“This land is your land, this land is my land.
This land was made for you and me.”
—Woody Guthrie
INTRODUCTION
The iconic Woody Guthrie Song “This Land Is Your Land” is a song celebrating the great diversity of landscapes which define the geography of the United States, from spring-fed turquoise rivers and unique and vast deserts to awe-inspiring mountain precipices and prairies that hold countless ecosystems and mythologies. The United States government holds many of these public lands in trust for the whole of the American people, providing an opportunity both to engage with these wondrous spaces and to protect their beauty for generations to come.
Throughout American history, different presidential administrations and congresses have dealt with federal lands in a variety of ways—reflecting the complexities implicit in land being both yours and mine.
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There have been periods that focused on land conservation—famously, during the Teddy Roosevelt administration—and others on resource extraction—most recently, during the Donald Trump administration. Many of the most famous (and controversial) actions of both administrations regarding federal lands center on their use of the Antiquities Act of 1906, which enables the President to establish, modify, and possibly disestablish national monuments. This executive branch authority exists in tension with Congress’s ability to pass legislation creating, modifying, and disestablishing national monuments.
This article examines the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It concludes by offering three recommendations. First, the Antiquities Act should be amended to reserve the right to diminish existing monuments solely to Congress. Second, any amendment should also require minimum management standards for all new national monuments. Finally, the article calls for executive branch agencies to develop more robust means for incorporating stakeholder input in the management planning of national monuments, including through advisory boards and co-stewardship agreements with Native American tribes and organizations.2 Where agencies lack authority to create such forums and advisory bodies, Congress should codify requirements to do so.
FEDERAL PUBLIC LANDS
Federal Land Acquisition and Disposition
The United States contains 2.27 billion acres of land.3 Of that, 28 percent (610 million acres) is federally owned, and these federal lands are valuable assets.4 They provide ecosystem services, are used in commodity production, provide support to the defense industry, support wildlife and biodiversity, and attract people and businesses. Tourism to national parks brings significant amounts of revenue to the local economies; in fact, the 2018 National Park Visitor Spending Effect reported $40.1 billion in visitor spending to the benefit of communities near national parks—supporting 329,000 jobs.5
However, despite their obvious benefits, public lands have been subject to controversy—both with respect to their existence and their management—since the founding of the US. In the present day, to some individuals, businesses, and state and local governments, the federal government’s ownership of land is seen as an infringement of their property rights and economic freedoms.
Throughout the late 1700s and early to mid-1800s, the United States acquired large amounts of land through forced removal of Native Americans, cessions from war with Mexico, and purchases from European countries.6 The federal policies of this period reflected popular ideas that the American West was an unlimited frontier for economic gain—despite water scarcity and the Indigenous populations living there.7 Through the Homestead Act of 1862,8 the General Mining Law of 1872,9 and the Desert Lands Act of 1877,10 the federal government further emphasized private property ownership and resource extraction.11 The Homestead Act of 1862 aligned with the prevailing sentiment of Manifest Destiny.12 Under the Homestead Act, the federal government provided settlers with land if they journeyed west to populate the newly gained territories.13 To encourage individual settlement, the federal government deployed the military to forcibly move Native Americans off prospective homesteads and onto reservations.14
By the turn of the twentieth century, widespread disposition and unfettered development culminated in corporate abuse of the nearly-free land and mineral rights,15 depleted timber resources, diminished wildlife populations, and scarred landscapes through boom-and-bust mining cycles.16 In response, the federal government began to withdraw certain lands from public sale.17 By 1890, the western frontier was nearly closed and the sale of public lands decreased significantly.18 However, the emphasis on land disposition guided federal policy into the twentieth century,19 culminating in the repeal of the Homestead Act in 1976.20
MANAGEMENT AND USE OF FEDERAL PUBLIC LANDS
The way public lands should be managed and used is a contentious topic, particularly in the American West, where much land is federally owned.21 Two land ethics predominate this debate: conservation and preservation, which can be traced back to John Muir and Gifford Pinchot at the turn of the twentieth century.22 Muir believed in preservation—the idea that land ought to be kept as close to its natural state as possible, and that exposure to nature offers spiritual benefits to people and society.23 Preservationists believe that land serves the people best when undeveloped and unfettered; thus, preservationists generally oppose logging, mining, and other extractive uses on federal land.24
Alternatively, conservation stems from Pinchot, who argued that lands ought to be managed to provide the highest possible return to society. Conservationists believe that one can attach monetary value to resources and attributes of the land; the way these lands are managed ought to best value the ecological and scientific evaluation of the land for both the present day and for generations to come.25 Conservationist principles have largely guided the American approach to managing federal lands.26
Congress and the executive branch are in something of a tug-of-war regarding authority over public lands. Article IV, Clause 3 of the US Constitution states that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States.”27 The first case to significantly interpret this power was United States v. Gratiot. This case, from the 1840s, gave a broad reading to the clause, holding that Congress’s power on federal land is “without limitation.”28
The broad authority of Congress over federal lands articulated in Gratiot was upheld by a 1976 Supreme Court case, Kleppe v. New Mexico, which adopted a broad interpretation of “without limitation” under Article IV, Clause 3.29 Kleppe addressed the question of whether the federal government can regulate and protect wildlife on federal land. Specifically, the case dealt with the Wild Free-Roaming Horses and Burros Act, which provides that if protected horses or burros that live on land administered by the Secretary of the Interior or Secretary of Agriculture wander onto private land, they are protected from “capture, branding, harassment, or death,” as they are considered components of public land.30 The State of New Mexico argued that the Act was an infringement upon New Mexico’s sovereignty, as it conflicted with state law.31 In Kleppe v. New Mexico, the Supreme Court held that “the Clause must be given an expansive reading,” and that Congress has “complete authority over the public lands [and the wildlife living there].”32
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
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