Law on grazing is clear.
The increasingly bold occupiers of the Malheur National Wildlife Refuge met with ranchers in the nearby town of Crane on Monday and urged them to tear up their federal grazing leases. The U.S. government has no right to own the land on which their cattle graze, Ryan Bundy, who with his brother Ammon are leaders of the refuge takeover, told the ranchers. That assertion is dead wrong, but it's durable - and otherwise responsible federal officials are partly to blame for keeping it alive.
The Bundy brothers' father, Cliven Bundy, led a high-profile standoff with agents of the Bureau of Land Management in 2014 over the issue of $1.1 million in unpaid grazing fees. Seeking to avoid armed conflict, the BLM backed down and the fees remain unpaid. The fact that Bundy has gotten away with pocketing the small fortune he owes to the taxpayers lends credence to the idea that he doesn't really need to pay.
At the national level, Rep. Greg Walden, whose district includes the Malheur refuge, spoke on the floor of the House shortly after the occupation began. "I have seen what happens when overzealous bureaucrats and agencies go beyond the law and clamp down on people," Walden said. He went on to say he did not condone the takeover by the Bundys and others, but his clear implication was that the occupiers and the BLM share culpability for events on the refuge.
Then there's the case of the late Wayne Hage and his family, Nevada ranchers who, like Cliven Bundy, have refused to pay BLM grazing fees. A federal judge in Las Vegas sided with the Hages' claim that their water rights entitled them to graze their cattle on federal land for free, and held two BLM employees in contempt of court for trying to force the ranchers to obtain grazing leases. The message from the judge's courtroom was that people can defy the BLM and win, and that federal workers put themselves at legal risk for doing their jobs.
A refreshing break from this pattern of tolerance for lawbreaking came last week from Susan Graber, a former justice on the Oregon Supreme Court who now sits on the 9th U.S. Court of Appeals. Writing for a three-judge panel, Graber reversed the verdict in the Hage case, scolded the lower-court judge for his decision, and ordered that the case be retried by a different judge.
In her opinion Graber reviewed the strong constitutional basis for federal land ownership and cited U.S. Supreme Court rulings upholding the government's unrestricted right to limit private uses of public lands. She noted that grazing fees were seldom charged until Congress passed the Taylor Grazing Act of 1934, but the Supreme Court had upheld its right to collect such fees 23 years earlier: "Congress has not conferred upon citizens the right to graze stock upon the public lands," the court ruled in 1911. "The government has merely suffered the lands to be so used."
The Taylor Grazing Act and its successor, the Federal Land Policy and management Act of 1976, were approved to protect public lands, and ranchers are primary beneficiaries of this protection. Without a system of leases and fees, lands would be overgrazed to the point of no longer being able to sustain livestock. Grazing leases on public lands also tend to be granted on generous terms, with fees set at a fraction of the amount charged by private landowners.
There is no confusion or doubt about the constitutionality of federal land ownership on the public's behalf, or about the legality of federal agencies' right to manage those lands in ways that serve the public's interests. It's as illegal to seize a wildlife refuge as it would be to take over a post office, and it's as illegal to run cattle on public land without paying grazing fees as it is to cheat the welfare system. More clarity of the kind Graber delivered in the Hage case is needed from authorities at all levels.