Viewpoint: Are grazing rights on public lands a form of private property?

Abstract

Some have argued that federal grazing preferences or permits are a form of private property and should be recognized as such by the federal government. This viewpoint studies the grazing controversy from 2 perspectives; legal and theoretical. A strict analysis of statutes and case law reveals some ambiguity in the law, but little that clearly supports the private property rights argument. A second analysis of several more theoretical approaches to the issue reveals a stronger case for private property based on the idea of customary use, as embodied in certain interpretations of the public trust doctrine and other alternative views. Because the non-legal argument is much more persuasive, it should be utilized more frequently by private property advocates. Opponents of the private property argument should consider that simple legal victory is often an inadequate solution to conflicts such as the grazing rights controversy. Advocates on both sides, as well as range managers and others simply wanting a better understanding of the issue, should make an effort to view the controversy from both of the perspectives presented here. Failure to do so will likely result in more lawsuits, more damaging controversy, and a continued lack of resolution to the conflict.