The Public Lands

There's a reason every poll in the nation has shown a large majority of the public wanting more and better-protected public lands.

BY JOHN LESHY

With a new administration in the nation’s capital, it is a good time to take a quick look back at the long history of America’s public lands to see what it may tell us about the future. By public lands, I mean those managed by the four major agencies — the Forest Service, Park Service, Fish and Wildlife Service, and Bureau of Land Management.

The Trump administration compiled the worst public lands record of any presidential administration since the Civil War. It concentrated on two things: first, turning as many public lands as possible over to the fossil fuel industry in a futile attempt to stop its inevitable decline; and second, undoing or weakening protections for public lands everywhere it could, such as severely downsizing Bears Ears and Grand Staircase-Escalante national monuments. 

The good news is that nearly all of Trump’s regressive actions were done solely through executive power. Thus they can be, and are being, reversed by the Biden administration.

Not all the news is good. The Trump administration’s relentless assault on science and on the federal agencies looking after these lands will be harder to undo. Four years were lost in facing the daunting challenges of climate change and biodiversity loss. And little was done to deal with the dramatic rise in recreational use of public lands, which has put more burdens on already stretched managers and aging infrastructure.

Some libertarians deride the public lands as “political lands.” While they use the label scornfully, they are right — the political process has always determined the fate of these lands. Although many in today’s sour, cynical atmosphere are quick to conclude that our political process never produces good results, the public lands have long furnished a conspicuous counterexample. Viewed broadly, they are a political and governmental success story, an institution justly celebrated by a large majority of Americans. 

Two characteristics have long marked the political decisions the nation has made regarding these lands. First, they have almost never involved sharp divisions along political party lines. Second, the trend of these decisions has been remarkably consistent — nearly always to preserve more and more lands and to hold them open to all for recreation, education, science, and conservation of biodiversity and cultural resources.

RICK GOLDWASSER

From the beginning, America’s public lands were an instrument of national unity — except from the viewpoint of Native peoples dispossessed by the European invaders. The formation of the first national government after the Declaration of Independence was stymied for years by a dispute among the 13 former colonies. Seven of them claimed vast amounts of land west of the Appalachians based on vague language in their colonial charters. The remaining six had fixed western boundaries and feared that they would be dominated by the land-rich seven. The dispute ended when the seven with western land claims — placing the nation’s unity above their individual interests — agreed to cede them to the national government. These were our nation’s first public lands. 

Over the next several decades, the nation used them, and others it acquired from foreign governments and Native Americans, to build and hold the nation together as Euro-American settlement extended across the continent, and new states were admitted to the union.

During this era, Native Americans lost nearly all their lands. The process almost always followed this sequence. First, a changing cast of characters — speculators, squatters, miners, railroads, developers, timber and livestock operators — dispossessed them, usually through coercion, sometimes violence, and often backed by the U.S. military. Then, the U.S. acquired formal title to the lands through arrangements that, while providing Native Americans some compensation, could never be enough to make up for the enormity of their loss. 

The powerful political movement to set aside significant amounts of public lands for broad protective purposes did not flower until years — often, many years — after the U.S. acquired title to them from the Native Americans. Congress protected Yosemite in 1864 and Yellowstone in 1872, but it was not until the last decade of the 19th century that Congress kicked off what became a long string of decisions to hold onto, and protect for general public enjoyment, hundreds of millions of acres of public lands. 

How these decisions were made has been widely misunderstood. Many people, especially in the American West, subscribe to the myth that most of today’s public lands resulted from a land grab by the national government strongly resisted by states and local communities.

BOB WICK, BUREAU OF LAND MANAGEMENT

The truth is very different. The decisions the U.S. government made to safeguard these lands almost always had strong local support. By the time Congress decided in 1891 to give the president broad power to reserve public lands in what were eventually labeled national forests, all of the Western states except Utah, Arizona, and New Mexico had been admitted into the union, and none of their representatives in Congress objected.

One of those representatives was Montana congressman Thomas Carter. Later that year President Benjamin Harrison made Carter the head of the General Land Office — the government agency then in charge of practically all the public lands. Carter was the first person from a Western state to hold the post. Under his leadership, the office put a hold on all transfers of land out of U.S. ownership in the upper parts of watersheds all over the West, consulted with local citizens, and formulated recommendations to the president regarding how much land to put in what were then known as “forest reserves.” 

The next several presidents, Republican and Democrat, set aside most of what is now the national forest system, almost always with strong support in the region. Theodore Roosevelt was the most vigorous in using that power. In the 1904 presidential election, he handily carried every Western state — hardly a reflection of discontent. In fact, during this era, Congress never made any effort to undo any of Roosevelt’s extensive protective actions, and itself took action several times, with strong local support, to protect specific areas of public lands.

That Congress took such steps only with local support illustrates a fundamental feature of the legislative process. It almost never acts to protect, or authorize the executive to protect, public lands without the approval, or at least the acquiescence, of the members of Congress representing the affected area. This de facto veto power held by local representatives is because few members of Congress who represent other places are willing to ignore their objections, for fear that next time the tables could be turned on them.

Examples of this are found all over the country. Iconic national parks like the Great Smoky Mountains and the Everglades in the southeast and Big Bend in Texas exist because the states and local citizens acquired the lands and donated them to the national government to be protected. Similarly, the U.S. government acquired and protected the White and Green Mountain national forests in New England because state and local leaders asked it to do so. 

All these initiatives had strong support on both sides of the aisle. Grover Cleveland, a Democrat, first protected what became Crater Lake National Park in Oregon at the request of the state’s leading Republicans, including the governor and members of the state’s congressional delegation. Republican presidents Calvin Coolidge and Herbert Hoover first protected Glacier Bay in Alaska and Death Valley in California, respectively. President Eisenhower’s interior secretary, Fred Seaton, first protected the multi-million acre Arctic National Wildlife Refuge in Alaska.

TIM PETERSON

Despite this history, some have regarded the so-called “sagebrush rebellion” in the late 1970s as proof that the public lands are a flash point for partisan and sectional conflict. Again, the facts are to the contrary. The “rebellion” was never taken seriously by Congress. It is true that the brief tenure of Ronald Reagan’s first interior secretary, James Watt, a libertarian, was marked by his strenuous efforts to open up wilderness areas onshore, and practically all offshore lands, to the oil and gas industry. But Watt was rebuffed by bipartisan opposition in Congress and in the affected states, and became a political liability. Reagan quickly steered back to the middle on public lands issues. Indeed, before he left office he had signed legislation putting more acres of public land in the lower 48 states into the National Wilderness Preservation System than any other president. 

It is also true that in modern times more Republicans than Democrats use rhetoric hostile to the public lands, and the Republican Party’s platform has sometimes included planks that called for selling off many public lands. But that posturing doesn’t change the facts. Over the past 40 years, Congress has continued to enact, with strong bipartisan support, legislation protecting more public lands. Congress and the executive have also expended billions of dollars to acquire and protect even more land, and, importantly, have taken steps to give Native Americans more influence over the management of public lands of deep cultural significance to them.

These actions are not part of some nefarious socialist plot. Rather, they simply show our political process working as it was designed to work, where the national government responds to public opinion by translating it into laws. To be sure — as on practically every issue where a broad consensus supports governmental action — there is a small if sometimes noisy group of dissenters, hostile to just about everything the government does. But for years every poll in every region of the nation has shown that a large majority of the public wants more and better-protected public lands. People are, moreover, voting with their feet, as recreational visits to public lands have shot up in recent years. 

This trend continued even in the Trump era. Republican John Curtis steered legislation through Congress in 2019 that established new protections for several hundred thousand acres of public lands in his southern Utah district. These lands were, ironically, not far from the 1.35 million acre Bears Ears National Monument that President Obama established in 2016 and President Trump shrank by nearly 90 percent in 2017. With the Trump administration winding down, Congress fundamentally strengthened the Land and Water Conservation Fund. Established in 1964, the fund provides a stream of money, derived primarily from public land mineral development revenues, for federal, state, and local government agencies to buy more land for conservation and recreation. But as originally designed, it required Congress to renew the fund periodically, and to enact legislation each year in order to spend money accruing to it. The result was that, between 1965 and 2019, Congress spent less than half of the more than $40 billion the fund earned. With strong bipartisan support, Congress made it permanent in 2019, and in 2020 made it a true revolving fund, permitting its revenues to be spent as they accrued. 

All this has set the stage for the Biden administration to deepen and strengthen the long tradition of protecting one of America’s finest and most beloved institutions, its public lands.

 John Leshy, emeritus professor at U.C. Hastings College of the Law, serves on the board of the Grand Canyon Trust. He was general counsel of the Interior Department from 1993 to 2001. This essay draws on themes developed in his political history of America’s public lands, “Our Common Ground,” forthcoming from Yale University Press.

 EDITOR'S NOTE: The views expressed by Advocate contributors are solely their own and do not necessarily represent the views of the Grand Canyon Trust.