PUBLIC LAND AND RESOURCES LAW IN THE AMERICAN WEST: TIME FOR ANOTHER COMPREHENSIVE REVIEW?

• Author: Keiter, Robert B.

I. INTRODUCTION 3 II. A CHANGING WEST: TRENDS INFLUENCING FEDERAL LAND MANAGEMENT 6 A. The Nation's Fastest Growing Region 7 B. Limited and Variable Water Resources 8 C. Energy Development: Growing, Fragmented, and Controversial D. Ascendant Recreational and Environmental Values 16 E. Climate Change: A New and Uncertain Context 18 F. The Science of Ecology: Compelling a Paradigm Shift 21 G. Tribal Governments: Sharing Knowledge and Management Responsibilities H. A Paradoxical Federal-State Relationship 25 1. Limited Agency Resources and Capacity 27 J. A Briar Patch of Laws, Policies, and Institutions 29 K. A More Prominent Judicial Role 31 L. Collaboration: The Emerging Forum of First Resort 33 III. PUBLIC LAND LAW REVIEW COMMISSIONS: HISTORY AND IMPACT 35 A. A Brief History of Public Land Law Commissions 36 1. John Wesley Powell's Public Land Commission: 1879- 1881 36 2. Gifford Pinchot's Public Lands Commission: 1903-1905 37 3. Herbert Hoover's Committee on the Conservation and Administration of the Public Domain: 1930-1931 39 B. Wayne Aspinall's Public Land Law Review Commission: 1964-1970 41 1. Origins, Purpose, Scope, and Structure 42 2. Impact and Legacy 45 IV. EXAMINING THE CASE FOR ANOTHER PUBLIC LAND COMMISSION 46 A. Arguments for Another Commission 47 B. Arguments Against a Commission 49 V. ALTERNATIVES TO ANOTHER PUBLIC LAND COMMISSION 51 A. Muddle Through 51 B. Foster Experiments or Pilot Projects 56 C. Explore Alternative Natural Resource Commission Models 58 1. Western Water Policy Review Advisory Commission: 1995-1998 58 2. Pew Oceans Commission: 2000-2003 60 3. ESA @ 30 Project: 2001-2006 62 D. Seeking a Path Forward 64 VI. CONCLUSION 68 I. INTRODUCTION

Wallace Stegner, one of the most astute observers of the American West, once observed that the high concentration of federal public lands and pervasive aridity are the defining characteristics of the region and its society. (1) Federally owned lands and the lack of water have long shaped western state economies and regional growth patterns while also giving rise to a unique body of law designed to fit the region. (2) From high plains to rugged mountains and from sun-drenched deserts to humid rain forests, the West's public lands offer wide-open spaces, abundant natural resources, and unparalleled scenery. (3) Indeed, the vast western landscape has long fashioned history, inspired myths, and drawn people to the area. Today, however, the region is awash in change and controversy, much of it focused on the public lands, generating seemingly endless public policy debate.

Federal public lands are concentrated in the American West, where nearly half the land base is owned by the national government. (4) Although federal lands account for 28% of all land in the United States, (5) "[m]ore than 90% of these lands are located in the eleven westernmost states and Alaska." (6) For the most part, the federal public lands are overseen by four land management agencies: the United States Forest Service, Bureau of Land Management, National Park Service, and the United States Fish and Wildlife Service. (7) The United States Forest Service and the Bureau of Land Management, between them, administer roughly one third of the western landscape; they oversee more than 80% of Nevada, more than 60% of Utah and Idaho, and more than 45% in four other western states. (8) Most of the nation's tribal lands are also located in the West, covering one fifth of the landscape in the eleven most western states. (9) Another 45 million acres of "school trust" lands are scattered across these states, representing "federal land grants given to each state upon statehood to help fund education." (10) Taken together, these federal, tribal, and state lands dominate the physical geography of the region and much of its politics, economics, and culture.

The western federal lands constitute a veritable storehouse of natural resources, prompting recurrent preservation versus development conflicts and reflecting age-old federal-state tensions over management of these resources. Federal lands are home to iconic national parks and expansive national forests; provide vital water supplies to urban centers; represent important working landscapes; house valuable energy resources; support a diversity of fish, wildlife, plants, and endangered species; contain important cultural and heritage resources; provide a setting for diverse outdoor recreation activities; and promote economic vitality in communities across the region. Much of the acreage operates under a "'multiple use' doctrine that allows grazing, mining, logging, energy development, motorized recreation," and wilderness protection, creating a setting ripe for conflict and contention. (11) As scientific knowledge has advanced, it has become clear that the federal lands, whether managed for "multiple use" or preservation purposes, are inherently connected among themselves and with other surrounding lands.

Notwithstanding the continuous presence of the federal lands, the American West is a much different place today than it was fifty years ago. Since 1970, the region's "population grew by 107 percent compared to 41 percent for the rest of the country." (12) It is now the nation's most urbanized region, (13) and most western state economies have steadily evolved away from a predominant reliance on natural resources. (14) A preservation ethic reflected in the region's national parks and wilderness lands has taken hold, generating a robust tourism industry that is of growing importance across the region. (15) Climate change has created a new degree of regional uncertainty, threatening water supplies and wildlife, and enhancing wildfire dangers. (16) A diverse array of constituents demand a broader range of services from the public lands, while several new resource management strategies have emerged organically from local collaborative efforts. In short, the social, economic, legal, and environmental context of federal public land management has changed dramatically during the past several decades.

The laws, policies, and institutions governing the public lands, however, have not evolved at the same pace--a fact that has plainly exacerbated the level of controversy that now prevails across much of the public domain. Many of the key laws and policies governing the public lands are firmly rooted in the past when the West and the demands on its lands and resources were quite different than is the case today. (17) In fact, nearly fifty years have elapsed since the last comprehensive review of federal public land law, policy, and governance. That review, conducted in 1965-1969 by a congressionally created Public Land Law Review Commission (PLLRC or Commission), published a seminal report entitled One Third of the Nation's Land. (18) The report ultimately prompted major legal reforms that helped propel public land management into a new and now increasingly contentious era. (19) Given the changes afoot since then and the escalating level of conflict on the public lands, the federal land management agencies and their diverse constituencies would be well-advised to begin seeking a new path forward, one that might be guided by something akin to the 1960s public land law review commission.

In anticipation of the fiftieth anniversary of One Third of the Nation's Land, this Article addresses the question of whether it is time for another comprehensive review of public land laws, policies, and institutions, and what shape that review might take. The Article will first chronicle the dramatic changes that have occurred during the past fifty years and their effect on the federal public lands. It will then review the impact and legacy of past public land commissions, focusing particularly on the 1960s commission and its effect on public land law and policy. Next, the Article will highlight the arguments for and against another public land commission given the changes and controversies impacting federal lands and resources. The Article concludes by reviewing alternative strategies for conducting a comprehensive review of federal land law, policy, and governing arrangements.

II. A CHANGING WEST: TRENDS INFLUENCING FEDERAL LAND MANAGEMENT

By any measure, the pace of change is accelerating as the nation moves ever deeper into the twenty-first century. Perhaps nowhere is this more evident than in the American West and on the federal public lands, where mounting changes are provoking controversy and frustration over

existing laws and policies. (20) In April 2015, recognizing the expanding level of change and controversy engulfing the region's prized public lands, the Center for Natural Resources & Environmental Policy (University of Montana) and the Wallace Stegner Center for Land, Resources and the Environment (University of Utah) convened recognized experts on federal public land law, policy, and governance for an exploratory workshop. (21) The workshop coincided, intentionally, with the approaching fiftieth anniversary of the last PLLRC, which represents the last comprehensive review of federal public land law and policy. (22)

The participants--dubbed the Wasatch Front Working Group--began their deliberations by identifying the most salient changes that have occurred over the past fifty years, focusing on social and economic trends, emergent environmental concerns, scientific and technical advancements, new management tools, and the legal and institutional framework governing federal public lands. (23) Realizing that "these changes cut across categories," the participants identified nine overarching trends with significant implications for federal land law, policy, and governance. (24) Collectively, these trends point toward the need to rethink the basic legal and institutional structure governing the western public lands.

1. The Nation's Fastest Growing Region

   The American West boasts many of the country's fastest growing states and communities in the...