Chapter 2: Western Public Land Law and the Evolving Management Landscape
Our nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which continues to shape the choices we make today. Laws enacted to speed westward expansion and resolve land ownership indelibly marked the Western landscape, where the vast majority of our public lands are found today.
The US government acquired the Western frontier with federal blood and treasure, and then enacted laws conveying much of that landscape to states, railroads, and the indomitable men and women who personified Old West ideals. The laws that transferred millions of acres of land out of federal ownership, and that retained other lands as part of our nation’s treasured landscapes, also created property rights and expectations that provide important sideboards on our transition to a New West. Some of those laws remain in force, supplemented by new laws protecting wildlife, wild places, and the public’s voice in public land management. Our public land mangers face a difficult task in finding the balance required by a complex legal framework, and communities that grew up around Old West imperatives sometimes struggle to adapt to New West values.
Understanding the role public lands have played in American history helps explain who we are today. This understanding illuminates the tensions underpinning disputes like the takeover of the Malheur National Wildlife Refuge and state efforts to wrest control of our public lands from the federal government. Lurking behind these battles are long simmering questions over the values we seek from our public lands. As past is prelude, we must understand where we came from as we strive to chart a course defining a Next West.
Public Land Acquisition
The original thirteen states secured title to land from the Atlantic Ocean to the Mississippi River with their victory in the Revolutionary War. The thirteen states possessed complete sovereignty over that land until forming a central government and ceding title to 237 million acres of land to the newly formed federal government (Bureau of Land Management 2018). Land cession was critical to our nation’s initial survival. Landlocked states such as Delaware, New Hampshire, and Rhode Island feared that states such as Virginia and Georgia, which claimed title to vast tracts of the western frontier, would have disproportionate political and economic power in our emerging nation. State claims to the western frontier also overlapped, which resulted in competing claims of land ownership. This, in turn, invited conflicts between both settlers and several states. The resulting cloud on land titles made orderly settlement more difficult. Ceding land title to the federal government equalized power between the fledgling states, resolved competing state claims of title to the western frontier, and paved the way for western settlement (see generally, Gates 1968).
Farther west, our federal government obtained title to 1.6 billion acres of land from foreign powers—land that stretched from the Mississippi River to the Pacific Ocean. Land that today is included in portions of fifteen states between the Mississippi River and the Rocky Mountains was acquired from France in 1803 via the Louisiana Purchase.1 The Republic of Texas was annexed into the United States in 1845.2 The Pacific Northwest came into the Union a year later via the Oregon Compromise with Great Britain.3 Much of the Southwest was obtained from Mexico in 1848 via the Treaty of Guadalupe Hidalgo, which also ended the Mexican-American War.4 The final major land acquisition occurred in 1867 when the United States purchased 365 million acres, which would become Alaska, from Russia.5 Along the way, the United States dispatched Native Americans’ claims to the land, either through treaties or at the point of a gun.
Public Land Disposal
Once the federal government had secured title to the western frontier, Congress created federal territories and set forth the manner in which those territories would be governed. When the population within a federal territory reached a critical mass and the territory’s citizens agreed to the requirements for statehood, Congress then passed laws creating new states out of federal territories.6 Title to land within newly minted states, however, remained in federal hands until those lands were disposed of by the federal government—and the federal government disposed of a lot of land.
Millions of acres of federal land passed out of federal ownership, building our country’s economic foundation, opening the West to settlement, and uniting vast expanses of land into a unified nation. To support nascent western state governments, the federal government granted 224 million acres of land to those states (Gates 1968). States were then free to sell or develop that land in order to fund infrastructure development, pay for public schools and universities, build state capitals, and construct hospitals and other public buildings. States such as Nevada quickly sold off most of the land that had been granted to them. States such as New Mexico retained the majority of the land they received and continue to manage those lands to generate revenue for public institutions. Most of the granted lands were conveyed to the states in scattered one-square-mile blocks, incentivizing states to develop all regions within their borders. These scattered state sections, however, can cause management conflicts when federal and state governments pursue different management objectives across the same checkerboard landscape.
To pay war debts and encourage westward expansion, the federal government also sold or granted vast tracts of public lands to veterans, settlers, miners, homesteaders, towns, railroads, and private companies. The most desirable lands, such as those in fertile river valleys and lands rich with timber, were acquired first. Other lands that were more difficult to homestead and less profitable to develop remained in federal ownership (Gates 1968).
The scale of federal land disposal is striking. In total, almost 1.3 billion acres of public lands, an area larger than the entire nation of Spain, were transferred out of federal ownership (US Bureau of Land Management 2018). These disposal efforts, while successful in encouraging Western expansion, resulted in what Professors Coggins and Glicksman describe as a “crazy quilt” of land ownership that continues to generate a plethora of disputes over access and permissible land uses (Coggins and Glicksman 2016).
The states and the federal government have a long history of exchanging lands to rationalize this fragmented landscape and address management challenges. But conflicting management objectives and ownership fragmentation remain serious challenges in much of the West. While land exchanges can be difficult to negotiate, they represent a concrete way of addressing a pervasive problem. They may also reflect a rare opportunity for a win-win solution in our increasingly polarized debate over the future of our public lands.
Rationalizing a Fragmented Landscape
The federal government has a long history of trading developable federal lands for non-federal lands that lie within sensitive landscapes. Such exchanges can rationalize a fragmented landscape, improve access, and address management challenges. But conflicting management objectives and ownership fragmentation remain serious challenges in much of the West. While land exchanges can be difficult to negotiate, they represent a concrete way of addressing a pervasive problem. They may also reflect a rare opportunity for a win-win solution in our increasingly polarized debate over the future of our public lands.
The 1998 Utah School and Land Exchange Act is a compelling example of how rationalizing a landscape can benefit all involved. The Act implemented an agreement conveying to the federal government 379,739 acres of state trust land (an area approximately the size of the Island of Oʻahu), including 176,699 acres within the Grand Staircase-Escalante National Monument, 80,000 acres of inholdings within lands managed by the National Park Service, 47,480 acres within Indian reservations, 70,000 within National Forests, and 2,560 acres in Kane County coal fields. In exchange, the federal government conveyed to the state 138,647 acres of federal land plus valuable mineral rights, all of which were in areas deemed more appropriate for development. Additionally, the state received $50 million in cash and the right to $13 million in potential future royalties from mineral development that occurred on federal lands. The lands conveyed to the state were also consolidated into more manageable blocks, thereby minimizing management conflicts while lowering management costs for the state.7 The exchange, in sum, eliminated the threat of development from national parks and monuments, national forests, and Indian reservations while affording the state the opportunity to responsibly generate revenue that was dedicated to supporting public schools and institutions. While the exchange was far larger than most land trades, it demonstrates the mutual benefits that can be realized through cooperation and hard work.
Managing our Public Lands
Just over 643 million acres (slightly more than the combined area of Alaska, California, and Texas) remain under federal control, and most of this land is located in the eleven contiguous Western states and Alaska. “Public lands” are the dominant subset of these lands, and include lands managed by the Bureau of Land Management (BLM), the US Forest Service (USFS), the National Park Service (NPS), and the US Fish and Wildlife Service (FWS). The BLM, NPS, and FWS are all part of the Department of the Interior. The USFS in part of the Department of Agriculture. Indian reservations and Department of Defense lands also dot the landscape, but access to these lands is generally limited. Such lands are therefore not considered public lands in the common sense of the term.
Each of the four major public land management agencies has a slightly different management focus, though all are required to balance competing uses. The USFS is the oldest of the four federal land management agencies, and today, the USFS administers 154 national forests and 20 grasslands that total 192.9 million acres of land. Congress first authorized the President to set aside public lands as forest reserves in 1891.8 Forest reserves were renamed national forests when the USFS was founded in 1905. National Forest System lands, like all of our nation’s public lands, are predominantly in the West.
National forests were initially created to “improve and protect the forest within their boundaries, or for the purpose of securing favorable conditions for water flows, and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States”.9 Congress revised the USFS’s mission in 1960 by passing the Multiple-Use Sustained-Yield Act10, and again in 1976 when it passed the National Forest Management Act.11 Together, these acts expanded the USFS’s mandate to include recreation, livestock grazing, and wildlife and fish habitat conservation. Gifford Pinchot, the first Chief of the Forest Service, presciently summed up the mission of the Forest Service well before the passage of these two acts: “to provide the greatest amount of good for the greatest amount of people in the long run” (US Forest Service n.d.).
Today, as Gifford Pinchot foretold, National Forest System lands are managed in a manner that requires balancing competing commercial uses and almost 150 million visitors annually “in the combination that will best meet the needs of the American people”.12 That is no small task, particularly in light of competing opinions regarding what constitutes an appropriate balance. Striking that balance will only become more difficult as we adapt to the twin challenges of climate change and rapid demographic transitions. Much depends on how we, as a society, define the New West values that we choose to pursue.
While the USFS was our first public lands management agency, the BLM is our nation’s largest landlord. Today, the BLM administers more federal lands than any other agency, 248.3 million acres (Bureau of Land Management 2018). While the BLM manages a diverse landscape, most of that landscape is made up of rangeland and high desert in the eleven contiguous western states as well as vast stretches of land in Alaska. The BLM also administers subsurface minerals on approximately seven hundred million acres that are owned by the federal government (Bureau of Land Management 2018). The BLM was formed in 1946 by merging the General Land Office and the Grazing Service. The General Land Office had been created in 1812 to oversee the disposal of the federal lands, while the Grazing Service had been established in 1934 to administer grazing on public rangelands.
Prior to 1934 and passage of the Taylor Grazing Act13, codified as amended at 43 USC §§ 315–315n, the federal government made little effort to manage livestock grazing on public lands. The Taylor Grazing Act reversed that trend, responding to widespread overgrazing, drought, and expansion of the dust bowl. The act marked a profound change in public lands management philosophy, moving the federal government in general—and the BLM in particular—toward more active stewardship of public lands. The act created grazing districts that included portions of the public domain deemed “chiefly valuable for grazing and raising forage crops.”14 For the first time, those grazing livestock on public lands were required to obtain permits to do so from the federal government. Ranchers were also required to pay nominal fees for the use of federal land and forage. Of at least equal importance, proposed grazing districts were withdrawn from all forms of homestead entry or settlement, marking the beginning of the end of the public lands disposal era.
The second major shift involving the BLM came in 1976 with the enactment of the Federal Land Policy and Management Act (FLPMA).15 FLPMA, which was the product of a multiyear public lands law reform effort and a blue-ribbon commission, repealed a host of statutes facilitating disposal of federal public lands. FLPMA replaced these disposal laws with a commitment to retain most public lands in federal ownership unless disposal was deemed in the national interest. FLPMA further recognized numerous noncommodity values, pivoting the BLM toward multiple-use, sustained-yield management. The pivot away from disposal and toward multiple-use management marked a major organizational shift, requiring a balancing of recreation, mining, oil and natural gas development, grazing, logging, watershed protection, wildlife and fish habitat management, cultural resource stewardship, and resource protection. This pivot, while embraced as long overdue by many, was seen by others as an assault on the manifest destiny era values and hard work that settled the West. The rewriting of public lands policy and shift in management priorities proved to be a critical moment in the emergence of the Sagebrush Rebellion.
Where the BLM is the leader in domestic livestock grazing management, the FWS focuses on wildlife and management of the National Wildlife Refuge System. The earliest effort to set aside federally owned lands for wildlife preservation occurred in 1868 when President Ulysses S. Grant protected the Pribilof Islands in Alaska as a reserve for the northern fur seal (US Fish and Wildlife Service, n.d.). President Grant’s actions were confirmed by Congress the following year. Congress and presidents have expanded the National Wildlife Refuge System many times over the years that followed.
The FWS was formed in 1940 by combining the Bureau of Biological Survey with the Bureau of Fisheries. Today, the FWS administers 89.1 million acres of federal land, 86 percent of which is located in Alaska. The FWS has a more focused mission than either the BLM or the USFS: the FWS is directed to conserve plants and animals. Species and habitat protection, as well as wildlife-related activities such as bird-watching and hiking, are given preference over consumptive uses such as logging, grazing, and mineral extraction. Recreation, hunting, logging, and oil or gas development are permitted provided that these activities are compatible with the needs of the species that the FWS is charged with conserving.16
The NPS was created in 1916 to manage the national park units established by Congress and national monuments proclaimed by the president unless a president directed another agency to manage the monument. The NPS has a dual mission: to preserve unimpaired natural and cultural resources and values and to provide for public enjoyment of park system lands.17 The National Park System has grown to 408 units with 79.8 million acres of federal land, approximately two-thirds of which is located in Alaska. Park units include spectacular natural areas like Yellowstone and the Grand Canyon as well as important places in American history such as Gettysburg National Military Park and the Statue of Liberty National Monument. National Park System units also include unique prehistoric sites such as Mesa Verde National Park and Dinosaur National Monument. With gems such as these, it is not surprising that NPS managed units receive 330 million visits annually, necessitating a careful balancing between facilitating enjoyment and preserving unique and often sensitive resources.
These four federal agencies each seek to balance a host of competing land uses within the unique statutory mandates and the resources within their charge. In addition to the substantive direction Congress has given to each agency, Congress has also enacted both substantive and procedural statutes that apply across all four agencies. Three of the most important overlays are the Wilderness Act of 196418 (discussed more fully in chapter 7, Wild Places and Irreplaceable Resources: Protecting Wilderness and National Monuments), the Endangered Species Act of 1973,19 and the National Environmental Policy Act of 1969.20
The Wilderness Act of 1964 was passed to protect lands that remain wild and untrammeled by man. Wilderness, under the act, is “an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements of human habitation, which is protected and managed so as to preserve its natural conditions.”21 Mechanized access and infrastructure development are generally prohibited within wilderness areas, though exceptions may apply in case of emergencies and as set forth in individual wilderness bills.
The act initially designated fifty-four wilderness areas containing 9.1 million acres of National Forest System lands, which Congress also required a review of in addition to National Park System units, and national wildlife refuges for the existence of wilderness character. Suitable units were then recommended for inclusion in the Wilderness Preservation System. While the Wilderness Act made no mention of BLM managed lands, Congress imposed similar wilderness review requirements in 1976 with the passage of FLPMA.22
Since the passage of the Wilderness Act, Congress has enacted more than one hundred bills designating additional wilderness areas. Today the Wilderness Preservation System consists of more than 765 units encompassing 110 million acres of public lands. There are also millions of acres of BLM Wilderness Study Areas as well as USFS Roadless Areas that are managed to avoid impairing their wilderness character until Congress decides whether to include these lands in the Wilderness Preservation System. The protections afforded by wilderness designations are seen by many as a priceless gift to future generations. Others, however, see commodity production and economic development forgone and bitterly oppose additional wilderness designations.
The Endangered Species Act (ESA) serves as another critically important management overlay that can directly impact public lands management and use. Passed in 1973 to provide a means to conserve imperiled species and the ecosystems upon which they depend, the ESA prohibits any “act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”23
Under the ESA, actions on federal land and actions that need federal authorization or that receive federal funding require consultation between the FWS and the federal agency undertaking the action. NOAA Fisheries is charged with implementing the ESA for marine as well as anadromous species and takes on consultation obligation when those species are involved. Aquatic or riparian habitat protection may, therefore, impact public lands management, particularly along the Pacific Coast and near salmon-bearing streams. Consultation with these agencies is intended to ensure that “any action authorized, funded, or carried out by such agency…is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat.”24
Like the Wilderness Act, the ESA is either loved or loathed, depending on where one sits. The act’s detractors see it as an unnecessary burden on economic development that sacrifices good-paying jobs for limited benefit. The act’s fans see it as the last bulwark against species extinction and legislation of profound moral significance.
A crystalizing example of the ESA’s reach came in 1990 when the FWS protected the northern spotted owl. The owl’s decline was attributed in large part to the aggressive logging of old-growth forests in the Pacific Northwest, and the lawsuits that followed the owl’s ESA listing shut down old-growth logging of northern spotted owl habitat in Washington, Oregon, and California.25 While the forest management practices that imperiled the owl left lasting scars on the landscape and deserve strong criticism, the human cost of protection cannot be ignored. Timber harvests from federal land in that region fell by eighty percent between 1989 and 1994, and 14,000 forest products jobs were lost.
The National Environmental Policy Act (NEPA) is at least equally polarizing. NEPA, depending on who you ask, is either the Magna Carta of environmental laws or a job killer that unnecessarily delays well-intentioned and much-needed development. NEPA requires that federal agencies identify and consider the impacts of their actions and alternative means of attaining the objectives of those actions before undertaking any “major Federal action significantly impacting the quality of the human environment.”26 Large, complex, or controversial projects may necessitate completion of an Environmental Impact Statement (EIS), but these represent less than 1 percent of all projects undergoing NEPA review. Most federal land management plans completed by the four major land management agencies, however, cover millions of acres and require completion of an EIS concurrent with management plan development.
Critically, NEPA does not require that federal agencies choose the least environmentally damaging alternative. Rather, NEPA requires that public input be considered and that agencies take a hard look at the environmental consequences of their actions before rendering a decision.27 Balancing competing uses required by our public lands management mandate and conducted under the public vetting required by NEPA can be challenging. Indeed, the kinds of actions analyzed in an EIS are often divisive front-page news.
Striking an acceptable balance between preservation of environmental values and accommodation of land uses and commodity development is easier said than done. While nearly everyone appears to agree that balance is important, what constitutes an appropriate balance is often hotly disputed. As others have suggested, our public lands are in a very real sense political lands. Their future will be guided by the tradeoffs struck through the political process. Congress will continue to play an important role in enacting policies, and our courts will inevitably have a growing influence in interpreting and enforcing laws enacted by Congress.
The Search for Balance
Striking an acceptable balance between preservation of environmental values, and accommodation of land uses and commodity development is easier said than done. While nearly everyone agrees that balance is important, what constitutes an appropriate balance is often hotly disputed. As others have suggested, our public lands are in a very real sense political lands. Their future will be guided by the tradeoffs struck through the political process. Congress will continue to play an important role in developing the policies that are reflected in our land use laws, and our courts will inevitably have growing influence in interpreting and enforcing laws enacted by Congress.
Attaining balance is difficult because our public lands provide an incredibly broad suite of benefits to the American people—from timber, oil, natural gas, and livestock fodder to clean water, pristine vistas, wildlife habitats, and recreation getaways. Our national forests, for example, continue to be a rich source of timber, with more than 2.5 billion board feet of timber harvested from National Forest System lands during 2017. That is enough timber to build roughly 160,000 new 2,500-square-foot homes every year. While significant, timber harvests from National Forest System lands have, however, declined significantly from the peak harvest of 12.7 billion board feet in 1987—often with profound impacts on timber-dependent local communities and economies.
Federal lands are also a major source of oil and natural gas, with onshore federal lands producing 166 million barrels of oil and 3.2 trillion cubic feet of natural gas during 2015, and oil production from federal lands has risen each of the last ten years (Humphries 2016). While production has increased, the percentage of oil produced from federal lands (excluding offshore federal lands) has held steady at approximately five percent of domestic production. Onshore natural gas production from federal lands currently accounts for about 11 percent of all national production, down from 18 percent in 2009. According to the Congressional Research Service, this decline “mostly reflects the dramatic growth in non-federal production rather than the decline in total federal production” (Humphries 2016, 4). Coal produced from federal lands has accounted for roughly forty percent of total domestic coal production over the past decade (Hoover 2018, 15), but coal production is declining steadily as utilities transition to natural gas and renewable energy.
Revenue generated from commodity development occurring on federal public lands is shared with the states and counties where the development occurs. The amount of revenue paid to the states and counties varies by resource and the laws directing revenue disposition, but a few key examples are useful. During 2017, the eleven contiguous western states received a total of $1.78 billion in federal funds that were tied directly to public lands. This includes roughly half of all revenue from leasable minerals such as oil and natural gas occurring on federal lands. It also includes BLM, USFS, and FWS revenue sharing as well as payments intended to offset lost tax revenue because federal lands are not subject to state or local taxes (Headwaters Economics, n.d.).
But of course, not all values are reflected adequately in revenue statistics. In the contiguous United States, 24 percent of the water supply originates on federal land, and national forests and grasslands supply 51 percent of the water supply in the West (US Forest Service 2014, 46). That water supports vast agricultural operations, which help feed our nation and directly supply millions of homes with potable water. Activities that occur on our public lands—whether caused by humans or naturally occurring—all can directly impact the quantity, quality, and timing of water available to downstream users.
Noncommodity generating uses of our public lands have also increased steadily in recent decades. According to the Bureau of Economic Analysis, the outdoor recreation economy accounted for 2 percent ($373.7 billion) of the GDP in 2016, and the outdoor recreation economy is growing much faster than the overall economy (Bureau of Economic Analysis 2018, 2). According to the Outdoor Industry Association, during 2017, outdoor recreation supported 7.6 million American jobs and generated $65.3 billion in federal tax revenue and $59.2 billion in state and local tax revenue (Outdoor Industry Association 2017, 2). This means that more than two-and-a-half times as many Americans are directly employed by hunting and fishing (483,000) than by oil and gas extraction (180,000; Outdoor Industry Association 2017, 7). The implications are clear. Our public lands are a powerful engine for economic growth, and value choices at the heart of land management decisions can have profound distributional impacts.
As these numbers also suggest, more people are visiting our public lands than ever before, particularly at our national parks. Funding for public lands maintenance, however, has not kept pace with agency needs. The NPS estimates that it will require $10.93 billion to address the accumulated maintenance backlog. While the NPS backlog has received significant attention, other federal land management agencies face similar maintenance challenges. The USFS estimated its fiscal year 2016 backlog at $5.49 billion, most of which was for roads and buildings. The fiscal year 2016 FWS backlog was estimated at $1.40 billion and the BLM backlog was estimated at $0.81 billion. In total, the four agencies that manage our public lands face a maintenance backlog of more than $18.6 billion—in large part because of decades of congressional funding shortfalls and because most of the revenue generated from our public lands is not reinvested in their management (Hardy Vincent, Hanson, and Argueta 2017, 22).
Evolution and Transformation
The story of our public lands is the story of evolution and transformation. It is also the story of struggle between differing visions for our public lands. Laws enacted during the manifest destiny era, which followed the War of 1812, were intended to foster privatization and settlement of a seemingly endless frontier, secure territory against claims of foreign nations, and fuel economic development. As a nation, we succeeded on all fronts. While some have benefited handsomely from the bounty that our public lands can provide, others have found themselves at the mercy of what Charles Wilkinson calls “the lords of yesterday”—laws enacted in a different era and under imperatives that can seem less relevant today (Wilkinson 1992).
Sometimes these laws create powerful incentives that entrench old ways of doing business and inhibit more progressive policies. Sometimes entrenched policies, such as those favoring old-growth logging and coal mining, are displaced by new social norms and economic realities such as endangered species protection and renewable energy development. To some, these are the logical outgrowth of societal change. These changes, however, can feel more revolutionary than evolutionary to communities that have grown up around promises, whether expressed or implied, of ready access to public lands and the resources they contain. The pain associated with change can be particularly acute for communities that fail to anticipate change.
And our nation has changed dramatically since its founding in 1776. At that time, there were less than three million people in the United States (US Census Bureau 1949, 25), the western frontier began with the Appalachian Mountains, and Meriwether Lewis and William Clark had yet to map a route to the Pacific Ocean. Our nation is now home to almost 330 million people, and the West is growing at twice the pace of the rest of our country. Rural communities are in decline, while Western cities are among the fastest-growing communities in the country (US Census Bureau 1977, table 10; US Census Bureau 2017). During the first decade of the twenty-first century, more than two million acres of natural areas in the West were lost to human development, with Wyoming and Utah experiencing the largest percentage change in areas modified by human development (Center for American Progress, n.d.).
Our nation is also struggling to adapt to a changing climate, which appears poised to hit western public lands states especially hard. Western states are warming faster than the lower forty-eight states as a whole and are projected to experience increases in temperature, declining snowpack, and reduced streamflow over the coming decades. These changes will increase competition for finite water resources. These changes will also likely result in more frequent and severe wildfires that, in turn, will impact the vegetative communities and the wildlife habitat that they provide. Our changing climate illuminates the important role public lands play in protecting biodiversity, facilitating wildlife migration and dispersal, and adapting to changing realities. Uncertainty regarding future climatic conditions and their impact on our public lands complicates the already enormously difficult job of public lands management, and that is a job that we increasingly realize must occur at a landscape scale and across agency boundaries.
It is, in many ways, a perfect storm. Unprecedented demands are being placed on our finite public lands by a rapidly growing population with an appetite for an ever-broadening suite of values. Public land management agencies, however, lack the resources needed to meet these challenges. These changes leave a growing number of westerners feeling disenfranchised, and that disenfranchisement appears to be at the heart of a recent rebirth of the Sagebrush Rebellion.
As we look to the future of our public lands, we must recognize that, as Professor Coggins explains, “biological sciences cannot tell us how much Wilderness is enough, and economists cannot calculate whether the money spent to save bald eagles was worth it” (Coggins 2008, 489). We are left with tradeoffs that will define us as a society and determine the future that we will leave for those that follow.
Several lessons seem clear: The value of our public lands is much more than the sum total of their economic outputs. Our public lands are home for diverse communities of Native Americans whose ties to the land run through time immemorial. For many of what our neighbors to the north would aptly call First Nations, the land defines who they are. We have seen the voice of Native Americans grow stronger as they fight projects such as the Keystone XL Pipeline, lobby the White House to designate the Bears Ears National Monument, and sue when the next administration does away with those protections. Native Americans are also an important voice in wildlife management issues ranging from salmon to buffalo to almost everything else in between. No matter how these battles conclude, Native Americans are likely to emerge as a stronger and more determined voice on public lands management issues.
Public lands helped define us as a pioneering nation that was, and which remains, rich in opportunities. Our public lands held the promise of a better life that propelled generations of Americans west. Descendants of the pioneers have deep and abiding ties to the land; ties made stronger by generations of dependence upon its bounty. The latest generation of pioneers, now clad in Polartec and Gore-Tex, are staking their own claim to our finite public lands, and tourism-based economies are booming. Our public lands are loved, and they are at risk of being loved to death.
At a time when our politics are becoming increasingly acrimonious, it is more important than ever to walk the proverbial mile in the shoes (or more likely boots) of other public lands users. Discontent appears to stem as much from the belief that one’s voice is unheard or ignored as it does from the different visions for the future of a landscape that we all hold dear.
Change is natural, even if the pace of change occurring on our public lands makes it feel overwhelming. Our public lands are no longer a limitless supply of natural resources. As Professor Keiter noted recently, about half of the federal estate, roughly 310 million acres, has some protective status. In the lower forty-eight states, approximately 146 million acres, or nearly 40 percent of federal lands, are under some form of protection (Keiter 2018, 138). Some traditional uses of our public lands were displaced by these designations, and other uses may decline as societal values evolve and we rebalance uses to reflect these evolutionary changes. This will be painful for some. In the past, communities have too often failed to anticipate or adapt to changes that, in hindsight, were clearly inevitable. Hopefully, we can learn from the past and help communities transition to a more sustainable relationship with our public lands. If we fail to act proactively, if we allow communities to be dislocated by foreseeable changes, we will only cement the growing divide over the future of landscapes that help define us as a nation.
- Treaty Between the United States and the French Republic, Apr. 30, 1803.
- Joint Resolution for Annexing Texas to the United States, Mar. 1, 1845, 5 Stat. 797.
- Treaty with Great Britain in Regard to the Limits Westward of the Rocky Mountains, Gr. Brit.-U.S., June 15, 1946, 9 Stat. 869.
- Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Mex.-U.S., Feb. 2, 1848, 9 Stat. 922.
- Treaty with Russia for the Purchase of Alaska, Russ.-U.S., Mar. 30, 1867, 15 Stat. 539.
- Northwest Ordinance of 1787, 1 Stat. 51 (1787).
- Utah School and Lands Exchange Act of 1998, H.R. Rep. 105-598 (June 24, 1998).
- Forest Reserve Act of 1891, Mar. 3, 1891, 26 Stat. 1103, repealed by 90 Stat. 2791 (1976).
- An Act Making Appropriations for Sundry Civil Expenses of the Government for the Fiscal Year Ending June Thirtieth, Eighteen Hundred and Ninety-Eight, and for Other Purposes, June 4, 1897, 30 Stat. 11, 35, codified at 16 U.S.C. § 475 (2012).
- 16 U.S.C. §§ 528–31.
- 16 U.S.C. §§ 1600–14.
- 16 U.S.C. § 531(a).
- 43 U.S.C. § 315.
- 43 U.S.C. §§ 1701–84.
- 16 U.S.C. § 668(dd).
- 16 U.S.C. § 1.
- 16 U.S.C. §§ 1131–34(c).
- 16 U.S.C. §§ 1531–41.
- 42 U.S.C. §§ 4321–33.
- 16 U.S.C. § 1131(c).
- 43 U.S.C. § 1782(a).
- 16 U.S.C. § 1531(b).
- 15 U.S.C. § 1536(a)(2).
- 42 U.S.C. § 4332(2)(C).
- Seattle Audubon Soc’y v. Moseley, 798 F.Supp. 1484, 1493–94 (W.D. Wash. 1992).
- 42 U.S.C. § 4332(2)(C).
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
Coggins, George Cameron. 2008. “‘Devolution’ in Federal Land Law: Abdication by Any Other Name….” Hastings W.-Nw. J. Envtl. L & Pol’y 14:485. (↵ Return)
Coggins, George Cameron, and Robert L. Glicksman. 2010. Public Natural Resources Law, 2nd ed., vol. 1. Feb 2016 update. (↵ Return)
Headwaters Economics. 2019. “Economic Profile System.” Headwaters Economics. https://headwaterseconomics.org/tools/economic-profile-system/about/. (↵ Return)
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