Terror and Prejudice in the Public Land Seizure Movement

Commentary: Utah’s conservative politicians have been advocating the state seize federal lands for years. This year, the Utah legislature and governor have been pushing Utah Attorney General Sean Reyes to sue the federal government to hand over the 30 million acres of federal land within the state. The lawsuit has already cost the state $2 million, even though it hasn't yet been filed. It may never be filed. As of last Friday, Reyes hadn’t made up his mind. If he's leaning toward dropping the matter, he just got some serious backup. A recent report by the Conference of Western Attorneys General, obtained by the Associated Press and publicized last week, suggests that the proposed lawsuit is based on shoddy legal arguments, misrepresentation or misunderstanding of the U.S. Constitution, and disregard for decades of Supreme Court decisions regarding public lands.  

That report almost certainly won’t sway advocates of devolving federal lands to the states, part of a decades-old movement whose members have their own private understanding of western history and federal law. You’ve probably heard of two recent campaigns by members of that movement: the 2016 occupation of the Malheur National Wildlife Refuge, and the 2014 confrontation over illegally grazed cattle from the Cliven Bundy ranch in Nevada.

But to really understand the movement propelling Utah’s attempted lawsuit, it’s useful to consider an act of domestic terrorism that happened 21 years ago on American soil, which you’ve probably never heard of.

The Attorneys General’s report doesn’t contain much in the way of surprises: it’s a thorough debunking of assertions about the constitution and federal case law made by people who want to get the feds out of the land protection business. Those anti-environmental activists claim the Constitution grants no authority to the federal government to own land in perpetuity, and that those public lands are rightfully the property of the states, which could sell those lands to private parties and thereby accomplish two things: 1) generate revenues for the state by selling the land, and 2) allow unrestricted exploitation of the land’s resources for private profit.

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While the report doesn’t offer a slam dunk rebuttal to those claims — the Supreme Court has never directly ruled on the legality of the federal government owning land in perpetuity — it is an exhaustive, authoritative counter to the claims of public land opponents, including the Utah legislature. The fact that the report is offered by the lead attorneys for the very states that would, theoretically, benefit from devolving federal lands to the states is especially devastating.

The sad thing: the people pushing for that devolution almost certainly won’t agree. Social media analysts increasingly talk about the “political bubbles” we create, in which we’re protected from opinions contrary to our own. Public land opponents conduct their affairs in the mother of all political bubbles, protected from contrary arguments,  established caselaw, American history, and in too many cases, compassion for the people they disagree with, and for those people’s families. And there’s no better example of the latter than the terrorist attacks on a U.S. Forest Service ranger in 1995 in Nevada.

On March 30, 1995, someone placed a pipe bomb at the Carson City, Nevada office of Toiyabe National Forest district ranger Guy Pence. It exploded before Pence arrived for work the next day. No one was injured. A few weeks later, a bomb of substantially similar design exploded under Pence’s van, parked in the driveway at his home. Pence wasn’t home, but his wife and one of his kids were. They escaped injury by a stroke of luck: neither were sitting on the living room couch showered with broken glass and debris by the explosion.

No one has ever been charged with the 1995 bombings, though investigators did not lack for persons of interest. Pence, by enforcing federal law managing grazing and mining in the Toiyabe, had incurred the wrath of any number of people accustomed to using public lands as their own personal fiefdoms. Always present in the west, the numbers of people opposed to any federal management of public lands exploitation grew dramatically during the 1970s’ Sagebrush Rebellion, an explicitly anti-environmental movement that started in reaction to proposed Wilderness designations. Rural Nevada was and is rife with Sagebrush Rebels. Many, perhaps most, are essentially decent people. But their ranks include a number of activists allied with some of the worst elements of American society.

The Sagebrush Rebellion’s main gripe in the ‘70s was a federal review of large, unroaded areas of public land, which were to be considered for wilderness designation. The so-called Roadless Area Review and Evaluation (RARE) process eventually recommended that 15 million acres of national forests be designated as Wilderness, and described an additional 10 million acres (and change) that merited further consideration for the same protection.

Wilderness designation blocks many forms of resource exploitation the Sagebrush Rebels held dear — though, notably, it doesn’t prevent livestock grazing. Between the RARE programs and a 1976 law, the Federal Land Policy and Management Act (FLPMA), which formally abolished the Homestead Acts allowing private citizens to claim public land, the Sagebrush Rebels saw overreach by the federal government, intent on ending their way of life.

And they had a point, in as much as their way of life included practices like overgrazing, subdivision development and mine drainage water pollution that the federal government had belatedly decided to regulate.

They seized on a bizarre misinterpretation of federal case law, generally termed the “sovereign citizen” argument: that the current federal government is an illegitimate pretender to proper constitutional authority over the nation, and should be replaced with the extremely minimalist government the Founders allegedly intended. To say the argument was removed from reality is to be excessively kind. In the words of the Anti-Defamation League,

Many of the movement’s tenets were borrowed wholesale from the Posse Comitatus movement, including that group's notion that the there are no legitimate law enforcement offices in the country above the county sheriff level. The idea that counties are the largest legitimate form of government in the U.S. played a huge role in the movement’s political aims. Posse Comitatus is an avowedly white supremacist organization, and its members argue that African Americans are so-called "14th Amendment citizens," with fewer inherent rights than white people.

The Sagebrush Rebellion's ranks grew further when activists reinvented themselves as the Wise Use movement in the late 1980s. The Wise Use movement broadened the range of things Sagebrush Rebels opposed from wilderness protection to include almost all environmental regulation.

One important detail: In 1992, at the Earth Summit in Rio de Janeiro, 178 of the world’s nations signed a relatively innocuous agreement called “Agenda 21,” a non-binding commitment to alleviate poverty, include minority groups and women in decision-making, and protect the environment. The United States was one of those 178; the agreement was signed by President George H.W. Bush during the Rio conference. Despite its mom-and-apple-pie content, Agenda 21 was quickly condemned by the more conspiracy-minded factions of the Wise Use and militia movements, who claimed the document was a world-government conspiracy to erode U.S. sovereignty and property rights. At the time, the criticism seemed excessively fringey, the kind of thing associated with believers in the Illuminati. That would change radically in the coming decades.

In 1993, sovereignty-leaning County Commissioners in Nye County, Nevada, where Guy Pence had worked in the 1980s, passed a resolution declaring that all federal lands in the county were now under local control. In July 4, 1994, County Commissioner Dick Carver defied federal law — and shoved aside Forest Service law enforcement staff — to bulldoze open the washed-out Jefferson Canyon Road in the Toiyabe National Forest, with a crowd of supporters cheering him on. The 19^th Century wagon road had been closed to conduct archaeological studies. Afterward, an exultant Carver said "All it would have taken was for [the federal officer] to draw a weapon and 50 people with side arms would have drilled him."

Pence had once denied Carver a grazing permit. Carver, who died in 2003, wasn’t alone in this: Pence had a reputation for insisting ranchers and miners actually follow the law, and canceled grazing contracts for ranchers who refused to correct violations. Carver publicly condemned the bombings at Pence’s office and home, and the Nye County Commission briefly offered a reward for the capture of the bomber. They withdrew the offer after deciding Pence was insufficiently grateful.

Nor was Pence alone in suffering harassment and threats directed at federal employees by Nevadans including representatives of local and state government. In 1999, as controversy swirled over the bulldozing of another washed out road near Elko, Toiyabe National Forest supervisor Gloria Flora resigned, saying she could not adequately assure the safety of federal employees under her supervision.

Threats against federal workers by members of the revived Sagebrush Rebellion didn’t end there, nor were they limited to Nevada. Some Wise Use activists openly courted members of the growing militia movement, at least before Timothy McVeigh’s 1995 terrorist attack on the Alfred P. Murrah federal building in Oklahoma City forced the more image-conscious of the movement’s members to backpedal a bit. In 1996, a bomb was found on the windowsill of a U.S. Forest Service office in New Mexico. The following year, a group of ranchers upset over grazing law enforcement threatened to kill Forest Service employees in Reserve, NM. 

The movement lost some steam during the George W. Bush presidency: with an ally in the White House, there weren’t as many outrages du jour to keep the fires burning. Wise Use groups gained access to the corridors of power, an achievement certain to defuse the most ardent zealot’s fervor.

That changed with the 2008 election, and the ascendancy of the Tea Party movement. Far-right local and state politicians won offices across the country, propelled by resentment of the newly inaugurated African American president’s highly restrained liberalism. And in the meantime, the rank and file of both the Wise Use and militia movements further merged, with each group adopting the others’ arguments and concerns.

In a way, it’s ironic that the two biggest campaigns of the Sagebrush Rebellion 2.0 that resulted from that merger took place during the Obama administration on public lands. Until Obama’s late-term designations of millions of acres of new National Monuments, his record on public lands protection was considerably weaker than Western environmentalists would have liked.

The Bundy Ranch debacle in 2014 showed how thoroughly the Sagebrush and militia movements had consolidated. The elder Bundy, who had resisted paying grazing fees while allowing his cattle to despoil public lands for decades, boasted of his adherence to the so-called Patriot movement, threatened to start a “range war” if his cattle were removed from the public lands surrounding his melon farm. He almost got his wish: as the Bureau of Land Management started an ill-thought-out roundup of Bundy’s cattle, militia members from around the country converged on the Bundy Ranch, nearly sparking serious violence against federal employees.

And this year’s destructive, tragicomic-opera occupation of the Malheur National Wildlife Refuge welded the two movements together irrevocably. All the elements of both tendencies were fully on display, from the occupiers’ appeal to the local sheriff to act in the role Posse Comitatus would have approved of, to claims that the Refuge was a tract of land improperly claimed by the federal government that rightly belonged to Oregon and Harney County, to social media claims by the protesters that environmental protection and management for wildlife were aspects of an authoritarian world government.

That occupation’s unnecessary and tragic end, both in the apparent suicide by cop of occupier LaVoy Finicum and the needless destruction of natural and cultural resources by the occupiers, only drove a wedge further between adherents of the occupiers’ philosophy and the rest of the nation — including the beleaguered residents of Harney County, who had long since lost their patience with the occupiers.

This whole homegrown far-right movement still owes a major ideological debt to the white supremacist group Posse Comitatus: it has essentially lifted its political philosophy straight from the Posse Comitatus playbook. Many of the new generation of Sagebrush Rebels may find their movement’s clear association with a white supremacist group uncomfortable. A number of them certainly backed away from Cliven Bundy in 2014 when the rancher made well-publicized remarks derisive toward African Americans. But the association between Sagebrush Rebels and white supremacists couldn’t be more direct and clear, even if its adherents prefer their racism expressed more subtly.

If you’re thinking it’s a stretch to associate this growing reactionary movement with the Utah legislature’s push to sue the feds for those 30 million acres of public land, consider this: In January 2012, the Republican National Committee adopted a resolution condemning the 20-year-old Agenda 21 agreement in terms that could have been lifted straight from the farthest fringes of the conspiracy theory right. Fringe conservatives had long opposed local projects like small urban parks and bicycle lanes as part of a United Nations conspiracy to enact a world government under the auspices of Agenda 21. For the past five years, that conspiracy theory has been formal policy of one of the nation’s two major political parties.

And nowhere are those fringe ideas more solidly represented in mainstream Republicanism than in Utah. Utah is after all home of Representative Rob Bishop, who last year blocked renewal of the immensely popular Land and Water Conservation Fund, calling it an “Obama administration blank check” to expand the alleged federal land grab in western states. The LWCF, which was eventually reauthorized this year, is a revenue-neutral program that directs revenue from offshore oil and gas leases to conservation projects. The provision Bishop most objected to helped the National Park Service to buy “inholdings” — private lands surrounded by National Park lands — from willing sellers. Bishop has also sponsored legislation to rescind all environmental laws in parts of the country within 100 miles of a border, and is one of the most persistent voices in Congress advocating for a repeal of the Antiquities Act of 1906, the main tool Presidents use to declare National Monuments.

Bishop is merely the most prominent of the bunch. He is more vocal than most, but his ideas are shared widely in the Utah Legislature’s Republican caucus, which controls both the Utah Senate and Utah House of Representatives by overwhelming majorities. It remains to be seen whether Utah Attorney General Sean Reyes will heed the request by the Legislature to sue the feds. If his legal expertise prevails and he decides a suit would be a losing proposition, you can bet the Legislature won’t give up on the idea.

It may be unseemly to think of such an august body as the Utah Legislature as following the precepts of the avowedly white supremacist Posse Comitatus, filtered through a couple of generations of activists willing to essentially turn a blind eye to domestic terror attacks like those targeted against Guy Pence in 1995, or who were willing to aim loaded weapons at federal employees in Nevada and Oregon over the last three years. We prefer to think of our elected officials as possessing a certain measure of detachment, or gravitas.

But that may well be a vain hope. In his song “Pretty Boy Floyd,” folksinger Woody Guthrie had something to say about pillars of society with gravitas:

If there’s a better description of the people trying to rob us of our public lands, whether through armed rebellion a la the Bundy clan or through the Utah Legislature’s more sedate and pinstriped means, I don’t know it. But don't let the pinstripes fool you. The distasteful origins of the movement to take away your public lands are still there and still very much in play, no matter how much they try to dress it up. 

Banner photo: sagebrush and the Toiyabe National Forest. Photo: M. Stits, some rights reserved