Do Sagebrush Rebels Have a Colorable Claim? The Space between Parochialism and Exclusion in Federal Lands Management

This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, antienvironmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates exploring the other. Yet, the extreme tactics of unsavory figures like Ammon and Cliven Bundy stand to overshadow real problems in the region. To search for the potential kernel of truth, I therefore apply a “pro se analysis” to complaints about unfairness in the public lands regime vis-à-vis communities near federal lands in order to transcend rhetorical blind spots and discern the strongest “colorable claims” amidst the noise. After dispensing with land transfer advocates’ common legal arguments, I conclude that a more substantial basis in ethical and legal principle than is generally recognized supports the idea that communities near public lands experience injustices and may be entitled to a form of input over land use (though not through formal law). To categorize these “claims” in a legally digestible way, I articulate three ethically and legally principled “theories” on behalf of the disgruntled: (1) an Exclusion Theory; (2) a Reliance Theory; and (3) a Public Trust Doctrine Theory. This Article builds upon an earlier project, Alienation and Reconciliation in Social-Ecological Systems,1 which argues that cultural rifts and procedural flaws have contributed to alienating large segments of the country from environmentalism and the federal government, to the detriment of climate change law and policy, and that adaptive governance and collaborative decisionmaking may stand to remedy some of these issues. Like in Alienation and Reconciliation, I conclude here that adaptive governance or a similar approach may be the appropriate avenue for mitigating the concerns outlined. This discussion thus serves not only to shed light on a longstanding tension in federal lands law and policy, but also to engage and illuminate the anti-government, antienvironmental sentiment that has percolated throughout the country for decades

Rural Estrangement and the Regulatory State

In today’s polarized social and political climate, rural alienation from government is often dismissed as “just more politics” or a symptom of problematic cultural norms. This Article takes rural disaffection from government seriously, with a focus on rural relationships with the federal regulatory state. The Article argues that rural disaffection from the regulatory state is not solely a cultural or political phenomenon among white conservatives. Rural disaffection is also a broader structural issue that stems in part from the regulatory state’s crisis of legitimacy. Two factors show that rural disaffection from the regulatory state is more diffuse and profound than is often appreciated, implicating the regulatory state’s capacity to elicit deference among those it governs. First, as illustrated with a robust synthesis of socio-legal literature on rural views, racially and politically diverse rural populations exhibit overlapping themes of distrust toward the regulatory state based in perceptions of procedural exclusion, agencies’ disregard for local conditions, and arbitrary substantive outcomes. This broad, intersectional rural disaffection suggests at least some of the problem lies with the regulatory state itself. Second, objective, structural features of the regulatory state align with rural populations’ subjective accounts, including the failure of cost-benefit analysis to accommodate salient rural conditions and the unique, under-mitigated impacts of regulatory developments in rural regions. The pervasive nature of rural disaffection alongside the alignment of structural factors with subjective rural accounts together lend credence to rural populations’ sentiments, in turn evoking common concerns about democratic accountability and inadequately guided decisionmaking within the regulatory state. This Article contemplates possibilities for reform based in recognized pathways to help establish institutional legitimacy—including procedural, distributive, and restorative justice—with a view to defusing rural alienation’s destabilizing influence while working toward a regulatory state that is more trustworthy, effective, and fair for all

Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997- 2012

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster. Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012. It includes observations for over 3,000 venire members for gender and observations for over 1,000 venire members for race. This is one of few studies to examine the use of peremptory strikes in actual trials; no previous studies of this magnitude have examined this topic in South Carolina. Consistent with comparable studies, this study’s results revealed that white and black potential jurors had substantially different experiences on their path to the jury box, while gender played a subtler role. Findings included that prosecutors used peremptory strikes against 35% of eligible African-American venire members, compared to 12% of eligible white venire members, and that the death-qualification process impeded a substantial number of African-Americans from serving. These disparities contributed to overrepresentation of whites on the juries. The study’s findings implicate the fairness of some of South Carolina’s current death row inmates\u27 trials, in addition to further buttressing the argument that capital conviction and sentencing procedures are incompatible with the need for representative and impartial juries

Alienation and Reconciliation in Social-Ecological Systems

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has been given light consideration in climate scholarship and policy. Yet, this alienation goes beyond Bundy. Altogether, these are social issues within social-ecological systems (SESs) of various scales, which the law must evolve to address. Using the Malheur occupation as a focal point, I suggest that adaptive governance, also known as adaptive comanagement, is not only appropriate for operationalizing resilience theory in SES regulation, but is also likely a pathway to steer climate governance more toward reconciliation over alienation, reducing the risks conflicts pose to effective outcomes. Scholars have recognized that a shift from environmental advocacy’s traditional focus on adversarial approaches is necessary in the face of climate change, but few have focused specifically on how to achieve this shift. Two anti-federal, antienvironmental social movements—the Land Transfer Movement and the War on Coal Campaign—illustrate the impediment this particular form of alienation within SESs has posed to effective climate governance, while also highlighting the longstanding and inhibiting rift between labor and environmental interests. I examine one case study, the Malheur Comprehensive Conservation Plan planning process, as an illustration of adaptive governance successfully reconciling ranchers, environmentalists, tribes, and several agencies—mitigating anti-federal and antienvironmental alienation and the work–environment rift, to the benefit of federal SES climate adaptation mechanisms (and showing that Malheur was an ironic choice for Bundy’s protest). By contrast, a second case study, the administrative rulemaking process that created the federal Clean Power Plan, illustrates how process can fuel alienation and undermine the substance of federal climate policy. Adaptive governance receives more consideration for public lands and adaptation issues than for climate mitigation, but there is potential in the climate mitigation context for the United States Environmental Protection Agency to apply some of the adaptive governance and reconciliation principles illustrated at Malheur. The research for this Article began prior to the 2016 presidential election and will be published in the weeks following the 2017 inauguration. Although the relevance of much of environmental law scholarship may have been called into question in the new political landscape, this discussion now seems more important than ever in light of the country’s ongoing political and cultural divides that continue to stymie efforts to address climate change

Distributive Justice and Rural America

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically, distributive justice theories question the morality of public measures that disadvantage discrete groups in the name of aggregate welfare. A critique of legal frameworks shaping rural livelihoods for the past several decades shows that policymakers consistently decided to trade rural welfare for some perceived societal benefit, violating distributive justice norms. In agriculture, policies favoring consolidated agribusiness hollowed out once-multidimensional farm communities. In the extractive sector, lackluster oversight enabled the environmental and economic devastation of fossil fuel communities. In manufacturing, trade adjustment programs’ inadequate mitigation of international competition facilitated whole towns’ dismantlement. Decisionmakers pointed to “the greater good” as their rationale. But benefits for rural communities that would offset these burdens and render their sacrifice “just” prove elusive. This alternate narrative reveals the rural story as not morally neutral, but one infused with value judgments that determined winners and losers, raising questions of what a fairer allocation of benefits and burdens should be

Economic Regulation and Rural America

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively. This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization and that we neglect to use those tools to our own collective detriment. The Article focuses specifically on the tool of economic regulation, meaning government oversight of entry, exit, and participation parameters for service providers in certain markets. Robust historical precedents establish that strategic economic regulation is uniquely capable of sustaining rural communities, and that using it to do so is in fact critical to national resilience. Rural diseconomies of scale—the problem of higher costs per capita and lower demand for resources in population-sparse regions—must be understood as a keystone question concerning whether and how rural communities can gain access to the amenities they need to survive. The pre- 1970s regulatory regime governing infrastructure industries helped overcome the problem of diseconomies of scale by safeguarding rural access to services that precede economic growth. Infrastructure industries’ subsequent abandonment of rural America during the deregulatory era amounts to a market failure because the nation remains dependent on rural communities for food and energy production, environmental stewardship, political stability, and retreat from urbanism. Thus, for the benefit of all, a broader conception of infrastructure and corrective interventions into infrastructure markets must help connect rural America to community-sustaining systems like broadband internet and national grocery store chains. Ultimately, this discussion also offers an answer to the problem of the so-called “urban/rural divide”: enhancing “urban/rural connection,” both literally and symbolically

Rural America as a Commons

With many ready to dismiss non-urban life as a relic of history, rural America’s place in the future is in question. The rural role in the American past is understandably more apparent. As the story of urbanization goes in the United States and elsewhere, the majority of the population used to live in rural places, including small towns and sparsely populated counties. A substantial proportion of those people worked in agriculture, manufacturing, or extractive industries. But trends associated with modernity—mechanization, automation, globalization, and environmental conservation, for instance—have reduced the perceived need for a rural workforce. Roughly since the industrial revolution of the nineteenth century, rural depopulation has continued with some consistency. In 1940, the U.S. rural population peaked at 57% of the total population. Today, that proportion is 14%. Rural populations’ presence in distressed regions borne of fading legacy industries raises questions of whether it is a beneficial use of scarce public resources to support rural regions, and whether the rural way of life is consistent with modern needs. And thus, the fate of the 14% and their communities, at least in the most struggling regions, is in question. While many urbanites are quick to dismiss rural issues as niche issues, geographic inequality, rurality, and rural livelihoods are implicated in one way or another in virtually all the crises described above. Framing the countryside as obsolescent or superfluous overlooks fundamental aspects of the often-invisible urban-rural interdependence that undergirds American life. Cities still rely heavily on rural resources and workers and will need to do so even more in the face of climate change. As such, rural resources, workers, and localities need to be taken more seriously as a critical component of an interdependent national system