CHAPTER 1 THE EVOLUTION OF FEDERAL PUBLIC LAND AND RESOURCE LAW IN THE 21ST CENTURY

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 1
THE EVOLUTION OF FEDERAL PUBLIC LAND AND RESOURCE LAW IN THE 21ST CENTURY
Robert B. Keiter ^*
Wallace Stegner Professor of Law
University Distinguished Professor
Director, Wallace Stegner Center of Land, Resources, and the Environment
University of Utah S.J. Quinney College of Law
Salt Lake City, UT

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ROBERT B. KEITER is Wallace Stegner Professor of Law, University Distinguished Professor, and Director of the Wallace Stegner Center of Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law, Salt Lake City. He teaches Natural Resources Law, Constitutional Law, Administrative Law, and Federal Courts. He has received teaching awards from the University of Utah S.J. Quinney College of Law, the University of Wyoming College of Law, and the Rocky Mountain Mineral Law Foundation. In 2008, he was named a University Distinguished Professor by the University of Utah. His current project is a revision and update of his Wyoming State Constitution book for Oxford University Press. Professor Keiter's most recent book is To Conserve Unimpaired: The Evolution of the National Park Idea, which was published by Island Press in April 2013. His other books include Keeping Faith With Nature: Ecosystems, Democracy, and America's Public Lands (Yale Univ. Press 2003); Reclaiming the Native Home of Hope: Community, Ecology, and the West (Univ. of Utah Press 1998); Visions of the Grand Staircase-Escalante: Examining Utah's Newest National Monument (Utah Mus. of Nat. History & Wallace Stegner Center 1998); The Wyoming State Constitution: A Reference Guide (Greenwood Press 1993); and The Greater Yellowstone Ecosystem: Redefining America's Wilderness Heritage (Yale Univ. Press 1991). He has also written numerous book chapters and journal articles on public lands and natural resource law, addressing such topics as national parks, ecosystem management, wildfire policy, and biodiversity conservation. He serves as a Trustee of the National Parks Conservation Association and the Rocky Mountain Mineral Law Foundation, which he served on as President from 2013-2014. Professor Keiter holds a J.D. degree with honors from Northwestern University School of Law and a B.A. with honors from Washington University. He has taught at the University of Wyoming, Boston College, and Southwestern University, and served as a Senior Fulbright Scholar at Tribhuvan University in Kathmandu, Nepal. His honors and awards include Executive Special Recognition Award - The Pax Natura Foundation, 2010; Faculty Scholarship Award. 2009; University Distinguished Professor. 2008; National Parks Achievement Award. National Parks Conservation Association, 2008; Outstanding Law Professor Award. 2008; Outstanding Teaching Awards. 2003; and Senior Fulbright Scholar. 1993.

With the United States owning nearly half of the land base in the American West, federal public land and natural resources law is a matter of both national and local importance as we move ever deeper into the 21^st century. The nation's public lands, extending across more than 650 million acres, constitute an extraordinary economic, environmental, and cultural resource that has enriched the nation and shaped the western states. Early on the public lands represented a resource bank that lured settlers westward with the prospect of land ownership, mineral wealth, and agricultural opportunities. Today, these lands provide energy, minerals, water, timber, grazing, recreation, wildlife, wilderness, and other resources central to state and local economies, and they continue to draw new residents and visitors alike to the region. In short, as the author Wallace Stegner memorably observed, the public lands represent a defining characteristic of the American West.¹

Much has changed across the nation and the western states during the past century, and further changes surely lie ahead. As these changes have taken hold, a similar evolution is evident in the laws and policies governing the region's public lands, reflecting the primary interests and concerns of the day. By several accounts, public land policy has moved through four distinct yet overlapping eras: acquisition (1783-1867); disposal (1810-1891/1934); retention and management (1891-1963/present); and nature conservation (1964-present). In the face of mounting population pressures, growing urbanization, a changing climate, and increasingly diverse resource demands, we may well be entering yet another era in the history of the public lands.

This paper examines the evolutionary character of public land policy and reflects on what changes this new century might see in existing laws and policies. It does so by: 1) identifying the principal forces shaping public land policy today; 2) outlining the prevailing legal framework for managing these lands; and 3) offering tentative observations on potential future directions for this ever-changing field of law and policy. Although the nation has just concluded a so-called "change election," the paper's focus is on long term trends and directions, but it also notes some shorter term legal and policy implications.

I. A Dozen Notable Developments

To ponder the future direction of public land policy, it is first useful to identify and understand the forces that have helped to shape current public land law and policy and that are prompting calls for further change. These forces include social and economic trends, environmental factors (climate change, drought, fire, and the like), scientific and technical advancements, new management tools, and an

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evolving legal and institutional framework governing the public lands. This section will highlight a dozen overarching developments that are impacting federal land law, policy, and governance.²

A. A Fast Growing and Urbanizing Region. The American West boasts several of the fastest growing states and communities in the country. By 2030, the region is expected to house a quarter of the nation's population, up from 15 percent in 1970.³ The region has also become the most urbanized section of the country, including five emerging urban-anchored "megaregions," three of which lie along the Pacific coast and two of which are in the Rocky Mountain region, one stretching from north of Denver to Albuquerque and another centered around Phoenix and Tucson.⁴ These megaregions each include and rely upon natural resources linked to the public lands that are vital to urban life, namely water, food, energy, wood products, open space, wildlife habitat, and recreational opportunities, as well as critical ecosystem services. Economic opportunities across the West are being fueled in part by the influx of new residents, many of whom are drawn to the region by its open spaces, outdoor recreational opportunities, and scenic amenities, often bringing with them substantial financial means, an entrepreneurial spirit, and new ideas and knowledge.⁵ As a result, higher wage service industries, such as high tech and health care, are leading the region's job growth and further diversifying its economy. These demographic and economic developments have implications for the public lands: open spaces are being subdivided into ranchettes and smaller lots, fragmenting wildlife habitat and limiting access to public lands; the regional economy is shifting, and the traditional resource-based industries--ranching, farming, mining, and logging--are fading in importance in many locations and being supplemented elsewhere with other economic opportunities; and new constituencies are emerging and placing new demands on the public lands that emphasize environmental values, wildlife conservation, and recreational opportunities.

B. Limited and Variable Water Resources. Except for areas along the Pacific Coast, most of the American West receives less than 20 inches of rain each year, making it a semi-arid environment. As a result, the West is a "hydraulic society" dependent upon a vast network of dams, reservoirs, and canals to move water from its source to where it is most needed.⁶ But several trends suggest that the region's water supply is becoming more limited and variable: precipitation has decreased and droughts have increased across large parts of the West, and precipitation is expected to continue decreasing across the Southwest and elsewhere.⁷ Although agriculture has long accounted for most of the region's water usage, growing western cities, energy development projects, and instream flow proposals are placing ever-more pressing demands on the region's water supplies.⁸ Federal lands are essential to western water management; the headwaters of the West's major rivers and streams originate on federal lands, which also

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play an important role in recharging groundwater. Thus, federal land and watershed management policies impact both the quantity and quality of water delivered to downstream users, along with the flows needed for environmental values, ecosystem services, and long-term groundwater management. Although state laws generally govern water allocation across the West, the Endangered Species Act and other federal laws are increasingly driving regional water management decisions, as in the Columbia River basin where several salmon runs are now federally protected. This has prompted the federal land management agencies and the states to begin working together to manage the region's dwindling water supplies.⁹

C. An Energy Resource Storehouse. The public lands are a storehouse for diverse energy resources critical to the nation's economy and security. These energy sources include coal, oil, natural gas, and uranium, as well as renewable wind, solar, geothermal, and hydropower.¹⁰ Although coal has long played a major role in electricity production, its importance is diminishing with the emergence of cheap natural gas (due in part to...