07 Aug 2017
Professor Sandi Zellmer’s article, The Changing Nature of Private Property Rights to Federal Resources, was published in the Rocky Mountain Mineral Law Foundation Journal. The article’s abstract appears below.
In early 2016, a 41 day long armed standoff between armed militants and county, state, and federal law enforcement agencies at the Malheur National Wildlife Refuge ended with one death and the prosecution of over two dozen individuals for abuse of government property, conspiracy, and related charges. It started when the Hammonds, who held federal grazing permits to run their cattle on Bureau of Land Management (BLM) land near the Refuge, were charged with arson for starting fires on federal land. When the Hammonds were convicted for the incident, another notorious ranching family from Nevada, the Bundys, organized the Malheur occupation to protest heavy-handed government interference with their property rights.
The Malheur occupation raises questions concerning the extent of private interests in federal lands and resources, and whether, how, and when such interests can be restricted or terminated by the United States. Permittees, licensees, lessees, and concessionaires have asserted a wide array of claims to timber, water, wildlife, rights-of-way, grazing permits, minerals, and even ski resorts and recreational outfitting activities. A contentious oil and gas lease in the Badger-Two Medicine area near Glacier National Park is a prime example. When the BLM cancelled the lease, citing environmental and cultural concerns, the developer, Solenex, sued, arguing that the BLM's decision is ultra vires and violates its rights. [FN1] A few months later, the BLM canceled fifteen additional oil and gas leases in the Badger-Two Medicine area, playing into industry advocates' fear that the Solenex decision has set a dangerous precedent for other companies who have waited years--in some cases decades--for access to their leaseholds.
This paper examines the nature of private interests in federal lands and resources, and how these interests are treated under federal law and policy. The first Part describes an array of disputes, from grazing to mineral development to ski resorts. Part II details the law of private interests in federal lands and natural resources. The Property Clause is addressed in Part III. Part IV goes beyond the letter of the law to tease out the subtext underlying the durability of private claims.