Property rights lawyer Karen Budd-Falen will give legal counsel on wilderness, wildlife and many of the policies she’s spent her career attacking.
The conservation community let out a collective sigh of relief earlier this year when Karen Budd-Falen, a Wyoming property rights lawyer, withdrew from consideration as the new head of the Bureau of Land Management. The reprieve was short-lived, however. In October, the Interior Department announced that Budd-Falen had instead been appointed deputy Interior solicitor for wildlife and parks — a more obscure, but still important position, and one that aligns with the Trump administration’s apparent desire to push the American public out of the public lands.
Budd-Falen’s four-decade-long career, which includes a stint under James Watt, Ronald Reagan’s notorious Interior secretary, has been built on the defense of private property, part of a movement that is often opposed to federal oversight and environmental regulation. In 2011, she told a gathering of county sheriffs in Northern California that “the foundation for every single right in this country, our freedom of speech, our freedom to vote, our freedom to petition, is all based on the right of ownership of private property.”
This sounds like a noble cause, standing up for ordinary landowners when the government or corporations mess with their homes. And sometimes it is: Budd-Falen represented the legendary Republican-turned-anti-oil-and-gas activist Tweeti Blancett in her attempt to get the Bureau of Land Management to clean up the mess it made on and around her New Mexico ranch, and her firm often works with landowners to get the best deal from energy companies developing their property. But more often than not, Budd-Falen’s vision of private property rights extends beyond a landowner’s property lines and onto the public lands and resources — at the expense of the land itself, the wildlife that live there, and the people who rely upon it for other uses.
In a telling article in the Idaho Law Review in 1993, Budd-Falen and her husband, Frank Falen, argued that grazing livestock on public lands was actually a “private property right” protected by the Constitution — a notion that would certainly make it hard for federal land managers to regulate grazing. In 2012, Budd-Falen defended Andrew VanDenBerg, who bulldozed a road through a wilderness study area in Colorado’s San Juan Mountains to access a mining claim, arguing that a 150-year-old statute meant to provide rights of way to miners and pack animals should apply to motorized travel and bulldozers. In 1995, she represented Wyoming landowners who felt that they had the right to kill more big game — a public resource — because limiting the number of hunting tags issued to them “effects a constitutional taking” of their property.
Budd-Falen’s property-rights crusade has put her in questionable company. In the early 1990s she represented a number of southern Nevada ranchers — including Cliven Bundy — in their beef with the feds over grazing in endangered desert tortoise habitat. And while she condemned the Bundys’ later anti-federal conflicts in Nevada, her work and words — often hostile toward environmentalists and federal land agencies — helped provide an intellectual underpinning for the Bundy worldview.
Budd-Falen is a lifelong Sagebrush Rebel, a veteran of the 1980s-era conflicts over public-land management in the West. She is an alumna of the Mountain West Legal Foundation, which spawned the so-called “Wise Use” movement and helped launch the careers of both Watt, who tried to dismantle the Interior Department from within, and Gale Norton, George W. Bush’s drill-happy Interior secretary. In 2007, she told HCN’s Ray Ring that her most important case was Wilkie v. Robbins, in which she used RICO, an anti-racketeering law, to intimidate BLM agents who had cited her client for violating grazing regulations.
Outside the courtroom, her rhetoric has helped provide justification for those inclined to take up arms against federal agents, as when she described land-management agencies as part of “a dictatorship” intent on taking away “private property and private property rights.” In the 1990s, Budd-Falen encouraged counties to create land-use plans that turned the National Environmental Protection Act against the federal government. Catron County, New Mexico, adopted a template with her help, in a plan that said, “Federal and state agents threaten the life, liberty, and happiness of the people of Catron County … and present danger to the land and livelihood of every man, woman, and child.”
Now, Budd-Falen is a fed. Her job will be to provide legal counsel to the National Park Service, U.S. Fish and Wildlife and U.S. Geological Survey, on wild and scenic rivers, wilderness areas, environmental protections and endangered species protection. Few if any of those matters will benefit from a person whose worldview is so opposed to public resources, especially at a time when so many environmental laws and regulations are under attack. She’ll be working under the acting solicitor, Daniel Jorjani, who was responsible last year for declaring that oil companies, wind farms and open-pit mining firms are not liable for the deaths of migratory birds. Nothing in Budd-Falen’s record suggests she’ll work hard to protect anything other than the dubious private property rights of people and corporations. If she seems these days to be less on the far-right end of the spectrum, that’s because the spectrum has shifted. Budd-Falen, not so much.
Jonathan Thompson is a contributing editor at High Country News. He is the author of River of Lost Souls: The Science, Politics and Greed Behind the Gold King Mine Disaster. Email him at firstname.lastname@example.org or submit a letter to the editor.