Sunday, June 12, 2011

Scarcity Of Values

The Growing Dilemma
Scarcity of Values
The Promises of FLPMA
By Stephen L. Wilmeth

     The contiguous eleven Western States (Western States) exist with a much different set of governing rules than the other continental 37.  All states must deal with the federal actions that expand the domain of the government, but the Western States deal with it on a more intimate basis.  As tenants, Westerners must deal with it through their dominant land lords, the federal and state governments.
     Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, and California are the Western States that entered the union with the expectation that promises of equal footing would eventually be manifested.  For the purposes of record, the government ownership of lands including Indian and military reservations within those states ranges from 40% in Montana to 89% in Nevada.  The weighted state and federal government lands across those states makes up about 62% of the land.  Correspondingly, the weighted state and federal presence in those states east of the 100th Meridian makes up about 12% of the land. 
     The impact on the Western States is not just federal lands.  Arizona and New Mexico share domination of both state and federal ownership of lands.  Those states have 85% and 57% combined state and federal ownership, respectively.  There are nine states in the union that have fewer total acres than what the state governments of Arizona and New Mexico own.  Arizona is ranked third in the union in total state ownership with 9,083,900 acres.  New Mexico is ranked number four at 8,700,000 acres.
     The combined acreage of government ownership in the Western States represents 463,791,000 acres.  The federal government controls about 91% of that amount.  The Feds control over 724,000 square miles of the Western States.
     FLPMA revisited
     In 1976, the promise the founders envisioned regarding the aversion and predisposition for limiting federal ownership was changed.  No longer was the implied transition to eventual private ownership of lands (equal footing) for the Western States a promise.  The promise was revoked in the Federal Lands Policy and Management Act (FLPMA).
     FLPMA promised the Western States that, if they would agree to allow the federal government to alter federal land policy from a matter of disposal to a matter of retention, certain actions would be taken.  The Western States agreed based upon the promise the feds would manage the lands under multiple use/ sustained yield principles, protect existing valid rights, limit wilderness reviews, and consider the needs and concerns of adjacent communities in any actions taken.
   FLPMA recognized the concern over the Western States’ inability to compete vis-à-vis with eastern states from diminished tax revenues harvests from private property.  In response, the law, in a short paragraph of 41 words in the Declaration of Policy, pledged the federal government would, “on the basis equitable to both the federal and local taxpayers, provide for payments to compensate states and local governments for burdens created as a result of the immunity of federal lands from state and local taxation.” 
     That short reminder that local communities existed in the Western States represented .15% of one percent of all the language in the bill.  Similar snippets of language, including the requirement for local coordination by the feds, and, albeit brief, other important reminders in the Declaration of Policy, rounded out the major issues with teeth for western communities.
     The vast majority of the bill, computed on the range of more than 99% of the wording, set forth definitions, policy, demands, reminders, terms and conditions, authorization processes, rules and regulations, fee scheduling, forfeitures, and authority of the federal government to constantly adjust, rescind, reschedule, reanalyze and collect fees into perpetuity.  Any objective evaluation of the document would clearly reveal that any strong agent for the people was absent.
     Hope in the Declaration of Policy
     There is a realization among folks in the Western States that the capacity of resilience within historic industries is declining in measures more than just anecdotal. 
     For preservation, folks in the West scour the laws that are being used to beat them over the head in the attempt to find something that can be used to call the dogs off.  In FLPMA, hope for future recourse against federal and environmental actions can be found in the Declaration of Policy relating to subject of protected values.  Specifically, the wording of the clause outlining the various values, “the public lands will be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values” offers some hope.
     Since “archeological values” is set forth separately, “historical” values of the clause must imply the worthiness of the contributions that have come from various industries including Agriculture.  A growing awareness of the contribution from the advances in agriculture must be accepted.  Without American Agricultural advances, a whole lot more rain forest disappearance would have occurred in order to feed to world’s burgeoning human population.
    Historical “values”, therefore, must be elevated to defend those historical industries in the Western States.  Since clarification doesn’t exist, it is necessary to define what the “values” component within the “historical values” of the law must imply.  Elected leaders must understand.
     Historical values defined
    The overpowering forces the ranching industry faces are not related to the disappearance of a resource base that so many antagonists argue.  On the contrary, the advances in management practices made over the last generation are astounding when the limitation of capital investments is considered.  Ranchers have displayed a tenacity for self preservation, fortitude, and resilience against the onslaught of defamation and the campaign by federal land agencies and the environmental movement to terminate their existence. 
     FLPMA sets forth “ . . . the public lands be managed in a manner that will protect the quality of  . . . historical . . . values; that, where appropriate, will preserve and protect certain public lands in their natural condition . . .” In short, the importance of historical value that our government must recognize in the expressed goals of FLPMA is not theoretical.  It is tangible.  It is human.   
     Although there are no human references within the array of values that are listed, historical values are not inert factors.  They are human beings.  These humans can no longer be obligatory additions to the list in order to soften the impact of the real agenda.  They are the soul of land stewardship. They are the mentors of the next generations.  They are the bastion of ever more scarce historical values, and they are being shredded by their government through an agenda that is more unpopular every day.
      FLPMA is failing in what it was intended to do.  Too many Americans have come to the realization that their citizenship in the West has been conditional, and, it can be argued, that a fundamental shift in the intent of the American model has resulted.  Ranchers and land stewards are a vital to the fabric and the well being of our lands.  They are far from being antagonists to those lands.  They are part of the landscape . . . they are vital to the environment . . . and their presence must be elevated into the law.

Stephen L. Wilmeth is a rancher from southern New Mexico.  “Sharecropping has a dark meaning in American history, but the largest manifestation in the history of the world exists in the American West.  The federal government long ago lost its ability to be the unbiased champion of the people when it assumed the unintended role of owner.  As owner it cannot fulfill the role of champion.  The two are diametrically opposed and any attempt to find common ground will result in the loss of freedoms.”  


I'm in total agreement with Wilmeth's thesis, that good stewardship is provided by humans, and that humans are vital to a healthy ecosystem and that "their presence must be elevated into the law."

Where I'm afraid we may part is in his interpretation of FLPMA and historical values. That appears in the Policy section, the last paragraph of which states, "The policies of this Act shall become effective only as specific statutory authority for their implementation is enacted by this Act or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law."

Again, I'm in agreement with his primary point, I'm just not sure historical value as referred to in FLPMA is something we can hang our hat on. No doubt Mr. Wilmeth and I will have many more discussions about this.

I'm fascinated by his reference to sharecroppers. At first I thought no, sharecroppers give up half or more of their crop to the landlord and that's not how it works with grazing permits. But when I looked it up, there where actually three types of agreements signed by sharecroppers:

1. Workers can rent plots of land from the owner for a certain sum and keep the whole crop.
2. Workers work on the land and earn a fixed wage from the land owner but keep some of the crop.
3. No money changes hands but the worker and land owner each keep a share of the crop.

Number one sure could be a grazing permit.

What a powerful image that presents: ranchers as sharecroppers and the feds as the landlord.


Anonymous said...

We have come to depend on DuBois and Wilmeth to come to a logical agreement so we can hang our hat on it and move forward. This stuff of disagreement on the spirit of the law must be resolved so we can remain united. Fix that!

BentonW. said...

The image of sharecropping is more than just the legal definition. The image of sharecropping was always associated with strife and the presence of class structure. There was always a image of hopelessness. Unlike some references the relationship was not of poor black families after the Civil War. The poor white families probably outnumbered the blacks by a large percentage. Louisiana history is perhaps the best historical framework to study the subjectd. The political machine that evolved from the conditions of those people was legend. Very insightful reference!

W.Howard said...

Good for Anonymous. This debate must have unity. There can be no disagreement that environmental values have been isolated from the rest. We can all agree on that. If that is the case there is meat in the argument. Start with that and go forward!

askandyoureceive said...

Very interesting. History has shown that federal domination among the tribes has not proven successful. Is the federal domination of the West going to have similar permanent harm the same way? Good thoughts.

Clinton B said...

It seems that almost all comments assume that statutes enacted following settlement of the West trump the rights which were granted under pre-existing federal and state laws during settlement. Wayne Hage proved in the Court of Federal Claims that that's not the case in Nevada and probably other states, Hage v US. I believe the court determined that Hage owned the forage around his private waters on federal land, and that final resolution in state and federal court will determine that no grazing permit is required by long-established ranches for the use of their adjudicated forage adjacent to their private waters within the borders of their respective rangeland.

Urlnotes said...

West's Legal Thesaurus/ Dictionary defines share cropper as "A tenant who lives and works on the land of another. See farm, farmer; servitude" Servitude in the same reference is defined as 1. "The condition of being subjected to another person as a servant or slave. Slavery . . . etc. 2. A charge or burden resting on one estate for the benefit of another estate, similar to an easement." The upshot sounds like the reference is accurate.