Dreaming about Reforming Public Land Laws
It has been 40 years since public land laws have been systematically reviewed by a land law commission, the longest period ever separating their use. Much of the gridlock in how public lands are managed can be traced back to statutory language.
Lawyers and policy-makers met at the University of Colorado Law Center in early June to celebrate the 40th anniversary of the Public Land Law Review Commission’s Report “One Third of the Nation’s Land“, and to reflect on the need for a new Commission and a new report to address the challenges for public lands in the 21st century.
The 1970 report led to the 1976 Federal Land Policy and Management Act (FLPMA). According to Charles Wilkinson, FLPMA was a textbook example of Congress taking the long view – carefully studying the problem through a commission, and then crafting a bill which addressed those concerns. He noted that the National Forest Management Act (NFMA) was very different – it went through Congress in less than a year because of a timber cutting crisis.
The speakers at the conference generally concluded that today’s political environment makes it difficult to repeat a 1970-type commission. Congress is too polarized. We may be too impatient to repeat the process that took six years from 1964 to 1970. There may not be a political sponsor like Wayne Aspinall, the Congressman from Colorado who pushed for the formation of the Commission as part of a 1964 compromise legislative package which enabled the package of the Wilderness Act. In addition, the problems today with public land management may not be grabbing the attention of the public, more concerned with the economy and other pressing matters.
Much has changed since 1970.
Norman James, a Phoenix attorney, observed that the review commission did not anticipate that wildlife preservation would often dominate public land management after the passage of the 1973 Endangered Species Act. He gave an example of the dominant role played by management of the Mexican spotted owl in Arizona and New Mexico, which led to dramatic reductions in timber sale volumes, essentially destroying the region’s forest products industry.
Todd True, an attorney with Earthjustice, noted that the commission hinted about “fish and wildlife values”, although the idea that public lands play a critical role in fish and wildlife protection may not have been fully developed or its implications well understood in 1970.
Undersecretary of Agriculture Harris Sherman, the keynote speaker at the conference who oversees the Forest Service, explained that 110 million acres of National Forest System land are in need of restoration. Historically there has been 5 million acres a year of fire, but we could be approaching 10 million acres a year of fire. Fire is a threat to water quality. Sherman also said that there are 17 million acres across the West dying from bark beetles. In Colorado, he said that 10,000 trees a day will fall down over the next 10 years. Sherman said that he wants to emphasize an “all lands” approach, working across sister agencies, other federal agencies, state agencies, and private landowners. He wants to focus more on water, thinking about ecosystem services, and responding to climate change.
Rebecca Watson, former Department of Interior assistant secretary in charge of the BLM and MMS under the Bush administration, explained that the 1970 report was written before the shock of the 1973 Arab Embargo hit our country and underscored the depth of our dependence on imported oil. Like today, however, the report was written in the wake of a terrible offshore oil spill that came to dominate the management of the Outer Continental Shore.
BYU law school dean Jim Rasband said that the February 2010 leak of an Interior Department memorandum listing potential candidates for national monument proclamations reignited a debate about the Antiquities Act and the president’s power to proclaim monuments without notice or any form of public participation. His presentation asked if there should be an ethical dimension to the political “trophy hunting” of monument designation, or do ”only losers care about process?”
Indiana law professor Rob Fischman observed that the two major issues facing public land planning are funding and climate change, two topics with little or no treatment in the 1970 Report. Climate change has undermined historic benchmarks for ecosystem management. Climate change is now the principal rationale for better federal interagency coordination. Regarding funding decisions, Fischman said that current laws are good at managing between conflicting uses, but not good at managing between competing uses.
Adjunct Colorado law professor Joe Feller explained that public lands livestock grazing provides a difficult challenge to the application of any theory of, or prescription for, public land planning and management. On the mostly arid or semi-arid lands of the West, grazing’s adverse impacts are manifold and its administrative costs often exceed its economic benefit. Former Interior solicitor Bill Myers countered by mentioning the environmental ethic of Western ranchers, and the dangers of the loss of ranches adjacent to National Forests to subdivision and development.
Utah environmentalist Scott Groene concluded that federal land management agencies have not been effectively addressing recreation-related problems, including impacts of motorized recreation activities. Blue Ribbon Coalition president Greg Mumm said that motorized recreation is extremely popular, and one in five Americans 16 and older participate in some form of off-highway vehicle recreation each year. Moreover, virtually every public land user is motorized at some point – it’s more a question of if or when they park their vehicles.