THE EMERGING LAW OF OUTDOOR RECREATION ON THE PUBLIC LANDS.

• Author: Keiter, Robert B.

1. Introduction. 90 II. Historical Overview: Outdoor Recreation During the 20th Century 93 A. Federal Recreation Milestones: Facing a Gathering 93 B. Recreation and the Agencies: Rising on the 98 III. Recreation in the 21st Century: Mounting Problems and Conflicts. 103 A. Soaring Visitation and Related Impacts 104 B. The Economics and Politics of Outdoor Recreation. 110 IV. The Legal Framework Governing Recreation. 113 A. National Parks 114 B. Natio nal Wildli fe Refuges 119 C. National Forest System 122 D. Bureau of Land Management Lands 128 E. Wilderness and Other Protective Designations 132 F. NEPA, Wildlife, and Tort Law'. 137 G. Funding Legislation 142 V. Meeting the Recreation Challenge. 144 A. Assessing the Law of Recreation. 145 B. Contemplating the Path Forward 153 VI. Conclusion 158 I. INTRODUCTION

   Outdoor recreational activity is now ubiquitous across the nation's public lands, presenting increasingly difficult management challenges for responsible federal agencies. The expansive federal public lands have long served as a kind of "commons" for recreation, offering attractive open spaces where everyone was welcome and could pursue an array of outdoor activities. Since the post-war 1950s, the number of visitors seeking recreational opportunities has grown enormously while land managers have found themselves hard-pressed to provide necessary space, facilities, and services to accommodate the escalating demands and activities. (1) As the ranks of recreationists have swelled, environmental damage has become ever more visible along with conflicts between the participants--personified by intense controversies over motorized use, wilderness designation, mountain biking, and hunting. (2) These growing problems, though commonly linked to individual choice in recreational preferences, are also coupled to powerful economic and political forces that are driving what some now regard as an "industrial scale" recreation problem. (3) Curiously, despite the level of conflict that pervades recreational activity on the public lands today, the legal framework governing what has become a dominant use of these spaces is remarkably embryonic. (4)

   The federal public lands sprawl across 640 million acres, representing about twenty-eight percent of the U.S. land base. (5) Mostly located in the western United States, these lands are overseen by four land management agencies with diverse legal responsibilities. The National Park Service and the U.S. Fish & Wildlife Service (FWS) operate under largely preservationist--or dominant use--legal regimes that embrace recreation as a principal use. (6) In contrast, the Forest Service and the Bureau of Land Management (BLM) are governed by multiple use mandates that include recreation as a permitted use along with other more consumptive ones. (7) Although each agency's resource management priorities have evolved over time, they are all beset today with recreational management challenges linked to the sheer number of people seeking their own individual outdoor experiences. Wilderness hikers, mountain bikers, off-road vehicle (ORV) enthusiasts, hunters, anglers, kayakers, backcountry skiers, climbers, bird watchers, and many others have all staked claims to the public domain in pursuit of their own preferred activity, but they cannot all play amicably in the same place. Collectively, they have spawned an outdoor recreation economy that accounted for 2.2 percent of the nation's gross domestic product in 2017, putting it well ahead of mining, timber, livestock grazing, and most other natural resource-related industries. (8) Not only must land managers balance between differing recreational uses and prioritize among recreation and consumptive uses, but they must also take account of conservation and environmental concerns, including wildlife habitat, water quality, and aesthetic values.

   For over a century, outdoor recreation has drawn attention from diverse quarters. From their earliest days, the Park Service and Forest Service have engaged in a competitive rivalry to provide wilderness and other recreational opportunities to adventurous visitors, (9) while the hunting and fishing community has long ties to the national wildlife refuges. (10) The BLM, a relative latecomer to the recreational scene, (11) has recently found itself embroiled in an array of wilderness, ORV, and related controversies. (12) Since the 1950s, several high-profile commissions have been convened to examine and improve available recreational opportunities. (13) Periodically, Congress has established new recreation-related designations on the public lands, such as national recreation areas and wilderness areas, and also created new funding mechanisms designed to support recreational opportunities. (14) However, other than mostly general references to outdoor recreation in the organic legislation governing the land management agencies, Congress has provided little definitive guidance on the subject. This leaves recreation policy primarily in the hands of the individual agencies and, more recently, the courts, guided largely by conservation-related statutes and available funding. Thus, without the extensive legal standards that govern other public land resources and uses, such as timber harvesting, mining, livestock grazing, water usage, and energy development, recreation law and policy is evolving piecemeal with little congressional direction. Whether this is sufficient in light of the powerful forces driving modern recreational use is open to question.

   This Article will address the evolution, application, and future of the law governing recreation on the public lands. It begins with a historical overview of federal recreation policy to clarify how the issue has evolved over time. It then examines the recreation controversies and challenges confronting the land management agencies today, including the role economic and political pressures play in these issues. Next, it reviews the existing laws and policies governing recreation on the public lands as well as the important role that courts are playing in resolving recreation-related controversies and articulating an emergent common law of outdoor recreation. It concludes by assessing the current legal framework and then outlining suggestions to improve the existing legal structure.

2. HISTORICAL OVERVIEW: OUTDOOR RECREATION DURING THE 20TH CENTURY

   The wide-open spaces found on the nation's diverse public lands have long attracted recreational interest and participants. Beginning with the national parks, the four federal land management agencies have each supported and encouraged recreational activities on their landholdings, though under different legal regimes and on different time trajectories. As public interest in outdoor recreation mounted during the 20th century, both Congress and the President engaged the issue through legislation, review commissions, and executive orders. The result was a series of legislative enactments, executive actions, and milestone reports addressing outdoor recreation generally while the individual agencies were mostly left to develop their own recreation policies and responses.

   1. Federal Recreation Milestones: Facing a Gathering Storm

      In the early 20th century, interest in outdoor recreation on the federal estate was just beginning. A handful of mostly undeveloped national parks--several championed by the legendary conservationist John Muir--attracted a few stalwart individuals with the money and time to travel by rail to such distant locales as Yellowstone, Yosemite, Sequoia, and Mt. Rainier in the then-remote western states. (15) They mostly came for the scenery, though Muir also extolled the recreational and spiritual renewal aspects of a trip to the mountains. (16) The original forest reserves--established during the 1890s and soon converted into the national forest system--also offered recreational opportunities, but they were mainly valued for their timber, water, and other consumptive resources, including minerals, forage, fish, and game. (17) Elsewhere the federal government was intent on disposing of its landholdings to encourage settlement and development of the sparsely populated West. (18) Most citizens were focused on making a living with little time for recreational pursuits.

      The situation changed within a couple decades. In 1903, President Theodore Roosevelt created the nation's first wildlife refuge at Pelican Island, Florida, laying the groundwork for what has become the national wildlife refuge system. (19) In 1916, Congress formalized the national park system, instructing the new National Park Service to manage the parks both for "conservation" and "public enjoyment." (20) Secretary of the Interior Franklin Lane interpreted the Park Service's new mandate to include recreation, not only describing the new system as "the nation's playground" but also asserting that "the recreational use of the national parks should be encouraged in every practicable way." (21) In 1920, Forest Service Chief Henry Graves--who had opposed creation of the national park system out of fear the new agency would purloin prime national forest lands for new parks--released a paper entitled A Crisis in National Recreation, which not only staked out an outdoor recreation role for the national forests but also advocated transferring the Park Service to the Department of Agriculture. (22) At Aldo Leopold's behest, the Forest Service soon entered the recreation arena by administratively establishing wilderness areas designed to accommodate multi-day pack trips. (23) Once the automobile appeared early in the century, travel to these attractive yet distant western settings soon became a possibility for a larger segment of the population. (24) Meanwhile, these early outdoor recreation developments ignited a rivalry between the Park Service and Forest Service that endures yet today.

      Although the Great Depression of the 1930s dampened public...