The Fifth Season
Public Mistrust Doctrine
Disruptive Influences
By Stephen L. Wilmeth
The
three of us stood in the hallway of the Methodist Church in Silver City last weekend.
We were there to honor the
passing of an old friend who had run the final race, fought his last battle,
and had gone home to the ages. Friends and family were gathered, and the
purpose of the ceremony was at hand. The attempted mending of the human spirit
was in progress. Folks were talking and remembering. Old and new acquaintances
were being greeted, and some degree of overdue reconciliations were being attempted.
Bread would soon be broken, but
our talk, the comparing of broken red rods, lepé calves, and cattle on feed
numbers would have included the input of our departed friend if he had been
there. Before we said goodbye, we agreed conclusively that the month of June
should be dropped from the calendar.
It is nothing but trouble and
heartache.
The Fifth Season
For those interested, the
drought monitor has only darkened over the past two weeks. The worst of the red
and brown waves of measured drought are coursing the state lines of Utah,
Arizona, Colorado, New Mexico, Oklahoma, and Texas, but other states are
feeling the pinch as well. Beef Magazine is suggesting that drought of some
degree of severity is affecting 70% of the nation’s cowherd.
One measure of that is the
cattle on feed report which says the May 1 inventory was the second highest
since 1996. It certainly isn’t the price of calves that is driving that number.
It is drought. Drought in all its weary forms has descended upon cow country
where, once again, the dread of the rainless June in the Southwest is growing
more severe.
It is an embedded way of life.
Technology hasn’t always helped.
The run to solar power falls off a cliff during this month, which has really
become the fifth season unto itself. We now have winter, spring, June, summer
and fall. When water demand is highest, the absence of wind and the darkness of
night compound the problem. At least windmills pumped at night when there was a
breeze. So, fighting the drought becomes an exercise in diligence. It was in
1877 when the Hookers arrived in the Gila Valley and it is in 2018 when one of
those Methodist church hall discussions was cut short in order to go fix a lingering
windmill that was coming loose at it base. Moving cattle, monitoring every water source
daily, fixing every upset, and supporting the complex as best we can is the
grind. It is the way of life for those who would prefer that June not exist.
To come to think about it, those
actions are not discriminatory. Drought is color blind. It affects every living
being whether it is human, livestock or wildlife, and, here in the Southwest,
the great majority of water is preserved and offered only because of our cattle.
What gift of life is greater than what we do in the month of June?
What other group even comes
close to such life-giving assistance?
Disruptive Influences
The idea that drought is the
greatest disruptive force in the livestock business can be noted in attempts to
quantify the numbers. The futures markets have been crazy. Up, down, sideways,
and a recapitulation of the same ugly exercise every week has become another
spectator sport. We even have an inside grasp of who and what commercial and
noncommercial buyers are.
The current market is chaotic.
It is only made more chaotic by this
arena of raw nature in which we operate. If we had only this to contend with,
though, our world would be immeasurably more simplistic. In fact, that
challenge is not only desired it has become a mental refuge of contentment and
hope. We can build barns to every constraint to extend supplies of all manner
and types in times of need, but that is not what really threatens our existence.
It is the longer term influences that have fundamentally driven the chaos of
our business, and it is past time to give it a name.
The Public Mistrust Doctrine has long been operating in the American
West.
The idea of a public trust
doctrine was officialized in Roman times when it became apparent that natural
law covers the matter of free and uncluttered access to air, flowing streams,
and seashores. At least one emperor, Justinian, believed that the public should
not be barred from its enjoyment and use (especially the unfettered access and
use of air).
If that thread is followed through
time, it became the subject of the great pond idea whereby such use is held in
trust by the crown for public use.
Since 1964, though, it has only
become more comprehensive and all compassing. In the American West, it has
morphed into the expanding principle that all natural and chosen cultural
resources should be preserved not for private use but for public good, and the
government must protect them at all costs. It started with a modernistic
interpretation of wilderness and has since reached the threshold of every
conceivable demarcation of mankind and nature.
The incorporation of this
doctrine into our public discourse and legal system alike has resulted in the
growing, required check of private property’s use and its marriage of natural
resources in favor of all things environmental. The public trust doctrine has
become the public mistrust doctrine.
The freedom of the enjoyment of
access to that nebulous estate (that which is created by the disappearance and
then the reappearance of shoreline as a function of high and low tide) has
become a much more dynamic claim. It has entered the very kitchens of our
holdings and is actively testing the cultural right to our existence.
Truly, a revolution is at hand,
and, it seems, we exist in handcuffs.
Stephen
L. Wilmeth is a rancher from southern New Mexico. “What is mine … really is.”
The legal history of this doctrine is, indeed, very murky. See this excellent paper, starting at page 4. You can download it at the link given and I've embedded it below the summary.
The legal history of this doctrine is, indeed, very murky. See this excellent paper, starting at page 4. You can download it at the link given and I've embedded it below the summary.
Property and the Public Trust Doctrine
The public trust doctrine is a little-known bit of legal history that is now touted as an ancient rule of law that allows governments to control property long presumed to be privately owned.
Eminent domain, or a regulatory taking that destroys all property value, requires compensation to be provided to the owner. The public trust doctrine avoids compensation by justifying a wide range of government controls. These mandates, in the name of environmental protection, may vary from allowing everyone the right to access some private property to preventing owners from using their property.
PERC Senior Fellow Randy Simmons explains the murky legal origins of the public trust doctrine and its recent expansion. Building on other PERC research by law professor James Huffman and economist Gary Libecap, Simmons lays out some of the practical political and economic consequences of the adoption of this doctrine. Some supporters, merely seeking added fishing holes to enjoy, may unwittingly support a policy that could seriously erode a key feature of American progress—the right to be secure in one’s property.
Download the full report, including endnotes and references.
https://drive.google.com/file/d/1tbROm1HcJyiceG1s5QrNzoVk9WF_3iLw/view?usp=sharing
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