How to Reduce Conflicts Over Public Lands in the West

Spring 2018 Insider

How to Reduce Conflicts Over Public Lands in the West

Apr 16, 2018 14 min read


The Department of the Interior is by far the nation’s largest landowner. It manages 500 million surface acres, or more than one-fifth of all U.S. land. It also oversees the development of oil, gas, and other subsurface mineral resources on more than 700 million onshore acres and more than 1.7 billion offshore acres. Moreover, the department’s Fish and Wildlife Service exerts authority over millions of acres of endangered species habitat on private land, and its Bureau of Indian Affairs is responsible for overseeing and managing Native American lands. 

Our federal land institutions still largely reflect the Progressive- Era belief in centralized control.

The department’s turf is concentrated in the American West, prompting some to refer to Interior as the “Department of the West.” In the Lower 48’s 11 westernmost states, the Interior Department’s three main land management agencies—the Bureau of Land Management, Fish and Wildlife Service, and National Park Service—control 201 million acres, or 27 percent of the total land area. Due to these large landholdings, many western land issues—from livestock grazing and energy development to timber harvesting and recreation—are matters of federal policy rather than merely of state or local concern, yet they occur thousands of miles from the Interior Department’s headquarters in Washington, D.C. 

This centralization is largely a result of the Progressive Movement of the early 20th century. During that time, the nation’s natural resources were believed to be best managed not by locals but by experts, primarily located in Washington, D.C. This view, however, has since been widely rejected. Nonetheless, our federal land institutions—many of which were created during that earlier time—still largely reflect the Progressive-Era belief in centralized control, as seen in the department’s many federal bureaus devoted to efficient management of the nation’s natural resources in the public’s interest through comprehensive scientific planning. 

The department’s centralized structure is outdated and impractical. As economist Robert Nelson has observed, the Interior Department today in effect serves as “a planning and zoning board” for large areas of the rural West, a function typically reserved for local and state governments. Across vast swaths of western states, the Interior Department is responsible for seemingly local issues as determining the appropriate number of livestock that should be grazed, which roads and trails should allow for which uses, and where resource development or conservation is most appropriate. In today’s diverse and pluralistic society with its various conflicting demands on natural resources—both for traditional “Old West” resource uses as well as for “New West” environmental values—it is increasingly difficult and impractical for a centralized department to resolve competing and ever-changing demands effectively. 

These challenges, as well as other common problems associated with large-scale bureaucracies such as the Interior Department, render our federal land management system both costly and inefficient. The federal government generally loses money managing valuable natural resources on federal lands, while state agencies that manage similar resources consistently generate net revenues. This is in large part because federal land agencies are burdened by what some land managers have referred to as “analysis paralysis” brought about by a “Gordian knot” of bureaucratic red tape, which increases management costs and hinders agencies’ abilities to respond to changes or resolve competing demands. 

Moreover, the Interior Department’s various (and often conflicting) mandates, as well as its ever-expanding missions, create a lack of clear direction for many of its agencies—and lack of direction contributes to the immense conflict, litigation, and political controversy that surrounds so many public land issues. Today, federal land management is more likely to provoke acrimony and lawsuits than to encourage cooperation among competing users or a sensible balance of multiple land uses. Decisions often are made by bureaucrats in Washington, D.C., rather than by local managers, or settled in courts rather than resolved cooperatively between competing user groups. Either way, it is a recipe for conflict. 

The Interior Department dramatically affects the lives of millions of Americans in western states. Congress is right to look for ways to restructure or reform the department to ensure that it is better connected to the people and communities most affected by public land policies and to make it more effective at carrying out its core missions. The ideas discussed below would help accomplish those goals, while also improving the overall management and stewardship of federal lands and natural resources. 

Greater Flexibility for Local Managers 

Federal land management has become increasingly controversial in recent years, leading even to calls to transfer large amounts of federal land to state ownership. While a large-scale land transfer is unlikely, the Interior Department could adopt new land management approaches that allow for more local decision-making while retaining federal ownership. In particular, the department could grant local land managers greater flexibility to develop locally responsive management solutions while still remaining accountable to certain federal environmental and economic standards. 

There is precedent for this. For instance, the 2014 Farm Bill authorizes the Bureau of Land Management (BLM) and the Forest Service to enter into “Good Neighbor Authority” agreements with states to cooperatively manage certain areas of federal land. The federal government retains ultimate decision-making authority, and any management actions must comply with the National Environmental Policy Act (NEPA) and other federal laws, but the on-the-ground management can be implemented by the states, often much more effectively than by the federal government. The state of Idaho, for example, has used this authority to conduct critical forest restoration and thinning projects on federal lands. 

As another example, the BLM is currently conducting several pilot projects that will implement a flexible system of “outcome based” grazing. The core concept is that instead of having the BLM manage every aspect of grazing on a particular federal allotment—such as determining the proper amount of livestock to be grazed and the optimal timing and length of the grazing season—the agency can define certain desired outcomes for an area and then let local land managers (in this case, the grazing permit holder) meet those outcomes however they can. 

Local park managers, not politicians in Congress or bureaucrats in Washington, D.C., are in the best position to identify which maintenance projects are most critical. To do so, the agency should explore ways to rely more on park visitors for revenue.

This innovative approach to land management—defining outcomes and decentralizing control—could be expanded across various agencies in the Interior Department. For example, some have proposed implementing a charter land management system. Charter lands or forests would be owned by a federal land agency but managed by a chartered entity, similar to the way charter schools function within the larger public education system. The lands would be governed by a board of directors unique to each land unit, such as a grazing district or forest. Boards of directors could be elected or appointed and would be responsible for managing resource and recreation uses within charter area boundaries. 

As with charter schools, the guiding principle for charter lands would be freedom with accountability. Charter lands would be freed from the restrictions of one-size-fits-all regulatory mandates—such as land-use planning requirements and restrictive hiring practices—that produce waste and inefficiency, but they would be held accountable through boards of directors as well as federal oversight, combined with stringent standards for charter land performance. Individual land boards would be overseen by a national charter board that would, in turn, oversee and monitor their performance, ensuring accountability while maintaining management flexibility. 

Another strategy is to adopt public-private partnerships that outsource routine management operations of various public lands to the private sector while maintaining public ownership and oversight. Over the past three decades, similar arrangements have proven successful for the U.S. Forest Service, which uses private operators to manage and maintain many of its campgrounds. These partnerships involve performance-based contracts designed so that federal agencies define site rules, parameters for visitor fees, management goals, and maintenance expectations. The contracted lessee collects visitor fees, maintains resources and facilities, and pays a portion of receipts back to the managing agency. This approach gives private managers strong incentives to exercise good stewardship and to ensure high-quality visitor experiences, since they depend on the revenues they earn to cover costs. Yet they are also held accountable by their contract with the public land agency providing oversight. 

A third management innovation is a national park franchising system. If a proposed tract warrants national park status, it could be granted the national park title but be owned and operated under private or nonprofit management. Franchised parks would exist under the National Park Service umbrella, but be individually and uniquely designed and managed by nonprofit organizations, businesses, or individuals. 

A franchise park could work as follows: The National Park Service sets franchise requirements, and interested parties then create management plans aligned with those requirements. Some franchise parks could also be required to become financially self-sufficient, whether funds were acquired through user fees, partnerships, or donations. A franchise system could give park units the flexibility to manage for local priorities as determined by on-the-ground managers, the protection and status provided by the national parks brand, and the incentives to meet visitors’ desires at low cost. 

The Tallgrass Prairie National Preserve in Kansas is one national park unit already managed in a similar way. The park unit is run by a public-private partnership between The Nature Conservancy and the National Park Service. The Nature Conservancy owns the vast majority of the land in the park, but co-manages the park with the NPS in accordance to the latter’s standards. 



Grant Park Managers More Authority to Address Local Maintenance and Operational Needs 

Interior Secretary Ryan Zinke has said that reducing the National Park Service’s deferred maintenance backlog is one of his top priorities. The maintenance backlog refers to all maintenance projects that were not completed on schedule and therefore have been put off or delayed. The cost of eliminating the current backlog is estimated to be $11 billion—nearly four times the total agency budget last approved by Congress. 

Merely increasing the Park Service’s budget, however, is unlikely to resolve the issue. In fact, an overreliance on federal funding has likely made the problem worse because lawmakers would rather create new parks or acquire more land than fund routine maintenance projects. The number of park units managed by the Park Service has grown significantly over the past decade—from 390 in 2006 to 417 today. Meanwhile, the agency’s overall budget, as well as the amount of funding devoted to maintenance projects, has remained relatively constant. With more parks but little or no additional funding, the agency’s resources are stretched thin. 

To address the root of this issue, the National Park Service should seek to become less dependent on politically driven federal appropriations. Local park managers, not politicians in Congress or bureaucrats in Washington D.C., are in the best position to identify which maintenance projects are most critical. To do so, the agency should explore ways to rely more on park visitors for revenue, as the National Park Service has recently proposed. Today, the Federal Lands Recreation Enhancement Act (FLREA) allows parks to retain most of the user fees they collect. Allowing more of the same would help local park managers address critical maintenance needs without relying so much on congressional appropriations. 

The Interior Department today in effect serves as “a planning and zoning board” for large areas of the rural West, a function typically reserved for local and state governments.

More could be done to give park managers the flexibility they need to address critical maintenance issues. The FLREA originally expired in 2014. Since then, Congress has granted temporary renewals on an annual basis. Congress should permanently reauthorize the FLREA to enable federal land agencies to collect user fees and to expand the discretion of park superintendents to set their own fee schedules without having to obtain additional approvals from Congress or the secretary. 

Make Grazing Permits into Tradable Rights, Even for Conservation Purposes 

The Interior Department is responsible for managing a vast system of federal rangelands in the West. The BLM administers nearly 18,000 grazing permits across 155 million acres of public lands. In 2015, these lands provided 8.6 million animal unit months of forage for livestock while also being managed for recreation, conservation, and other multiple-use purposes. 

Today’s grazing policies, however, encourage conflict rather than negotiation among competing interest groups. Ranchers have gradually had their grazing permits revoked, as public-land policies have shifted in favor of conservation and recreation and away from grazing, timber harvesting, and other traditional resource uses. Today, the BLM authorizes only half as much grazing on federal rangelands as it did in the 1950s. Increasingly, ranchers and environmentalists are pitted against each other in a zero-sum battle over the western range. 

At their core, such conflicts result from poorly defined grazing rights and restrictions on trading them. Current policies do not recognize grazing permits as a secure property right, nor do they allow grazing permits to be transferred for non-grazing purposes.

At their core, such conflicts result from poorly defined grazing rights and restrictions on trading them. Current policies do not recognize grazing permits as a secure property right, nor do they allow grazing permits to be transferred for non-grazing purposes. This means that environmental and other competing interest groups have little or no way to bargain with ranchers to acquire grazing permits. As a result, disputes must be resolved through litigation or political battles instead of through negotiation or cooperation among local users. 

Today’s grazing policies date back to the Taylor Grazing Act of 1934. The act requires that grazing permits be attached to specific “base properties”—or private properties that the government deems qualified for grazing privileges. The presence or absence of a grazing permit can significantly affect a ranch’s property value. When these properties are bought and sold, the new owner pays for the grazing permit, which is capitalized into the value of the base property. 

The law, however, never clarified whether grazing permits are secure property rights. Instead, it refers only to “grazing privileges” while also stating, somewhat vaguely, that those privileges “shall be adequately safeguarded.” The result has been a decades-long fight over the nature and security of grazing rights in the West. Because grazing permits are attached to private properties, and restrictions on those permits can directly affect the value of a ranch, it’s no surprise that ranchers feel threatened by actions that reduce grazing on public lands. 

To address these points of contention, grazing policies should be reformed to encourage contractual solutions instead of litigation and conflict. Specifically, Congress should clarify that a grazing permit constitutes a secure property right (or a forage-use right) to a portion of the federal rangeland. In addition, it should make those rights transferable, even for non-grazing purposes such as conservation or recreation. 

Several changes would help make this possible. First, under the current system, ranchers are required to graze livestock on their allotments at their permitted levels or they risk losing their grazing privileges—in other words, it’s “use it or lose it.” If a permittee abandons grazing activities on a significant portion of an allotment, the BLM may be obligated to transfer the permit to another rancher willing to use the allotment for grazing. 

Second, the base-property requirement raises the cost of trading grazing permits and restricts who can hold grazing permits. Groups seeking to acquire grazing rights must purchase or already own qualifying base properties to which grazing privileges can be assigned. Removing these requirements would allow permits to more easily be transferable to their highest-value uses, whether that’s grazing, conservation, or recreation. 

When property rights are secure, enforced, and transferable, disputes among competing users are more likely to be resolved peacefully, cooperatively, and in a mutually beneficial manner. Clarifying grazing rights and making them transferable for non-grazing purposes would go a long way toward encouraging more cooperation and less conflict over the use of the western range. 

Adopt Market-Based Measures to Boost Revenues While Protecting Local Environmental Values 

As mentioned earlier, the Interior Department oversees mineral development on vast amounts of federal subsurface lands. These lands account for 21 percent of U.S. oil production and 16 percent of natural gas production, and these resources generate billions of dollars for national and state treasuries.

The department is charged with responsibly developing energy resources on federal lands to best meet the present and future needs of the public, while also ensuring that taxpayers receive a fair return on energy production. But uncertainty and delays arising from agency processes, as well as conflicting values with respect to energy extraction and the environment, have contributed to a relative decline in the development of federal oil and gas resources. Oil and gas development on private and state lands has boomed over the last decade, but oil production on federal lands has increased only slightly, and natural gas production has actually declined. 


THE HOBACK BASIN, WYOMING. In 2013, the Trust for Public Land purchased the oil and gas lease rights for 58,000 acres in the Hoback Basin in order to preserve the wilderness landscape. Laws requiring leaseholders to use or relinquish their rights make this kind of transaction impossible on most federal lands. (credit: SCOTT BOSSE, COURTESY OF THE TRUST FOR PUBLIC LAND)

Federal lands containing oil and gas sometimes also offer significant cultural, recreational, and other environmental assets. This sparks conflicts over resource use—a main cause of the relative slowdown in energy development on federal lands. Market-based approaches, however, have the potential to reduce such conflicts, bringing local environmental values more directly into the oil and gas leasing process and promoting cooperation between energy developers and environmental groups. 

The most direct market-based approach to resolving such competing demands would be to open oil and gas lease auctions to recreational, environmental, and conservation interests. Lease terms could explicitly allow individuals or groups seeking to withhold resources from development to hold a lease on terms similar to those that apply to energy developers. When development threatens local environmental values, such groups could coordinate to purchase and hold the development rights to a given property. 

Current policies discourage this cooperative approach by requiring that leaseholders must intend to develop their energy leases. Leaseholders who do not intend to develop oil and gas, essentially forfeit their lease rights. Under current BLM policies, therefore, environmental and other non-development-related interests have few options but to seek administrative delays and further promote the politicization of public land management. 

A market-based approach to protecting local environmental values would reduce conflict and help ensure energy resources are developed only when they are likely to be more valuable to the public than other competing values. Moreover, such an approach has some precedent on federal lands. In 2013, the conservation group Trust for Public Land purchased an energy company’s federal oil and gas lease rights to 58,000 acres in Wyoming for a total of $8.75 million. 

This win-win deal was possible thanks to a provision in the Wyoming Range Legacy Act that allows groups to purchase and retire federal oil and gas lease rights from willing sellers. The provision, however, applies only to certain federal lands in Wyoming. Similar authority could be expanded to allow lessees to voluntarily sell their lease rights for conservation purposes, enabling mutually beneficial market exchanges to occur to resolve conflicts over resource use. 


Much could be done to transform the Department of the Interior so that it can better address the challenges it faces in the 21st century. Some of the changes discussed here could be implemented by the Interior Department itself, while others would require congressional action. But in every case, the proposals would help restructure the department to make it more effective, more responsive to the needs of local communities and local land managers, and better able to help resolve conflicting demands through local cooperation instead of political conflict and litigation.  

Mr. Regan is a research fellow at the Property and Environment Research Center. This article is adapted from his testimony on December 7, 2017, before the Subcommittee on Oversight and Investigations of the Committee on Natural Resources of the U.S. House of Representatives.