Volume 20, Number 6
September 2003

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By Paul Smyth

Paul Smyth serves as deputy associate solicitor in the Division of Land and Water Resources in the Department of the Interior's Solicitor's Office.

This article explores the history of preservation and conservation law in this country as it relates to federal public resources and the federal land managing agencies responsible for those resources.

Withdrawal and reservation. As the public domain diminished, concerned leaders feared that special places such as Yellowstone could be lost to homesteading or mining unless the lands were withdrawn from the operation of the public land laws and reserved for a particular purpose, such as preservation as a national park. In response, after designating certain individual parks such as Yellowstone and Yosemite in the late nineteenth century, Congress enacted the National Park Service Organic Act in 1916, creating the National Park Service to manage national park system lands. Earlier, near the turn of the twentieth century, Congress had created the national forest system, also by withdrawing these lands from entry by homesteaders and miners and reserving them for particular purposes. In the Reclamation Act of 1902, Congress delegated authority to the Bureau of Reclamation to reserve dam sites from the public domain. Through all of these withdrawals and reservations, the massive disposal of the public domain into private hands was largely halted.

In the reservation era, federal lands were protected by wholly removing them from the operation of the public land laws. So, the lands were either subject to the Homestead Act, Mining Law, and other disposal laws or they were not. As the twentieth century progressed, however, Congress began giving the secretary of the interior more and varied tools by which to administer the public domain more flexibly. For example, the Mineral Leasing Act of 1920 removed coal, oil, and gas from the operation of the General Mining Law and gave the secretary discretion whether to lease lands valuable for these minerals.

The administrative state and the environmental era. Throughout the New Deal, Congress and the president created a plethora of new agencies, and a real expansion of agency power occurred. The secretary of the interior even got into the act by creating the Bureau of Land Management (BLM) in 1946 by combining the General Land Office and the Grazing Service. Shortly after World War II, Congress enacted the Administrative Procedures Act (APA), which gave a framework for the exercise of agency discretion, and it became embedded in the practice of the departments of the interior and agriculture, as it has throughout government, that agency actions be subject to the APA.

With the advent of the environmental era in the 1960s and early 1970s, environmental concerns began to inform the exercise of agency discretion. The National Environmental Policy Act (NEPA) ensures that the environmental consequences of an action be analyzed as a requirement for the proper exercise of agency discretion. The Endangered Species Act requires consultation with fish and wildlife managing agencies before federal actions affecting listed species can occur.

The preservation objective is also accomplished through the passage of laws that give federal land managing agencies common missions in addition to the specific management missions in their respective statutes. For example, the Wilderness Act of 1964 provides a common preservation regime for federal lands that Congress has designated as wilderness, regardless of the federal land manager.

The public lands today. Congress enacted the Federal Land Policy and Management Act of 1976 (FLPMA), which officially changed the nineteenth-century presumption that the federal government would hold the public domain only temporarily until disposal under the public land laws, to a twentieth-century presumption of federal retention and management. Literally, there is a wholesale repealer at the end of FLPMA of hundreds of the old public land laws. The two big exceptions to the FLPMA repealer are the General Mining Law of 1872 and the Antiquities Act of 1906.

Before FLPMA, BLM could be aptly referred to as the "Bureau of Livestock and Mining." The agency had no clear congressional mandate to preserve the public domain, and its culture was supportive of the extractive industries using the public lands. To be sure, FLPMA continued the multiple-use mandate for the public lands, but it also gave BLM authority to inventory, plan, and implement management decisions on the public lands. It gave BLM an express preservation mission for the first time by requiring a wilderness inventory of all public lands and the creation of wilderness study areas where certain criteria were met.

Nonetheless, the public lands remain essential to the economy and to the energy security of the nation precisely because BLM remains free to manage most of its land for multiple uses. For example, oil and gas leasing on public lands generates revenues for both the federal government and the states and reduces our reliance on foreign sources. Electric transmission lines across public lands alleviate regional energy shortages by allowing for the efficient distribution of power.

Lingering effects of historical policies. While FLPMA officially ended the disposal era in 1976, federal land managers are still dealing with the legacy of nineteenth-century disposal policy. For example, state land grants were never uniform blocks of land but often consisted of recurring patterns of land resulting from the rectangular survey system. Congress originally intended these land grants to generate income for fledgling states in support of schools and other governmental services. The State of Utah has a constitutional provision that state lands be held in trust and managed for income to support state schools. Over time, as Congress and the president withdrew and reserved federal lands, an increasing number of Utah's state lands were captured within these reservations. These inholdings have created difficult and persistent federalism issues because the management mission of the surrounding federal reservations is incompatible with the legal requirements for the captured state tracts.

Railroad land grants are another problem inherited from the nineteenth century. Congress granted the railroads public lands along each side of the right-of-way along designated routes for railroad construction. Opponents of the grants had argued that these grants were a federal giveaway. As an answer to this criticism, Congress adopted a practice of granting only "every other" section along the rights-of-way. This solution created vast swaths of intermingled private and federal "checkerboard" lands throughout the country.

Another nineteenth-century legacy is abandoned mines and mine waste. Long-abandoned mines and mine tailing piles are still degrading watersheds throughout the country, often with no responsible parties available to pay for cleanup. Abandoned mines are not the only hazardous waste issues. For example, former defense sites have been transferred to federal civilian land managers for historic preservation or for wildlife habitat. These lands often are contaminated and require significant cleanup funds.

In 1996 the president signed an order delegating authority to federal land managing agencies to enforce the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on the lands they manage. This delegation authorizes federal land managers to enforce cleanup of federal lands in a manner similar to the Environmental Protection Agency's authority on private lands. This new authority puts federal managers in control of cleanup activities on lands they manage, rather than being just one more potentially responsible party by virtue of land ownership.

- This article is an abridged and edited version of one that originally appeared on page 77 of Natural Resources & Environment, Fall 2002 (17:2).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/environ/.
- Periodicals: Natural Resources & Environment, quarterly magazine; Trends, bimonthly newsletter; The Year in Review, annual summary of legal developments.
- Books and Other Recent Publications: Clean Water Act Handbook, 2d ed.; Issues of Legal Ethics in the Practice of Environmental Law; and the Basic Practice Series with titles including FERC, RCRA, CERCLA, EPCRA, Clean Air Act, ESA, FIFRA, and TSCA.

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