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Federal Public Lands & Natural Resources
University of California, Hastings School of Law
Leshy, John D.

Federal Public Lands and Resources Law
 John Leshy, Fall 2009
(Text: Federal Public Land & Resources Law by Coggins, Wilkinson, Fishman & Leshy)
Topic 1
·         Patent (land) = deed
·         “fed lands” is used to be more specific than “public lands”
·         “withdrawal” → see Midwest Oil case
**Historical background
–          Orig. 13 colonies operated under royal charters from King of Eng.
o       Not all charters were alike
o       7 colonies had “open-ended” western boundaries
–          1780: NY agreed to cede its western land claims to natl govt w/ the idea that the govt would use the lands to raise $ and fight the British
–          By 1820, all remaining states had ceded their western claims to natl govt
o       1st iteration of fed lands → natl govt owning lands to be managed in the natl interest
–          Most early European contact w/ Natives was on a govt (Euro) – govt (tribal) footing
o       i.e., negotiation and dealing (though not always on the fairest of terms)
o       some was done by warfare
Johnson v. M’Intosh (p. 58)
–          1st example of Ct dealing w/ legality of land issues b/t settlers and Natives
–          J → claim based on purchase from Ill. and Piank. Tribes
o       Pre-dated the later transfer of the land to the US (then to M)
–          M → claim based on purchase from US, which had gotten title from a treaty w/ same tribes and from 1783 Treaty of Paris (w/ GB)
o       Right of occupancy + right to approve transfer = fee simple
–          M wins b/c Ct held that tribe couldn’t validly convey the land w/o approval of discovering country or its successor in interest
o       Natives were limited to the right of occupancy
o       European discovery had effect of limiting Natives’ rights
**Louisiana Purchase – France gave US not fee simple title, but rather “sovereignty” subject to the Natives’ right of occupancy (this is how US acquired ALL its land from European discovering nations)
** After Johnson, and before the Civil War, US policy toward fed lands was to sell as much as possible to encourage western settlement
**NW Land Ordinance(1785): land would be divided into townships & squares would be made available for sale, BUT square 16 would be reserved then given to newly formed state for use for educ
–          Most often income generation, not necessarily for siting a school
Pollard v. Hagan (p. 70)
–          P claims from US (similar to M’Intosh argument)
–          H claims from prior Spanish land grant confirmed by Ala.
–          Land claimed is the bed of a navigable waterway
–          H wins b/c Ct finds that US never held title; it only held the submerged land in trust for the creation of the new state
o       Eng rule that the crown owned beds of navigable waters got passed on to colonies
o       Ala. got admitted as a state on “equal footing” w/ Georgia, meaning it succeeded to the title of the submerged lands previously held by GA
§         “EF” language found in NW Ordinance
–          A newly formed state succeeds to the title of the submerged lands under navigable waters that existed at statehood
o       “navigable” → susceptible of use as a highway for commerce; can be seasonal & need not be continuous (pp. 73-74)
o       Limitation: fed govt, prior to statehood, can reserve lands under navig waters in future states & hold them for use for natl purpose
§         See ANWR example
**It is always important to understand in which context “navigability” is being defined
US v. Gardner (p. 77)
–          Ranchers had grazing permit in Humb. Natl Forest
o       Argued that grazing land is owned by state, not fed govt & and that state got title at statehood
–          Ct held that fed govt owns the land b/c it owned it prior to NV becoming a state, thus there is no succession of title like in Pollard
–          ALSO, this was not land underneath navig waters
o       This is the easier distinction to make from Pollard
–          “EF” doctrine doesn’t mean each state has an equivalent proportion of its acreage held by fed govt →this would be unmanageable
Ill. Cent. RR v. Ill. (p. 80)
–          RR rec’d grant of harbor land w/o restriction from state legis, which had title to it from statehood
–          State governor revoked the grant 4 yrs later & RR sued to get it back
–          Ct held that a state cannot abdicate its responsibility to hold submerged lands for the public trust, so the RR has no right to the grant in fee simple
o       A state cannot alienate property that is so imbued w/ public trust →as if the state never had fee simple to grant to RR b/c of the interest of the public in the property
o       A state may grant parcels of the public submerged land, but the bulk of the harbor must remain in state ownership
**it is unclear from where the Ct gets its power to overrule the state’s legis decision in this context
**this case still represents good law, but it hasn’t been heavily litigated
Topic 2
·         Grants to states:         
o       Western states were generally given the right to select a greater proportion of land to take title in than eastern states had been
§         E.g., 30% of Alaska is state-owned; UT rec’d 4 out every 36 township sections
Andrus v. UT (p. 90)
–          UT Statehood Act prescribed which #’ed sections the state would get in each township
o       Not all the sections had been surveyed, so some may have been transferred to private ownership pre-survey or reserved by fed govt for natl purpose
–          Cong. gave UT the right to make in lieu/indemnity selections of other fed lands to make up for lands lost to private or fed ownership
o       “other lands equivalent thereto”
–          UT attempted to select mineral (oil shale) lands as indemnity
o       Argued that “equivalent thereto” referred to equivalent acreage
–          Sec of Int. refused to approve the selections based on a “grossly disparate value” criteria
o       Argued that “equivalent” referred to value
–          Ct sides w/ Sec of Int, interpreting that Cong’s intent was that indemnity lands be of equivalent value
o       This argument is bolstered by the fact that the prescribed sections had been randomly scattered, providing a cross-section of lands selectable
o       it appears as though UT hear was trying to “game the system”
–          Dissent: no problem for UT to get a windfall out of this situation
**Does the Sec of Int have discretion to allow grossly disparate value section indemnity?
–          The opinion seems to leave it vague enough to allow argument on both sides
**The idea of ‘trust’ in land policy is a very elastic idea
–          E.g., state lands held in public trust for producing income for schools in AZ are not treated the same as PTD lands discussed in Ill. Cent.
–          Do states have a legal obligation to maximize revenue from school trust lands? →lots of litigation in this area
Morrell Act (1862) → est. fed land grant colleges (mech and agr)
–          Created for the benefit of non-public land states as well as public land states
RR Act checkerboard pattern gave US access to land expected to increase in value once RR was built
US v. Gratiot (p. 118)
–          1st time SCOTUS was faced w/ question of Cong asking it to ble

ect landowners to fence in their livestock, so landowners who wanted to keep the livestock of others out were req’d to put up fences if they wanted to claim trespass
Camfield v. US(p. 370) – “checkerboard fencing”
–          C was successor in interest to RR land
o       Constructed fence on his land only, but enclosed fed land
–          C argued that Cong can’t pass UIA to reach activity on private property (in order to protect fed property)
–          US argued that it can regulate activity on surrounding lands that affect public lands held in PT
o       Also, there is a nuisance argument
–          Ct discusses the intent of UIA to the effect that there is no need to legis trespass on fed land, since it is implied in ownership
o       Ct also uses C’s intent in building the fence to find a nuisance
–          RR filed amicus on behalf of C, but Ct rejected the argument b/c it sounded like RR is trying to double its original grant from govt
Leo Sheep Co. v. US (p. 375)
–          US govt auth road across private land for public access to reservoir
o       Fed tried first to buy access but private owner (LS) wouldn’t sell
–          Govt argued easement by necessity
–          Under original checkerboard grants, there was no express easement granted for access (oversight?)
–          Ct rejects govt’s argument b/c unlike the necessity that arises for a typical landowner, US has the power of eminent domain and can condemn the property right they want
o       i.e., if govt needs an easement, they should pay for it (no implied right, no easement by necessity)
US ex rel Bergen v. Lawrence (p. 383) – fence similar to Camfield
–          Ct relied on Camfield (NOT Leo Sheep)
o       Found antelope migration is a ‘lawful purpose’ that can’t be obstructed by a fence
o       Interpreted UIA through lens of FLPMA (defining “lawful purpose” in this context)
–          L’s fence here did NOT exclude people or cattle, just antelope
o       Cf. Camfield’s fence, which kept grazing cattle out
SUWA v. BLM(p. 387)
–          Involves § 8 of 1866 Mining Law (aka RS 2477), providing that “right of way for construction of highways over public lands . . . is hereby granted” (no permitting “discretion” mentioned)
–          Ct interprets “construction” as not necessarily confined to mechanical machinery (although that may be used to provide evidence of construction)
–          Where there is no uniform fed law, a state law principle may be ‘adopted’ w/o necessarily governing in its entirety (must still comport w/ fed policy)
o       b/c typically state common law governs property
–          RS 2477 was repealed in 1976 subject to valid existing rights (VER), so litigation continues
o       Post-RS 2477, R-O-W access is granted by FLPMA permit only (discretionary)
o       BUT if you can show ‘construction’ of a ‘highway’ over qualifying lands prior to 1976 repeal, you don’t need a permit