Generations of property law students have learned that property resembles a bundle of sticks (or a bundle of rights) that includes—most notably—the right to exclude. In addition, first-year property courses focus almost exclusively on private lands (except perhaps for a brief detour into the realm of submerged lands owned and managed by the states under the public trust doctrine). But are the bundle-of-sticks metaphor and the private lands focus adequate to prepare our students to understand the complexity of modern property law and related disputes? To answer that question, consider the “Occupy Oregon” controversy that just ended today (Feb. 11) after forty tense days.

 

If you followed the standoff at the Malheur National Wildlife Refuge near Burns, Oregon, you will know that a group of armed protesters took over the federal property in early January. Led by ranching sympathizer Ammon Bundy, the group appeared to be motivated by a variety of overlapping and often poorly-articulated motives. In general though, the self-described “Citizens for Constitutional Freedom” chafe against federal ownership and control of western lands, and seek a turnover of federal property and its resources (including grazing lands, forests, and minerals) into state and private ownership.

 

The roots of the conflict are deep, and are part of the fascinating saga of the settlement of the American West. Through design and the vagaries of history, the federal government today owns about 29% of all land within the nation’s territorial borders, much of it concentrated in the west. In Oregon—the site of the occupation—the federal government owns about 53% of the land within the state’s borders, managed by various federal agencies including the Fish and Wildlife Service (manager of the Malheur Refuge). This significant federal presence in the west has given rise to an anti-federal movement over the years, led by ranchers, states-rights activists, and others loosely united in a “sagebrush rebellion.”

 

Public-Lands-Map
Image from Klein, Property: Cases, Problems, and Skills (2016), adapted from Atlas of the New West (William E. Riebsame, Gen Ed. 1997)

 

From a purely legal perspective, the Malheur protesters stood on shaky ground. The federal government has owned the Refuge since its establishment in 1908 by executive order of President Theodore Roosevelt to protect waterfowl, migratory birds, and other wildlife. More than ten times since then, Congress or the President has reviewed and revised this authorization, sometimes expanding the Refuge boundaries. Given the federal government’s indisputable and long-standing ownership of the Refuge, how could the protesters’ extravagant claim to ownership or control of the Refuge have gained such traction? Why would the ranchers and their supporters think that they have a claim to the land any more than frequent visitors to Yellowstone National Park would think that they have a right to demand that the government transfer title to them?

 

To make sense of the passion behind the Malheur protest, one must understand that the federal government has long recognized—and even encouraged—certain private uses of public lands, including livestock grazing, logging, and mining. For example, the federal government has granted numerous permits that allow private ranchers to graze their livestock at highly subsidized rates on federal lands in the area of the Malheur Refuge and throughout the west. Such permits clearly fall far short of ownership rights. And yet, the ranchers have developed such an attachment to the land (both economic and personal) that they believe the government is somehow interfering with their rights. But ranchers are not the only group with such an attachment to the Refuge. In its management of the Malheur Refuge, the Fish and Wildlife Service invites the participation of a wide range of stakeholders, including hunters, fishers, wildlife photographers, the Burns Paiute Indian Tribe, the Harney County Historical Society, and the Portland Audubon Society, all of whom claim some connection to the land.

 

Such a complex tangle illustrates the important role public property plays in our society. It also suggests that the law’s traditional bundle-of-sticks metaphor may lack sufficient force to unravel the multiple layers of controversies like the Malheur occupation. Instead, perhaps we should view property as a “web of interests” (as suggested by Professor Tony Arnold in his article The Reconstitution of Property: Property as a Web of Interests. The web metaphor views property as an interconnected set of relationships among people with respect to a particular piece of property, such as the Refuge (rather than the narrower focus of the sticks metaphor). At the very least, the web imagery raises awareness that numerous parties can hold legal rights (and also powerful extra-legal interests) in a single piece of property, whether public or private.

 

Returning to the topic of property pedagogy, the standoff at Malheur illustrates some of the themes that may be under-emphasized in traditional property courses, and that I tried to bring to the foreground as I wrote a new property casebook. To broaden students’ understanding, early on I introduce the web-of-interests metaphor and make it one of the text’s recurrent themes (to supplement the bundle-of-sticks metaphor). I also included a chapter titled “From Private Property to the Commons” that considers the relationship among private property, public property, and commons property—including such hybrid forms of ownership as concurrent interests, marital interests, and common interest communities.  I look forward to sharing more about the new casebook in a future blog after the book is published.

Christine Klein

Professor Klein is a nationally known water law scholar, with expertise in both the eastern and western doctrines. She began her career as a water rights litigator in the Colorado Office of the Attorney General. Her legal experience includes positions as a law clerk for the U.S. District Court, District of Colorado; as a law clerk for the Ninth Circuit Court of Appeals Office of Staff Attorneys (San Francisco summer position); and as a clerk at Goodwin Proctor (formerly Shea & Gardner) in Washington, D.C..



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