The Laws of Prior Appropriation & Beneficial Use — Realities Nobody Wants to Talk About: Numbers 5 & 6

Note:  This is the third part of a multi-part series about Seven Realities in the West that the Federal Government and the Mainstream Media don’t seem to want to acknowledge or talk about.  When the series is complete, we will combine it all in one piece.  This piece deals with Realities 5 & 6.  you can read about Realities 2,3 & 4 Here. And you can read about Reality No. 7 (Ranching is Actually Good for the Environment) Here.You can read about Reality Number 7 here.

Reality No. 5. Basic Land and Resource Policy in the West is Based on Prior Appropriation and Beneficial Use

The Declaration of Independence talks about self-evident truths. One of the unpopular truths that has become self-evident is that most of the Western states were originally settled on a different basis than the rest of the country – for a variety of reasons. One of the main reasons is the lack of natural precipitation and useable water resources. Natural precipitation patterns change radically West of the 100th Meridian. There is a reason why states like Nevada and Utah have the highest concentration of federal lands. They are also the driest, with the least amount of natural precipitation, and no major river systems that naturally transport large amounts of snow melt, from major mountain ranges, throughout the region. The Great Basin is completely disconnected from any ocean, because the few small creeks, streams and river systems that do exist are all trapped within the basin. The vast amount of arid lands located in those states are the lands left over that no one wanted when all those lands were fully open to entry and settlement.

It’s no wonder the Goshutes and other Native American tribes of the Great Basin were historically the poorest and most destitute of all Native Americans in North America. They lived in the most naturally inhospitable environment. It was a major chore just to survive. It still is – for those actually on the land doing it. For the vast, vast majority of people who live in the urban centers around the periphery of the Great Basin today, however, life is not much different than other similar urban centers across the country – the burbs are still the burbs.

But almost 200 years ago the Mormons joined the starving Native Americans and settled in the Great Basin for a reason. First of all, at that time it was not part of the United States, and at the time it was considered the armpit of North America. It was and is “The Outback.” No one else wanted it, and the Mormons wanted to go somewhere that no one else wanted — in hopes of being left alone. Good luck. Then, as now, the federal government was determined to follow them, and to try to micromanage how they lived. Now, 150+ years later, after first surviving on rattlesnakes, and doing all the heavy lifting to make something out of what most others considered to be “nothing” and to create a civilization in the desert wilderness, at great, back-breaking effort and sacrifice, now, decades later, the Great Basin has become part of America’s playground, and a whole bunch of other people suddenly want to have a piece of the action, that for centuries virtually no one else wanted anything to do with.  And because title to much of the land is still held by the federal government, under the concept of majority/mob-rule democracy, the general American public now feels like it should be entitled to dictate and control everything that happens there.

But today there are major misunderstandings across the country about how our constitutionally limited democratic republic form of government is supposed to work. Not to mention major misunderstandings about fundamental policies underlying settlement of the West. The clearest articulation of this basic policy has to do with Western Water Law. It is summed up in several short phrases and practical definitions. The first is “Prior Appropriation” otherwise known as “first in time, first in right,” or “first come first served.” The second is “Beneficial Use” – which is summed up in the basic principle of “use it or lose it.”

Those exact same principles served as the primary policy basis for federal homesteading and mining laws. Acquisition and perfection of a homestead, a mining claim, or a grazing allotment, were dependent upon being the first to stake both paper and physical claims to the land and resources in question, make improvements to it, and put it to beneficial use. In other words, you couldn’t just claim something on paper. You had to do something. You had to mix your labor, blood, sweat and tears with the land, and put the applicable resources to productive, beneficial use. You had to take possession of the land and resources, and defend and hold them. In the process, in the case of a homestead, you could acquire title to the land, or in the case of the other split water, forage, timber and mineral estates, you could acquire a recognized private property interest, akin to an easement, in those split, resource estates, including grazing allotments. The fundamental concepts of “first in time, first in right,” and “use it or lose it,” were fully recognized. And possession was 9/10ths of the law.

Consequently, even less than a century ago, in some quarters it was a popular romantic idea that you could go out West, claim a homestead, and carve a ranch out of arid wilderness. The problem is, in a first come, first served system, by that point it was pretty slim pickin’s. What was left at that point was the least productive, least desirable land, with little or no water. Regardless of these realities, it has now become a wildly unpopular idea that those who did actually enter, settle, and undertake the backbreaking and heartbreaking effort to put the applicable resources to productive beneficial use – for decades – should be able to acquire some kind of private property interest in those resources, including the split forage and water estates attached to grazing allotments. But the vast majority of Americans today have absolutely no grasp of these fundamental principles.

And it’s no wonder. For the most part, the American public simply believes what they are told by the mainstream media. The Guardian piece about Stanton Gleave, Matt Wood and other Utah ranchers discussing these issues is a prime example. On this very issue, The Guardian chose to give Bill Hedden, executive director of the Grand Canyon Trust, a well-known environmental activist organization on the Colorado Plateau, the final word on this subject.
According to Hedden, “America has decided they are public lands, [and] [n]o matter how these guys want to rewrite history … these never were their lands.” REALLY?

Using terms Hedden should understand well, that’s the functional equivalent of saying the North Kaibab never “belonged” to the Kaibab Paiutes. Or that Monument Valley never “belonged” to the Navajos. Who’s trying to re-write history? It’s the functional equivalent of saying “these never were Native American lands.” But history does repeat itself. First, the federal government re-appropriated these lands from the Native Americans, by the popular will of the “civilized” majority. Now, it’s trying to do exactly the same thing again with ranchers – and for the same reasons. This is yet another self-evident reality that no one seems to want to talk about.

6.  The “Wild” Unpopularity of the Foregoing Realities, and Especially the Foregoing Fifth Reality (Prior Appropriation and Beneficial Use) in Some Quarters.  

In at least one recent article about some of these related issues, and the hypothesized intention of Ammon Bundy to raise awareness of some of these issues, and challenge Federal authority in the criminal prosecutions against him, Jennifer Rokala, executive director of the environmental advocacy group, Center for Western Priorities, described such arguments as “wildly unpopular.”

She has a good point. It has been said that the working definition of democracy is two wolves and a lamb sitting down and deciding what’s for dinner.  We now have a nation of over 315,000,000 people, the vast, vast majority of whom live in urban metropolitan areas, and have little, if any real personal connection to actual realities in the West, and especially rural areas of the West, including challenges dealing with so-called public lands and resources, and how they are administered.  But based on the selective information available to them, and their own lack of experience and corresponding lack of connection to reality, many of them have come to view ranchers in the West, with their livestock, to be obstacles and out-of-sync with their view of how things ought to be.  Apparently they could not care less if tens of millions acres end up having absolutely no productive use.

There are three additional realities that envrionmental preservation activists virtually always ignore: (1) FLPMA itself expressly states that it is subject to all valid, prior existing rights; (2) FLPMA’s land-use policy mandate is multiple use and sustained yield, and; (3) FLPMA requires the federal government to coordinate with state and local governments. 

An important point to bear in mind is that in a sense not much has changed with respect to the popularity of prior rights.  That has always been a thorny issue.  150-200 years ago, the vast majority of the new “American” population, including those who wanted to settle the West, viewed the Native Americans who were already on the land exactly the same way many now view ranchers on the land today.  The thought that the “savage” Native Americans might have some kind of legitimate, prior existing right, based on prior appropriation and beneficial use (the same theories and principles that all Western water law, homesteading and mining laws are based on) was likewise wildly unpopular among the general population.  The last thing most people wanted to do was acknowledge that Native Americans had any legitimate right or claim to any land and resources they used.  And that has been a struggle and a serious point of contention ever since.  For some treatment of this issue, consider this piece about the back-story of a young, Southern Paiute man, and his people.  But it should be pretty obvious who came up with the short end of the stick.

One of the ironies is that many of the same people who are now attempting to side with the Native Americans and express empathy and support for their plight, are the same people seeking to completely disregard the underlying principles, including the concepts of prior appropriation and beneficial use, as they seek to disregard ranchers’ grazing rights, and remove them and their livestock from the land.  The experience of the Western Shoshone and the Dann Sisters is a good example.

In most cases, many of these people are like someone who catches only the last 20 minutes of a movie, and then attempt to pretend they understand the whole picture and exactly what is going on and why, without seeing or having any understanding of what came before. Their entire perception is based on the short snapshot of time that they happened to catch and be a part of.  But in a popularity contest, correct understanding is completely irrelevant.  Numbers are the only things that really matter in a popularity contest. And when two wolves and a lamb sit down for dinner, the popular will of the majority does not bode well for the lamb — regardless of any other considerations.

Reality No. 1

Realities 2, 3 & 4

Realities 5 & 6

Reality No. 7

RANGE / RANGEfire! — Addressing Issues Facing the West / Spreading America’s Cowboy Spirit Beyond the Outback