Recreation wars for our natural resources.

• Author: Laitos, Jan G.
• Position: Public Lands Management at the Crossroads: Balancing Interests in the 21st Century

1. INTRODUCTION II. THE THREE ERAS OF NATURAL RESOURCES MANAGEMENT A. Era I: Commodity Development B. Era II: Environmental Protection C. A New Era of Conflicts: Preservationists, Recreationists, and More Recreationists 1. Three Competing Use Preferences 2. The Central Conflict: Low impact v. High Impact Recreationists 3. Strange Bedfellows III. GOVERNMENTAL AND JUDICIAL RESPONSES TO ERA III CONFLICTS: THE MULTIPLE-USE-DOMINANT-USE DEBATE A. Statutory Solutions 1. Agency Rule: Nonsegregated or Segregated Multiple Use? 2. Court Rule: Resolving Disputes Between the Three Recreation Groups a. Group III v. Group I--Motorized v. Preservation and Low Impact, Nonmotorized b. Group III v. Group II--Motorized v. High Impact, Nonmotorized c. Group I v. Group II--Low Impact, Nonmotorized v. High Impact, Nonmotorized d. Structures to Aid Recreation B. Common Law Solutions 1. The Public Nuisance Doctrine 2. The Public Trust Doctrine IV. FACTORS CONTRIBUTING TO TIlE EMERGING GROUP I RECREATIONAL, DOMINANT-USE PARADIGM A. Location B. Wildlife C. A New Ethic: Preservation, Not Economics D. Public Demand E. Judicial Override of Politically Driven Decisions V. CONCLUSION I. INTRODUCTION

   The management of natural resources has gone through several philosophical shifts over the past 150 years. Those changes in management philosophy have paralleled changes in attitudes about natural resources use. Resource extraction gave way to pollution control and restoration, which now compete with preservation and recreation. These use and management trends occurred in three time periods.

   Era I (roughly 1862-1964) arose with westward expansion and the passage of the first mining and timber harvesting laws as governments encouraged commodity developers to search for and remove valuable resources. Disputes ensued both among commodity users and between commodity users and the government as these parties attempted to sort out their rights under these new laws. The environmental problems that emerged from Era I influenced Congress to pass an influx of environmental laws, which heralded the start of Era II (roughly 1964-1990s). Era II sought to reconcile extractive commodity demands with popular environmental values, such as preventing the depletion of natural resources, maintaining clean air and water, and preserving landscapes and endangered species. Environmental protection groups and government agencies used these new laws to challenge commodity users. Environmental protection groups also used these new laws to challenge government decisions permitting the extractive use of resources. Although Era II disputes still arise, we are moving into another era--Era III. This new era--the focus of this Article--marks a change in natural resource use from environmental protection to preservation and recreation. In Era III, mineral development, logging, and grazing no longer seem to represent the primary uses of natural resources. Instead, preservation and recreation are becoming the primary use preferences.

   Part II of this Article explains the three eras, as well as the statutes, goals, and players characteristic of each. Part II then focuses on Era III and the different types of preservation and recreation use preferences which that have caused the disputes that have emerged. Part III of this Article describes conflicts unique to the new era. In Era III, courts and federal administrative agencies are forced to use Era I and Era II statutes to resolve these conflicts. Statutes enacted to resolve disputes among commodity users or conflicts between environmental advocates and resource developers are being used to sort out disagreements between different types of recreational users. Additionally, agencies and courts are now increasingly being forced to resolve a central issue: Do competing preservation and recreation interests fit best into a dominant-use paradigm where preservation with low impact recreation is the only use, or can the various types of recreation successfully coexist within a traditional multiple-use philosophy? Part IV elaborates on the factual and legal variables that influence these new decisions by Era III courts and agencies. Part V concludes by suggesting that multiple preservation and recreation uses are ultimately incompatible, and therefore, courts and administrative agencies should--and in fact are--favoring a dominant-use model. In such a model, preservation coupled with low impact, nonmotorized forms of recreation become the primary uses of natural resources.

2. THE THREE ERAS OF NATURAL RESOURCES MANAGEMENT

   The three eras of natural resources law are defined by the goals of each era, Congress's statutory response to these goals, and each era's particular conflicts and their judicial resolutions. The incentive to discover and develop hard rock minerals, off and gas, timber, and other valuable commodity resources in the West shaped Era I. In response to commodity users litigating against each other and the federal government to determine their respective rights and obligations under the law, Congress passed mining and forestry statutes to encourage and regulate use. To resolve Era I conflicts, courts determined legislative intent behind these statutes--the ultimate intent often being a multiple-use paradigm where miners, loggers, and ranchers shared and exhausted the same land.

   The goals of conserving the natural resources used by Era I commodity users and ensuring that commodity users and the government considered environmental factors before engaging in consumptive resource use defined Era II. To further these goals, Congress passed laws that sought to manage natural resources, plan for the impacts of their use, and control the pollution that followed from their use. Environmental groups used these statutes to force commodity users and the government to comply with the Era II goals. Although the values of Era II were substantially different than those of Era I, Era II still relied on a multiple-use system as the controlling resource management philosophy.

   In Era III, recreation and preservation have become the primary goals for many natural resources users. Unlike Eras I and II, however, Congress has not passed laws aimed specifically at the proper allocation of resources to use for recreation or preservation purposes. As different types of recreational users--from pure preservationists to motorized vehicle users--litigate against each other and the government, courts and administrative agencies must use Era I and Era II statutes to resolve new conflicts. Era III decision makers must also decide if we should continue managing natural resources in a traditional multiple-use capacity or adopt a dominant-use paradigm, with preservation and low impact, human-powered recreation, such as hiking, as the primary uses.

   1. Era I: Commodity Development

      Era I began in the 1860s with the passage of the Homestead Act (1) and the first mining and forest management laws of the late 1800s. (2) It continued until the enactment of the Wilderness Act of 1964, (3) whose passage suggested that a nondevelopment ethic was establishing itself. At the beginning of the era, Congress enacted laws designed to bring about the settlement of western public lands. (4) Congress encouraged developers of natural resources to move to the West to search for gold, silver, off, and other valuable minerals. To aid this growth, Congress passed the 1872 General Mining Law, which gave mineral developers private rights to publicly owned energy resources. Along with the General Mining Law, the Mineral Leasing Act, (5) the Forest Service Organic Administration Act, and the Taylor Grazing Act (6) aided in the achievement of Era I's goal of growth.

      During this time, Congress decreed a multiple-use standard in the Multiple-Use Sustained-Yield Act of 1960 (MUSYA). (7) But multiple-use standards had guided resource-use decisions since the days of Gifford Pinchot and Theodore Roosevelt. (8) A multiple-use philosophy assumed that, with systematic scientific management, many seemingly incompatible uses--including logging, mining, grazing, and even recreation--were theoretically possible within an area. This notion of multiple uses was consistent with the goal of this era: making the most efficient and exhaustive use of the land's valuable resources.

      As commodity users tried to determine their respective rights under these various public lands statutes, Era I pitted commodity users against each other and against the government. Most early judicial claims involved the mining laws. Due to confusion regarding states' authority to regulate claim location, (9) procedures for properly making a discovery, (10) and the process for obtaining a patent for a claim, (11) mineral developers often disputed who had exclusive title to a mineral claim. This confusion, along with the different rules for lode and placer claimants (12) and the questions that arose for developers using a tunnel as their means for exploration, (13) expanded the need to involve the courts. Additionally, mining companies had to determine what Congress intended with respect to extralateral rights (14) and the annual assessment work that was required to maintain rights up until the time of patent. (15) Mineral developers had to apply these concepts not only to hardrock minerals but also to oil claims. Developers had to litigate to determine whether the discovery step required for hard rock mineral claimants also applied to oil developers. (16)

      Later in Era I, mining laws were amended or altered with the implementation of new statutes, such as the Mineral Leasing Act of 1920, the Materials Act of 1947, (17) and the 1955 Surface Resources Act. (18) With the passage of these laws, mineral developers and courts had to decide which minerals were controlled by which statute, (19) which lands were open to leasing, (20) what obligations arose under these new laws, (21) and what situations gave government regulators...