CHAPTER 1 EVOLUTION OF FEDERAL PUBLIC LAND AND RESOURCES LAW

• Jurisdiction: United States

Public Land Law II
(Nov 1997)
CHAPTER 1
EVOLUTION OF FEDERAL PUBLIC LAND AND RESOURCES LAW
George Cameron Coggins ^*
Robert L. Glicksman ^**
University of Kansas School of Law
Lawrence, Kansas

I. THE TROUBLE WITH FEDERAL PUBLIC LAND LAW IN 1997

Let us start by summarizing, in a somewhat jaundiced fashion, the state of federal public land and resources law in 1997. The United States owns roughly 660 million acres in fee, plus less-than-fee interests in many millions more acres, and it controls the seas and seabeds from three to 200 miles offshore.¹ Only a small fraction of the government's holdings are devoted to traditional governmental uses such as forts, courthouses, and post offices. The great bulk of the federal lands are under the jurisdiction of four main (and many other lesser) government agencies located in several departments. Those lands are divided into five major national "systems" — parks, forests, wildlife refuges, BLM public lands, and wilderness — each of which is further subdivided into many management categories.² The "nongovernmental" federal lands are to be managed for seven major, overlapping resources or uses: water; minerals; timber; livestock forage; wildlife; recreation; and preservation.³

Traditional public land law comprised those legal rules and doctrines by which the public domain lands were transferred to states and private entities.⁴ Because very few such transactions now occur, the term "public land law" is obsolete; "federal public natural resources law" is a far more accurate description of current law in this area.⁵

In many respects, federal public natural resources law in 1997 is an unholy mess. First,

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there is just too damn much of it: an estimated 3,000 statutes, plus volumes of regulations, voluminous jurisprudence, agency manuals, arcane doctrines, and thousands of books and articles. Despite this bulk, Congress has ducked many important questions by enacting gobbledygook laws, such as the Multiple Use Sustained Yield Act,⁶ which use all the right words to say virtually nothing.⁷ Some federal laws apply to all of the federal natural resources,⁸ but each resource is governed by series of separate laws as well. The allocation mechanism for each federal resource also differs drastically:

• water is "appropriated"

• hardrock minerals are "located"

• fuel minerals are "leased" (and each of the half dozen or so leasing systems differs sharply from the others in some respects⁹ )

• common minerals are "sold"

• timber is obtained by "contract"

• forage is allocated by "permit"

• commercial access is pursuant to a "right-of-way"

• hunters and fishermen need written "licenses"

• other recreationists have implied "licenses"

• and the interests of preservationists does not yet have a label.

In every case, the quantum or degree of property right devolving upon the resource recipient also differs drastically. A water right is usufructuary and dependent;¹⁰ an unpatented mining claim is defeasible;¹¹ a mineral lease may be conditional;¹² a grazing permit is (theoretically) a mere privilege;¹³ and so on.¹⁴

Much public natural resources law is ambiguous if not incomprehensible. Standardless

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delegations of legislative power abound;¹⁵ unreal distinctions are prominent;¹⁶ jurisdictional boundaries often are questionable;¹⁷ over-and underinclusion are common, as are overlapping provisions and doctrines;¹⁸ doctrines are undemocratic;¹⁹ much law is obsolete;²⁰ and a lot is unfair.²¹ Economically, the structure of the law is ridden with unjustifiable preferences, subsidies, and advantages for the privileged few. Consider:

• hardrock miners pay nothing for valuable minerals and $5 per acre for fee title to the claim.

• national park patrons pay very low access fees

• national park concessionaires pay even lower fees, proportionately

• western irrigators are heavily subsidized

• federal timber sales consistently lose money

• recreational access to most federal holdings is free

• western ranchers pay less than $.05 a day to feed a half-ton cow

• surface owners can veto the mining of federal coal

• the government tries to eradicate coyotes, free of charge to the sheep ranchers

• some noncompetitive leasing lives on

• and states take large shares of sale or lease receipts — up to 90% in Alaska — not to mention payments in lieu of taxes and dozens of other subsidies.²²

Add to this somewhat slanted picture the cartographic chaos that characterizes land ownership patterns in the West and the resulting plethora of access difficulties,²³ revolving-door relationships between resource industries, resource colleges, and federal resource agencies,²⁴ the

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attitudinal perversities that manifest themselves in Western demagoguery,²⁵ the proliferation of procedural requirements,²⁶ and the ever-present fraud and abuse²⁷ — these are some of the reasons why we characterize the law as it has evolved an "unholy mess."

This paper is not about reform, however. For that, you will have to wait until Coggins' book comes out. Instead, we discuss how the law evolved to this state after more than two centuries of nationhood. The beginning of this story is the ratification of the United States Constitution, and the beginning is often a good place to start.

II. THE UNITED STATES CONSTITUTION

The year is 1791, and the new Constitution has been ratified by the former colonies, replacing the Articles of Confederation. The rectangular survey system, featuring sections and townships, had then been in place for decades.²⁸ The western boundary of the infant country is the Mississippi River, but most of what lies beyond the Appalachian chain is unknown to the early Americans. As a part of the compromise deal that became the Constitution, the original states with land claims beyond their present boundaries out to the Mississippi ceded those lands to the new national government.²⁹ Thus, at nationhood, the United States owned roughly half of the territory over which it asserted sovereignty.

A. THE ENCLAVE CLAUSE

The Constitution contains two provisions that define federal land ownership and several more that affect it. Article I, on the powers of the legislative branch, grants the United States exclusive jurisdiction over the District of Columbia and such other lands and facilities that the United States may purchase with consent of the state where located.³⁰ This "Enclave Clause" is of minor importance in federal land law because its apparent restrictions (exclusivity, purchase, purpose, and cession) were interpreted largely out of existence more than a century ago,³¹

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because only a small fraction of the federal lands are held in enclave or quasi-enclave status,³² and because Congress often has recognized the undesirability of excluding application of all state law from any tract.³³

B. THE PROPERTY CLAUSE

The Property Clause in Article IV grants Congress the power to dispose of and make "needful" rules for property belonging to the United States.³⁴ Although this Clause contains no qualifying language, many long argued that its true meaning was to require Congress to dispose of any lands the United States acquired.³⁵ This view found some support in the 1845 Pollard's Lessee ³⁶ decision of the Supreme Court. The Pollard Court held that lands submerged beneath navigable waters automatically became state property upon statehood, a manifestation of the equal footing notion.³⁷ However anomalous, that is still the law, subject to certain exceptions.³⁸ But some language in the nearly opaque opinion could be construed as opining that the United States had no legislative powers over federal lands within states and indeed was merely a trustee bound to dispose of them.³⁹

That latter aspect of Pollard did not survive the 19th century. The Court in Camfield ⁴⁰ not only upheld federal power over federal lands, it also extended the federal Property Clause power to private activities on adjacent private lands (in this case, fencing) that interfere with federal purposes.⁴¹ Light,⁴² in 1911, was even more definitive. The Court plainly stated that Congress could do whatever it wished for, to, or with federally owned land, including permanently reserving it to serve conservational purposes.⁴³

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Still, the states' rightists continued to assert the unconstitutionality of federal ownership or a milder variant of that idea, that the United States as a landowner is merely a landowner and thus is fully subject to state law as is any other landowner.⁴⁴ New Mexico so argued in the seminal Kleppe v. New Mexico⁴⁵ litigation, decided by a unanimous Court in 1976. Justice Marshall opined in no uncertain terms that congressional power over the federal lands pursuant to the Property Clause is complete, unrestricted, plenary, and preemptive.⁴⁶ If state law conflicts with the federal rule or the federal purpose, it is preempted. Period.

That should have been the end of the matter, but some still argue the illegitimacy of federal ownership and the sanctity of state law.⁴⁷ The Sagebrush Rebels of the 1970s did so, and they lost.⁴⁸ The Wise Users and County Supremacists of the 1990s are doing the same, and they too have lost and will continue to lose.⁴⁹

C. SUPREMACY CLAUSE

The other provisions of the United States Constitution with a fairly direct bearing on public natural resources law include the Supremacy Clause in Article VI⁵⁰ and the Taking Clause of the Fifth Amendment.⁵¹ Kleppe made clear that federal law, where applicable, ousted contrary state or local law on the federal lands.⁵² The power of Congress to displace state law thus is beyond cavil, but the question whether Congress has done so in any particular instance can be problematic. The general test for preemption is that it will be found if any one of four conditions is present:

• Congress explicitly says so,⁵³

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• Congress intended to occupy the entire regulatory field,⁵⁴

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