On the #PublicLandOwner Movement & The Meaning of Words
Updated: Aug 3, 2018
In a previous article I discussed how many hunters are vocally supporting socialized land ownership (a clearly Marxist ideology) even though they would otherwise deny having any socialist leanings. Today I will expound on that sentiment by discussing how many prominent hunting & outdoor personalities appear to either not understand the basic meaning of many of the words they use, or are intentionally misconstruing their meaning to promote their idealisms. I am not advocating here, just as I did not advocate in my previous article, anything regarding the political issue of public land, or the transfer of public lands to states/private entities. The point of this article is simple. Words have meaning. Being precise in speech is essential to productive discourse on issues of public policy. We should call into question those that publicly advocate idealisms through the use of incoherent statements or poorly articulated speech.
As an example, Backcountry Hunters & Anglers, an advocacy group that boasts popular outdoor personalities like Ryan Callaghan and Ben O'Brien on its board of directors, has been successful in their marketing of the #publiclandowner campaign. Joe Rogan wears their t-shirts and has been fairly vocal in supporting their mission.
On their website, Backcountry Hunters declares that:
Every citizen owns a share of public lands and waters in the United States.
The problem, of course, is you are not a public land owner and you do not own a share of public lands. Words have meaning. The meaning of the word owner is entirely incompatible with a citizen's relationship to public lands, for reasons I'll demonstrate below.
There is a very distinct and identifiable process for determining if you own something. Ownership entails certain rights and privileges that are not afforded to non-owners. The claim Backcountry Hunters makes is demonstrably false (as will be shown) and should more accurately be written as follows:
Most citizens, and most non-citizens, are granted a license to use some public lands and waters in the United States, subject to a unilaterally established canon of constantly shifting regulations put in place by largely unelected groups of government bureaucrats.
Of course, that doesn't roll off the tongue nearly as well as #publiclandowner.
The terms own, ownership and owner are clearly defined legal terms. Although there are different forms of ownership under United States jurisprudence, the relationship Americans have with public lands cannot be called ownership under any definition.
What is ownership of land? Simply put, owning land carries with it a traditional "bundle of legal rights" which are the recognized rights of the holder of title to the property. The US Supreme Court, as recently as last year, spoke directly about the importance of understanding what ownership means and what "bundle" of legal rights owners of land have.
The question of who owns what is pretty important: The rules must provide a readily ascertainable definition of the land to which a particular bundle of rights attaches...Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them. Murr v. Wisconsin, 137 S. Ct. 1933, 1952, 198 L. Ed. 2d 497 (2017)
The concept of “ownership” in the law is fairly simple. The legal definition of “ownership” most often refers not to a particular physical object, but rather to the legal bundle of rights recognized in that object. Thus, ownership of land is often conceptualized as a “bundle of rights.” The “bundle of rights” which has long been established with owning land include the following 5 distinct rights: 1) the right to dispose, 2) the right to exclude, 3) the right to possess, 4) the right to use, and 5) the right to profit. If you don't have these rights, you do not own land.
I will briefly examine each of these 5 rights within the "bundle". As you will see, none of these apply to federal public land.
Right to Disposition: Perhaps the easiest way to identify if you own something is to ask if you have the right to convey your interest to another person (i.e. sale or give). If I own land (or any portion of land) then I am able to convey that land to someone else in exchange for remuneration (i.e. money). If I do not have the right to convey my interest in land, then I do not own that land. I may have the ability to use that land (like a lease agreement), but I do not own it. I do not have the ability to convey, or dispose, of my interest in federal land. If I'm strapped for money I can't sell it, nor can I pass it on to my children through my estate. This is reason #1 why you are not a #publiclandowner.
The Right of Exclusion: If you own something you have the right to exclude others from its use or enjoyment. Generally speaking, if I own land I can exclude other non-owners from using and enjoying that land. The Supreme Court has continually held that "one of the essential sticks in the bundle of property rights is the right to exclude others" (see PruneYard Shopping Ctr. v. Robins). Further, the courts have plainly stated you only own something, "if the owner has the right to exclude others from using it" (see United States ex rel. Kasowitz Benson Torres LLP v. BASF Corp). Meaning, if you don't have the right to exclude the random public from accessing and using the land, you don't own the land. Regarding public land, I don't have the right to exclude any human being from accessing or using it. That's not because the others using the public land are also "citizen land owners". Tens of thousands of non-US citizens access and have the same privileges to use public land that I do each year. There is virtually no difference relating to the ability to use federal land if you are a US Citizen or a Chinese Citizen. I do not have the essential stick in my bundle of property rights to exclude any person (resident or not) from using federal land. This is reason #2 why you are not a #publiclandowner.
The Right of Possession: Similar to the right to exclusion is the right to possession. Broadly speaking, if I own land I have the right to possess it at any time I choose. I do not have to pay an access fee to possess my land, and I am able to set the rules for my land. As the courts have put it: "The chief and one of the most valuable characteristics of the bundle of rights commonly called “property” is “the right to sole and exclusive possession—the right to exclude strangers, or for that matter friends, but especially the Government” (see Mitchell Arms, Inc. v. United States). I do not have the right to possess federal public lands at the exclusion of the Government, which is one of the primary characteristics of owning land. In fact the dynamic is the exact opposite. The Federal Government has the power to possess the land at my exclusion. There are millions of acres of federal lands that are entirely off limits for me (and you) to access. The government excludes the people from public land and sets the times/areas that are permitted to access (exercising its right to possession), we do not have the power to exclude the government. This is reason #3 why you are not a #publiclandowner.
The Right of Use: Another essential element identifying if you own something is if you have the right to use it as you see fit. "The owner of immovable property, or a person deriving rights from the owner, generally has the right to use the property as he or she pleases" (see 88 F. Supp. 3d 615 (E.D. La. 2015)). Of course, the right to use property is not entirely unlimited and "no one has a legally protected right to use property in a manner that is injurious to the safety of the general public" (see Mitchell Arms, Inc. v. United States). Still, it is obvious with regards to public lands that it is not you or I that are setting the rules for how we use the land. When and where you can walk, camp, drive, build fires, sleep, fish, or hunt are entirely set by the government. The use of public land is set by the government because the government, as the owner, holds the Right of Use within its bundle of sticks. This is reason #4 why you are not a #publiclandowner.
The Right of Profit: Another key tenant of ownership is the right to profits derived from the land. The courts have defined this as "fructus—the right to the fruits, i.e., to receive and enjoy the earnings, profits, rents, and revenues produced by or derived from the property" (see 218 F.3d 432, 437). The right to profits is different than a license to seek profits. Currently some people are allowed a license to make profits from public lands (through logging, grazing, guided hunting, etc). However, those individuals do not have a right to those profits. The holder of the right is the government, which grants a license to the individual to use the property subject to the conditions the government sets. To put this in context, if I own a commercial property and I am approached by someone who wants to park their food truck in my parking lot, I can choose to grant them a license to pursue profits in my parking lot, but that does not convey to them the right to profits coming from the land itself. You or I do not have the right to profits arising from federal public lands. This is reason #5 why you are not a #publiclandowner.
Perhaps the simplest way to disprove the claim that every citizen owns a share of public lands is to note that land ownership in America is determined by title. Subject to a legal requirement called the Statute of Frauds, all transfers of land interests in America must be in writing. The written instrument documenting who owns land is called a deed, ownership of the land itself is called title. If you do not have title (through a written deed) then you do not own land in America.
Now of course, the response from those pushing this dialogue will be that the government doesn't really own the land because the people own the government. However, saying you own the government, and therefore own all that the government owns, is about as disingenuous a use of the word own as can be imagined. If you disagree, do any of the following and see how your definition of ownership is received:
Attempt to get a loan from a bank using the Gerald R Ford Aircraft Carrier as collateral.
List that you have $128 trillion in assets on your online dating profile
Tell your neighbor you own 6,800 nuclear warheads
Call a real estate agent and hire them to sell your interest in the White House.
As a final note, respected outdoor personality Brian Call did a podcast recently where he responded to my previous article about the socialist nature of public lands. Brian took issue with me saying the ideology behind public lands is socialist (or marxist). Attempting to refute my comments Brian often spoke in circles, as might be expected from someone who hasn't confronted their own ideological dissonance. In the beginning of the podcast Brian pushed back on my comments that a common socialist belief is the government must seize and regulate lands in order to give the poor the same access as the rich. Minutes later he contradicted himself and restated the exact socialist narrative I had originally claimed would be used.
Brian: The idea that was proposed to me is that because I am pro-federal public lands that means I am promulgating a socialist agenda where basically I am saying we can't allow wealthy people to own the land, we have to have the government own it to protect the poor people so they can access it. No. That's not it. That's a complete incorrect assessment of what I'm saying.
A few minutes later.
Brian: It seems foolish for me to take away the collectively owned entire portion of this free land that I get to traverse on, and exchange it for the one model of "hey we get to all own our own private property and do whatever we want with it."
B-Rent: That model leads to no wild places.
Brian: Absolutely. Absolutely. It also leads to only the wealthy have access to wilderness.
Brian also attempted to argue that the current federal public land system is not socialist in nature, and by doing so perfectly described why it is in fact socialism.
The government doesn't own the land, the people own it. We the people own it...What we're saying is that every American has the right to own and access a certain portion of this country as publicly and collectively owned. That's not socialism."
"What I am saying is that the people own the land and the government holds it in trust and acts."
The definition of socialism is, of course, precisely what Brian described as our current federal land system. Socialism is when the government seizes control of what would otherwise be private property, and controls the means of production thereon (i.e. the land, timber, wildlife, minerals) for the equal benefit of the people.
I cannot accept that anyone who has a basic understanding of what socialism is could argue in good faith that our federal public land system is not a socialist construct. It is. The only way to claim it isn't a socialist construct is to completely deny what that word means. Steve Hanke, who was a senior adviser to Reagan and is currently an economics professor at John Hopkins (as well as a senior fellow at the Cato Institute) said the following on this topic: "These so-called public lands represent a huge socialist anomaly in America’s capitalist system. As is the case with all socialist enterprises, they are mismanaged by politicians and bureaucrats, who dance to the tune of narrow interest groups."
Reagan understood the intellectual conundrum of simultaneosly despising socialism, but also loving wild places. In order to be intellectually honest with himself, Reagan proposed to privatize much federal land until the political blowback he received was too great. Once we admit to ourselves that our federal public lands are indeed large scale socialism, then we can do as Reagan did and begin to grapple with the ideological dissonance of our own belief systems. I don't know where that takes us, but at least we will be having a genuine discussion at that point.
Brian had several other points in his podcast I would feel are worthwhile to discuss (such as his claims about conservation in South Africa and his failure to address the option of wildlife management trusts), but I will leave those for another time. If Brian ever wants to invite me on to discuss those issues I would be happy to do so.
Again, I am not offering an opinion on what we should do with federal public lands. I am, however, disappointed in the ideological inconsistencies demonstrated by many of those speaking on behalf of the hunting community. Words have meaning. You don't own something unless you own it. Socialism is still socialism even if you really don't like admitting it. It is time for the hunting community to demand emissaries more in the vein of the great Frederick Selous, and less in the vein of Pigman. Although Pigman is most certainly a gregarious and likable person, he is probably not the voice I would choose to stand before the world representing my community. I want pensive minds who carefully articulate their speech. Less tribal think, more careful contemplation. If we wish to preserve our way of life for future generations we should stop presenting ourselves as dull, imprecise and inarticulate.
Phillip Nelsen is an attorney, college professor, author, entrepreneur, professional hunting guide, life member of Safari Club International and various other hunting rights organizations.