grazing fees remained "far below rental rates for comparable western private rangelands." (325) PRIA also established a new, experimental grazing fee formula, effective through 1985. (326) This formula--based on cattle prices, permittees' costs of production, and ability to pay--resulted in the first grazing fee increase for BLM lands since 1976. But the fee was still low ($1.89) and dropped each year from 1981-85. (327) By comparison, fees on state lands ranged from $1.43 to $14.00 per AUM in 1985; fees on private lands averaged $6.87; and fees on other federal lands averaged $6.53. (328)

When it came time to renew or replace the fee formula in 1985, Congress seemed paralyzed. Environmentalists called for a fee that reflected fair market value; ranchers urged that the current low fee was justified and should be maintained. Ranchers--joined by the BLM--rejected environmentalists' charge that there was any connection between grazing fees and ecological conditions on grazing allotments. (329) Ranchers also opposed proposals to remove livestock from "unsuitable lands." (330) Presaging defenses that continue to be heard in the twenty-first century, Utah senator Jake Garn asserted that a "fee hike would 'destroy the family rancher's way of life and the spirit or even the existence of some western communities.'" (331) Ranchers were unable to counter assertions that livestock outnumbered big game animals on BLM lands by nearly three to one (4.3 million compared to 1.5 million), (332) the fact that sixty percent of rangelands remained in unsatisfactory condition, (333) or OMB studies showing that the government had lost more than $500 million over the past ten years by not charging fair market value for grazing privileges. (334) Nevertheless, the ranchers' stubborn resistance paid off. The OMB bowed to political pressure, explaining that the issue "'is of great political sensitivity.'" (335) Congress simply failed to act. (336)

In 1986 President Reagan stepped into the lurch after a cadre of western Republican senators led by his personal friend, the powerful Paul Laxalt (R-Nev.), interceded on behalf of public-lands ranchers. (337) Acting by executive order, Reagan extended indefinitely the PRIA fee formula, a complex scheme designed to keep fees low. (338) The order provided for a minimum fee of $1.35 per AUM and limited any annual increase or decrease to no more than twenty-five percent of the prior year's fee, but it otherwise left the status quo unchanged. (339) The Reagan Administration claimed that this formula would "'maintain [the] stability of the western livestock industry.'" (340) The Washington Post chastised the Administration: "In a year when so many other forms of federal support are in jeopardy, there is no excuse for exempting these [grazing fees.]" (341) The Reagan/PRIA formula remains in effect today; both the House of Representatives and the Clinton Administration tried, but failed, to replace it. (342) In 2005 the formula produced an increase in the fee to $1.79--ten cents less than the rate charged more than twenty-five years ago. (343)

Public-land ranchers argued that low fees promote the public interest by "helping marginal ranchers stay in business." (344) They also claimed that increasing the fee would force some ranchers out of business, thus reducing the number of livestock grazing federal lands and, correspondingly, the revenues to the government. (345) Both arguments are simplistic. The former ignores the drain on the federal Treasury required to subsidize "marginal" ranchers, the fact that ranching comprises at best a narrow piece of the "public interest" in public lands, and the adverse ecological impacts of livestock grazing. The latter overlooks the obvious fact that, as long as the fee remained low compared to lease fees for other lands, there would be a demand for federal permits. It also ignores what was widely known at the time--that many BLM permittees were making a profit by subleasing their allotments at higher rates. (346)

Klyza cites the government's chronic inability to raise grazing fees as evidence that "[i]nterest-group liberalism has dominated the grazing policy regime." (347) Indeed, the mere fact that public-land ranchers have been able to keep Congress's focus on grazing fees, a "minor matter" in the overall grazing policy debate, (348) rather than on the deteriorating ecological condition of many public lands, reflects the industry's political prowess. The same tactic has helped to prevent erosion of ranchers' public-land "rights."

V. THE CAPTURE METAPHOR: THE EXPANDING CONTOURS OF CAPTURE, 1980 TO THE PRESENT

This part explores the phenomenon by which cowboy mythology has captured, not only politics, but many other facets of American life and culture, and it critiques the principal myths that have spawned this capture and upon which public rangeland policy increasingly relies. (349) While public-land ranchers still lack a property interest in their grazing privileges and wield a power that, arguably, is chiefly inertial, (350) their place on the western range seems more secure than ever. Banking on their cowboy image-dusted off and polished up--and on Americans' frontier nostalgia, ranchers are lassoing an ever-expanding range of interests in support of their narrow cause. (351) They also are diversifying their tactics, becoming more creative and more vocal. (352)

Two measures introduced during the current session of Congress reflect the potency of the cowboy image and its place at the fore of current public-land politics. The U.S. Senate approved a resolution introduced by Wyoming (the "Cowboy State") Senator Craig Thomas to establish a "National Day of the Cowboy." (353) The resolution proclaims that "the cowboy embodies honesty, courage, integrity, compassion, respect, a strong work ethic, and patriotism" and is an "excellent steward [of] the environment," and it asserts that "to recognize the American cowboy is to acknowledge America's ongoing commitment to an esteemed and enduring code of conduct." (354) Arizona Congressman Rick Renzi has offered a "Cattleman's Bill of Rights Act," which is based on findings, inter alia, that "[r]anching is an important part of the culture and economies of many rural communities," and that "ranchers provide betterments and improvements to the land they work." (355) Among other things, this measure would require range managers of the Departments of Agriculture and Interior to attend "sensitivity training" courses, which would address "[q]uality of life impacts on livestock ranchers," "[e]conomic and production impacts," and the "[b]iodiversity benefits" of public-land ranching. (356)

Admittedly, a concocted version of ranching, rooted in cowboy mythology, has existed since Teddy Roosevelt romped in Dakota Territory and Buffalo Bill Cody hit the road with his "Wild West" traveling show. But the Thomas and Renzi bills, which idealize cowboys and ranching, and similar recent developments demonstrate that romance has been converted into a political mantra is and a real threat to sound public-land management. Given our current understanding of the potentially irreversible ecological impacts of grazing, (357) policy makers should view the arguments in favor of ranching more, not less, critically. Instead, the myths gain strength.

A. Cowboys in the White House

Public-land grazing policies and politics have become more unabashedly pro-rancher under two cowboy presidents. The first was Ronald Reagan. (358) Not only had Reagan played the part in Hollywood movies, (359) he owned a ranch, wore a cowboy hat, "rode a horse, and said all the right things about gun control and rugged individualism." (360) He embodied and reinforced what Americans had always been told, directly or subliminally--that cowboys are good guys and can be trusted. He endeared both public-land ranchers and western states'-rights advocates when, circa 1980, he famously declared "count me in as a Sagebrush Rebel." (361) In this simple statement he conveyed both his antipathy toward big (federal) government and his pro-private-enterprise views---hallmarks of public lands management during his tenure.

Davis's description of the "philosophical orientation" of the Reagan Administration as "quite compatible with the policy preferences of the traditional range policy subgovernment" seems a gross understatement. (362) In fact, the Reagan Administration "slashed" the BLM's budget, (363) removed agency personnel in environmental positions to increase the number of commodity-oriented positions, (364) and, under three pro-development, anti-preservation interior secretaries, "minimize[d] enforcement of grazing regulations imposed by the Carter Administration." (365) As described above, Reagan also preserved the grazing fee formula favored by stockmen. (366) But his administration's most blatantly pro-rancher measure was promulgation of rules implementing a cooperative management agreement (CMA) policy, under which the BLM entered into range management agreements to "reward" grazing permittees who were considered good land stewards. (367) A former BLM director described the agreements as "a give-away of the public lands to private interests." (368) A federal district court ruled that the program violated FLPMA by essentially abdicating to livestock operators the BLM's statutory land management responsibilities. (369) Unconvinced by the Administration's and the ranchers' "trust us" assurances, the judge struck down the rules, observing: "Permittees must be kept under a sufficiently real threat of cancellation or modification in order to adequately protect the public lands from overgrazing or other forms of mismanagement." (370)

Reagan's policies fit well within what was by then a long-standing political tradition of protecting public-land ranchers from change, but they were more overtly pro-grazing than those of his predecessors. For the first time, Americans were told that they could and should trust cowboys to take care of public lands belonging to all Americans. This has become the mantra of Reagan's philosophical successor, George W. Bush.

The years of the Clinton Administration will be seen by some as an aberration in this picture, if not a serious flaw in my thesis. The ranching community will scoff, but in my view, even the Clinton-Babbitt "range reform" regulations (371) reflect that administration's inability to escape the livestock industry's loop. The Interior Department's Rangeland Reform '94 DEIS documented the degraded range and identified livestock grazing as the principal cause. (372) The study concluded that, under the "No Grazing" alternative, "[e]cological conditions would improve the most," "watershed and water quality conditions would improve to their maximum potential," the "diversity and abundance of wildlife" would increase, and recreationists and others would benefit thereby. (373) It further found that gazing on public lands produced marginal economic benefits. (374) Nevertheless, the agency did not propose to eliminate grazing. Instead, it justified continued grazing, apparently on the basis of lifestyle and social or cultural concerns. (375)

The industry did suffer a setback (temporary, as it turned out (376)) when the U.S. Supreme Court in Public Lands Council v. Babbitt (377) upheld the BLM's range reform regulations. (378) According to the Court, the TGA "make[s] clear that the ranchers' interest in permit stability cannot be absolute; and that the Secretary is free reasonably to determine just how, and the extent to which, 'grazing privileges' shall be safeguarded, in light of the Act's basic purposes." (379) Would the Supreme Court have upheld an agency decision to end grazing on all or a large portion of BLM rangelands? The answer to that (highly hypothetical) question is less certain. A divided Tenth Circuit panel stated that, under the TGA, the Secretary of the Interior is "free to consider" the minor contribution of BLM lands to livestock production when "balancing the need for industry stability against the need to protect the land from deterioration." (380) Presumably, that balance could tilt toward removal of livestock to protect other resources. (381) Whether such a policy choice will ever be made depends on the political will of Congress and/or the land management agencies. That in turn will depend on demystifying the cowboy--highly unlikely under the current administration.

In the George W. Bush era, cowboy politics have been rejuvenated. (382) It is increasingly fashionable to tout the admirable traits of cowboys and the need to keep ranchers on the land, and to deny or ignore the ecological impacts and economics of public-land grazing. (383) President George W. Bush, a self-proclaimed rancher, (384) sets the tone. Forest Service and BLM line officers "have been told to accommodate for ranchers' needs." (385) Numerous Bush appointees are westerners (or claim to be) and "play cowboy." (386) Indeed, the Bush Administration is unabashedly reclaiming the BLM moniker, "Bureau of Livestock and Mining." (387)

Perhaps the consummate Bush cowboy is former Interior Solicitor William G. Myers III. (388) An entire article could be written about his connections with and advocacy for the livestock industry. (389) In a speech to cattlemen, Solicitor Myers asserted: "The biggest disaster now facing ranchers is not nature, but a flood of federal regulations designed to turn the West into little more than a theme park." (390) He assured his audience that Interior intended "to make it easier to exempt from environmental reviews any activities that it sees as having insignificant effects on public lands," and to "reverse some of the changes in livestock-grazing regulations adopted under" the Clinton Administration. (391) Myers also was implicated in an unparalleled settlement with BLM permittee Frank Robbins. (392) Robbins holds BLM grazing permits in connection with two ranches in Wyoming. Shortly after Robbins purchased the ranches in 1994 and 1998, (393) BLM had charged him with numerous violations, including: trespassing on private and BLM lands; grazing too early, too late, and too many cattle; blocking a neighbor's use of a cattle driveway; refusing to obtain permits for his dude ranch trail drives over BLM lands; and ignoring BLM directives to modify his grazing practices to accommodate drought conditions. (394) The BLM proposed to resolve its dispute with Robbins in a lopsided settlement agreement that included "forgiveness for ... 16 grazing violations," a "new grazing allotment with extensive management control," "rights of way across federal lands without reciprocal easements for the BLM" across Robbins's private lands, a "special recreation permit to run his dude ranch," and a "[u]nique status whereby only the director of the BLM could cite Robbins for future violations." (395) The agreement also allowed Robbins to pursue his ongoing RICO suit against BLM employees. (396)

An investigation by the Department of Interior Inspector General (IG) resulted in a report harshly critical of the settlement and events leading to it. Among other findings, the IG reported that "normal processes [were] circumvented," negotiations were conducted by the Interior Solicitor's Office (SOL), without involving BLM, concerns of the Department of Justice and the BLM field office were ignored by SOL and not conveyed to the BLM decision-maker, and the interests of BLM were not adequately protected by the settlement. (397) But the IG concluded that Solicitor Myers was a victim of his own staff; that is, he "was given a distorted explanation" of the deal. (398) Frank Robbins's attorney Karen Budd-Falen disagreed: "Myers had 'full knowledge of the [Robbins] settlement agreement and all of its terms' before the deal was finalized," she claims. (399) Ultimately, the BLM reneged on the deal after Robbins committed trespass yet again (400)

B. Cowboys in the Agencies

The livestock industry's elevated status in the Bush Administration is evident in other ways: Agency officials who go against livestock interests have been dismissed or transferred. BLM Idaho State Director Martha Hahn is a prominent example. Hahn's grazing cuts in Owyhee County, implemented under the 1995 grazing regulations, reportedly riled stockmen as well as Senator Larry Craig, and resulted in her forced transfer, which led her to resign. (401) Other reported cases involved agency personnel in California (402) and Utah. (403)

Many land management decisions are blatantly pro-ranching--or inexplicable, apart from a livestock bias. (404) For example, the U.S. Forest Service has reneged on drought provisions in livestock management plans designed to protect the land, (405) and has undertaken expensive monitoring efforts rather than remove domestic sheep from ranges where they pose a serious threat to endangered bighorn. (406) The Service's top officials teamed up with stockgrowers to convince Congress to exempt national forest grazing permit reauthorizatious from NEPA compliance during fiscal years 2005-07. (407) A more obscure, but revealing, example involves a technical report published by the Forest Service's Rocky Mountain Research Station. Co-authored by an agency scientist, the report examined studies allegedly supporting several "axioms" of range management, used to justify a fifty-year-long "war against big sagebrush." (408) Contrary to the axioms, the authors concluded that "most, if not all, of the sins attributed to big sagebrush by the range management community are the result of livestock grazing." (409) Four months later the Research Station director rescinded the report and republished it with the disclaimer: "This would normally not have passed peer and policy review...." (410) The notice, however, identified no flaws in the report's scientific analysis.

Even the National Park Service (NPS) and the U.S. Fish & Wildlife Service (FWS) are not immune from the livestock industry's influence. For instance, a joint federal/state (NPS/Montana) plan for management of the Yellowstone National Park (YNP) bison herd--the only naturally occurring, (ostensibly) free-ranging bison herd in the United States (411)--seems designed primarily to assuage cattle producers outside the park. (412) This is so despite congressional mandates to "conserve ... wildlife" in the parks (413) and "provide against ... their capture or destruction." (414) Bison that cross YNP's northern border are treated like livestock, not wild animals: they are trapped, impounded, and tested for brucellosis. Those that test positive are shipped to slaughter. Those testing negative are ear-tagged, calves and non-pregnant yearlings are vaccinated against brucellosis, and all bison are held until spring for release--provided room in the holding pens remains available. (415) In 2004, 182 bison had been shipped to slaughter by mid-March. (416) No case of transmission of brucellosis "from bison to cattle in the wild has ever been documented. Still, avoiding the disease is important to ranchers." (417)

The FWS is charged with conserving threatened and endangered species, many of which are at risk because of livestock grazing practices. (418) In written responses to a recent survey conducted by the Union of Concerned Scientists (UCS) and Public Employees for Environmental Responsibility (PEER), (419) some FWS "scientists complained that agency chiefs are overly friendly with ranchers who are hostile to science and whose cattle graze on public lands." (420) Two hundred agency scientists responding to this survey reported that they had been directed to "alter official findings to lessen protections for plants and animals." (421) The Bush Administration's record under the Endangered Species Act (ESA) (422) is widely considered abysmal, (423) and several of its decisions have been strongly endorsed by ranchers. For example, the FWS removed from the list of ESA candidate species the black-tailed prairie dog (424) and has proposed to delist the Preble's meadow jumping mouse. (425) And the agency declined to list as threatened either the Rio Grande cutthroat trout (426) or the sage grouse, (427) both of which occur on public lands and are impacted by grazing. The case of the sage grouse reflects the political power of ranchers and the oil-and-gas industry, both of whom actively opposed listing the bird. (428) It was widely reported that the scientific findings of FWS biologists concerning sage grouse and sagebrush habitat were criticized and heavily edited by a Deputy Assistant Secretary of the Interior, a political appointee with "no background in wildlife biology," a "strong property rights background," and "deference to industry views." (429)

Of all federal agencies, however, the BLM best epitomizes rancher capture. Its bias is frequently apparent in management decisions that disregard available science and policy guidance. For instance, a BLM study of the ecological condition of the Great Basin revealed that 25 million acres are "dominated by exotic annual grasses," particularly cheatgrass, and concluded that restoration is urgently needed. (430) The agency established a "guiding principle" that the "Great Basin must be managed for no net loss of Sagebrush habitat." (431) Just a few years later, however, the BLM proposed to apply herbicide to kill sagebrush to increase cattle forage on a huge grazing allotment in Elko County, Nevada. (432) More recently, the BLM's Pinedale field office proposed to "treat" up to 23,000 acres of "mature and decedent [sic] sagebrush, using herbicides, prescribed fire, mowing, and other mechanical means." (433) Although the project purported to "enhance" sagebrush age-class diversity, it was likely to reduce sagebrush cover at the expense of species that depend on it. (434) It seemed plain that the project was designed to enhance livestock forage. (435)

The prime example of this Administration's obeisance to public-land ranchers is evident in recently finalized revisions to the BLM's grazing regulations. (436) (The rules also exemplify the agency's reliance on specious western myths in its public-land policy making.) In proposing the rules, (437) the BLM claimed that they would "improve working relationships with permittees and lessees, protect the health of the rangelands, and increase administrative effectiveness and efficiency." (438) Interior Secretary Gale Norton also said that the rules would "help public lands ranchers stay on the land." (439) Even a cursory review of the rule changes confirms that, in fact, they will "serv[e] the most special interest'--ranchers (440)--but at great expense to the interests of the public and the land's health.

The regulations reverse three rules issued by the Clinton Administration and approved by the Supreme Court. Permittees will be allowed to own water rights and to share title to permanent structural range improvements on public lands, (441) and "gazing preference" is redefined to mean the total number of AUMs attached to base property. (442) These provisions undermine statutory authority denying holders of grazing permits any private right or interest in the public lands. (443) In so doing, they jeopardize the agency's ability to avoid property-rights-based challenges and to manage use of rangelands in the public interest. For our purposes, these rules changes also illustrate nicely the capture metaphor: By this instance of agency capture, stockmen can be seen as compensating for their failure to employ the rule of capture to secure a property interest in grazing permits.

The new rules also require ill-defined "monitoring" (444) before the BLM can take action to correct grazing practices that are causing range conditions to run afoul of rangeland health Standards and Guidelines (S&G). (445) The BLM and permittees, with no public input, would decide what to monitor, how, and how often, and how to interpret the findings. This requirement, on its face, would delay corrective action that would protect the lands. Delays would be exacerbated by BLM shortages of money and personnel for monitoring. In fact, the agency lacks monitoring data for about half of all allotments. (446)

The new rules delete prior regulatory requirements to involve the public in all on-the-ground grazing decisions, while retaining requirements to involve permittees and states. (447) The public effectively would no longer have input to decisions to issue, renew, or modify grazing permits; changes to allotment boundaries; issuance of temporary nonrenewable use permits; reductions in permitted use; or emergency closures. These changes arguably violate FLPMA, (448) and they are plainly inconsistent with the national, pubic nature of rangeland resources. The BLM claims that NEPA processes will afford public comment opportunities. (449) But most grazing decisions do not require preparation of an EIS, (450) and since 1999 Congress has authorized BLM grazing permits to be renewed without NEPA compliance. (451)

At the same time, the rules require a new layer of consultation--with local, county, state, and tribal "grazing boards'--for the very decisions from which the public would be excluded. (452) This requirement arguably violates FLPMA and the Federal Advisory Committee Act. (453) It also seriously undermines BLM's claim that the new rules will "enhance administrative efficiency." (454)

The rules further require BLM offices to consider the economic, social, and cultural impacts of grazing decisions. (455) Indeed, concerns about these impacts seemed to be a chief motivation for revising the rules. (456) The BLM suggests that NEPA requires this analysis. (457) In fact, however, the Council on Environmental Quality (CEQ) regulations specify that economic, social, and cultural impacts are to be considered only if anticipated impacts to the physical/natural environment are significant--and thus only when an EIS will be prepared. They are not meant to be the reason for doing an EIS. (458) The BLM itself says that most grazing decisions do not require an EIS. (459) Moreover, nothing in FLPMA allows, much less requires, the BLM to make grazing decisions on the basis of economic, social, or cultural impacts of grazing decisions, at the local level or otherwise. (460) The BLM seems to believe that by using NEPA to shoehorn social and cultural concerns into grazing decisions it can avoid complying with (or at least dilute) environmental protection mandates in its governing laws and regulations. But NEPA rejects this view, as well. (461)

The BLM claims that the rules do not change the Fundamentals of Rangeland Health (FRH) rules, (462) promulgated by the Clinton Administration, but in fact they weaken those rules--by requiring monitoring before BLM may take action to correct rangeland conditions, by doubling the time within which corrective action must be started, (463) and by making the FRH unenforceable once the S&G axe implemented. (464)

As disturbing as the substance of the new rules was, the procedures leading to their promulgation were worse. The timing of the Draft Environmental Statement's (DES) release (after the proposed rules were published), and recent disclosures by two BLM scientists, (465) strongly suggest that the DES was a post hoe rationalization of a rulemaking choice already made--and thus a violation of the spirit if not the letter of NEPA. (466) The scientists, who participated in drafting the DEIS and have since retired, reported that their conclusions concerning adverse impacts on water quality and wildlife, including endangered species, "were excised and replaced with language justifying less stringent regulations favored by cattle ranchers." (467) Remarkably, their prediction of a "'significant adverse impact' on wildlife" was removed, and the rewritten DEIS concluded that the proposed rules would be "'beneficial to animals." (468) The scientists charged the BLM Washington office with rewriting the DEIS so that it would support rules that had already been written. (469) The Washington office rangeland resources manager acknowledged: "'There were definitely changes made in the area of impact analysis.'" His only explanation: "When [the DEIS] was finished in November 2003, the agency believed it 'needed a lot of work.... We adjusted it." (470) The agency's "adjustment" was used to support regulations that will further entrench the private interests of perhaps 18,000 public-land ranchers, while jeopardizing the ecological health of 160 million acres of public lands belonging to all Americans. As one of the overruled BLM scientists put it, "[The] bottom line is that there's no way we will ever effect changes in livestock grazing.... The cowboys will not allow it." (471)

C. Cowboy Myths--and the Realities

The foregoing discussion should leave little doubt that public-land ranchers' capture of politicians and land management agencies continues at a gallop. This section takes a brief look at the influence of cowboys in other areas of American life, (472) followed by an examination of the role of myths in the capture metaphor. (473)

Subscribers to cowboy mythology include a wide range of persons trying to preserve the West as they imagine it to be. (474) The myths are perpetuated for profit or to support other interests by magazines, filmmakers, "poets," artists, manufacturers of consumer goods ranging from clothing to furniture, and the media (to name a few). (475) Public-land ranchers enjoy preferential treatment by Congress; (476) by state legislatures, governors, and boards; (477) and by local officials. (478) Chambers of commerce, tourism bureaus (479) and real estate agents, (480) as well as range scientists (481) and university administrators, (482) tout the virtues of ranching. Other groups and industries, such as mineral developers and motorized recreationists, frequently join forces with public-land ranchers or espouse their cause. (483) Writers and academics wax eloquent about the ranching culture and lifestyle, (484) while a growing number of environmental groups clamber aboard the "sustainable ranching" bandwagon. (485) Indeed, increasing numbers of environmentalists opposed to public-land ranching are lobbying for generous payments to ranchers who are willing to permanently retire their grazing permits (486)--an outcome that Congress or the agencies could achieve legally without providing any compensation at all. (487) Even some courts have rendered judgments that are inexplicable unless one accepts that they, too, are vulnerable to the cowboy myth and ranchers' political clout. (488)

Among the most influential--and thus potentially damaging--proponents of cowboy mythology are range and wildlife scientists. Former Society for Range Management president Thad Box acknowledges that the range science profession has "lost credibility because we have been too close to the livestock industry." (489) Box posed some tough questions to his colleagues: "Are we really captive of cattlemen? Are we letting the myth of the cowboy limit our effectiveness? ... Do our gods get in the way of our science?" (490) I am not alone in suggesting that the answer to these questions is "yes." (491) Some of these scientists are associated with universities, serve as government consultants, contribute to environmental assessments and other studies, and participate in "collaborative" public-land planning and management efforts. In these contexts, their casual, misleading, and/or unsupported statements can significantly retard the development of sound public-land gazing policy and a better understanding of range ecology.

Wayne Burkhardt, associate professor emeritus, University of Nevada-Reno, and frequent range consultant, serves as an example. A 1991 article by Burkhardt in Range magazine is rife with platitudes and inaccuracies about grazing ecology, history, and the law. (492) Three years later Burkhardt contributed to two grazing-related reports contracted by the federal interagency Interior Columbia Basin Ecosystem Management Project (ICBEMP). (493) Apparently, these reports were similarly unscientific. An agency-solicited peer review of these reports (494) was highly critical, finding a "number of serious flaws," including: <pre> faulty conceptualization of processes of natural selection and evolution, reliance on unsubstantiated or weakly substantiated assumptions, arguments built on scientifically unsupported premises, a failure to present all alternatives concerning controversial issues, a propensity to present a single alternative as if it were the only point of view found in scientific literature, presentation of scientifically unsubstantiated opinions as if they were scientifically tested and accepted, and inconcise or unconventional uses of scientific terminology. (495) </pre> The reviewer concluded: "Current versions of the reports are scientifically invalid, and should not be considered for use as a framework on which to base management decisions without almost complete revision." (496) She rejected Burkhardt's assertions that "most rangelands remain productive and stable after more than a century of livestock grazing," that "bison were abundant and widespread" and thus important selection forces in the Intermountain Region, and that domestic livestock serve as "replacements" for "extinct Pleistocene megafauna" (497)--all of which are commonly heard pronouncements of grazing apologists. (498)

More recently, Range magazine published a remarkable piece of drivel by another range consultant, Steven H. Rich, president of the Rangeland Restoration Academy. (499) In this article, Rich (who apparently is not a scientist, but who nevertheless advertises himself as a "successful Natural Resource Management Consultant" (500)), wrote: "Buffalo chips and cow pies are indispensable, integral parts of the West." (501) This piece reflects two spurious views, widely held among ranchers and range managers: (1) that livestock benefit rangelands by cycling nutrients, (502) and (2) that cattle "substitute" (are ecological replacements) for bison. (503) As noted above, however, the long-term result of cattle "cycling nutrients" (by consuming vegetation and reducing fitter cover) can be desertification. (504) This is so in part because native plant species in the arid and semi-arid West did not evolve in association with large ungulate grazers. Neither these plants nor western soils are adapted to coexisting with cattle. Bison--contrary to the second view--were sparse or absent over most lands that are now public grazing lands (west of the Continental Divide), and no other native ungulates are similar to cattle in size, diet, foraging behavior, or ecological impacts. (505)

Many examples of the misuse or subversion of science are more subtle. Consider, for example, an article entitled "Influences of livestock grazing on sage grouse habitat." (506) Its authors concluded that "rest-rotation cattle grazing" had a "direct positive impact" on sage grouse because grouse food forbs increased during the rest period (i.e., the period of no grazing). (507) Ranchers and grazing apologists commonly claim credit for "improvements" in the land which, in fact, occur as the result of discontinuing some damaging grazing practice, such as removing cattle from riparian areas. (508)

To borrow a phrase from Dr. Box, as long as range professionals allow their "gods [to] get in the way of [their] science," (509) the public and politicians can hardly be expected to see the truth. There seem to be two principal reasons for the seriousness with which these "gods" or myths are embraced today: First, the longer ranching persists as a land use, the more plausibly (and sympathetically) ranchers can argue that theirs is a culture worth preserving. This is so even though public-land ranching holds on largely because of government subsidies and ranchers' attachment to their chosen lifestyle. Second, a growing number of persons attracted to the West for its wide open spaces, but concerned at the rate they are dwindling, grasp at solutions that link preservation of those open spaces to keeping ranchers on the land.

Webster's defines myth as "a belief given uncritical acceptance by the members of a group especially in support of existing or traditional practices and institutions; a belief or concept that embodies a visionary ideal." (510) Mythical means "fabricated, invented, or imagined in a consciously arbitrary way ... or ignorantly and willfully without facts or in defiance of facts." (511) Even a cursory look at some of the most prominent rationalizations of current public-land grazing policies (512) shows that each indeed "embodies a visionary ideal" and is "ignorantly and willfully without facts or in defiance of facts":

* Ranchers are "cowboys." (513)

* Cowboys are romantic figures. (514)

The notion that ranchers and cowboys live lives of freedom and adventure in the open air on the open range is a mere fiction. (515) Ranchers are (sometimes absentee) land owners and businesspersons. Cowboys are hired hands. (516) Indeed, cowboys are among the lowest paid workers in the West. (517)

* Cowboys (hence, according to the myth, ranchers) are independent, self reliant, honest, hard-working, respectful, etc. They "have integrity and courage in the face of danger." (518)

Any stereotype has its limits and flaws, but these notions seem especially unfounded. Of the alternative definitions of cowboy offered by Webster's, "outlaw or gangster in the early days of the western U.S." precedes "one who tends and drives herds of cattle." (519) Early cowboys were not generally liked or admired. (520) They were often disorderly, prone to violence and drinking, and considered "uncivilized." (521) Most were illiterate. (522) Ranchers (or ranch managers) work hard, but so do people in many other occupations and professions. Ranchers may be "rugged individualists" and philosophically independent, (523) but public-land ranching has long been heavily dependent on government subsidies and is still referred to as a "pocket of socialism" in our capitalist economy. (524)

* Public land ranching is crucial to local rural western economies. (525)

This myth was addressed briefly in the introduction. (526) According to a study by agricultural economists thirty years ago, ranchers depend more on the availability of jobs in the local community than communities depend on ranching. (527) The General Accounting Office later failed to find any supporting documentation for this claim in the Southwest. (528) In the early 1990s the Department of Interior and a University of Montana economist both concluded that eliminating all public-land gazing would have minor economic effects. (529)

* Public-land ranching is crucial to maintaining a valuable culture and way of life. (530)

In truth, there is no single ranching "way of life." "Ranching" and ranchers vary widely, historically and presently. (531) Ranchers have included sheep and cattle producers, landed and itinerant operators, cattle "barons," Eastern and foreign capitalists, family operations, hobby ranchers, "rustlers," absentee owners, etc. Even so, very few livestock producers, even in the West (fewer than 23,000, or six percent), use federal public lands; thus, ranching would continue absent federal grazing privileges. The chief objection to this myth, however, is that nothing in the law authorizes, much less mandates, federal land management agencies to take lifestyles or self-described "culture" into account in making grazing decisions. (532)

* Keeping public-land ranchers in business maintains open spaces, (533) a.k.a, the "cows versus condos" issue. (534)

As with the community-dependence myth, proponents of this argument have failed to marshal supporting evidence. The reality is otherwise. (535) First, sprawl development occurs on private (not on public) lands, where there is a demand for the development. No development pressure exists in many public-land areas. Second, nothing in existing federal law prevents public land ranchers from subdividing or selling their private lands to developers. The real estate market and individual economic choices, not federal grazing rights, dictate which lands will be developed. (536) Third, most ranchers are in the business for the lifestyle, not the money, and recent surveys reveal that at least half of public-land ranchers would continue to operate if they lost federal grazing privileges. (537)

* Ranchers axe "good stewards of the land and all its creatures." (538)

* Grazing improves the land. (539)

* Ranching provides clean air and water, wildlife habitat, etc. (540)

A massive literature contradicts these assertions, some examples of which have been cited in this article. The productivity of western lands, private and public, has declined under ranching practices. (541) Cowboys and ranchers historically have been oblivious or careless of, if not actually cruel to, their own livestock. (542) Many are intentionally destructive of predators and "pests" and intolerant of many other native species. (543) Perhaps the most compelling rebuttal to this myth, however, is the condition of the public lands today. (544)

VI. CONCLUSION

The more things change.... The western range livestock industry was born of opportunity and lawless entrepreneurialism. By the early 1900s, the free-spirited cowboy had captured Americans' imagination, if not Congress's solicitude. For most of the next century, the larger operators continued to get, or take, pretty much what they wanted--the use of hundreds of millions of acres of land, tax free and for minimal rent, with predator control, fencing, and various other services provided; the respect (or fear) and envy of their neighbors; the fascination of an ill-informed public; the ready patronage of politicians; and an infinitesimal regulatory burden. Still, ranges were depleted and conflicts simmered. From my vantage point, the status quo in 2005 looks a lot like 1934.

The capture metaphor provides a means of understanding, or at least dissecting, an otherwise nearly inexplicable phenomenon--that ranchers have maintained their hold on the public range. It would seem that no industry could sustain itself indefinitely in the face of any, much less all, of the following factors: a paucity of persons engaged in the business, the devastating ecological consequences of the enterprise, low profitability and a miniscule collective economic contribution, significant unrecovered administrative costs, increasing competition, and serious legal challenges. But as the capture metaphor illustrates, this industry has the cowboy as its icon. Therein lies the difference.

Ranchers no doubt believe that things have changed considerably in the New West. Their way of life is in jeopardy. They are beset by urbanites, recreationists, and developers, beleaguered by environmental laws (especially the Endangered Species Act) and "reform regulations," and generally unrecognized for their historical and cultural contributions. They are captives of global markets and the meatpacking industry. Clearly, one difference between the Old West and the New West is that nearly all who ranch today say they do it for the lifestyle, not the money. In that sense, perhaps they are more like the cowboys than the ranchers of days gone by. However, today's ranch managers and hired hands spend more time in a pickup or four-wheeler than on a horse, and more time using a cell-phone or computer than riding the open range. They supplement their income by driving a school bus, selling insurance, or guiding dudes. Still, these pesky facts seem to matter not: our infatuation persists.

A few years ago, High Country News reported yet another clash between the environmental values of the New West and the entrenched dogmas of the Old West. The tale had all the elements of classic western drama: good guys and bad guys, cowboys and the law, man versus nature, and counties' and states' rights versus those of the federal government. It was the "summer of 2000 [and] the third summer of severe drought in Escalante Country": <pre> [In Grand Staircase-Escalante National Monument], even the sagebrush was dying. [Manager] Kate Cannon ... took the advice of her range staff and warned all the ranchers on the monument that they might have to pull their cows off early. By mid-August, 80 to 90 percent of the forage was gone, and most ranchers had taken their cows off the land. Cannon ordered the remaining three ranchers to remove their cows by Sept. 1. Ranchers Gene Griffin, Quinn Griffin, and Mary Bulloch refused to

budge. In October, Cannon sent agency wranglers and a helicopter to