Do Sagebrush Rebels Have a Colorable Claim? The Space between Parochialism and Exclusion in Federal Lands Management

Abstract

This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, anti-environmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates exploring the other. Yet, the extreme tactics of unsavory figures like Ammon and Cliven Bundy stand to overshadow real problems in the region. To search for the potential kernel of truth, I therefore apply a “pro se analysis” to complaints about unfairness in the public lands regime vis-à-vis communities near federal lands in order to transcend rhetorical blind spots and discern the strongest “colorable claims” amidst the noise. After dispensing with land transfer advocates’ common legal arguments, I conclude that a more substantial basis in ethical and legal principle than is generally recognized supports the idea that communities near public lands experience injustices and may be entitled to a form of input over land use (though not through formal law). To categorize these “claims” in a legally digestible way, I articulate three ethically and legally principled “theories” on behalf of the disgruntled: (1) an Exclusion Theory; (2) a Reliance Theory; and (3) a Public Trust Doctrine Theory.

This Article builds upon an earlier project, Alienation and Reconciliation in Social-Ecological Systems, which argues that cultural rifts and procedural flaws have contributed to alienating large segments of the country from environmentalism and the federal government, to the detriment of climate change law and policy, and that adaptive governance and collaborative decisionmaking may stand to remedy some of these issues. Like in Alienation and Reconciliation, I conclude here that adaptive governance or a similar approach may be the appropriate avenue for mitigating the concerns outlined. This discussion thus serves not only to shed light on a longstanding tension in federal lands law and policy, but also to engage and illuminate the anti-government, anti-environmental sentiment that has percolated throughout the country for decades.

Keywords: Public Lands, Administrative Law, Environmental Law, Rural Sociology, Ammon Bundy, Cliven Bundy, Sagebrush Rebellion, Adaptive Governance, Natural Resources, Property, Land Transfer Movement