October 11, 2018

The Rise of the Outdoor Recreation Industry and Its Role in Multiple Use Management

Michael Hazel and Kayla Byers

This article is a revision of a paper written for the 64th Annual Rocky Mountain Mineral Law Institute entitled “Multiple-Use Management in a Landscape of Multiplying Demand: The Rise of Outdoor Recreation and Renewable Energy in Public-Lands Management” by Michael Connor, Michael Hazel, and Kayla Byers that will be published in December 2018. See https://www.rmmlf.org/publications/bookstore/64th-annual-institute-proceedings-2018 to purchase the annual institute proceedings.

“The President Stole Your Land and You Were Lied To”

Outdoor enthusiasts browsing the internet for the latest gear and apparel probably do not expect to stumble across such provocative political statements. But consumers visiting the website of popular outdoor retailer Patagonia in recent months have grown accustomed to finding bold messages in support of public lands intermingled with advertisements for the latest in synthetic-insulation technology. This particular message was a direct response to President Donald Trump’s proclamations reducing the size of two Utah national monuments: Bears Ears and Grand Staircase-Escalante. That Patagonia was willing to give its political activism equal billing with its shells and base layers is just one of many signs that the outdoor recreation industry—including not only Patagonia, but also many other well-known retailers—is increasing its advocacy and influence regarding the federal government’s management of the 640 million acres of public lands under its control.

The Bureau of Land Management’s Administration of Public Lands

Much of this public land is under the jurisdiction of one agency within the Department of the Interior: the Bureau of Land Management (BLM). BLM currently administers 248.3 million acres of federal public land, significantly more than any other federal agency. BLM land is concentrated almost exclusively in the western United States, with 99.4 percent falling within the 11 contiguous western states and Alaska.

Today, the BLM manages this vast segment of the US landscape pursuant to the multiple-use mandate in the agency’s organic management statute, the Federal Land Policy and Management Act (FLPMA). Enacted more than 40 years ago, FLPMA dramatically altered the BLM’s approach to public lands management. Historically, the agency had focused on land disposal, range management, and mineral disposal. FLPMA offered a new directive that requires the agency to instead balance competing uses on public lands across a range of interests: resource extraction, grazing, conservation, and recreation, among others. The statute requires the BLM to engage in land use planning and to “manage the public lands under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). The multiple-use mandate is the heart of FLPMA. But as the Supreme Court put it, “‘[m]ultiple use management’ is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put[.]” Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004).

In recent years, the BLM’s ability to manage public lands for multiple uses has become more complex than ever, as traditional public land users face heightened competition from an economically and politically influential outdoor recreation industry. This industry has increasingly inserted its voice into public lands management as it continues to amass greater economic and political power, grounded in public support. As Patagonia’s pointed messaging highlights, the multiple-use mandate inevitably requires BLM to make difficult choices among competing uses and frequently leads to passionate responses from stakeholders who feel their preferred use was not prioritized.

The Rise of the Outdoor Recreation Industry

The rise of the outdoor recreation industry as an economic and political force has led to even more players vying for the same public lands resources that were already the subject of competition among “traditional” users of public lands. The “outdoor recreation industry” is a broad term, and it encompasses a broad range of interests and activities: hiking, biking, climbing, paddling, and skiing, but also fishing, hunting, boating, off-roading, and snowmobiling. And its collective economic impact is enormous.

The Outdoor Industry Association (OIA), a national trade association representing manufacturers, retailers, distributors, nonprofits, and individuals in the outdoor recreation industry, estimated in 2017 that consumers in the United States spend $887 billion annually on outdoor recreation. This includes $184.5 billion on outdoor products (gear, apparel, etc.) and $702.3 billion on trip and travel spending (lift tickets, lodging, lessons, etc.). This is more than Americans spend each year on fuel and pharmaceuticals combined. The industry is also responsible for creating 7.6 million American jobs, ranging from guiding and outfitting services to product development and retail.

The growing economic force of the outdoor recreation industry has increasingly empowered its members to speak out on public lands issues, resulting in the emergence of a unique voice at the table in debates over public lands. It is important to distinguish the outdoor recreation industry from traditional conservationists or environmentalists, who have been active in these debates for decades. Although their interests may align on certain issues or projects, traditional conservationism focuses on the need to protect public lands from human impact to promote the preservation of ecosystems and species. While protection of public lands is an element of the outdoor recreation industry’s agenda, the movement more broadly advocates for ensuring continued access to and use of public lands by humans for recreational purposes.

Additionally, while environmentalism is often associated with “liberal” politics, there is broad bipartisan support for providing opportunities for outdoor recreation on public lands. A 2018 survey of voters in five western states found that 74 percent of individuals (90 percent of Democrats and 53 percent of Republicans) oppose significantly reducing the size of national monuments, including Bears Ears and Grand Staircase-Escalante. Center for Western Priorities, Winning the West Research Findings at 11 (July 18, 2018). Those surveyed also overwhelmingly recognized the contribution of public lands and the outdoor recreation economy to job creation and the overall economy in the West: 81 percent believe that the outdoor recreation economy will be very or somewhat important to the economic future of their state and the Western US, including 86 percent of Democrats and 76 percent of Republicans. Id. at 31.

Outdoor Industry Policy Successes

The outdoor recreation industry’s newfound activism in public lands issues has become increasingly apparent in recent years and has already led to some significant policy successes for the industry.

In December 2016, for example, President Obama signed the Outdoor Recreation Jobs and Economic Impact Act of 2016 (also referred to as the “REC Act”), which directs the Bureau of Economic Analysis within the Department of Commerce to analyze and calculate the outdoor recreation industry’s contribution to the US economy as a percentage of gross domestic product (GDP). The final report released in September 2018 concluded that the outdoor recreation economy accounted for $378.2 billion, or 2.2%, of the U.S. GDP, and that the industry had grown faster than the overall economy in 2016. Outdoor recreation groups have praised the law as providing a much-needed hook for the industry to influence the political and policy decisions surrounding public lands, and they will undoubtedly leverage this formal valuation of the industry’s economic influence when advocating for the importance of balancing outdoor recreation among other competing uses.

Outdoor retailers also played a key role in influencing President Obama’s national monument designations through efforts that included both political engagement and direct outreach to consumers to galvanize public support. Patagonia, for example, actively advocated for the designation of Bears Ears National Monument by meeting with federal officials, providing funding to local advocacy groups, and organizing public outreach to lawmakers, as well as publicly supporting the designation on its website, well-followed social media platforms, catalogues, and blog. Similarly, Keen Footwear, in alliance with other outdoor-equipment companies and conservation groups, initiated a “Live Monumental” campaign in 2015 for the express purpose of getting five American landscapes proclaimed national monuments by President Obama. Keen’s campaign was successful in contributing to monument status for Mohave Trails in California and Gold Butte in Nevada, as well as congressionally designated wilderness status for Boulder-White Clouds in Idaho.

Clearly, the outdoor recreation industry has demonstrated over the last several years that it can and will work to influence key policy decisions—particularly those aimed at prioritizing outdoor recreation opportunities and protections over other competing uses on public lands.

Despite Challenges, the Industry Continues to Exert Influence

Shifting Federal Administrative Priorities Have Presented the Industry with Challenges

Early in his administration, President Trump signaled a clear change in federal public lands priorities when he declared US “energy dominance” as his guiding domestic-energy policy goal. This approach to public lands management has directly impacted outdoor recreation on public lands, with the Trump administration’s decision to slash the size of several national monuments as the most notable example.

President Trump issued an executive order in April 2017 directing Secretary Zinke to review all presidential designations and expansions of national monuments under the Antiquities Act since January 1, 1996, that covered more than 100,000 acres. Among the rationales for the monument review was the concern that such designations “create barriers to achieving energy independence.” Secretary Zinke was directed to consider as part of his review “the effects of a designation on the available uses of designated Federal lands, including consideration of the multiple-use” mandate in FLPMA.

Following Secretary Zinke’s review, President Trump signed presidential proclamations on December 4, 2017, reducing the size of Bears Ears and Grand Staircase-Escalante in the most substantial rollback of monument designations in history. The president’s actions reduced Bears Ears by 85 percent, or more than one million acres, creating two significantly smaller and unconnected parks. Grand Staircase-Escalante was reduced by 45 percent.

The Industry Is Demonstrating Its Force Despite These Challenges

Despite policy setbacks, the outdoor recreation industry continues to exercise influence on public lands management, including through direct involvement in litigation and utilization of its significant economic leverage.

Direct Involvement in Litigation

Within days of President Trump’s national-monument proclamation, Patagonia joined tribes, conservation organizations, and other interest groups as a plaintiff in a lawsuit challenging the shrinking of Bears Ears. The lawsuit argues that the reduction exceeds the president’s authority under the Antiquities Act and violates the Property Clause and Take Care Clause of the Constitution. Patagonia’s position focuses on the harm to recreational opportunities on this federal land through the withdrawal of protections for climbing cliffs, canyoneering routes, whitewater paddling river segments, and trails for mountain biking, hiking, and horseback riding. Patagonia also relies on the economic force of the outdoor recreation industry: it objects to the monument reduction in part because of the “enormous economic benefits of protected public lands for nearby communities,” and argues that the reduction “would significantly impact the strength of the outdoor recreation economy and limit Patagonia’s ability to create and sustain jobs.”

Leveraging Economic Influence

The outdoor recreation industry has also begun to wield its growing economic power to influence public lands policy and debate, including through an unprecedented move that OIA Executive Director Amy Roberts called part of “a watershed moment” of industry engagement. In February 2017, the producers of the Outdoor Retailer tradeshows announced that they would discontinue a 20-year relationship with Salt Lake City because of a disagreement with Utah state officials on public lands issues. The announcement came after leaders from Outdoor Retailer, the OIA, and major industry players unsuccessfully asked state representatives to revoke their support for the sale or transfer of public lands to the states, stop efforts to nullify the Antiquities Act, and stop supporting efforts to shrink Bears Ears. The conference was relocated to Denver largely because of Colorado’s perceived commitment to public lands issues. The decision has significant local economic impacts: the three Outdoor Retailer shows planned for Denver in 2018 are expected to contribute $110 million to the area’s economy.

Practical Impacts for Project Proponents

Increased participation from the outdoor recreation industry in public lands management will be an important consideration for the BLM as it continues to execute FLPMA’s multiple-use directive. Beyond BLM, savvy project proponents seeking to develop on federal public lands should also recognize, and account for, the role and influence of these new players.

Even in an era of “energy dominance,” project proponents will face obstacles and objections to development proposals on public lands, particularly from other competing users. However, it is possible that, with smart planning and effective outreach, challenges from outdoor recreation, local officials, or advocates in the conservation community can be minimized or avoided altogether.

When proposing a project (particularly in areas known for abundant outdoor recreation opportunity), consideration should be given to the value of bringing outdoor recreation interests to the table early in the process. For example, engaging this industry as a stakeholder during the National Environmental Policy Act scoping and environmental review process may help to diffuse opposition to the project, thereby reducing the risk of time-consuming and expensive litigation. It may, in fact, be even more incumbent on project proponents now to engage in outreach with these stakeholders because the BLM itself—given changed policies that put a premium on fast-track environmental reviews, limiting the time for public engagement, and ultimately prioritizing oil and gas leasing—may be less receptive to bringing stakeholders together to avoid or quickly resolve conflicts under the multiple-use mandate. Energy dominance policies notwithstanding, successful and efficient development still requires thoughtful engagement and, ultimately, collaboration and transparency.

Michael Hazel and Kayla Byers

Published: October 11, 2018

Michael Hazel is counsel in WilmerHale’s Denver office. He handles a wide range of complex and high-profile investigations and litigation. His practice focuses on regulatory inquiries, administrative challenges, and strategic advice, particularly in the environmental, energy, and natural resources sectors.

Kayla Byers is a senior associate in WilmerHale’s Denver office. Her practice focuses on advising clients on a variety of energy and natural resources regulatory matters, assisting clients with complex federal litigation, and providing counsel on internal investigations.