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The Malheur Occupation and the Land Question

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The movement associated with the occupation of the Malheur National Wildlife Refuge in eastern Oregon likes to wrap itself in the American flag and represent itself as the true America. While most Americans don’t regard the federal government as an alien presence, no matter how much they may disagree with this or that federal land policy (e.g., oil drilling in Alaska), the Malheur protestors’ point of view about the nation and its resources is hardly far from the mainstream.

On the one hand, the Malhuer occupiers can be accused of just being cynical hypocrites. They feel that the federal government is mismanaging the land because the American people would be better served if the land was used for their private interest, e.g. cattle-grazing or mining, rather than as a wildlife refuge. There’s always another use for any piece of land; who can say which is better? On the other hand, their critique is more deep-seated than that.

They don’t regard themselves as infringing on anybody else’s property because they deny that the federal government is a legitimate property owner. They think that federal ownership of land is somehow contrary to private ownership. Yet the federal government has no problem owning stuff. It owns about one third of the land west of the Rockies and has a cabinet department with a land bureau for managing all this. So the protestors are clearly in conflict with the federal government, but something is missing in their notion of private property. What is it?

All private property in land comes into existence as state property, and the US is no exception. There is no property outside of overwhelming political power. The state of Oregon and the western states is the history of the passage of land from public to private hands. And everything in it that is property remains a concession of the federal government.

What the protestors refuse to recognize about property is not so different from the view of ordinary citizens. They think of property as something that inheres in a thing, as if by nature or an act of God. This is because when you own something, you have the feeling that it is yours. Once you have control over something and are free to decide what to do with it or not do with it it, its as if the thing itself has the nature to be owned. People don’t regard ownership as a fixed thing because they can always sell and transfer ownership. But it is in the nature of a thing as property that its use is always exclusive.

Some of the protestors associated with the occupation in Malheur have echoed Locke and the labor theory of value in claiming that property comes from having worked on something. But even here, it is not the use that makes a thing property, but that it is a national grant. In American history, a major way that land got transferred from its original public ownership to private interests was through homesteading programs in which someone staked a claim to a piece of territory that was under general government control and used it productively for a period of time; they then got a title to it. This is still done today in some urban areas. But there is no more open territory in America; the frontier was closed after the civil war and all land is owned and has a state-approved purpose.

Even if the Oregon protestors recognize that private property started out as federal property, they see it as a crime that this property is being withheld from private use. They do not recognize a federal interest in withholding land from private ownership. The funny thing about federal ownership of land is that rights to it are leased to private interests all the time and on a large scale – for mining, cattle raising, lumbering. In this case, the land is as good as private except for the legal fact that the ownership and the use are separated. In fact, most federal land management is leasing land for private use. It is a minority of federal land holding in which there is an overriding non-private use, like a wildlife refuge.

Since so much federal land is leased for oil and other uses, some fanatics have long been asking: why not just cut the cord and sell it all on a public auction? The federal government doesn’t want to do this because the conflicting interests in land use are too messy, especially in western states which have primary producing economies. In the eastern states, land conflicts are generally regulated by zoning laws which decide on fixed uses of land – residential, industrial, parks, red light districts. But in the west, the government hasn’t found an expedient way to regulate the conflicts created by doing this.

In discussing proposals for emptying the federal treasury of land with local and state interests, Bureau of Land Management officials are open about this: there are ecological interests, water conservation interests, mining interests, forestry interests, recreational interests, Native American interests (local tribes are praising the government for sticking up for them in Malheur). All these interests have never been able to be resolved through a public auction to private interests. The government is not opposed to it in principle; it just can’t see a way out of regulating the land in a way that maintains control over what happens.

In some sense, federal ownership is an anomaly to the general capitalist idea that land is integrated into the capitalist system as property: it gets a price based on its qualities for supporting money-making. In this instance, it hasn’t been done. Leasing the land solves the problem in a practical way. However, when the federal government sells leases so that oil is pumped out of the ground, this also means that eventually the land is no longer suitable for water; or when it is used for cattle grazing, it is no longer fit for other species and habitat. The federal government lease system amounts to the same thing as zoning, but it is meant to be flexible because the interests in land use are always changing.

So in some states the federal government owns the land directly and in others it just determines zoning laws. But such a thing as certain property control exists nowhere. The federal government can always say: I disown you. “Eminent domain” is the ultimate expression for the fact that all property is a concession by the state, including land. The state makes this reservation because there is always a possibility that the state decides on a different use and a different owner.

But in general the common law about property stipulates that you can do what you want with it, as long as it doesn’t damage the interest of another property owner. This is the freedom to use property; it is never absolute, but always relative to the use of another property owner. It is no different than any other freedom. On top of that, there are all kinds of regulations based on the principle of potential damage to other property owners or the public at large. For example, ecological regulations, which is a relatively new thing; so, after 50 years of pesticides washing into a water supply, it is found that this was something they didn’t think about in the beginning.

The Malheur protestors don’t recognize an interest in nature preserves for the sake of science, beauty, enjoyment, or so that urban people can appreciate that a few botanical zoos have been created to keep a bit of nature going. They just see infinite nature all around them. And their interests in logging and cattle-ranching are beginning to fade in economic importance.

The protestors position may be exaggerated, but it is based on the American principle that the state should not be engaged in what properly belongs to private enterprise. In the US, there are a lot of people who do not recognize that withholding land from capitalism serves the general interest of society. People oppose zoning laws for the same reason: they don’t recognize that conflicts in land ownership are inevitable because its in the spatial nature of this item that one piece touches another.

The Malheur protestors just have idea that land, by its own nature, should be part of the means of private enterprise. They regard it as an outrage that stuff which could be useful to private interests is being withheld. They don’t discuss the particular interest being served, they just say: this is not the real America; the government is not using its power correctly, straying from its true purpose which we the people gave it, and a free people has the right to resist. This is the standard American ideology: we are the embodiment of the whole country and what it stands for. They don’t criticize the idea of the USA, which they see as themselves.

They may understand that one use of land interferes with another use and accept that there are conflicts of interest that are settled in the courtroom and no longer, as in frontier days, by private justice. They do not say they are opposed to police or law and order. They may even know that a state is necessary to make private property happen. The only question for them is the purposes it serves.

What they don’t recognize is that when the state puts a private property system into place, this entails a lot more than just private property. It gives rise to state interests that have to be implemented because of the conflicts that a private property system creates. These guys don’t recognize that the state gets its own interests in order to implement the fundamental purpose of America – the expansion of private property – that they and everyone else are in agreement with. They just say that it can’t be that all this territory has to reside in federal hands.

In an abstract sense, they are correct: withholding wealth from capitalism is a contradiction to the purpose of maintaining capitalism. But the idea that the federal government is denying capitalism some means for the sake of capitalism is a dialectic that they aren’t willing to go into; even if the commercial leasing of land is the practical development of this contradiction – the state withholds land from capitalist use and then leases it to capitalist use in order to retain ultimate decision making. They just focus on one side of the contradiction and won’t see the larger public interest.

So they end up with a conspiracy theory that the federal government has been taken over for alien purposes because federal ownership of land has nothing to do to with established American principles. They criticize the government in DC as a mis-authority which has violated the true purposes of America which they have in their own minds. The federal government, in turn, is making it clear that it defines the purposes of the American territory with its monopoly on the use of force, and it will not allow this to be challenged, even by those fighting in the name of its own principles.

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Geoffrey McDonald is an editor at Ruthless Criticism. He can be reached at: ruthless_criticism@yahoo.com

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