VIEWS FROM THE FEDERAL AGENCIES AND THE HILL: FOREST SERVICE
| Jurisdiction | United States |
(Jan 2017)
VIEWS FROM THE FEDERAL AGENCIES AND THE HILL: FOREST SERVICE
Deputy Regional Attorney
Office of the General Counsel
U.S. Department of Agriculture
Denver, CO
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KENNETH D. PAUR is the Deputy Regional Attorney for the Mountain Region of the USDA Office of the General Counsel in Denver, Colorado, which provides legal services to all agencies of the USDA in the Interior West. He previously served as the Assistant Regional Attorney in charge of the Ogden, Utah Field Office from 2000-2013, and as an Attorney in the Ogden Office since 1991, where he provided legal services to the Intermountain Region of the U.S. Forest Service. Mr. Paur's areas of practice emphasize real property, mineral, and water law, but he has worked extensively in all areas of public land, natural resources, environmental and administrative law affecting the Forest Service and the National Forest System. Prior to coming to the Office of the General Counsel, he worked as a forester with state agencies in Utah, Colorado, and Virginia, as a private land surveyor, and as a Land Law Examiner and Natural Resources Specialist with the U.S.D.I. Bureau of Land Management. Mr. Paur earned his J.D. from George Mason University School of Law in 1989, where he was awarded the Virginia Environmental Endowment Environmental Law Fellowship. He holds an A.A.S. in Forestry and Land Surveying from Paul Smiths College, and a B.S. in Forest Management from Utah State University. He is admitted to the Virginia State Bar.
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Disclaimer: The views expressed herein are those of the author, and do not necessarily reflect the views of the Department of Agriculture, the Office of the General Counsel, or the Forest Service
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Preface
Most of us take for granted the vast system of National Forests, National Parks, Wildlife Refuges, Wilderness areas, and Public Lands that pervade the western states, but which are located throughout the United States. In recent decades, we have also grown accustomed to lively debates over the allocation of use of these lands: Spotted Owl habitat versus timber production; motorized recreation versus non-motorized recreation; sage grouse habitat versus energy development; wilderness versus multiple use; energy corridors versus Native American cultural interests.
Yet, the reservation of large areas of federal land for public purposes has been the subject of controversy since the very earliest reservations of land for national parks and national forests and, while the debate over the administration of those lands, and even whether such reservations ought to exist, has waxed and waned over the last century and a quarter, in recent years it seems to have reached a fever pitch. Utah has enacted a statute demanding that the federal land within the State be turned over, and several other states are considering similar legislation.
Demonstrations by ranchers, off-road enthusiasts, and Native Americans have captured national headlines. The courts are inundated with lawsuits challenging the administration of federal public land.
Amidst the rancor, fundamental questions are being raised about the legal, historical, and cultural underpinnings of our federal public land system. Constitutional and property rights theories are propounded with great enthusiasm, with a fervent belief in their novelty and rectitude. See: A Legal Analysis of the Transfer of Public Lands Movement, Robert B. Keiter and John C. Ruple, Wallace Stegner Center for Land, Resources and the Environment, University of Utah S.J. Quinney College of Law, White Paper No. 2014-2; Report of the Public Lands
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Subcommittee, Western Attorneys General Litigation Action Committee, Conference of Western Attorneys General (July 19, 2016). While it can be expected that there will be continued lively discussions about the future of our federal public lands, every once in awhile we should step back and reflect on the history and development of the law that created the Federal public land system we have today. This paper touches on most of the current, popular theories challenging the authority of the Federal government to reserve and administer land for public use, with emphasis on the National Forest System.
Introduction
The system of federal land that encompasses the national forests and national grasslands across the country has it origin in a one paragraph statute, enacted in 1891, which authorized the President to set aside federal lands as national forests, but said little about how those lands were to be administered and used. 16 U.S.C. § 471, 26 Stat. 1103 (March 3, 1891). Today, there is a complex array of laws governing this "National Forest System," providing for federal regulation of the use of the land, requiring the protection of the land and resources located thereon, defining processes for the public and state and local government to participate with the federal government in the administration of the National Forest System, and providing for judicial oversight to ensure compliance with these laws.
Understanding the authority of the Forest Service to: administer the national forests; regulate the occupancy and use of National Forest System land for the protection of the land, natural resources, forest visitors, and Forest Service employees; and enforce laws that are related to the administration of the National Forest System, requires some examination of the history leading to the creation of the National Forest System, and the enactment of laws which govern it. This paper will discuss the history of federal land ownership that led to the creation of the National Forest System and the laws governing its administration, examine the constitutional, statutory, and regulatory authorities which allow the Forest Service to administer the national forests and enforce federal laws related to the national forests, and hopefully dispel some common misperceptions about limits on Forest Service authority. Finally, the application of state and federal laws to acts which occur on National Forest System land is discussed.
I. History of the National Forests
A. Acquisition of Land by the United States
The area of the continental United States west of the original thirteen states was acquired by the federal government beginning with the cession of claims to land within that area by the original thirteen states. Some of the original thirteen colonies claimed vast territories to the west of their present day boundaries. At certain points in time, some of these claims encompassed land all the way to the Pacific coast. Following independence from Britain, the original states agreed to cede these western land claims to the federal government.
However, regions within this area of land were also claimed by Great Britain, France, Spain, Mexico, Russia, and Native Americans. In order to secure its claim to land in the western
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territories, the United States had to extinguish these competing claims. This was accomplished by purchase, treaty, and conquest. Beginning in 1803, the Louisiana Purchase from France added land between the Mississippi River and the Continental Divide to the United States. The western boundary of the Louisiana Purchase extended along the Continental Divide from Canada down to Santa Fe, before turning southeast through what is now Texas and Louisiana, thus encompassing what is now northeast new Mexico. Other land was added to the United States by treaties with Spain, Britain, Mexico, Russia, Indian tribes, and Texas. By 1853, the United States had secured possession of what is now the continental United States from all competing claims, except the claims of Native Americans. Most of these Native American claims were ultimately ceded to the United States by treaty.
The complex history of land acquisition by the United States that is now encompassed by the State of New Mexico provides an illustrative case study. The portion of New Mexico east of the Rio Grande was originally claimed by Texas pursuant to its treaty with Mexico. Texas won independence from Mexico in 1836, and operated as a sovereign nation until annexed by the United States by mutual agreement in 1845. The claim by Texas actually encompassed not only what is now New Mexico east of the Rio Grande, but extended north through parts of present day states including: the Oklahoma panhandle; Kansas; Colorado; and Wyoming. The area claimed by Texas also encompassed land the United States believed it had acquired from France in the Louisiana Purchase, and land later obtained by the United States from Mexico under the Treaty of Guadalupe Hidalgo in 1848. The boundary claimed by Texas was disputed by the United States until the 1850 Compromise, which fixed the present day boundaries of the State of Texas as part of a larger agreement concerning slave and non-slave states.
Most of the area of New Mexico west of the Rio Grande was acquired by the United States under the Treaty of Guadalupe Hidalgo, following the war with Mexico in 1848. The 1848 Treaty fixed most of the modern day boundary between Mexico and the United States, from the Gulf of Mexico to the Pacific coast, and Mexico ceded any claims north of that line. Therefore, under the Treaty of Guadalupe Hidalgo, Mexico also relinquished any remaining claim it may have had to what is now eastern New Mexico to the United States. The remainder of the modern day boundary with Mexico was fixed by the Gadsden Purchase in 1853, which acquired the portion of what is now Arizona south of the Gila River for the United States, as well as the southwest corner of modern day New Mexico.
B. The Creation of States
Article IV, Section 4 of the U.S. Constitution empowers Congress to admit new states into the Union. States were created by enactment of federal enabling statutes that allowed the...
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