I. Public Land Law: An Introduction
A. Generally
1) US retains about 660 million acres, roughly 29% of the country’s surface area
i. Also owns lesser property areas, mineral estates and conservation interests, title for over 50 million acres held in trust for Native American tribes, and asserts jurisdiction (not ownership) over the continental shelf and other offshore lands and resources 200 miles out from the coasts
2) Divided into different management offices
i. National Park System
a) Dept of the Interior; Started in 1872 w/ Yellowstone, covers over 80 million acres of parks, etc.
ii.National Forest System
a) Dept of Agriculture, under United States Forest Service; Started in 1891 when Congress gave President power to reserve forested lands for watershed protection and timber
iii. National Wildlife Refuge System
a) Dept of the Interior, under Fish and Wildlife Service; Started w/ ad hoc presidential and congressional reservations of land for wildlife preservation, then led to a 1966 law that formally “declared” the National Wildlife Refuge System
iv.Bureau of Land Management
a) Dept of the Interior
1. In charge of about 170 million acres out of the 260 million total acres in the western states (not including Alaska or Hawaii)
2. Homesteading was way to dispose of federal lands – basically gave you the land for free/cheap if you settled or farmed for a specific period of time. Ended in 1934 by Taylor Grazing Act
3. Federal lands that had not been homesteaded or reserved for federal conservation were withdrawn into grazing districts, later turning into the Bureau of Land Management
v. Specially Designated Areas
a) Kind of a miscellaneous category – Wilderness areas, wild and scenic river areas, national trails, etc.
B. The Field of Public Land Law
1) Primarily concerned with who is entitled to what in relation to federal lands and resources
i. Public Land Law includes subspecialties like water law, mineral law, oil and gas law
ii.Primary concern was land disposition – private entities disputing property rights between themselves, or w/ gov’t. Emphasis now on allocation, use, preservation of natural resources found in/on fed public lands
2) Modern Public Land Use has shifted from private to public controversies
i. Law centers more on questions over whether private property rights of any kind should be recognized in public resources, and if so, under what conditions
3) Two Related Developments
i. “Public Interest”/”Environmental”/”Conservation” groups have become highly influential in fed land controversies
ii.Modern general public opinion has become more “eco-friendly” in recent years compared to previous generations
4) Political Motivations
i. Federal public lands are gov’t-owned and operated, so all federal land management is politically
ii.Congress typically exercises more detailed control over federal lands now than in the past, but current laws still grant a large degree of discretion to the managing agencies and Depts
C. The Federal Lands and Resources
1) Interests in Lands
i. US acquired nearly 2 billion acres of land in North America between the 1780s to the late 1800s
ii.Today, fed land holdings are concentrated in western states & Alaska, but every state has some federal property
2) Federal Natural Resources
i. Water – one resource without which all other resources are basically valueless
a) Water allocation is primarily determined by states, but the US owns water rights and still heavily influences water uses, especially in the West. Federal water projects include irrigation, electricity, and recreation
b) Problem: increasing destruction of fish resources and amenities provided by free-flowing rivers
ii.Hardrock Minerals – lots of gold, silver, copper, tin, iron, etc. resources in American mines, and federal lands still hold valuable ores and minerals
a) Under General Mining Act of 1872, hardrock minerals are all of the valuable mineral deposits on public lands other than those that Congress made “leasable” or “saleable”
b) Location system allows private prospectors to stake claims to hardrock m
eral lands are undeveloped, they are generally the best remaining wildlife habitat in the country; Many species are entirely dependent upon federal lands for survival
b) In addition to hunting and fishing, wildlife viewing has become an important source of tourist attraction revenue, and species preservation has become a significant national priority
vii. Recreation
a) More than just a pastime – it now encompasses many sizeable industries and is far more economically important to the West than resource extraction
b) Outdoor recreation has been a central focus of fed land legislation for decades, and recreational opportunities are available in each of the 5 fed land systems, though prominence of use differs by system
c) Use of conventional resources (such as mining and grazing) has given rise to conflicts with other potential uses, and as recreational use of the federal lands increased it created new kinds of conflict, both with other recreational uses and with commodity uses
viii. Preservation
a) Basically mandated nonuse of land, and as such is principal competitor of all commodity land uses
b) Statutes such as the Endangered Species Act are designed to preserve discrete resources, but such laws can also be used to preserve entire ecosystems
c) Congress created National Park System for mixed recreational/preservational purposes, but it mandated that all other uses be subordinated to wildlife protection in the national wildlife refuges
National Wildlife Preservation System now over 100 million acres, and is strongest expression of preservationism among fed lands systems, though some commodity uses are permitted to a limited extent
