Mitigating Malheur’s Misfortunes: The Public Interest in the Public’s Public Lands

Abstract

The 2016 standoff between armed militants and law enforcement personnel at the Malheur National Wildlife Refuge was a pivotal event in the century-long struggle over control of federal public lands. The Malheur occupants’ message resonated with members of the Patriot Movement, and it gained momentum when occupation leaders were acquitted by jury members swayed by anti-government “take back our lands” messaging. President Donald Trump added fuel to the fire by pardoning the ranchers whose earlier conviction for arson led to the standoff. The Malheur occupation evidences a shift in public sentiment exhibited by the Trump election, and highlights the country’s divisiveness over the urban-rural divide, libertarianism, and populism. Private users of public lands and their sympathizers have been further emboldened by the Administration’s emphasis on American Energy Dominance and its enthusiastic support for the exploitation of commodities from the public lands. This article examines Malheur and other examples of private claims to rangelands, water, and minerals to probe the nature of private interests in federal public lands and resources in an attempt to identify potential leverage points for defusing the metaphorical (and occasionally literal) conflagration and for managing conflict. It questions the proper function of a sovereign that is also a proprietor of public lands and resources, and answers with the public interest standard, long found in public lands law and western water law statutes, complemented by the common law public trust doctrine (PTD). While the two doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. A public interest-public trust analysis is unlikely to change the hearts and minds of private users intent on exploiting the public’s lands and resources, but it interjects the public’s voice in the controversy and provides federal decisionmakers with a strong paradigm by which to manage the resources as well as the overarching message — that these are, after all, the public’s public lands and resources.

Keywords: federalism, supremacy, property clause, public interest, public trust doctrine, police power, sovereignty, property

JEL Classification: K11, K32