Western Public Land Law and the Evolving Management Landscape

The histories of our nation and of the lands that we inhabit are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embody the ideals of the manifest destiny era that set the United States on a trajectory that 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 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. 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 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 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 the initial survival of the United States. Landlocked states like Delaware, New Hampshire, and Rhode Island feared that states like 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 and invited conflicts between both settlers and the 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 (Gates 1968).

Farther west, the federal government obtained title to 1.6 billion acres of land not from the states but from foreign powers. This land, most of which was acquired from France in 1803 through the Louisiana Purchase, stretched from the Mississippi River to the Pacific Ocean and today is included in portions of fifteen states between the Mississippi River and the Rocky Mountains.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 in 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—what 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 lots of land.

Millions of acres passed out of federal ownership, building the 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, p. 804). 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 like Nevada quickly sold off most of the land that had been granted to them. States like 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 the federal and state governments pursue different management objectives across the same checkerboarded landscape. These challenges will only increase as we move from the Old West, to the New West, and into the Next West.

To pay war debts and encourage westward expansion, the federal government also sold or granted vast tracts of public lands to veterans, miners, homesteaders, towns, and railroads. 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, chap. XV).

The scale of federal land disposal is striking. In total, almost 1.3 billion acres of public lands, an area larger than all of Spain, were transferred out of federal ownership (Bureau of Land Management 2018, p. 5). These disposal efforts, while successful in encouraging western expansion, resulted in what Coggins and Glickman (2010, §2:9) describe as a “crazy quilt” of land ownership that continues to generate a plethora of disputes over access and permissible land uses.

Rationalizing a Fragmented Landscape

The federal government has a long history of trading developable federal lands for nonfederal 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 the increasingly polarized debate over the future of 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 suitable 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 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 they 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 is 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 Act,¹⁰ 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 2019).

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 the first public land 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, p. 7). The BLM manages a diverse landscape, most of which involves 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 700 million acres that are owned by the federal government (Bureau of Land Management 2018, p. 7). 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 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 Act,¹³ 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 the expanding dust bowl. The act marked a profound change in public land management philosophy, moving the federal government in general, and the BLM in particular, toward more active stewardship of public lands. The act creates 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 from the federal government. Ranchers were also required to pay at least 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 land disposal era.

The second major shift involving the BLM came in 1976 with enactment of the Federal Land Policy and Management Act (FLPMA).¹⁵ FLPMA, which was the product of a multiyear public land 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 non-commodity 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 land 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 l868 when President Ulysses S. Grant protected the Pribilof Islands in Alaska as a reserve for the northern fur seal (US Fish and Wildlife Service 2019). 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% of which is located in Alaska. The FWS, which is directed to conserve plants and animals, has a more focused mission than either the BLM or the USFS. Species and habitat protection as well as wildlife-related activities like bird-watching and hiking are given preference over consumptive uses such as logging, grazing, and mineral extraction. Such consumptive uses are permitted provided that these activities are compatible with the species’ needs.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 directs 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 like Gettysburg National Military Park and the Statue of Liberty National Monument. National Park System units also include unique historic and prehistoric sites like 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 balance between facilitating enjoyment and preserving unique and often sensitive resources.

Statutory Overlays

These four federal agencies each seek to balance a host of competing land uses within the unique statutory mandates that apply to the resources within their charge. In addition to the substantive direction each agency receives, 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 chap. 7 of this volume, “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 defined as “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.

The Wilderness Act initially designated 54 wilderness areas containing 9.1 million acres of National Forest System lands. Congress also required a review of other National Forest System lands as well as 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 passage of FLPMA.²²

Since passage of the Wilderness Act, Congress has enacted more than a hundred bills designating additional wilderness areas. Today, the Wilderness Preservation System consists of over 765 units encompassing 110 million acres of public land, or an area about 10 million acres larger than the entire state of California. 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 include some of the most restrictive requirements applicable to public lands and are seen by many as preserving a priceless gift to future generations. Others, however, see commodity production and economic development opportunities foregone, and bitterly oppose additional wilderness designations.

The Endangered Species Act (ESA) serves as another critically important statutory overlay that can directly affect public land 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 as well as those requiring federal authorization or that receive federal funding require consultation between the FWS and the federal agency undertaking the action. National Oceanic and Atmospheric Administration Fisheries is charged with implementing the ESA for marine and anadromous species, and it takes on consultation obligation when those species are involved. 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 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 California, Oregon, and Washington.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 80% 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), though EISs represent less than 1% of all projects undergoing NEPA review. Most projects are analyzed in either an environmental assessment (EA) or categorical exclusion (CE), both of which require much less time and fewer resources to complete (US Government Accountability Office 2014, p. 7). Most federal land management plans completed by the four major land management agencies cover millions of acres and require completion of an EIS concurrent with management plan development. Project-level authorizations, which can range from campground and road repairs to some mineral development and timber harvest projects, are usually subject to review in an EA or CE.

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 land manager’s 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, and NEPA can provide the legal vehicle to challenge those projects on procedural grounds.

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 essentially 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 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 habitat, and recreation getaways. Our national forests, for example, continue to be a rich source of timber, with over 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, however, timber harvests from National Forest System lands have 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, pp. 3-4). While production has increased, the percentage of oil produced from federal lands (excluding offshore federal lands) has held steady at approximately 5% of domestic production. Onshore natural gas production from federal lands currently accounts for about 11% of all national production, down from 18% 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, p. 4). Coal produced from federal lands has accounted for roughly 40% of total domestic coal production over the past decade (Hoover 2018, p. 15) but coal production is declining steadily as utilities transition to natural gas and renewable energy.

Revenue generated from commodity development 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 found 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 2019).

But not all values are reflected adequately in revenue statistics. Twenty-four percent of the water supply in the contiguous United States originates on federal land, and national forests and grasslands supply 51% of the water supply in the West (US Forest Service 2014, p. 46). Our forests and public lands supply millions of homes with potable water and support vast agricultural operations that help feed our nation. Activities that occur on our public lands, whether human caused or naturally occurring, can directly affect the quantity, quality, and timing of water available to downstream users.

Non-commodity-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% ($373.7 billion) of gross domestic product in 2016, and the outdoor recreation economy is growing much faster than the overall economy (Bureau of Economic Analysis 2018, p. 2). According to the Outdoor Industry Association, during 2017, outdoor recreation supported 7.6 million American jobs, $65.3 billion in federal tax revenue, and $59.2 billion in state and local tax revenue (Outdoor Industry Association 2017, p. 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, p. 7). The implications are clear. Our public lands are a powerful engine for economic growth, and the evolution of values associated with the shift from Old West, to New West, to Next West will have profound distributional impacts.

As these numbers also suggest, more people are visiting our public lands than ever before. Funding for public land 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 (FY) 2016 backlog at $5.49 billion, most of which was for roads and buildings. The FY2016 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 public lands in the United States face a maintenance backlog of over $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 (Vincent et al. 2017, p. 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 era of manifest destiny that 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 counter to New West values (Wilkinson 1992).

Sometimes these laws create powerful incentives that entrench old ways of doing business and inhibit more progressive policies. Sometimes entrenched policies, like those favoring old-growth logging and coal mining, are displaced by new social norms and economic realities like endangered species protection and renewable energy development. To some, these are the logical outgrowth of societal change. But these changes can sometimes 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 fewer than three million people in the United States (US Census Bureau 1949, p. 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. The United States is now home to almost 330 million people, and the West is growing at twice the pace of the rest of our country. Many rural communities are in decline while western cities are among the fastest-growing communities in the country (US Census Bureau 1977, table 10; 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 area modified by human hands (Center for American Progress 2016).

The United States is also struggling to adapt to a changing climate, which is hitting western public land states especially hard. Western states are warming faster than the Lower 48 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 will in turn affect 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 public lands complicates the already enormously difficult job of public land management, and that is a job that increasingly 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 suit of values. Public land management agencies, however, lack the resources needed to meet these challenges. These changes, and environmental laws that can complicate commodity production, have left a 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 Coggins (2008, p. 489) 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.” We are faced with trade-offs 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. Public lands are home for diverse communities of Native Americans whose ties to the land run to 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 voices of Native Americans grow stronger as they fight projects like 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 and 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 land management issues.

Public lands helped define us as a pioneering nation that was, and remains, rich in opportunities. Public lands held the promise of a better life that propelled generations of Americans westward. 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, but they are at risk of being loved to death.

At a time when politics are becoming increasingly acrimonious, it is more important than ever to walk the proverbial mile in the shoes (or boots) of other public land 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 public lands seems overwhelming. Our public lands are no longer a limitless supply of natural resources. As Keiter (2018, p. 138) noted, about half of the federal estate, roughly 310 million acres, has some protective status. In the Lower 48, approximately 146 million acres, or nearly 40% of federal lands, are under some form of protection. 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.

Legal Citations

1. Treaty between the United States and the French Republic, Apr. 30, 1803.
2. Joint Resolution for annexing Texas to the United States, Mar. 1, 1845, 5 Stat. 797.
3. Treaty with Great Britain in Regard to the Limits Westward of the Rocky Mountains, June 15, 1946, 9 Stat. 869.
4. Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Feb. 2, 1848, 9 Stat. 922.
5. Treaty with Russia for the Purchase of Alaska, Mar. 30, 1867, 15 Stat. 539.
6. Northwest Ordinance of 1787, 1 Stat. 51.
7. Utah School and Lands Exchange Act of 1998, H.R. Rep. No. 105-598 (June 24, 1998).
8. Forest Reserve Act of 1891, Mar. 3, 1891, 26 Stat. 1103; repealed by 90 Stat. 2791 (1976).
9. 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).
10. 16 U.S.C. §§ 528-31.
11. 16 U.S.C. §§ 1600-14.
12. 16 U.S.C. § 531(a).
13. 43 U.S.C. §§ 315-315n (as amended).
14. 43 U.S.C. § 315.
15. 43 U.S.C. §§ 1701-84.
16. 16 U.S.C. § 668dd.
17. 16 U.S.C. § 1.
18. 16 U.S.C. §§ 1131-34c.
19. 16 U.S.C. §§ 1531-41.
20. 42 U.S.C. §§ 4321-4333.
21. 16 U.S.C. § 1131(c).
22. 43 U.S.C. § 1782(a).
23. 16 U.S.C. § 1531(b).
24. 15 U.S.C. § 1536(a)(2).
25. Seattle Audubon Society v. Moseley, 798 F. Supp. 1484, 1493–94 (W.D. Wash. 1992).
26. 42 U.S.C. § 4332(2)(C).
27. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

References

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Bureau of Land Management. 2018. Public Land Statistics 2017. Washington, DC: Bureau of Land Management, US Department of the Interior. (↵ Return 1) (↵ Return 2) (↵ Return 3) (↵ Return 4)

Center for American Progress. 2016. “The Disappearing West.” Last updated May 17, 2016. https://disappearingwest.org. (↵ Return)

Coggins, George Cameron. 2008. “‘Devolution’ in Federal Land Law: Abdication by Any Other Name.” Hastings Environmental Law Journal 14 (2008): 485. (↵ Return)

Coggins, George Cameron, and Robert L. Glicksman. 2010. Public Natural Resources Law, 2nd ed., vol. 1. Ann Arbor, MI: Thomson Reuters. (↵ Return)

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