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Property rights have been recognized since ancient times as an essential element of a well ordered society. When clear rights to property exist, the owner will take care to exercise careful stewardship. When rights are undefined, however, there is a conflict among multiple claims. In the past, the solution to the confusion of multiple claims on the rangelands in the American West has been government ownership. Ranchers have been allowed to graze livestock on the public federal rangelands for over a century. Having applied labor to this land, it stands to reason they are entitled to its benefit. Yet, applying the same thinking, many others also have entitlements in the land as well, including conservationists, outdoor enthusiasts, and others.
Many ranchers have pressed for decades for a more formal establishment of their tenure status on the federal rangelands. What is new today is that some prominent members of the environmental movement are beginning to reach a similar conclusion—that a delineation of formal rights would create an institutional setting that would also promote a more responsible environmental management and use of the federal rangeland resource. The blurred lines of responsibility resulting from a lack of any clear rights on the federal rangelands have been as harmful to the environment as they have been to the conduct of the livestock business.
If “forage access” rights were defined and made legally transferable to any new owner, environmental organizations could purchase the forage rights to federal lands which are now available only to ranchers. Environmental groups seeking to reduce livestock grazing on federal lands would have a realistic way to accomplish their goals. A clear delineation of rights would also encourage existing ranchers to invest in long-run improvement of the land and its productivity. Equally important, the debate over western land-use would no longer be resolved by government planners, but by the competitive workings of the marketplace. Changes in rangeland use would be made through voluntary transactions between existing rights holders—ranchers—and those who wish to see changes on western lands.
Establishing forage rights on federal lands begins by acknowledging that the existing rancher holding a grazing permit to an area would continue to hold the permit as a formal matter of right. In the process, the actions allowed under the permit, the provisions for transferring it to other parties, the types of parties eligible to hold the permit, and the character of the permit itself would be changed in the following manner: – Eliminate the use-it-or-lose-it requirement for forage rights so that rights may be used for purposes other than livestock grazing; – Eliminate the base property requirement that a rancher must own nearby property or water rights in order to own forage rights; – Eliminate the requirement that the holder of a grazing permit must be a livestock operator; – Eliminate the restrictions on rangeland subleasing, and; – Shift from a permit system to a leasing system for forage rights.
As proposed here, the forage rights leased would be part of the bundle of rights at any given portion of federal lands. The core right would, of course, be the control over the use of the forage resource in the allotment. However, this use would be constrained to a certain degree, reflecting the fact that there currently exist other de facto rights in the overall surface bundle of rights.
In the future it also may be possible to move beyond government ownership of the Western range. In place of federal rangelands, there could be a new system of private property rights in which the private rights newly defined would include a complex blend of individual and collective rights. An appropriate institutional model here might be a condominium in which the rights to the entire property are separated into the individual rights of the unit owners and the rights to control the use of the common elements that are exercised collectively through the homeowners’ association or other collective decision making instrument. In a rangeland condominium, the individually held rights would be the forage rights, giving them control over the use of the grazing forage resource in a particular allotment.
In order to implement a full condominium privatization, many more details beyond the brief sketch offered here would have to be provided. Until a privatization of the public rangelands can occur through establishing a condominium arrangement, or perhaps in some other way, the individual rights to grazing forage would be defined in the context of continuing government ownership of the rangelands. However, a clearer resolution and formal codification of rancher rights on the federal lands, as proposed in this paper, could be a first step toward such broader institutional changes.