Mitigating Malheur\u27s Misfortune: The Public Interest in the Public\u27s Public Lands

The Article begins its inquiry with an in-depth look at the forty-one-day long standoff between armed militants and law enforcement officials at Malheur, which means misfortune in French. The occupation of the Refuge ended with one death and the prosecution of over two dozen individuals for trespass, destruction of government property, conspiracy, and related charges. It all began when the Hammonds, who held grazing permits on Bureau of Land Management ( BLM ) land adjacent to the Refuge, were prosecuted for starting fires on federal land.1 The Hammonds\u27 conviction for the incident might have been the end of the story, but another notorious ranching family from Nevada, the Bundys, stepped in with their own deep-seated call-to-arms against the federal government. The Bundys\u27 message resonated with other Sagebrush Rebels and members of the Patriot Movement. The result: one of the most pivotal events in the ongoing struggle over access and control of U.S. federal public lands. Part I of this Article addresses the historic and cultural context of private interests in federal public lands and resources, using Malheur, the Badger Two- Medicine, and the Sugar Pine Mine as examples. Part II illustrates the federal government\u27s constitutional authority for management of public lands and resources and for oversight of private claims to them. Part III discusses the federal statutes and regulations that govern private claims to public rangeland and minerals and reveals the deficiencies of such claims. Part IV goes beyond the letter of the law to tease out the socio-economic subtext underlying the tenaciousness and fervor of private claims. The heart of the Article is found in Part V, which examines the public\u27s interest in federal public lands and the government\u27s responsibility to protect the public\u27s interest. Drawing lessons from over a century of both public lands law and water law, Part V reframes the conversation in a way that weaves the public interest into the myriad assertions of private rights. It considers the intersection of the public interest and the Public Trust Doctrine ( PTD ), which is an ancient common law doctrine that safeguards public access to certain public lands and resources. The analysis shows that, while the doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. The public interest standard, as informed by the PTD, becomes a robust means of managing private rights and conserving public lands and resources. Finally, the Article concludes with an optimistic, but realistic, message of convergence, where public interest factors coupled with PTD duties combine to direct decision makers, the public, and the judiciary to demand sustainable uses of federal public lands and resources through the issuance, renewal, and termination of permits, licenses, and leases