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Public Lands and Law Reform: Putting Theory, Policy, and Practice in Perspective
Abstract
Federal public land law and policy is in a transitional phase today that is setting the stage for further reform efforts. The article begins by recounting the evolution of public land policy and identifying the principal forces for change at work today. It then examines the various policy models that have periodically held sway over the public lands and assesses whether any of these models present viable reform options. These policy models encompass an array of competing resource management philosophies, including privatization, utilitarianism, preservation, devolution, legal planning, ecological sustainability, place-based, and hybrid models. The article concludes with observations on legal reform opportunities and pitfalls, potential strategies for moving the reform process forward, and the role another public land commission might play in this process.
... The local ecosystem governance literature addresses ecosystems on state, tribal, and federal public lands and on private lands; most ecosystems span many property and jurisdictional boundaries. Law writers have addressed local ecosystem governance primarily in public land articles (e.g., Keiter, 2005;Colburn, 2006;Griffith, 2020), in articles addressing climate mitigation (e.g., Bianco et al., 2020) and adaption (e.g., Ruhl, 2010), in the new governance/resilience literature (e.g., Wiersema, 2008;Holley, 2010a;Arnold and Gunderson, 2013;Craig and Benson, 2013;Arnold, 2015), and in broader pieces about the future of environmental law in the anthropocene (e.g., Camacho, 2010;Bork, 2021). Many articles address local governance in an ancillary way or as part of a broader investigation, and far fewer articles take on local governance as a primary focus (examples include Hirokawa, 2011b;Salzman et al., 2014). ...
... Keiter discusses this view extensively in his work on public lands (Keiter, 2005), where he blends in civic republicanism to argue that "public policy should be framed through civic dialogue at the level closest to those who will be affected by it" (Id.), where local, democratic dialogue "will tend inherently to accentuate public rather than private interests, and thus result in more public-spirited and better-accepted policies" (Id.). This idea marries a reinvigoration of local democracy with greater local control, the better to "manage the pressures created by the Anthropocene while remaining committed to the central values of the American political system" (Biber, 2017; see also Porras, 2009). ...
... In some cases, poor environmental outcomes are even more concerning than the risk of achieving no agreements at all. From overgrazing under the Taylor Grazing Act's local grazing advisory boards to population collapses under local fishery management (Houck, 1997;Keiter, 2005), many past efforts at local ecosystem management have garnered participation and even agreement, but nonetheless produced poor environmental outcomes. The grazing advisory boards, for instance, prioritized management at a local scale by the resource users who depended on good range conditions, yet they permitted massive overgrazing and resource destruction (Keiter, 2005). ...
The physical and biological factors that together determine ecosystem structure and function will be subject to enormous pressures under future climate regimes. These pressures will impact ecosystem processes and services, ranging from impacts on biodiversity to loss of essential ecosystem benefits. Ecosystem management to maintain desired ecosystem conditions will become increasingly important. Existing governance structures are insufficient to provide the necessary guidance for these management efforts. The legal literature is increasingly focused on local ecosystem governance as a viable option to fill this governance gap. For example, increasing recognition of the value of ecosystem services to local communities has driven increased efforts to protect those services through local ecosystem initiatives. The local ecosystem governance scholarship is diffuse, making the literature difficult to access. Based on a review of the legal literature on local ecosystem governance over the last 20 years, this article marshals the theoretical arguments for and against local governance and identifies ongoing efforts to implement local ecosystem governance. The article also identifies both emerging challenges to local ecosystem governance and potential ways to address those challenges. From this review emerges actionable recommendations and critical research needs to improve local ecosystem governance.
... (Breckenridge 1995, at 374) Consolidation of federal land systems is one option. Some have proposed combining the land systems managed by the two dominant use agencies, the NPS and the FWS (Coggins and Glicksman 1999;Keiter 2005). Others have argued, however, that consolidation might reduce opportunities for innovation and adaptive management, and that past agency consolidations have produced unwieldy and complacent organizations. ...
... In addition, Capozza and Sick (1991) indicated that simple land values (land ownership values) are equivalent to long-term lease values (land leasing values) under the non-consideration of redevelopment option values. Furthermore, royalties are one of the important economic factors in public land management, especially in regard to economic sustenance (Keiter, 2005). Such research has inspired this study to construct a model for pricing non-public-use land based on the following parameters: rents, expected rate of growth in land prices, land ownership values, uncertainty, and royalties. ...
Setting a price for leasing non-public-use land is flexibility available to government authorities. Therefore, this study employs a stochastic optimization model incorporating relevant parameters of pricing strategies for leasing non-public-use land based on real option analysis (ROA). This pricing model is distinct from existing literature, which is not based on the developer's perspective. In particular, the exercise prices of "option to lease" are land ownership values under similar conditions. Among the 12 cases in which superficies rights of commercial lands were awarded in Taiwan, this empirical investigation found that the leasing of seven cases was more valuable than land ownership values. This study also suggests pricing strategies for leasing superficies rights under different scenarios and provides new insights for leasing non-public-use land from the perspective of the government.
... • Impaired ability of some landscapes to provide these services due to past management (Millenium Ecosystem Assessment 2005); • Increased exposure to large and often severe disturbances (Schoennagel et al. 2004;McKenzie et al. 2004;Agee and Skinner 2005;Hessburg et al. 2005;Peterson et al. 2005;Miller and Davis 2009;cf. Baker 2012;Williams and Baker 2012;Odion et al. 2014); • New or alternative ecosystem states following large or severe disturbances (Allen et al. 2010;Odion et al. 2010); • Decline and extinction of some native plant and animal populations, and increasing invasions by non-natives (Noss and Cooperrider 1994;Reed et al. 2003); • High uncertainty regarding future effects of climate change (Millar et al. 2007); • Diminished public confidence in land managers (Duncan et al. 2010;Keiter 2005;Williams and Jackson 2007). ...
More than a century of forest and fire management of Inland Pacific landscapes has transformed their successional and disturbance dynamics. Regional connectivity of many terrestrial and aquatic habitats is fragmented, flows of some ecological and physical processes have been altered in space and time, and the frequency, size and intensity of many disturbances that configure these habitats have been altered. Current efforts to address these impacts yield a small footprint in comparison to wildfires and insect outbreaks. Moreover, many current projects emphasize thinning and fuels reduction within individual forest stands, while overlooking large-scale habitat connectivity and disturbance flow issues. We provide a framework for landscape restoration, offering seven principles. We discuss their implication for management, and illustrate their application with examples. Historical forests were spatially heterogeneous at multiple scales. Heterogeneity was the result of variability and interactions among native ecological patterns and processes, including successional and disturbance processes regulated by climatic and topographic drivers. Native flora and fauna were adapted to these conditions, which conferred a measure of resilience to variability in climate and recurrent contagious disturbances. To restore key characteristics of this resilience to current landscapes, planning and management are needed at ecoregion, local landscape, successional patch, and tree neighborhood scales. Restoration that works effectively across ownerships and allocations will require active thinking about landscapes as socio-ecological systems that provide services to people within the finite capacities of ecosystems. We focus attention on landscape-level prescriptions as foundational to restoration planning and execution.
... (Breckenridge 1995, at 374) Consolidation of federal land systems is one option. Some have proposed combining the land systems managed by the two dominant use agencies, the NPS and the FWS (Coggins and Glicksman 1999;Keiter 2005). Others have argued, however, that consolidation might reduce opportunities for innovation and adaptive management, and that past agency consolidations have produced unwieldy and complacent organizations. ...
The laws governing management of national parks, wildlife refuges, and other federal land preserves seek to conserve natural resources in highly treasured locations. The nature of conservation has changed substantially, however, since Congress first enacted these laws. It is clear that protected ecosystems are influenced by outside events and that management of human-dominated ecosystems is essential to long-term sustainability of the ecosystems containing protected preserves. The effects of climate change, invasive species introductions, and other broad-scale anthropogenic influences are expected to alter the functioning of natural systems in ways that will make it impossible for protected areas to function as they have in the past. Resource management and the laws that govern it must therefore shift toward protecting or restoring ecosystem resilience, including external influences important to system persistence. This chapter considers two questions: (1) what kinds of protected areas are best suited to protecting the resilience of natural systems; and (2) whether adequate legal structures exist to allow for the creation and management of such areas. It explains why broad-scale management strategies scales are critical to achieving resilient social-ecological systems and explores challenges to effective broad-scale management of protected areas. The chapter argues that, despite some flexibility under existing laws governing parks and refuges for agencies to anticipate and react to natural systems disruptions through landscape-level management mechanisms, there is an increasing mismatch between legal mandates and protected area resilience. Both statutory and administrative changes are needed if national parks and wildlife refuges are to maintain social-ecological resilience.
It is one of the most important - and unspoken - paradoxes of the modern American regulatory state: Energy and the environment, though intertwined in life, are disconnected in law. This has important implications, not the least of which is that the two fields tend to undermine each other. For serious students of energy, this should come as no surprise. The energy-environmental law disconnect is rooted in the fields' histories. Nevertheless, if society is to become more sustainable, the disconnect must be mended. Energy law and environmental law must merge. This article traces the historical disconnect between energy law and environmental law, from an energy perspective. It then explains, conceptually, how that disconnect manifests in energy today. Finally, the article concludes by identifying the problems that the disconnect creates for alternative energy development and, consequently, suggests some ways in which energy and environmental law might be better coordinated going forward.
This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States to destroy sacred sites essential to Indian ceremonial practices. The Supreme Court has held that destruction of sacred sites does not impinge on individual religious belief and falls within the government's powers as an owner of the public lands. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands - such as natural resource development and tourism - that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we don't yet have a legal theory justifying such a position. My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin has long argued for special legal protection of property that expresses an individual's sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective peoplehood. As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of reasonable pluralism, liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.
The World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has been the focus of intense scholarly debate regarding the effects of IP protection on the development interests of the global South. Far less attention has been directed at the organizational framework in which future IP norms should be developed. The governing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) remains unchanged notwithstanding the primacy of the WTO as an Organization with explicit mandate for global IP regulation.In this Article, I argue that the WTO, in a hierarchical division of labor with WIPO, should be promoted as the locus of IP norm-setting, particularly with respect to those norms that affect the regulation and supply of global public goods. IP norm-setting in the WTO is not without risks. Nonetheless, an organizational culture in which IP protection is one of many tools to accomplish defined welfare goals, rather than the raison d'être of the organization's existence, may force open important institutional space in which future IP norms consistent both with the interests of less developed countries and the ideals of mature IP systems, can be meaningfully negotiated. At a minimum, a hierarchical relationship could facilitate inter-institutional competition between the WTO and WIPO, generating additional welfare gains for the international community in the form of greater transparency in the processes of IP norm-setting, improvements in the democratic deficit inherent in international organizations generally, as well as systemic gains from enhanced accountability in the global management of IP.
There has been comparatively little exploration of the importance of local government in addressing large scale environmental harms, in spite of much activity at the local level dealing with climate change. This article posits that local governments may be an effective way to address even large scale environmental harms because they may be able to exercise a kind of control through targeted social norm creation that cannot be accomplished easily at other levels of government. This article notes that efforts to get the private sector to take actions without enforcement capability have been problematic, but that connections to private sector decision makers and influencing of their internal norms (which can occur easily at the local level) can create action not just locally, but wherever corporations operate.
Patterns of local extinction of mammal populations in western North American parks were examined in relation to current biogeographic and population lifetime models. The analysis was based on species sighting records as of 1989. While western North American pants are obviously not true Isolates, patterns of mammal extinction in them are nonetheless consistent with two predictions of the land-bridge island hypothesis. First, the number of extinctions hers exceeded the number of colonizations since park establishment, and, second the rate of extinction is inversely related to park area. Factors influencing the lifetime of mammal populations were evaluated using a stepwise multivariate survival analysis procedure for censored data Survival time for mammal populations was positively related to estimated initial population size. After accounting for population size, species within the order Lagomorpha were particularly prone to extinction. Finally, after controlling for population size and taxon variation survival time was positively related to age of maturity, indicating that species with longer generation times-age of maturity and generation time are highly correlated in mammals-persist longer in absolute time.
In 1987 the U.S. Forest Service and the National Park Service launched a joint coordination and planning process for the Greater Yellowstone region, commonly called the “Vision”; exercise, and produced a draft document in 1990 and a final in 1991. Public reaction was fierce: Traditional commodity extraction industries strongly opposed it, while conservationists failed to support or improve it. The process was perceived by many as a failure. Through extensive literature searches and interviews, we identified four major explanations for why the process failed: The agencies had unclear objectives, their environment was politicized, they miscalculated public reaction, and they used deliberately vague language to preserve their discretion and minimize accountability. We define all these as analytical errors, that is, failure to orient to the problem and to analyze the context of the problem adequately. We also explain the Vision exercise as a progression through the first phases of the public policy process (initiation, estimation, and selection), demonstrating a host of weaknesses common to each phase. We then offer six lessons to improve public policy processes for natural resource management in the Yellowstone region and to develop a successful model for ecosystem management elsewhere.
The nation's preeminent preservation statute, the Wilderness Act of 1964, is now 40 years old. By authorizing a network of congressionally designated wilderness areas on public lands, the Act has proved invaluable for protecting special areas from the most intensive forms of intrusion by humankind But the Act is facing a midlife crisis, and legitimate questions have been raised about its continuing viability as a conservation tool. This Article concludes that the preservation of wild lands remains an essential component of federal public lands management, but that the Wilderness Act, standing alone, has not fulfilled its promise of securing an enduring resource of wild lands, President Clinton and his agencies employed a variety of techniques for identifying and protecting wild places on federal lands outside of the wilderness network. The designation and protection of national landscape monuments and roadless conservation areas were the most notable of these techniques. Both were highly controversial, but neither is unprecedented nor unlawful. An expanding mosaic of executive preserves is a necessary complement to the wilderness network. Congressional, presidential, and administrative actions are all necessary components of a comprehensive federal preservation strategy for the protection of biodiversity and sustainable development.
This paper explores the issues and the arguments in deciding whether to include tracts of federal lands in the National Wilderness Preservation System. It shows how the issues and debates have changed over the years since the System was created by the Wilderness Act of 1964.
This article argues that President Clinton’s proclamations of new national monuments on federal lands have been faithful to a long tradition of executive leadership in setting aside public for conservation. The results of this tradition are plain to see in the colored swatches on maps of the American West marking our most poetic and beloved natural landscapes - our great systems ofnational parks, forests, monuments, wildlife refuges, and other conservation areas. Although many of these protective steps were initially controversial, they have been rewarded with near-universal acclaim by the most demanding judge of all - history. In practically every case, the passage of time has vindicated the executive’s judgment about the value to posterity of conserving large tracts of federal lands.
All of these conclusions support the notion that issues of federalism are best left to the national political process. Given the complex interrelationship of federal tax, spending, and regulatory policies, it is impossible for federal courts, bound by the narrow constraints of party-defined litigation, to assess the fiscal burdens of individual federal programs in the proper context. These issues are viewed more appropriately by elected federal officials in the course of the national political process. The fact that states and cities remain net fiscal beneficiaries of intergovernmental programs suggests that lower levels of government do receive adequate protection and representation in this manner.
The National Environmental Policy Act (NEPA) seeks to improve environmental outcomes by forcing comprehensive disclosure of expected consequences of agency actions. Some criticize this approach as weak and procedural, others as dilatory and costly. These problems stem from a common source: Such ex ante predictions are inevitably inexact and contestable. To safeguard against litigation challenging the adequacy of the environmental impact statement (EIS), agencies often substitute quantity for quality, producing large, costly, and uninformative documents. They also seek to avoid the EIS process by making Findings of No Significant Impact ("FONSIś), often relying on mitigation measures to keep expected impacts below reportable thresholds ("mitigated FONSIs"). Critics charge that mitigated FONSIs violate NEPA's spirit of full disclosure. This Article argues that the EIS inadvertently functions as a "penalty default," creating incentives to reduce environmental harm as an alternative to the costlier EIS process. But because NEPA does not require follow-up monitoring, actual impacts remain undisclosed and there is no assurance that mitigated impacts remain below EIS-triggering thresholds. This Article proposes to retool NEPA by requiring follow-up monitoring, adaptive mitigation, and an environmental management systems-oriented approach. Shifting from ex ante prediction to pragmatic, empirical monitoring would enable systematic error detection and better-informed management over a project's life.
This article explores the legal and policy issues growing out of the so-called "sagebrush rebellion" – the effort between about 1978 and 1982 by several western states to wrest title to many federal lands within their borders from the U.S. government.
This short article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.
This paper reviews the battles over the Forest Service planning rule that culminated in the November 2000 revising of the regulations implementing the National Forest Management Act. In a departure froj the agency’s emphasis on multiple use, the rule established ecological sustainability as the key objective guiding planning for the national forests. The supporting material explicitly states that “it is based on the recommendation of an eminent committee of scientists.” This pape5r examines the Committee of Scientists and the NFMA rule as a case study in the relation between science and politics in the development and implementation of statutory standards for management of the National Forest System. The conclusion considerations the broader question of whether the Committee and Forest Service overstepped their appropriate roles in promoting what is essentially a new statutory mandate.