Aerial view of a mining quarry, photograph by Curioso

The Land Was Ours | Trump, Biden, and Public Lands

Nick Bowlin

Northern Nevada, not far from the Oregon border, is a vast steppe, where rolling hills and basins stretch on for hundreds of miles beneath sagebrush and other shrubs that can endure the cold winters and dry summers. Beneath the surface are deposits of minerals, the sort that make our phones glow and electric cars run. It is one of the darkest regions — with the lowest levels of light pollution — in the Lower 48. In the final weeks of President Trump’s administration, as his rantings and calls to insurrection consumed the nation’s attention, his agencies were rushing to ensure that a mining company had all the proper permits needed to dig an open pit lithium mine, which will be one of the largest in the world. In all likelihood, the mine’s lifespan will exceed 40 years, and there’s little the incoming Biden administration will be able to do about it. 

Handing over natural resources to private interests was a consistent preoccupation of the Trump administration, from its first weeks to its final days. Less than a week before President Biden took office, the Trump administration approved a deal that will transfer several thousand acres of Arizona forest — an area sacred to the local San Carlos Apache Tribe — to one of the largest copper mining companies in the world. By the time the company is done, the area will be a crater two miles wide and a thousand feet deep. And between the November election and Biden’s inauguration, hundreds of thousands of acres of land in Colorado, Wyoming, California, and Alaska were auctioned to oil and gas firms at an unprecedented rate.

In each of these cases, the land in question is held by the American public and managed by the federal government — public lands, in other words. Public lands are one of the United States’s largest experiments in public ownership, of resources held in common, of something resembling a socialist practice. In 2016, one of Ronald Reagan’s advisors called public lands “a huge socialist anomaly in America’s capitalist system.” But under federal oversight, the lands are often treated as public in name only. The history of public lands, meanwhile, is one of broken treaties, colonial domination, and suppressed sovereignty.

It might be useful, here, to give some sense of scale. The federal government controls some 640 million acres of public land, the majority of which falls under the purview of the Department of the Interior (DOI). The rest is largely national forest managed by the Forest Service, which is part of the Department of Agriculture, an odd division that only makes sense if trees are understood as a commodity crop. The DOI is a federal agency whose mission is so broad, its responsibilities so numerous, that it’s easy to lose sight of its importance. Within the Interior Department is a jumble of sub-agencies and bureaus that build dams and reservoirs, supervise national parks and wildlife refuges, clean up abandoned coal mines, and oversee the building of new ones. Several of the DOI’s offices engage directly with the nearly 600 federally recognized Native American tribes. It’s the arm of the federal government with the most direct and substantial impact on the lives of Indigenous people. 

But the Interior Department is best understood as a resource manager. It oversees more than 20 percent of the entire United States. Much of that land — which is concentrated in the Western U.S. — is, in turn, governed by an office within the DOI called the Bureau of Land Management (BLM), whose offices and staffers dot the intermountain West, building hiking trails, fighting wildfires, and leasing rangeland for cattle grazing. And that’s just on the surface. Beneath the ground and offshore, along the Outer Continental Shelf that hugs America’s coastline, lie nearly two billion acres that contain vast deposits of coal and minerals, as well as reservoirs of natural gas and oil. This makes the Interior Department one of the largest supervisors of fossil fuel resources on the planet. The Interior Department fills federal and state coffers by leasing land for oil and gas drilling and mining. Energy produced on public lands accounts for a quarter of national carbon emissions, according to a United States Geological Survey report from 2018. “The Interior Department’s influence on this country’s response to the climate crisis is almost impossible to overstate,” notes a recent article in The Nation, which correctly points to the DOI as the crucial agency for implementing a Green New Deal.

For most of their existence, the agencies that oversee public lands and resources have operated under conflicting charges. The BLM is supposed to use its resources to generate revenue while conserving those same resources “for the use and enjoyment of present and future generations.” Both the revenue creation and the conservation are done in the name of the public. In its historical practice, though, the agency’s interpretation of this charge has meant ceding natural resources to private logging, ranching, mining, and drilling interests at low — and sometimes no — cost. Previous administrations courted private interests, but the level of corporate capture under the Trump administration has been extreme, according to Mark Squillace, a professor of natural resource law at University of Colorado Boulder. The Trump administration was “singularly focused on private interest,” he said.

Restoration of rolled back policies and repair of broken oversight have been early Biden administration priorities. But there is much more to be done, and Biden’s Interior Secretary nominee — Rep. Deb Haaland from New Mexico’s 1st Congressional District — is a promising pick for enacting real change in the management of public lands. Haaland’s appointment is significant, and not only because as a member of the Pueblo of Laguna, she would be the first-ever Native American Cabinet Secretary. When water protectors blocked the Dakota Access pipeline in 2016, Haaland showed up at the protest camp and cooked meals. In a Congress packed with multi-millionaires, she makes monthly student loan payments. Haaland is a co-sponsor of Green New Deal and Medicare for All bills.

Beyond new personnel and policy changes, what’s needed is a new understanding of publicly owned resources. Depending on where you live, public lands might seem like an abstraction or a concrete part of everyday life. In my rural Colorado county, 83 percent of the land is publicly held. Some of my neighbors clear brush and plant trees on federal land. Others take deer every fall to fill their freezers, or cut firewood in the national forest to warm their houses in winter. Most of us walk on the trails and camp in the woods. But whether you interact with public lands every day or never see them is somewhat beside the point. Every American citizen has a stake in public lands — as trustees of their mineral wealth and potential, as beneficiaries of their unjust founding, and as citizens responsible for their future.

 

The history of American public land management is largely one of privatization. The Interior Department was founded in 1849 and was instrumental in surveying and distributing colonized land as settlers pushed across the Great Plains and into the Western U.S. This process was codified by the Homestead Act of 1862. In practice, the law facilitated a massive transfer of wealth into private hands; the Interior Department provided more than 245 million acres of expropriated Indigenous land to farmers and ranchers. “‘Public land’ for ‘public good’ was a highly subsidized federal endeavor for private enterprise, racial exclusion and Indigenous elimination,” writes Nick Estes, a member of the Lower Brule Sioux Tribe and an American studies professor at the University of New Mexico, in Our History is the Future, a recent account of the resistance to the Dakota Access pipeline at Standing Rock. Today, according to Estes, a quarter of U.S. adults are descendants of direct beneficiaries of the Homestead Act. 

The General Mining Act of 1872 was another tool of settlement by privatization. The law was blunt: simply finding a deposit of valuable minerals established the right to dig a mine — finders keepers, in other words. The land could then be “patented,” or signed over to private ownership for, at most, $5 per acre. There’s been a moratorium on patenting since 1994, but substantial aspects of the 1872 law are still in force today, giving private companies extreme influence over federal resource decisions. Companies that mine hardrock minerals — the most valuable metals, including gold, silver, copper, and lithium — pay no taxes on their estimated hundreds of billions of dollars in profits, and haven’t for more than a century. Until the 1970s, mining companies were not even required to clean up their operations once the minerals had been extracted, leaving the public on the hook for tens of billions of dollars in reclamation costs. Every day, a 2019 Associated Press investigation found, more than 50 million gallons of toxic water leaks out of abandoned mineral mines.

There’s a long-running joke that the acronym “BLM” stands for the “Bureau of Livestock and Mining.” Created in 1946 to regulate Western rangelands, which were being overgrazed by cattle companies, the BLM did not do much regulating at first, instead shuffling off duties to local grazing advisory boards. Change came in the 1970s, with the rise of the modern environmental movement. Congress passed several landmark laws: the National Environmental Policy Act, the Clean Water and Clean Air Acts, the Federal Land Policy and Management Act. These laws codified a new environmental consciousness and social understanding of public land as a public trust that ought to serve the common good, thus moderating the influence of extraction industries. 

Predictably, perhaps, there was a backlash. In the late 1970s and early 1980s, a loose coalition of Western politicians at all levels of government — along with many ranchers, miners, and logging companies — challenged federal oversight of public land in what became known as the Sagebrush Rebellion. “Count me in as a rebel,” Ronald Reagan declared at a 1980 campaign stop in Salt Lake City; his administration would roll back environmental and land use regulations at the urging of corporate interests. 

Today, the federal government does not simply hand over land to private companies. Instead, it auctions it off at regular lease sales. Companies or individuals indicate to the BLM which parcels of land they are interested in and buy leases in 10-year terms. The more competitive leases can go for $100 per acre, but some sell “at non-competitive” rates as low as $1.50. Over the past four years, Trump’s political appointees made the approval process even easier by weakening federal laws requiring environmental impact studies and public input.

From 2003 to 2019, nearly 90 million acres of federal land were auctioned off — nearly half at non-competitive rates. Millions of acres are currently hoarded by energy companies, which will hold onto the leases and hope for better markets — while claiming these public resources as financial assets to beef up their balance sheets. Even if they are not drilling, the companies retain rights to the land, which sits there, untended and unused. Regardless of what the company does with its lease, the land remains notionally public, as does the oil, trapped under hundreds of feet of soil and rock. But if the company finds oil and decides to drill, the mineral resources become de facto private. The company cuts a road and builds a fence. It puts in a drilling pad and rig and sinks a borehole deep underground. Leasing sales have gone on every few months, every year, for your entire life. In principle, we have a say in what happens to these lands and what is done, or not done, with the oil and gas they contain. But it doesn’t feel that way, does it? 

 

Federal land management isn’t always the most exciting topic, between the cloud of legal jargon and maze of policies that seem designed to depress public attention. Under President Trump, the DOI was subject to increased scrutiny, in part because of sheer brazen generosity to industry, but also because of the people appointed to positions of power. Trump’s first Interior Department Secretary was Ryan Zinke, a former congressman from Montana. On his first day, he rode a horse to work through the streets of Washington, D.C., and, a few months later, he travelled in a private jet owned by oil and gas executives. Zinke insisted that DOI staff hoist a special flag whenever he was in the agency headquarters — an act of self-aggrandizement more fitting for the Pope than a federal bureaucrat. A remarkably diverse list of ethics violations — including a shady real estate deal with a Halliburton executive, a censored climate report, and multiple taxpayer-funded vacations and Hatch Act violations — would ultimately force him from the job, but he accomplished quite a bit in a short tenure. One of his first actions was to lift a moratorium on new coal mines, along with cuts to dozens of environmental protections. In 2018, Zinke opened up nearly all waters along the U.S. coastline to oil and gas sales, a move Trump would repeal two months before the 2020 election, likely in a bid to win states like Florida and North Carolina.

And then, there were the monuments. In late 2017, after some lobbying by uranium mining companies and Western Republicans, and with Zinke’s backing, Trump made massive cuts to two national monuments in southeastern Utah: Bears Ears, which contains an extraordinary concentration of sites sacred to the Navajo, Hopi, Ute, and other tribes, and Grand Staircase-Escalante, with its redrock plateaus and snaking canyons. The monuments were reduced by a combined two million acres, the largest one-time removal of federal land protections ever. 

Overwhelmed by ethics investigations, Zinke resigned after two years and was replaced by David Bernhardt, a career D.C. lobbyist for oil and gas companies. Bernhardt’s industry ties were so numerous that, at Interior, he notoriously carried around a small card that listed all his conflicts of interest. With less fanfare, Bernhardt picked up where Zinke left off, easing restraints on oil and gas drilling, cutting regulations, pushing career agency staff out the door, and, during the pandemic, approving the removal of federally mandated taxes for oil and gas drillers on public land. 

This last move, according to Squillace, is particularly representative: the Trump administration pushed oil and gas development, whether or not it made any economic sense. The tax cut was implemented during a global oil glut caused by Covid-19. Oil prices were crashing. But once it became clear that Trump had lost re-election, his administration began approving oil and gas leases at a faster rate than ever before, the Associated Press found, as corporations made a final frenzied rush to hoard drilling rights. “The Trump administration treated public lands like gifts to give away to their favored corporate industries,” Squillace said. 

But while Trump promised that his administration would establish “energy dominance,” it was his predecessor who secured it. Over the course of President Obama’s eight years in office, the country experienced its largest-ever oil boom. By the end of his second term, America was the most prolific petroleum producer on the planet. Obama has tried to take credit, holding up the increase next to the Paris Climate Accord as evidence of his Third Way credentials. “That was me, people,” he said in 2018, of the oil boom. This boast is not entirely truthful. Production increased largely due to technological advances in fracking, which allowed drillers to bore not just down, but sideways, opening up new oilfields in Texas, Pennsylvania, and North Dakota. In late 2015, Obama signed a repeal of a 40-year-old ban on exporting crude oil; two years later, the U.S. became a net oil exporter for the first time in decades. Most oil production took place on private land, but Obama’s Interior Department offered up more acres of public land for drilling each year than Trump’s, on average. 

Unlike Trump’s lease sales, Obama’s took place while oil prices were high, so they generated more revenue for the government. The Interior Department is under constant pressure to sell land from Western states because half of the taxes from public land extraction goes to the state in which the extraction occurs. That money pays for schools, hospitals, parks, and roads. A single, record-breaking 2018 oil and gas lease sale in southeastern New Mexico allowed the state to increase education spending by half a billion dollars the next fiscal year. (In fact, before the pandemic tanked oil prices, New Mexico’s governor had proposed statewide free public college, funded mostly by oil and gas taxes.) Over half of Wyoming’s annual revenue comes from energy extraction, including on public lands. Now that oil, gas, and coal prices have plummeted, the state is proposing brutal cuts to public services across the board, with spending reductions to state health services and education. With many state budgets dependent on mining and drilling, moving away from carbon-based fuels is more urgent than ever. At the same time, energy-dependent economies desperately need stable sources of income. This is a dilemma that the Biden administration will face. 

 

Many of the regulations cut by the Trump administration can be restored with a stroke of the presidential pen — indeed, Biden is already beginning to make such reversals. Wednesday, in what someone dubbed, bluntly, “Climate Day,” he signed a slew of executive orders including a moratorium on all new public land oil and gas lease sales. His nominee for Interior Secretary, Deb Haaland, has voiced her support for a total ban on federal mineral leasing: no new oil, gas and coal sales. As head of the agency, Haaland could also help enact vital conservation plans, install stringent caps on public land drilling emissions, promote renewable energy, and create jobs via the new Climate Conservation Corps.

Haaland could also force the agency to consult in good faith with tribal governments when land use decisions will impact them. Tribal consultation is a legally mandated process, but the Interior Department too often does a cursory job, when not neglecting the process entirely. A former tribal administrator herself, Haaland regularly criticized these shortcomings in Congress, and she could break new ground as head of the DOI. In recent years, the push to return stolen land to Indigenous tribes has gained momentum. The “land back” movement is a matter of justice, but often, it’s also good environmental policy. In recent years, federal land has been returned to tribes in Oregon, in Northern California, and along the Klamath River, which the Yurok Tribe recently won a court battle to grant the legal rights of a person. 

Once confirmed, Haaland will have broad authority over new oil, gas, and coal leases. But new leases are the easy part. Existing leases — for active wells and mines — are the heart of the public land emissions problem. Then there are more than 20 million acres of already leased public land, onshore and off, not being used for drilling, but where companies hold the right to drill if and when they see a profit. These existing leases will be a persistent challenge to real climate action. (One of Biden’s first-day actions was to order a review of — and moratorium on activity for — Alaskan drilling leases sold in a controversial, last-minute auction by the Trump administration.) Leases are contracts between the government and corporations, and undoing them would be legally complicated. In a recent paper, the Environmental Law Institute proposed one way the Interior Department might go about this: by reconceiving its legal mandate, which calls for resource management that “will best meet the present and future needs of the American people.” This directive has long been understood to include fossil fuel extraction, but it need not, the paper argues — not when “the future” includes the climate crisis.

Haaland is on record supporting a ban on fracking, which puts her at odds with Biden and Vice President Kamala Harris. Haaland hails from New Mexico, where there’s a great deal of fracking. The impacts — roads packed with trucks, dirty groundwater, air polluted with fumes and chemicals — often afflict the state’s reservations and poorest communities. But banning the practice outright will be complicated. The vast majority of hydraulic fracturing takes place on private land, where the federal government cannot ban the practice without congressional legislation, not to mention a willing White House. But even if Biden refuses to attempt to ban fracking, his administration could at least refrain from bailing it out. 

This is the dirty little secret of the fracking industry: it has never been profitable. Not at the outset, not during the boom when Obama was president, and certainly not now, post-pandemic. Fracked wells are extremely productive at first, but production rates decline fast, often by more than half in the first year. Since the beginning, fracking companies have promised that technological advances would solve the production decline problem. They never have, which means that fracking companies drill new wells almost constantly, often near impoverished communities, which requires significant financial capital. A sort of ancestor to the WeWork fiasco, the fracking industry convinced Wall Street investors, hedge funds, and venture capitalists that if they kept pouring in money, profits would soon come out of the ground. They never did, and, given the post-pandemic oil downturn, it’s likely they never will. Still, last spring, the Federal Treasury purchased billions of dollars of corporate energy bonds, buying back years of bad debt accumulated by oil and gas companies, many of which engage in fracking. This was on top of the long list of tax write-offs, loopholes, and subsidies that oil and gas drillers can count on every year. In the next stimulus package, when the oil and gas industry extends its hand, the federal government need not help it up.

As for public land protections, Biden announced an Interior Department review of the reduced Bear Ears and Grand Staircase-Escalante monument boundaries. In all likelihood, this process will result in a restoration of the original monuments, as well as a rejection of the legality of Trump’s proclamation to shrink the boundaries in the first place. (Before Trump, the Antiquities Act of 1906 was read as granting the president a one-way authority to create monuments, not the ability to unmake or shrink them.) But Biden — and Haaland, upon her confirmation — can do much more.

Tribes that have called southeastern Utah home for centuries fought the reduction of both monuments. Bears Ears, in particular, is of profound cultural and historic value: the area contains more than 100,000 cultural and archeological sites. Today, a majority of local residents are Native people. The monument was the culmination of years of careful planning by the local tribes — Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe — in what’s known as the Bears Ears inter-tribal coalition. They drafted proposals for protecting the land, created relationships with Obama administration officials, and built local support for the monument. The coalition consulted on the monument’s creation, which was widely praised in 2016. But their role was advisory, and the Obama administration only moved to create the monument at the “last second,” after Trump’s 2016 win, said Natalie Landreth, an attorney for the Native American Rights Fund, which represented the Hopi, Zuni, and Ute Mountain Ute tribes in a lawsuit against the Trump administration. In February 2020, before Biden’s nomination, Landreth told me she tries to disabuse people of the assumption that a Democratic administration would automatically fix things. “It was such a heavy lift to get the Obama administration to move on this,” she said.

In Biden’s Tribal Nation plan, he pledges to “provide tribes with a greater role in the care and management of public lands that are of cultural significance to Tribal Nations.” A good place to start would be giving the inter-tribal coalition the co-management authority laid out in the original monument proposal, which proposes that the coalition work with the federal government “as equals to make joint decisions.”

 

Disputes about American identity and civic belonging have always marked land as a site of conquest and oppression, contest and division. Our poets capture it best. Robert Frost once proclaimed, “The land was ours before we were the land’s.” As Julia Alvarez retorted: “The land was never ours, nor we the land’s / no, not in Selma, with the hose turned on / nor in the valley picking alien vines.”

In his address to the nation on November 7th, Biden said that we are called on to reckon with our nation’s past of racial hierarchy and domination. Such a reckoning would require a reconsideration of what we mean when we call federal lands “public.” “Discussions of the commons,” writes San Diego State University professor April Anson in a 2019 paper, “often still assume a public that is, in fact, particular to white settler subjects.” Today, public land officials rarely consult the descendants of the original inhabitants. Meanwhile, environmental groups too often operate with a narrow definition of the “public,” obscuring not only tribal governments, but anyone who does not fit the image of the well-off, Patagonia-clad, often white person who uses federal lands for recreation. 

And yet, we still use that word — “public” — to talk about federally held land, apparently holding out hope that these resources might be cared for outside the demands of the market. Accounting for the dark history and flawed present of American public land will require new forms of political imagination, and the first step is recognizing the magnitude of the crime — the original dispossession and genocide of Indigenous peoples. This point should not be passed over lightly. Americans are current beneficiaries of this historical wrongdoing: in tax revenue and hiking trails, in the fuel in our cars and the precious metals in our phones. And American citizens are responsible for how these lands and resources are used — the government claims to manage them for our collective good. 

In his 2019 book, This Land is Our Land, Jedidiah Purdy presents the concept of a “commonwealth” as “a community where no one gets their living by degrading someone else, nor by degrading the health of the land or the larger living world.” This idea might be useful. It might help us rethink our relationship to public lands and to each other. It might help us reframe the ordinary conversations about public lands, which tend to focus on their beauty, on their important ecosystems, on their utility, how they are rife with resources to exact, game to hunt, trails to use. But suppose we refer to public lands not as a collection of resources, but as a commons. For Purdy, a commonwealth names an ideal. In a commonwealth, many things are held in common and cared for by the people who make it up. The commonwealth idea concerns degradation of the land and degradation of people; repairing one requires repairing both. “No story or picture of the world matters much,” Purdy writes, “if it floats too far from what people do with one another’s bodies and with soil and weapons and other tools.” 

Will we ever achieve a commonwealth? Probably not, but that’s not the point. The commonwealth ideal provides an imaginative tool for thinking about how we proceed. Subsequent steps are not always clear, but the commonwealth ideal does direct us to reparative work regarding common goods, broken political relationships, and distribution of resources. It suggests some concrete actions — like fully implementing the inter-tribal coalition’s Bears Ears proposal, or supporting, when possible, the return of land to tribal ownership. These steps can’t set things right. But they can acknowledge that a great wrong has been done.

In his book on the Standing Rock protests, Nick Estes situates the resistance to the Dakota Access pipeline in a centuries-old tradition of tribal resistance in the central plains. In this tradition, he contrasts its rightly-ordered relationships between people, society, and the land with capitalist notions of ownership and exploitation. “How can settler society, which possesses no fundamental ethical relationship to the land or its original people, imagine a future premised on justice?” There’s no simple answer, Estes writes, possibly no positive answer at all, not in America as it stands today. But it’s not hard to read the histories of resistance and mutual support that Estes describes as real-world illustrations of the commonwealth ideal. Such examples provide possibilities to strive for — where people do not dominate resources, the land, or one another.

Nick Bowlin is a freelance journalist and correspondent for High Country News.

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