My view: Something dysfunctional about national policy toward Western land

By Eric R. Claeys

For the Deseret News

Published: Sunday, June 22 2014 12:00 a.m. MDT

Ammon Bundy, son of rancher Cliven Bundy stands outside Metropolitan Police Department headquarters, Friday, May 2, 2014 in Las Vegas.

Chris Carlson, Associated Press

Enlarge photo»

A previous version of this article was published on The Public Discourse, a publication of the Witherspoon Institute.

Over the last few months, Americans have been treated to news coverage about a standoff between federal authorities and Nevada rancher Cliven Bundy. The federal government revoked Bundy’s federal grazing permits in 1994 for nonpayment of grazing fees, but Bundy has continued to graze his cattle on federal land. Given how unlikable Bundy is, it’s telling that his standoff has gotten so much coverage anyway.

There’s long been something dysfunctional about national policy toward Western land. The federal government owns more than 80 percent of the land in Nevada and more than half of the land in the 13 westernmost United States. Ranchers, developers, mining and timber companies, endangered species advocates, “green energy” companies and many others have strong opinions about the use of public land, and their debates seem to have paralyzed public land management.

Western land policy and natural property rights

America has a long and rich tradition of natural law and rights-based arguments about property. Might this tradition help cut through that dysfunction?

According to some prominent scholars, the answer is “No.” In a recent book, Jeremy Waldron (one of the foremost scholars on John Locke’s theory of property) recalls a talk he gave to New Zealand farmers who faced “a number of irksome environmental statutes.” Those farmers, Waldron reports, “wanted some philosophical vindication of their rights in their land as Lockean natural entitlements to set up against these legislative incursions. I told them I didn’t think it was possible.”

Waldron’s story raises two important objections to natural-law-based accounts of property rights. On one hand, rights talk can lead to extremism. Those New Zealand farmers wanted Waldron to confirm for them that natural property rights were philosophical trump cards, giving citizens total immunity from government policies they disagree with. These kinds of rights claims encourage people to take stances as extreme as Cliven Bundy’s.

On the other hand, if natural rights aren’t trumps, they can seem indeterminate. When grounded in natural law, natural rights must be qualified by responsibilities to neighbors and to the government. Bundy types could still construe these rights as consisting only of rights, devoid of any responsibilities; environmentalist-extremists could stress the public responsibilities and downplay private freedom.

A natural law account of property

Natural law and rights-based property principles may not fully resolve all property disputes, but that’s too demanding a standard by which to measure them. Natural law and rights principles satisfy realistic standards if they identify criteria for “appropriate” or “fit” policies — in land use management and elsewhere.

In natural law terms, “property” is a social right instituted to help citizens use resources productively. Like all natural rights, the rights to acquire and use property ultimately relate back to every person’s right to pursue his well-being. Different accounts of natural law speak of well-being differently. However well-being is grounded, people can’t pursue it without acquiring and using a wide range of external resources.

Property reflects and harnesses important impulses. People have selfish but understandable desires to control and use resources for their own survival and comfort. Unstructured, these impulses can lead people to ignore the needs of others. Natural law principles provide moral justification and structure to the acquisition and use of resources. The principles of natural law give everyone an equal opportunity to acquire resources and use them productively. Thus, property rights come with responsibilities — to allow sufficient resources to be dedicated to other people’s needs, and to respect other owners’ use rights and choices.

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