Sunday, June 10, 2018

Public Mistrust Doctrine

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.

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.

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