Oregon Was Just a Sample

The occupation by armed rebels of the Fish and Wildlife buildings near Burns, in eastern Oregon was heroic, but tragic. The occupiers mostly conducted themselves bravely. They risked their lives and freedom in behalf of a cause that is, in most respects, just. Yet the rebels did not seem to understand all that justice requires in the situation. And the rebellion was quixotic—doomed to fail from the start by their infatuation with the “romance” of armed rebellion.

Levoy Finicum lost his life fighting for this cause. Ammon Bundy, who led the rebellion, and his brother Ryan are in jail, as are many of their followers. Their father Cliven Bundy, who flew to Oregon from Nevada to broker a peaceful surrender, has been arrested and charged by the FBI. Clearly, this was a misbegotten adventure. But however tactically flawed the rebellion, the cause for which these people fought is a just one.

They are right to protest federal policy that has sacrificed ranchers, loggers, miners and oil drillers, more and more over the last 40 years, to misanthropic environmentalism and a greedy federal land grab. They are also right to protest the persecution of the Hammonds and other stockmen by federal bureaucrats determined to drive them from their ranches by force. But the rebels’ solution, which is to force the federal government to relinquish control of its vast western lands empire to local or state governments, will not bring justice. It will only impose another kind of injustice that these men wrongly believe would restore their rights.

People such as the Hammonds, Bundy’s, and many others like them, who struggle to earn an honest living on federal lands all across the West, should have their rights restored under a regime of justice. To understand what is just, in this or any other situation, requires thinking about ethics and its nature, which we’ll discuss later. But first, let’s glance at the history of the settlement of the West.

CONGRESS HOBBLES SETTLERS WITH THE HOMESTEAD ACT

In 1862, after the South had seceded from the federal union, its opposition to free homesteading thereby nullified, Congress passed into law the Homestead Act. This legislation was a political fix for the problem of how to settle vast areas of the Louisiana Purchase, and the Oregon and California territories, with Americans, under the theory that possession is 90% of legitimacy. But Congress permitted only tiny homesteads of usually 160 acres in semi-arid country that required far more land to support farming and livestock raising. This restrictive policy guaranteed that many homesteaders in the West were bound to fail.

During World War One, grain prices skyrocketed and the rains fell generously on arid lands, so some homesteaders prospered. But the end of the war crashed grain prices, and in the twenties the rains began to fall off. A great many of the homesteaders sensibly gave up trying to grow low-value crops in dry soil that, by 1930, became parched. Vast areas were abandoned by broken farmers and their families, leaving a sea of grass, windswept prairie, and badlands to cattle and sheep owners eager to acquire more grazing lands. Across most of the semi-arid or arid West, grazing was the highest and best use of the land, where ever stock water could be found or developed.

As cattle and sheep owners moved onto mostly empty federal grasslands, they began to make necessary improvements to profitably run their herds. They developed and built water wells, springs, and reservoirs; hay meadows and irrigation; homes and utility buildings; and gleaming barbed wire fences that shot and snaked across the landscape. None of these improvements could have been built without

the foresight and hard work of the earliest ranchers, who saw opportunity in struggling to build herds and run them on lands that were unclaimed by other herdsmen or farmers.

There were ugly fights between cattlemen and sheep men, and between these stockmen and persistent farmers who held small tracts of productive bottomland along creeks. But the overall thrust of activity was homesteading, not in the legal sense of laws enacted by Congressmen, but in the philosophical sense of John Locke, who explained that private ownership results when an individual combines his or her labor with unclaimed land or other resources.

WHY PRIVATE PROPERTY IS GOOD

Now we can begin to see why private ownership of real property, and of various kinds of personal property, is much more than a legal institution that has been considerably compromised over the last century. Private property is an ethical principle that is grounded in reason and the requirements of human life.

Property is good because people need it to live. They need private property to feed and clothe themselves, to live securely, and to create and sustain proper lives for themselves and those they care for. Without private property, people perish, because they lack not only the means of subsistence but the means of any achievement whatsoever.

The moral basis for private property is deduced from human nature. People are creatures that live by thinking and choosing. As plants automatically respond to sunlight, nourishment and water in pursuit of life; and as animals instinctively organize their behavior around the principle of furthering life; so people must choose to think and try to make appropriate choices in order to live.

Thinking requires that one be free to act on one’s ideas, because thinking where action is prohibited is futile. If action is not possible, then thinking stops. Therefore, human nature requires that people live free of coercive restraint, so they can try to realize their highest potential to create, produce and flourish.

Note that freedom to act presupposes peaceful activity. If one sets out to take from another person, by threats of violence or by fraud, then one thereby negates freedom.

To live and thrive, people need private property, in order to secure their moral sovereignty as free and independent individuals. Moral sovereignty is respect for cause and effect in human life. Under a regime of private property, individuals who initiate effort and awareness to make good choices, and who therefore act rationally, productively, with integrity and so forth, are free to enjoy and keep the benefits of their success. They deserve their success. Those who don’t rouse themselves to higher consciousness and effort, and who therefore make bad choices involving reckless, destructive or vicious behavior, experience diminished lives that are at least partly of their own making.

The reason that private property is constantly under assault by socialists and big government types is clear: it is the logical foundation of all freedom. Without property, there could be no freedom of assembly and association, speech and religion; and privacy would be impossible. For without property, there is no moral realm within which one is free to choose one’s associates, ideas and activities. There is no moral realm where one is free to live a life of one’s own. When private property is outlawed, or to whatever extent it is compromised, people lacking moral sovereignty are threatened and invaded by others.

HOW THE WEST WAS WON

With these principles in mind, we can properly judge right and wrong in the conflicts and controversies of the settlement of the West. The people who hauled themselves and their belongings across the wild prairies and mountains were galloping after opportunity in every line of work. There were vast expanses of unclaimed lands; cheap space in growing towns where business flourished; gold, silver and copper deposits in unexplored mountains, deserts and streams, gleaming just below the surface–free for the taking! These pioneers were virtuous in their pursuit of self-improvement: They were prudent, practical and energetic. They identified opportunities they hoped would enable them to create wealth for themselves and their others. They saved to fund their expeditions and ventures, worried about risks and costs, and then tried to carry out their daring plans. This was how the eastern half of the United States had been built—a spiritual quest for opportunity by people who didn’t need official permission.

During the great American migration westward, Indians were often abused, but not entirely in the way that most people believe. There were many instances of unjust killing by both whites and Indians. The US army was a vastly superior force and wielded power to kill, terrorize and bully on a grand scale. So treaties were repeatedly broken. Beaten Indians were taken hostage and herded onto reservations where it was impossible for them to support themselves on 160 or 320-acre farms.

However, the fable of the noble savage is a myth. Often the Indians of the Plains, both men and women, used blood curdling methods to torture their captives to death, regardless of race or sex. Such cruelty was typical of warrior tribes. They lived by hunting and by making war on other tribes and on Whites and Hispanics who offered opportunity for plunder, enslavement and killing. The reason these tribes lived by making war was because the western lands could support only a comparatively small number of hunter-gatherers. Tribes fought, not merely for sport, but for dominance; and in the end, survival. (1)

As such, these warring tribes had mostly not appropriated private or even quasi-private tribal property. Indian people that lived by farming and hunting, such as the Creeks in Georgia; or that lived as livestock traders and breeders, such as the Nez Pierce of the Wallowa Valley of Oregon, had their farms and grazing lands stolen from them by the federal government. But tribes that wandered as nomads across vast stretches of wild country did not own those ranges, because ownership requires applying one’s ideas and work to the task of appropriating, defining and developing one’s property. Nomadic tribes lived by war, and they acquired the territories they claimed through conquest.

Therefore, ranchers who began building and running their herds on unsettled federal lands after the Civil War were acting with merit and justice. The lands were available for just appropriation, because they were unused by other settlers, farmers, and herdsmen. The ranchers’ acts were meritorious, because they acted prudently and productively. They exercised prudence by using foresight, good judgement, and careful planning to create value from the unused and increase their material well-being. They were productive, bringing in cattle and sheep where none had existed before, and improving and building on the land to run their herds.

At first, in the Northwest beginning in the eighteen sixties, ranchers ran their cattle on open-rangeland. They would homestead a small tract on which they constructed buildings and eventually developed hayfields. They would buy other small homesteads to add to theirs. But throughout the year, the cattle were herded and grazed over open range, in common with herds owned by other ranchers. This grazing of a vast common area led to costly over grazing. No herdsman wanted to reduce the number of cattle he ran on the commons, because any reductions would be filled by other ranchers. (2)

Although formal property rights to the range were not sanctioned by legislation, informal property arrangements among people living in western communities sprang up quickly. If a rancher developed a water source and fully stocked the surrounding rangeland with his cattle, other stockmen would stay away. However, the rancher had to keep his range area fully stocked, without saving grass he’d need for the dry years. If the rancher understocked to save grass, other stockmen would move in. This arrangement drastically reduced calving and lambing crops, and increased the rancher’s livestock losses in winter and during drought. Also, homesteaders undeterred by poor crop growing conditions and frequent lack of water for their domestic and livestock use, were moving into the ranches established by the cattle and sheep men. So establishing and defending property ownership in this way was not very effective.

Soon cattlemen formed livestock associations; these organizations asserted exclusive rights to large expanses of grassland where members grazed in common. The association would publish notice that it had appropriated for its members a particular territory, occasionally including as much as several million acres, for exclusive use by its members based on years of past and present use. The announcement would state that the territory was fully stocked and that non-members were unwelcome. To discourage outsiders from grazing additional cattle, members denied them the use of association corrals for working and shipping, and excluded them from the association spring and fall roundups. Because the members’ many thousands of branded cattle were ranging together across vast landscapes, gathering those cattle in the spring to brand and again in the fall to ship calves were each a major undertaking lasting a month or so, with the riding and other work done by representatives from each member’s ranch. Exclusion from the roundup and corrals made it impractical for non-members to use the range.

The assertion of grazing rights to real property by the cattlemen’s associations was spontaneous and voluntary, growing rapidly in response to federal policies that restricted formal ownership to small semi-arid tracts on which no one could earn a living. The claims of the livestock associations were justified because their members had been the first to appropriate and use empty rangeland under common law prescriptive rights.

The associations restricted the grazing of their members to prevent depletion of the grassland. The number of cattle each member was allowed to graze was allotted based on private ownership among the ranchers of stock water sources, which being scarce and valuable were quickly homesteaded or purchased. Association membership was a valuable right that increased the market price of a ranch’s deeded base property.

However, as general settlement progressed, outside competition for the rangeland grew. This motivated association members to cheat on their rules to get their grass before a competitor could. The livestock associations broke down under this pressure.

With the invention of barbed wire in the eighteen seventies, association ranchers began fencing their own range to assert ownership and better manage their herds. These ranchers claimed informal property rights under the common law practice of prior appropriation. By continuing to graze the

pasturelands they made private through fencing and water improvements, they more particularly defined their claims to ownership started under the livestock associations.

By the 1880’s expensive fences had been built across a lot of rangeland nominally controlled by the federal government. Fences increased ranch values and made it possible to efficiently manage and improve herds and pastures, in ways that were impossible on the open range. They also increased the collateral value of land and livestock, so that ranchers could get bank financing for the costs of operating and expansion.

HOW THE FEDS OUTLAWED PRIVATE OWNERSHIP ACROSS ONE-HALF OF THE WEST

But the progress achieved by developing private but illegal ownership collided with an opposing trend: the Progressive Movement. Starting in the eighteen eighties and nineties, this political/philosophical movement became a powerful force that promoted federal “ownership” of western lands, in the name of democracy and conservation. Progressives favored land socialism in the West and inveighed against the alleged wickedness of profit seeking and private ownership in a free economy. The movement was wheeled forward by political operators such as Theodore Roosevelt, who was a failed North Dakota rancher but enormously popular as a politician; Presidents Wilson and Taft; and many others enamored of the Progressive ideals of government ownership and regulation.

The Interior Department reacted with hostility to efforts of ranchers to assert their claims of ownership. This hostility was not surprising, since many Progressives gravitated into government jobs and the imperative of bureaucracy is to advance its power. The General Land Office of Interior derived its funding for the purpose of parceling out small tracts, regardless of the impracticality of farming 160 acre homesteads in dry country. Possessory rights to range claimed by ranchers threatened the GLO’s future.

Also, Agents working for the GLO were allowed to earn up to $3,000 in annual fees, in addition to their salaries; so their pecuniary interests clashed with private claims of ranchers.

The Interior Department sent out agents to survey the range and tear out fences that compromised their dominion, while threatening offending ranchers with prosecution. This policy reversed the big gains in productivity that had been achieved through fencing land claims. It encouraged overgrazing and halted improvements by ranchers, who were deprived of their natural rights and uncertain of their future on the federal commons.

In the decades following the eighteen eighties, federal enforcement of anti-fencing laws waxed and waned. Under the administrations of Grover Cleveland and Theodore Roosevelt, enforcement was strict. However, because this policy was destructive of ranching enterprises built by decades of hard work, political pressures forced officials to relax enforcement every few years.

Homesteading declined rapidly during the twentieth century, so that by 1925-1930, this activity was nearly extinct. Migrants had learned that farming small tracts in dry regions was not profitable. Consequently, illegal range fences that remained no longer had the effect of obstructing homesteader access to tracts located inside of lands that had previously been claimed and used by ranchers. The small farmers who hung onto their land through the hard times, using irrigation and advanced dryland farming techniques, benefited from the illegal fences. Those fences sometimes ran along the farmer’s boundary line, which saved the cost of building fence for farmers, and in any case kept cattle off their crops. For

these reasons, settlers stopped filing complaints against the ranchers with the General Land office in the teens and twenties.

This fact had no influence on federal enforcement. Usually, complaints during this period were filed by Interior Department agents, not settlers.

With homesteading dwindling, around 1920, the Interior Department stopped advocating disposal of federal lands to settlers under the Homestead Act. Instead, it pushed for bureaucratic management of “unclaimed” federal lands of roughly 200,000 square miles, most of which had long been claimed by ranchers under possessory right. This total did not include 265,000 square miles controlled by the Forest Service, whose dominion had been declared off-limits to homesteading since the turn of the century.

Quite often, from 1900 through about 1933, federal agents aggressively sought out and prosecuted illegal fencing. However, enforcement during this time was compromised by the rivalry that had developed between the Interior Department and the Forest Service of the Department of Agriculture, each competing to control federal lands. Both departments sought political support from ranchers, who used this leverage to negotiate for better grazing rights.

In 1901, the Interior department pursued strict enforcement of anti-fencing laws at the behest of President Roosevelt. Simultaneously, the Department of Agriculture’s Forestry Division told ranchers they could keep their fences on Forestry lands and get permanent grazing rights if they would support a transfer of the forests from Interior to Agriculture. In 1905, the Department of Agriculture took control of forest lands, having won support from Theodore Roosevelt and livestock groups.

During World War One, the federal government suspended anti-fencing enforcement to support the production of meat for the war effort. This was a tacit admission that private ownership was essential to ranching productivity.

After World War One, in 1921, both cabinet level agencies offered competing bills to award control of unclaimed lands to themselves. In 1923, Interior Secretary Work promised ranchers they could keep their fences on remaining federal rangeland, provided that the range was administered by his department. From 1922 well into the nineteen thirties, both agencies engaged in continuous lobbying and maneuvering, sometimes deceitfully, to gain control.

However, the quarreling agencies did share one important mission, which was to prevent any private ownership of federal rangeland. In 1926, secretaries of both departments testified in Congress against a bill that would have formally recognized grazing rights of ranchers.

In 1929, the Hoover administration formed a committee that recommended turning over to the states remaining federal lands. But support for the proposal was weak because the federal government intended to keep the valuable mineral rights and to cut off funding for highways.

Finally, in 1934, the Taylor Grazing Act was passed assigning the range to Interior. Interior Secretary Ickes marshaled support from ranchers with promises of cheap grazing fees in future grazing districts. He prosecuted illegal fencing and other private range improvements and promised ranchers free fence building and water improvement, once his legislation was passed.

For about three decades, grazing fees were low, as promised, reflecting the political sway of the ranching industry. But ranchers’ influence fell with the rise of the environmental movement in the Sixties.

HOW THE FEDS BEGAN TO ATTACK RANCHERS AND TAKE THEIR RIGHTS

The environmental crusade amplified ideas implicit in the Progressives’ conservationist movement, to the effect that human activity is destructive of what is supposedly the ultimate moral value: untrammeled nature. Why is pristine nature morally valuable? It is held to be inherently valuable, a claim that is buttressed with promises of vague benefits to future generations. But no value is inherent; a thing is valuable to humans because it furthers the objective of living well. If land is locked away, it damages the productivity of humans today and in the future. People must be productive to achieve prosperity. This is why the green movement is misanthropic.

Today, the federal government controls roughly half of the territory encompassing eleven western states, mostly through the Bureau of Land Management (BLM), Forest Service, Fish, Wildlife and Parks, and National Parks Service. The government has added significant holdings of formerly private lands to its empire since 1970, so that it now controls 1 million square miles throughout the United States.

Grazing fees have ratcheted steadily up over the decades and grazing rights have been reduced, restricted and sometimes eliminated. The Fish, Wildlife, and Parks wildlife refuge in Harney County Nevada is a case in point. This refuge is a part of the Harney Basin, which was settled by numerous ranchers in the 1870’s and used to support 300,000 cattle. These ranchers developed a productive irrigation system to water their hay meadows that attracted large flocks of migrating water fowl. The Malheur Wildlife Refuge, that today covers an area of 37 by 45 miles, took over 100 privately owned ranches.

The story of how these ranches were captured by the federal government is not a pretty one, if facts and details presented in an on-line  article by Ammon Bundy are true. (3) Mr. Bundy seems to draw on conversations he had with the Hammonds concerning a long history of federal land grabbing and abuse of the Hammond’s and other ranchers in the Harney Basin. He describes the takeover of the rancher irrigation system by federal people in the nineteen eighties, who then used the system to flood several ranchers on the productive Silvies plains. These ranchers, who had long refused to give into federal acquisition requests, were now forced to sell to the government; after which, in a few years, the flood waters receded.

He also describes blatant violations of the Hammond’s property rights by zealous federal people: these included barricading the county road that connected the Hammond’s lower and upper ranches, to deny them access to their property; forcing the Hammond’s into court to defend their water rights from federal taking; fencing off the Hammond’s water source in their upper ranch to stop Hammonds from using their water, after Hammond’s had prevailed in court; and then having Dwight Hammond thrown in jail for two days and nights for resisting this invasion of his right to use his private water. The BLM then revoked the Hammond’s grazing allotment adjacent to their upper ranch, which forced them to abandon running their cows there, because they could not afford to build many miles of new fence separating their private from federal land. This was the source of prolonged financial hardship to the Hammond family; they had to sell their ranch to buy another with two federal grazing permits, both of which were later revoked.

As Mr. Bundy further describes, in 1999, the Hammonds started a fire on their private property to burn juniper and sagebrush that were choking off the grass their cattle grazed. The fire spread to a small area of BLM land. In 2001, Steve Hammond phoned the fire department to inform them of his plan to perform another routine burn of brush on his land; the fire burned about 127 acres of adjacent federal land and was extinguished by the Hammonds. A BLM specialist testified that the fire improved the federal range.

In 2006, a big fire started by lightening threatened the Hammond’s winter pasture and home. Steve

Hammond started a backfire, which put out the wild fire and saved their ranch. A BLM ranger and the sheriff then arrested and charged Steven Hammond and his father, Dwight with multiple Oregon state offenses. However, after reviewing the case, the district attorney dismissed all the charges as unwarranted.

But five years later, the U.S. attorney’s office charged the father and son with terrorist arson, under The Federal Terrorist Effective Death Penalty Act of 1996. These federal charges rested on the implausible claim that the Hammond’s had started the backfire, not to save their ranch, but to destroy evidence of deer poaching! Of course, deer entrails are massive and impossible to destroy by starting a grass fire. But the jury bought the story and Hammonds were sentenced for terrorist arson. 73 year old Dwight Hammond served 3 months and his son Steven served one year, and they were fined $400,000. Following their release, while they were still struggling to pay the draconian fine, BLM personnel complained to the U.S. attorney that the jail terms were less than the five-year minimum punishment prescribed by the law. The Hammonds were then both sentenced again, this time to five years in prison. At the time they were taken away to prison the second time, they had paid $200,000 of the fine, but had only a short time left to pay the remaining $200,000. If they cannot pay it, they will be forced to sell their ranch, almost certainly to the BLM, to which the court awarded the first right of refusal.

The Bundy brothers and compatriots traveled to Burns, Oregon to protest the abusive treatment of the Hammond family and to draw public awareness to the injustice of federal control of 50% of the American West. The Bundy takeover of the FWP buildings aroused cries of indignation from people who believe that government ought to compel obedience to its vision, including, “if necessary”, taking over and ruining the lives of those who resist its hegemony.

However, the Bundy cause is just. Not only have the Hammonds and many other people been treated badly, but federal claims to “public ownership” of 50% of the West are ethically indefensible. The federal government does not own that vast expanse of territory. It did not discover, appropriate and improve for its own use an unclaimed tract of land. It did not get what it claims to own, peacefully and voluntarily, using its own efforts and wealth. Government activity is funded by force; its every acquisition is taken by force or paid for with wealth extorted from other people. Therefore, its claims to ownership are false and its control of half the American West is illicit political empire.

The progressive notion of “public ownership” is deeply rooted today, because people imagine it symbolically upholds their importance as members of a great democracy. But the notion is absurd on its face. Ownership begets control of property, but the “public” controls very little as such; and certainly not the use and disposal of half the American West. “Public ownership” is a metaphor designed to elicit popular support for the federal empire. Only a tiny percentage of citizens actually set foot on public lands, away from parking lots, restaurants, and paved viewing points. Drive through Yellowstone Park and view the edge of a million acres of rocks and wasted pine trees, half burned and fallen down.

Continue for hours through the pitch black of night, and you will see not a single inviting light of human habitation.

Federal lands ought to be dispersed into private ownership. Ranchers who have run livestock on federal lands appropriated and developed by their predecessors in title should be awarded the right to buy at a big discount. Funds that flow into the federal treasury from land sales should be returned to taxpayers who have been forced to fund this unethical political adventure.

The benefits of justice would be profound because the injustices heaped on the Hammonds, Bundy’s and a great many others would stop. Ranches and farms would become secure in title and productive again. Timber raising and logging, mining and oil drilling, outfitting and recreation; these and other private uses that no one has yet conceived, would thrive. There would be an outpouring of enterprise that would indirectly and directly benefit everyone, sooner or later.

Then the West would be won again, still the most beautiful stretch of country on earth, and home finally, to a free and prosperous people.

Notes

1. The routine use of torture by many plains tribes is described in detail in the book, The Heart of Everything That Is: The Untold Story of Red Cloud, An American Legend, by Bob Drury and Tom Clavin (Simon and Schuster, 2013)
2. My description of the history of the federal takeover of western lands draws heavily on a wonderful book published by the Pacific Institute for Public Policy Research, Locking Up The Range by Gary D. Libercap (1981).
3. The essay by Ammon Bundy is posted on-line here: http://bundyranch.blogspot.com/2016/01/full-story-about-whats-going-on-in.html

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