Public Land: How Much Is Enough

IONS THAT OBSCURE IN THE PRIVATIZATION DEBATE The privatization debate is blurred by a strong narcotic-the tendency of participants to argue passionately in lofty abstractions. The conversation often remains entirely on this plane, occasionally delving 84. There are substantial definitional problems with this concept. Some believe that sustainability as a goal ought to refer only to ecosystems that exclude humans; others would include human communities. 85. Some government programs ought to be retained under this presumption. Our park system is an example. See infra part IV.A. An occasionally heard rebuttal to an argument for privatization as a means of eliminating subsidies via the use of federal lands is that we subsidize private landowners too, so privatization is not a guarantee that the federal government will stay out of the subsidy business. True. Private subsidies in any form seem to persist long after any legitimate reason for them survives. But the answer is to move forward on all fronts to eliminate socially wasteful subsidies, not to resign ourselves to their perpetuation. 86. Like Thieves in the Night, NEw VoICEs, Sept. 1995, at 1 (describing public opinion polls showing that citizens are opposed to both privatization and a transfer of federal lands to state ownership). 87. The Republicans filibustered in the Senate, ending a compromise plan put forth in legislation supported by the Secretary. The President did not take an active role in supporting the legislation. As a consequence of the defeat in the Senate, the Secretary, believing administration support for grazing fee increases was on the wane, revamped a proposed administrative rule, dropping the grazing fee increase. See Tom Kenworthy, Babbitt Drops Increase in Grazing Fees; Decision Called Tactical Retreat to Save More Important Parts of 'Range Reform,' WASH. PosT, Dec. 22, 1994, at A3. 19961 ECOLOGY LAW QUARTERLY into the specific only to buttress an already generalized position. Those who have noticed and bemoaned this phenomenon use a variety of pejoratives to describe it"political," "ideological," or, the favorite of academics, "value-laden. '88 The arguments are simply too general. Whatever the label, more attention to detail would help clear the air of overused and boring rhetoric. Below I discuss what I see as the most harmful of the common abstractions. A. "Federal Lands Are All the Same" While economists, lawyers, and real estate brokers agree that every parcel of land is unique,89 most participants in the privatization debate refer to federal lands as a single unit.9° Conservationists see federal lands as rugged, unspoiled wilderness or national parks; privatizers see them as commodity-laden pastures or tree farms. Both views are flawed. The argument that federal lands promote collective values sounds sensible in the abstract, but looks odd when one sees public land used primarily by a single rancher with a grazing lease or a single coal operator with a mining lease. On the other hand, the argument for selling federal lands based on the fundamental advantages of the free market also sounds sensible in the abstract, but rings hollow when considering a marshland that is used biannually by endangered species of migrating birds. I suspect the general arguments on privatization are surrogates for more specific land use positions. Those who believe federal lands embody collective values are often advocates for reducing the amount and type of commodities produced on federal land.91 Those who advocate privatization or marketization are pushing for a more commodity-oriented use of federal lands.92 All advocates enjoy the luxury of not tying their positions to specific parcels of land. 88. See, e.g., Richard Ganzel, Ideology and the Politics of Public Lands, in FEDERAL LAND POLICY 33 (Philip 0. Foss ed., 1987); R.W. Behan, The Polemics and Politics of Federal Land Management, in FEDERAL LAND POLICY, supra, at 177. 89. See, e.g., Scorr LEHMANN, PRIVATIZING PUBLIC LANDS (1995). The real estate broker's well-worn axiom that the price of a parcel of land is determined by three factorslocation, location, and location-is familiar to most. 90. There are numerous examples. A widely cited article is Joseph L. Sax, Why We Will Not (Should Not) Sell the Public Lands: Changing Conceptions of Private Property, 2 UTAH L. REV. 313 (1983). See also Joseph L. Sax, For Sale: A Sign of the Times on the Public Domain, Paper Presented at Resources for the Future, Portland, Or. (Sept. 1982). 91. See, e.g., Sam Quinones, Drawing the Line on Growth: Deciding Where the People Go, NEws TRIB., Nov. 22, 1993, at Al (discussing the collective values embodied in growth management plans requiring counties to preserve rural lands). 92. This may not mean an increase in production. Once subsidies are eliminated, production may decrease. See, e.g., Brandon, supra note 74. Critics charge Idaho state officials with violating a state land trust by bypassing higher bids from environmentalists in grazing lease auctions. When Idaho was admitted into the union it formed an endowment for public schools consisting of state-owned lands, and the state constitution requires offi[Vol. 23:521