This land is our land - all of ours.
Stories about the armed takeover of public land in Harney County sometimes say that the Malheur National Wildlife Refuge is owned by the U.S. Fish & Wildlife Service. That's not quite right: The agency manages the refuge, which is owned by the people of the United States. Neither the occupiers nor the ranchers they say they represent have a greater claim to the refuge, or to any public land, than any other citizen. Assertions to the contrary are self-serving misreadings of law and history.
Federal land ownership - that is, ownership by the people - is as old as the republic. The Property Clause of the Constitution - Article 4, Section 3 - gives Congress the authority to "make all needful rules and regulations" for federal lands. In 1830, the U.S. Supreme Court ruled that Congress' power under the Property Clause is "without limitation."
Almost as old is the practice of giving federal lands to railroads, homesteaders, miners, states and just about anyone with a plan for making economic use of them. The lands that remain in public ownership today are those that no one wanted, or could afford to pay taxes on, in the 19th and early 20th centuries, or whose value as a national resource is so outstanding that it gained early recognition.
The Malheur refuge is a peculiar combination of public land that has been both unwanted and highly valued.
When Peter Skene Ogden led the first party of white people to the area in the 1820s, he described the marshes around Malheur Lake as being more heavily populated by Indians than any other place on the North American continent. Forty years later, when Congress gave the Oregon Legislature the authority to dispose of "swamp and overflow" lands, white settlers were still absent from Harney County.
In 1908, President Theodore Roosevelt, first by executive order and then by proclamation, created the Malheur refuge in response to pleas by William Finley, founder of the Oregon Audubon Society. Finley was moved to action by the near-extermination of Malheur Lake's egret colony by plume hunters. Roosevelt designated the refuge as including all lands within the meander lines of Malheur, Harney and Mud lakes, along with all abutting unpatented plots of land.
The designation of these public lands as a wildlife refuge displaced no one - nor did its expansion in 1935 and 1940, when the valley of the Blitzen River and areas to the west of Harney Lake were added through the purchase of ranchland from willing sellers.
The waters of Malheur Lake, fed by the Blitzen flowing north from Steens Mountain and by lesser streams flowing south from the Strawberry Mountains, are fresh - unusual for a lake in the Great Basin, that vast bowl of dry territory in the intermountain West where rivers do not flow to the sea. Most lakes in the basin, such as Utah's Great Salt Lake, are alkaline. Malheur Lake, however, has a natural valve for dealkalinization: During wet years it overflows into salty Harney Lake.
A big freshwater lake at the northern tip of the Great Basin is a haven for migratory and resident birds. More than 200 species are common on the refuge, and dozens more are occasional visitors. The refuge supports 50 percent to 66 percent of some species of migratory waterfowl along the Pacific flyway, that great aerial corridor that extends from the Arctic to Central America.
The refuge is also central to the livelihoods of some of Harney County's sparse population of ranchers. Ranchers in Harney County need two kinds of land - tens of thousands of acres of open range where cattle can graze in spring, summer and fall, and much smaller parcels where hay can be grown for winter feed. The refuge has provided both grazing and crop land since its inception, with income from fees and leases supporting its operations.
Over the decades, the number of cattle permitted on the refuge, the times of year when grazing is allowed and the acreage open for hay cultivation have all been scaled back to protect avian habitat. This has fed the resentments currently being exploited by the occupiers of the refuge.
Yet a management plan for the refuge approved in 2013 was developed with ranchers' cooperation, and recognizes the beneficial effects of grazing - cattle can, for instance, advance the refuge's goal of suppressing invasive plant species. Interior Secretary Sally Jewell praised the management plan as the "Oregon Way."
Such mutual benefits should be pursued wherever possible. But the refuge's value to Americans, whether they live in Burns or Boston, cannot be measured in animal unit months or tons of hay. John Scharff, superintendent of the Malheur refuge from 1935 to 1971, spoke to this issue in a book he co-wrote about Steens Mountain:
"Preservation of wildlife surely is worth more than the pounds of meat it supplies on a butcher counter basis. ... One of the greatest values of our national wildlife refuges is that they preserve nature unspoiled and provide a place where persons can go to repair the damage done by the rattle and clang of civilization. Nature aids us in putting human relations in proper perspective. ... The Malheur Wildlife Refuge is not only for wildlife, but for man's soul."
Anything the occupiers do to degrade that value, or limit general access to it, is a crime against all Americans. Taking refuge property at gunpoint violates the letter of the law and the spirit of the nation.