Law Commons^™

An Expedition To The Public Lands: Public Lands Of The Mid-Atlantic Region, Madeleine G. Ulman

CAFE Symposium 2023

This hypothetical "expedition" explores the complex history and managerial challenges of four different public lands in the Mid-Atlantic region: Pinelands National Reserve, Assateague Island National Seashore, Shenandoah National Park, and Monongahela National Forest. Additionally, the conceptual ideas of nature as commodity and nature as static or unpeopled in the context of public lands will be discussed in this expedition.

U.S. Forest Service V. Cowpasture River Preservation Ass'n., Taylor A. Simpson

Public Land & Resources Law Review

The United States Supreme Court ruled in favor of the United States Forest Service and Atlantic Coast Pipeline, LLC, a company who planned to construct a natural gas pipeline under a section of the Appalachian National Scenic Trail within the George Washington National Forest. The legal battle sought to clarify whether the United States Forest Service had the authority to grant the pipeline builder a right-of-way across the Appalachian Trail. The Court ruled that the National Park Service holds an easement for administering the Appalachian Trail, but the land over which the trail crosses remains under the jurisdiction of the …

Chapter 2: Western Public Land Law And The Evolving Management Landscape, John C. Ruple

Wallace Stegner Center for Land, Resources, and the Environment publications

Our nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which 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 our 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 …

This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability Under Cercla, Kiersten E. Holms

Washington and Lee Law Review

Part II of this Note begins by providing a brief overview of the background and goals of CERCLA. Part II also provides an examination of the issue of ownership liability under CERCLA and recounts the federal courts’ difficulty in applying ownership liability. Part II then describes how the federal government’s “bare legal title” argument arose out of the confusion surrounding ownership liability in CERCLA litigation. Part III moves on to examine the recent trend in CERCLA litigation rejecting the federal government’s bare legal title argument, thus holding the federal government liable as an owner based on its possession of legal …

The Transformation Of The Antiquities Act: A Call For Amending The President’S Power Regarding National Monument Designations, Andrew Diaz

Golden Gate University Law Review

Part I of this Comment discusses the background of the Antiquities Act, including: the legislature’s intent in drafting the Act, changes to the law, and how it has been used throughout the years. This section then discusses various legal challenges to designations made under the Antiquities Act and looks at why these designations are sometimes controversial. Part II discusses the calls by many politicians to either amend or repeal the Act and explains why current proposed legislation is insufficient. This Comment critiques the proposed legislation and calls for the passage of sensible legislation that would require a more transparent designation …

Rethinking Public Land Use Planning, Mark Squillace

Publications

The public land use planning process is broken. The land use plans of the principal multiple-use agencies—the United States Forest Service and the Bureau of Land Management (“BLM”)—are unnecessarily complex, take too long to complete, monopolize the time and resources of public land management agency staffs, and fail to engage the general public in any meaningful way. Moreover, the end result is too often a plan that is not sufficiently nimble to respond to changing conditions on the ground, a problem that appears to be accelerating due to climate change.

It might seem easy to chalk up these problems to …

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Treating The Blue Rash: Win-Win Solutions And Improving The Land Exchange Process, Smith Monson

Utah Law Review

The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.

Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Bruce R Huber

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Journal Articles

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

Public Lands And The Federal Government’S Compact-Based “Duty To Dispose”: A Case Study Of Utah’S H.B. 148 – The Transfer Of Public Lands Act, Donald J. Kochan

Donald J. Kochan

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of …

The Birth, Death, And Afterlife Of The Wild Lands Policy: The Evolution Of The Bureau Of Land Management’S Authority To Protect Wilderness Values, Olivia Brumfield

Michael Blumm

Since the enactment of the Federal Land Policy and Management Act (FLPMA) in 1976, the Bureau of Land Management (BLM) has had a troubled relationship with wild lands, the nation’s last remaining places with wilderness characteristics. Although for twenty-five years BLM recognized wilderness values as a resource it must balance and could protect consistent with the agency’s multiple use mandate, in 2003 BLM largely disclaimed that interpretation, potentially imperiling future protection of wild lands that were not designated as wilderness or wilderness study areas. Since then, the agency has made incremental – but potentially powerful – steps toward reclaiming a …

The Practical Effects Of Delegation: Agencies And The Zoning Of Public Lands And Seas, Josh Eagle

Pepperdine Law Review

Legislative efforts to delegate zoning power to public land and ocean management agencies have generally proven unsuccessful. When given the power to create uniform-use areas such as parks and wilderness areas within their broader jurisdictions, agencies either have opted not to exercise it or have been extremely hesitant to do so. The tepid administrative response to zoning is not surprising. Zoning decisions are politically charged, are likely to offend powerful, concentrated interest groups, and erode the discretion that is the core of agency power. These aspects of zoning decisions explain why, by contrast, all states require that municipal zoning ordinances …

Slides: Climate Change Adaptation And The Federal Lands, Robert L. Glicksman

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Robert L. Glicksman, J.B. and Maurice C. Shapiro Professor of Environmental Law, George Washington University Law School (Washington, D.C.)

12 slides

Slides: Climate Change And Public Lands: Examples From National Parks, Stephen Saunders

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Stephen Saunders, President, The Rocky Mountain Climate Organization (Denver, CO)

40 slides

Slides: Second Thoughts About The Antiquities Act: Does The Process For Public Land Decisionmaking Have An Ethical Dimension?, James R. Rasband

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: James R. Rasband, Dean of the J. Reuben Clark Law School, Brigham Young University (Provo, UT)

32 slides

Hardrock Mining And The Public Land Law Review Commission: The More Things Change….21st Century Mining, A 20th Century Report, And A 19th Century Law, Roger Flynn

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

3 pages.

Slides: Livestock Grazing On The Public Lands, Joe Feller

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Joe Feller, Professor of Law, Arizona State University Law School; Visiting Professor, University of Colorado Law School

33 slides

Slides: Chapter 7 Of The Commission Report, David L. Bernhardt

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: David L. Bernhardt, Partner, Brownstein Hyatt Farber Schreck (Washington, DC) and former Solicitor for U.S. Department of the Interior

14 slides

Slides: The Spotted Owl Controversy: An Example Of The Esa's Dominant Role In Federal Land Use Planning, Norman D. James

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Norman D. James, Director, Fennemore Craig, PC (Phoenix, AZ)

17 slides

Slides: Grazing On The Public Lands, William G. Myers Iii

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: William G. Myers III, Partner, Holland & Hart; former Solicitor of the U.S. Department of the Interior (Boise, ID)

8 slides

Slides: America's Redrock Wilderness, Scott Groene

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Scott Groene, Executive Director, Southern Utah Wilderness Alliance (Moab, UT)

23 slides

Reminiscences, John A. Carver Jr.

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

7 pages.

Agenda: The Past, Present, And Future Of Our Public Lands: Celebrating The 40th Anniversary Of The Public Land Law Review Commission's Report, One Third Of The Nation's Land, University Of Colorado Boulder. Natural Resources Law Center

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Sponsors: US Dept. of the Interior, Bureau of Land Management; Western Resource Advocates; The Wilderness Society; National Wildlife Federation; Rocky Mountain Mineral Law Foundation Grants Program, Red Lodge Clearinghouse; United States Forest Service, Rocky Mountain Research Station.

Conference moderators, panelists and speakers included University of Colorado Law School professors William Boyd, David H. Getches, Sarah Krakoff, Mark Squillace and Charles F. Wilkinson.

In 1964 Congress established the Public Land Law Review Commission to review the public land laws of the United States and to determine whether revisions were necessary. The Commission was comprised of six members appointed by the President, …

Slides: Celebrating Flpma: Land Use Planning At The Blm, Marcilynn Burke

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Marcilynn Burke, BLM Deputy Director - Programs and Policy, U.S. Dept. of the Interior, (Washington, D.C.)

30 slides