The Current’s gradient, which averages ﬁve feet per mile, is steeper on the upper sections, and is concentrated at points in chutes or shoals at the foot of pools. Though relatively swift and occasionally challenging, it is not preclusive to travel, especially because the numerous springs, which supply over 60 percent of the total flow, assure a constant volume even in dry seasons.12
B. Nineteenth Century Movement into the Ozarks
The spring-fed rivers drew travelers from the earliest times, in part because of their utility and also because of their beauty, resonance, purity, and mystery.13
1. THE INDIANS
The Osage Indians, concentrated at one time in the Ozark region, were hunters and gatherers but, apparently, neither ﬁshermen nor navigators.14 They traded, ﬁrst with the French and, after 1760, with the Spanish.15 Armed with bartered guns and metal knives, and riding horses — also acquired from the Europeans — the Osage had almost total control of the Ozark Plateau, as well as access to the western prairie bison herds, by the end of the eighteenth century.16
After the ﬂedgling United States purchased Louisiana from the French in 1803, the Osage began to feel pressure from the eastern and southern Indian tribes, displaced across the Mississippi River by the expansionist federal policy which culminated with the Indian Removal Act of 1830.17 By 1839, the Osage were forced out and relocated on a reserve in the Kansas Territory.18 The Ozarks become increasingly populated with the remnants of eastern tribes, and with white settlers moving west.19
2. THE SETTLERS AND THE FEDERAL DISPOSITION OF THE PUBLIC LANDS
When the Constitution was ﬁrst adopted there was, perhaps, an illusion that the only constitutional public domain could be acquired under the Enclave Clause,20 which enabled Congress to hold and exercise sovereign jurisdiction over “all Places purchased by the Consent of the legislature of the State in which the same shall be.”21 In fact, however, the federal government received a sizable public domain of nearly 200 million acres as a consequence of the Constitution’s formative process.22 Large states such as Georgia and Virginia agreed to cede their western land claims, extending from the Appalachians to the Mississippi, to the federal government in order to lessen the concerns of smaller states who feared being overborn ﬁnancially and politically.23
The assemblage of the public domain was not over. Thomas Jefferson, a constitutional framer and skeptic of centralized power, was, as President, unable to resist the offer to buy Louisiana from the French in 1803, despite his doubt about the constitutionality of his action.24 The 828,000 square mile purchase doubled the size of the United States25 — and more was still to come. In the next 65 years, the United States would add Florida, Texas, the Mexican Cession, Oregon, Gadsden, and Alaska. In sum, by 1867 the federal government was the owner of 1.8 billion acres of public domain.26
After the formation of new states out of the territories, the United States automatically parted only with the bed lands of waters deemed navigable for title,27 and retained the rest on an indeﬁnite basis which might, but need not, include discretionary grants to individuals, states, railroads, and Indian tribes.28 John Locke theorized about private property being formed from the union of human labor with the natural, unclaimed bounty,29 but the movement west in America was, contrary to the imagery of Locke and modern conservative revisionists, never into a pure state of nature but onto land owned by the federal government.30
Once the government extinguished the Indian possessory rights, by treaty or conquest,31 it was in fact, able to grant or sell a full fee simple.32 The terms of the new government’s grants and subsidies were remarkably generous and facilitated the individual desire for gain and proﬁt. Nature was rigged for conversion into property — not necessarily by the command of God, but by the secular religion of growth.33
One of the earliest forms of land disposition at the frontier edge, more or less conceded by the time of the Revolution, was simply trespass or squatting, followed if necessary by preemption or the preferential right of the squatter to buy the claim from the rightful owner.34 The use of credit sales or auctions after the Revolution provided a more formalized approach though the yeoman often had difﬁculty making direct purchases, and had to negotiate later with the speculators.35 The Preemption Act of 1830 allowed settlers to avoid auction, settle on surveyed public land, and buy up to 160 acres for $1.25 an acre.36
The Ozarks were largely avoided by the early settlers because the rugged hills and narrow valley floors seemed less suitable to extensive and successful agriculture.37 The Graduation Act of 1854 changed this by authorizing the deeply discounted sale of lands bypassed by the ﬁrst wave of settlers and remaining unsold.38 The Act, sponsored by Senator Thomas Hart Benton of Missouri,39 precipitated a land boom for places like Shannon and Carter Counties in Missouri’s Courtois Hills, which had been ignored by early settlers and speculators.40
C. The Reasons for Moving West
People went west in the 19th century for a variety of reasons. Some sought to escape the cities and landless poverty.41 Some wanted personal sovereignty and control over their farming and subsistence.42 In particular, young farming families from the South faced overcrowding in the hill country and resolved to move west to the Ozark plateau where they could pursue slash-and-burn agriculture in a similar rugged woodland environment.43 Speculators fed on all these motives and bought up land in advance that they could sell to the immigrants at a proﬁt.44 The federal government supported all these motives, even the parasitic ones.45 Landed settlement in the west raised money for the government and avoided the need of taxation, it solidiﬁed the United States’ claims of sovereignty against external competitors, and it sustained both the desires of populace and the legitimacy of the central government.46
Some have viewed the western movement more spiritually and emotionally — a ﬂight toward individual freedom, away from economic or political restraint,47and a collective movement toward a continent-wide manifest destiny of “independent and hard-working farmers … anchored and supported by their property.”48 Still others have viewed the movement as an escape from the restriction of law and regulations themselves. Judge Stephen Limbaugh wrote:
One of the great motivations of the westward surge of expansion in North America was to avoid the eminent domain rights of the United States. Even today, it is innate in our feeling that our home, our land, our buildings should not be subject to government Taking — even with just compensation.49
One might question whether eminent domain by the federal government was over-used in the mid-1880s — especially since the government seemed primarily interested in selling its lands to obtain operating revenues, rather than paying out just compensation for the acquisition of more property.50 Indeed, the federal law had a restrictive view of the public use that would support a constitutional condemnation until the 20th century, when the United States Supreme Court began to support western condemnations not just for use by the public, but reuse by private means that enhanced community economics.51 Still, federal eminent domain was — and remains — a somewhat mythical phantasm. Will Sarvis notes:
Rhetorical and sometimes mythological ideas of property rights continued to pervade popular consciousness. These beliefs viewed property as a fundamental bastion of citizens’ rights against any danger of a potentially overbearing government. It is this mythic, spiritual, and emotional power of property, and particularly land, that has clashed most violently with eminent domain — for it is here that a sometimes delusionary concept of liberty and independence of the individual citizen meets the greater force of a governmental or collective decision. And governmental or collective decisions are, of course, inescapable under any national system or even community group.52
In the early 19th century, then, neither federal condemnation nor federal regulation was a pervasive force and threat in the eastern United States such as to propel settlers west in search of sanctuary. Indeed, the federal government did not enact a land use regulatory law for the public domain until 1885, and even that was only to assure public access against unlawful private enclosures.53 But, even if the federal hand was not heavy before the Civil War, freedom of choice and the escape from social and economic constraint was certainly a quest for the pre-war Missouri pioneer.54 The Civil War itself added a further thrust, and the multiple pressures of war impelled many more into the more isolated regions of the Ozarks.55
The first settlers and pioneers on the fringes of the frontier sometimes trespassed on federal ownership as squatters or preemptors, and often bought patches of low-priced land surrounded by unsold — and still accessible — public domain.56 Their experience on the frontier was, in general, prototypical of — and inspirational to — John Locke’s state of nature and Adam Smith’s free market paradigm.57 Locke, in particular, postulated not only that private property emerged from the combination of human labor and natural abundance, but that government was to follow the creation of property and serve the subsidiary function of protecting gains and facilitating transfers.58 Such a decentralized scheme, especially one that reveres “first in time, first in right” can reach a negative climax or collapse through a dynamic called the tragedy of the commons.59
D. The Tragedy of the Commons and Sustainable Balance
The tragedy of the commons, chronicled by Garrett Hardin,60 occurs when rational gain seekers degrade and ultimately destroy an uncontrolled or underregulated common resource.61 The eager and self-serving will freely appropriate from the commons, privatize the gains, and inﬂict costs that must be borne by the residuum of the undisposed commons and by the future.62 The tragedy is furthered because economic, cost-beneﬁt rationality will doom the commons despite awareness of what is unfolding. Individual restraint will not save the commons from the unrepentant and will only lead to the competitive demise of the conscientious.63
The degradation of the commons increases exponentially with capitalism, industrialization, and population growth.64 Burgeoning numbers of western migrants, armed with increasingly sophisticated technology, combined with the competitive imperatives of the free market combine to produce impacts for beyond the restorative inﬂow of solar energy and the sustainability of resources.65
Individuals and communities living at a subsistence level, within the carrying capacity of the natural rhythms of sun and water, could exist, perhaps indeﬁnitely on an open-access commons — as was exemplfied by the myriad groups of Indian agriculturalists and nomadic hunter-gatherers, who survived for eons before the European invasion.66
But the Indian attitudes — the Indian philosophy and religion, if those restrictive words can ever be used to apply to the wholeness of Indian thought — enabled the Indians to live in and to change the American environment without seriously degrading it. Their very languages, which few Europeans bothered to learn, revealed a view of nature so foreign to that of the Europeans, and in many ways so far beyond it, that we are only beginning to appreciate it today…
It was not a wilderness — it was a community in nature of living beings, among whom the Indians formed a part, but not all. There were also animals, trees, plants, and rivers, and the Indians regarded themselves as relatives of these, not as their superiors. An Indian took pride not in making a mark on the land, but in leaving as few marks as possible.67
The early agricultural pioneers in the Ozarks resembled the Indian peoples in attitude and impact and, prior to the Civil War, lived in relative balance with the regenerative capacity of the land.68 Indeed, members of displaced eastern tribes like the Delaware and the Shawnee lived in the same general community with the Europeans, sharing culture, economy, relations with the land and often marriage.69 The gene proof of the Ozarkians thus bears a “deeply imbedded Indian heritage.”70
E. Sustainable Balance in the Pre-Civil War Courtois Hills
The Courtois Hills of Shannon and Carter Counties, Missouri, were among the last places on the Ozark plateau to be permanently settled by Europeans.71 Though the area was difficult to access due to its rugged nature, the land was cheap or unclaimed, isolated and rich in natural resources of water, timber, and stone. This attracted the Scotch-Irish immigrants from the Southeast who valued autonomy and self-sufﬁciency, as matters of personal choice.72 These early settlers were not wealthy or highly capitalized, and they approached the daunting agricultural conditions with the objectives of subsistence and sustainability rather than growth or maximum proﬁts.73
Offering reliable yields of foodstuffs in return for relatively little money and labor, range herding and slash-and-burn farming furnished a suitable subsistence base for the highlands’ farmers — people who valued even a minimal level self-sufficiency and economic independence above possessions or position. Consumerism and financial dependence had no place in their way of thinking. And these practices were indeed best suited for subsistence agriculture, since they imposed a ceiling on productivity. Each year only the scrub stock could be harvested in order to prevent deterioration of the herds. And since most of the land lay fallow to allow for gradual reforestation and restoration, less than a third of the land on a farm could be tilled at a time.74
Indians and subsistence agriculturalists did, of course, make changes in their surroundings.75 They cleared land, often by burning, and used other trees for building and fuel.76 The trick was to maintain a balance with the restorative capacity of nature and in this respect, the slash-and-burn practices could, theoretically, be done on a continuing basis. The basic technique was to make a limited clearing of forest and brush by both tree girdling and fire.77 The plots, protected from wind and extreme weather by the surrounding forest, could be used for several seasons, then allowed to lie fallow and regenerate.78
Open range grazing by cattle, hogs, goats and horses was a facet of the communal lifestyle and economy.79 The branded livestock could graze freely in the woods and fallow areas, and then be collected for sale or slaughter. They functioned, then, as a low-intensity form of brush control, while allowing the regeneration of soil and timber; and could also be used as a form of human subsistence or even a cash or barter crop.80 Beyond this, the “open range,” in reality and as a metaphor, aided in the integration of the highlands community.81
The success of slash-and-burn farming depended, as noted, on a delicate balance between fallow and tilled land.82 The soil of the Ozark hills, outside the river bottoms, was thin and fragile, and required even more time to recuperate. Premature efforts at recultivation could lead to soil exhaustion, erosion and water pollution — along with low yields.83 Essential to maintaining the stability were a dispersed population and low-intensity technology. As will be discussed, this equilibrium was disrupted by the early 20th century.84
Before exploring some of the sources that led to instability, however, it should be noted and reﬂected on that prior to the second half of the 19th century, the Scotch-Irish and Indians had for a time created stable subsistence agricultural communities in both the Courtois Highlands and along the headwaters of the Current and Jacks Fork Rivers. These were reasonably harmonious, within and with the land, and they demonstrated “an attachment to place … community networks, economic self-sufﬁciency, and the autonomy afforded by geo-graphic isolation.”85 These could remain as polestars for modern society.
It is unlikely that these early settlers were pure environmentalists or preservationists as we have come to know them. In truth, the science of ecology and the unsullied preservation motive as identiﬁable social positions did not really emerge until the latter part of the 19th century.86 Subsistence societies, however, have a practical view of reciprocity that their community revolves around.87 They are close to and dependent on the land, and the people know that the natural rhythms must be observed and sometimes aided to maintain the balance. This is a core of respect that is not incompatible with a sense of the sacred.88 This linkage may be of high signiﬁcance in the future when the practical and the sublime collide.89
II. Disruptions of the Balance
A. The Civil War
The Civil War, like the other major threats to the Ozarkian stasis, was an external intrusion. The Courtois Hills lay on the fault lines between the North, South and West, and amidst the national debates on land settlement, statehood, and slavery.90 When the war broke out, troops from both sides, as well as guerillas, outlaws, bushwhackers, and raiders treated the pioneer settlements as informal centers for pillage and forage.91 The armies and outlaw bands lived off the land and its inhabitants as they moved through the area.92 They decimated the natives’ livestock, fields, and provisions, and frequently killed the men who tried to stop them.93 The localized, autonomous communities, and their internal harmony were not geared toward defense and were vulnerable to the aggressive threats of the outlanders.94 The area became, in effect, a tragic commons eroded by unrepentant, unconscientious, single-minded predators.95 Indeed, deaths in the high Ozark communities occurred more frequently from the raiders than from the war itself.96
Literally adding insult to injury were the attitudes of the invaders. Most of the soldiers and the outlaws came from the ﬂatlands, and they found the rugged Ozarks and their hard-scrabble inhabitants to be coarse and loathsome — and thus deserving of plunder.97 Perhaps the disparagement heaped on the people and place were due to the extreme hardships of soldiering,98 and perhaps, less charitably, the feelings were a defense against the guilt and gross injustice of raiding innocents.99 Some historians, however, believe that the antipathy directed against the Ozarkian locals was based on fundamental feelings of superiority and even on genocidal fantasy.100
The ﬁrestorm continued for over a decade after the war as rogue bands of bushwhackers terrorized the inhabitants of the Courtois Hills with robbery, rustling, arson, and murder.101 Some respite occurred when Missouri Governor Thomas Fletcher declared martial law in the area in 1867,102 but the militiamen were known to abuse their roles as peacekeepers, and conduct their own raids and vendettas against the indigenous populace.103
In sum, the external forces — Confederate, Union, and State — deeply damaged the community of the Courtois Hills, and its internal functioning.104 In addition, the discovery of the resource base, by the foreign intruders, led to the next great incursion on the stable-state society: corporate capitalists became cognizant of the great, largely untouched, and loosely guarded pine forests of the Ozark hinterland.105
B. The Timber Companies
There was a convergence of external forces on the post-war Ozarks: the coming of the railroads, the emergence of steam-driven mills, and the appearance of proﬁt-driven corporate forces — all bearing down on the rich, untapped timber and mineral resources and their guileless inhabitants. The Ozarks became a resource colony,106 and subject to the speculation, exploitation, disruption, and abandonment that often accompanies such status.107 Railroads moved into the Courtois Hills in the 1870s, and large-scale timber operations followed, eyes ﬁxed ﬁrmly on the vast yellow pine forests that could serve as a commodity and substitute for the cutover areas in the East and upper Midwest.108 The timber bounty was, due to the favorable climate, available for harvesting on a year-round basis — unlike the northern stands.109 In addition, there was a ready labor force of cash-poor subsistence agricul-turalists who could be induced to change.110 Mining also provided an alternative in the Saint Francis area,111 but far less so in the Courtois Hills, where, as elsewhere in the Ozarks, it was the vast stands of timber that drew the most interest and effort.112
The arrival of the corporate timbermen in the Ozarks was part of a pattern oft-repeated in the 19th century race across the North American continent.113 The capitalized speculator, unlike the subsistence, stable-state native settler, had no particular feeling for the land or responsibility to it.114 The focus was on profits and, if expenditures could be kept low through the exploitation of the land and labor, so much the better.115 Patricia Limerick wrote:
In Western America (and elsewhere), the dominance of the proﬁt motive supported the notion that the pursuit of property and profit was rationality in action, and not emotion at all. In fact, the passion for proﬁt was and is a passion like most others. It can make other concerns insigniﬁcant and inspire at once extraordinary courage and extraordinary cruelty. It was the passion at the core of the Western adventure.116
The trees of the Ozarks had, in fact, been used since the ﬁrst human settlements — for fuel, housing, fencing, and the like.117 The early cutting was, however, within the regenerative capacity of the forest. This sustainable cycle was dwarfed by the onslaught of the giant corporations and their relentless pursuit of quick gain.118 The returns were not for local beneﬁt and consumption, however. They were for the eastern imperialists who left the region as soon as the resources declined.119
The results were catastrophic. On a physical level, the massive deforestation led to a sharp drop in the ground water table, the desiccation of many surface streams, erosion, and pollution.120 Due to accelerated runoff from the bare soil, flash flooding was more common and severe.121 On an economic and social plane, the populace, cut off from the heady wage economy, was left destitute, and forced into a return to subsistence farming made vastly more difficult by the badly abused land and their lack of preparedness.122 Those that remained in the area often turned to petty timber theft from the property of absentee landlords, moonshining, and selling their land to buyers of last resort, often the State or, later, the federal government.123
Out of the dystopia came the stirrings of conservation, as the local inhabitants sought to restore their relations with the land, and their capabilities with the pre-industrial economy of slash-and-burn agriculture, open-range grazing, and limited timber harvesting.124 The conservation efforts of the early 20th century government bodies were primarily focused on wildlife, not economy, and were for the most part resisted by the locals.125
C. The Federal Land Managers: Dams and Natural Forests
1. THE RISE OF NATIONAL FORESTS IN MISSOURI
The great stands of pine and hardwoods in the Ozarks largely disappeared under the unrestrained exploitation of timber corporations who moved on when the best was taken and who left the land and people devastated.126 The abandoned work force tried to return to subsistence forming on an exposed, fragile soil that dissipated even further under the assault of ﬁre and rain.127 Compounding the despair was the economic collapse of the late 1920s and the ensuing depression.128 Restoration of both the economy and the land began with the efforts of the United States Forest Service. The national forest idea itself was a late 19th century innovation that began in the West, spawned by irresponsible overuse.129 The frantic race of speculation and waste had quickly dimmed any illusion of endless bounty.130 By 1890, Frederick Jackson Turner and others, were proclaiming the closing of the forests as well as the frontier.131 The ominous prospects of finiteness inspired the setting aside of the Yellowstone area as a National Park in 1872,132 and prompted a focus on what remained of the original national timberlands.133 The General Revision Act of 1891, also called the Forest Reserve Act,134 authorized the president to “set apart and reserve … any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations.”135 Soon after, the Organic Act of 1897 gave the Secretary of the Interior (later the Secretary of Agriculture) the authority to manage these reserves.136 Presidents Harrison and Roosevelt enthusiastically used their authority to set aside so much western land that Congress later responded to the local uproar and curtailed the presidential discretion.137 But the western forest systems that would approach 191 million acres were in the barn before the door closed.138
But what of the East? The western system was largely formed out of reservations from the undisposed public domain. There was not much of this land left east of the Rocky Mountains, but there was some. In 1907 and 1908, the executive set aside national forest reserves from the public domain that remained in Arkansas’ Ouachita and Boston Mountains regions.139 In Missouri, there was very little public domain left, and thus any national forest would require that, ﬁrst, new land be acquired by the federal government.140
The Weeks Act of 1911141 authorized the federal purchase of private timberlands and these extended both the national forest system and the incipient conservation movement into the East.142 The Weeks Act was primarily aimed at restoring the lands that had been abused by timber cutters along navigable streams.143 This limitation was done in part to make use of Congressional authority under the Commerce Clause.144 It was not until the 1924 Clark-McNary Act145 that the federal authority was extended, in the aftermath of Light v. United States,146 to deal with timber acquisitions under the authority of the Property Clause.147
There was another limit on acquisition in the Weeks Act, beyond the association with navigability, and this one was not relaxed by Clark-McNary: lands were not to be acquired for national forests by the federal government unless the legislature of the state gave its approval in the form of enabling legislation.148 Though the national forest service had surveyed the Ozarks and wanted to make purchases, Missouri legislators, fearing federal interference, stalled until 1929, when a minimal, hardly useable state consent was issued, under which the United States could acquire no more than 2,000 acres in any single county.149 It was not until 1935 that a consent law without limitations on acreage was ﬁnally passed,150 in significant part because federal purchases at that time would not only aid the rehabilitation of the lands, but also the depression-flattened local economies.151 Land acquisition in Missouri quickly accelerated, peaked in the years before World War II, and currently totals more than 1,500,000 acres.152 Management was split between the Clark and Mark Twain National Forests until 1976 when they were combined into the unitary Mark Twain.153
The establishment of the national forest in Missouri was, in some ways, a Faustian bargain. The Service, on one hand, provided a return for the sale of damaged lands, and jobs for a desperate work force.154 The Civilian Conservation Corps and the Works Progress Administration employed thousands of young workers who built roads, trails, and recreational facilities; and who planted trees, restored wildlife habitat, and stabilized stream beds.155 But on the other hand, the individualistic, self-sufficient descendants of the original hill people, who had become, in effect, the chattels of the large timber corporations, now fell under the substantial thrall of the federal government.156 The United States was now a major Missouri land owner and wrote many of the paychecks. True, the work was productive and fulﬁlling, but the loss of community self-control was a palpable irritant that would ﬂare forth in the future.157 In an immediate sense, the populace resented the external limitation on the traditional practices of forest burning, free-range herding, hunting, and clearing.158
2. THE DAMS
Bureaucratic intrusion, federal and corporate, emerged in another form in the 20th century. Engineers from the Army Corps of Engineers (ACE) and private power companies, saw the numerous streams of the Ozarks as both potential sources of power and occasional threats from ﬂooding. What better reasons could there be to unleash the technological powers of physical control that sometimes seemed to possess an autonomous, inexorable capacity for expansion?159 In the 1930s, the ACE and the Rural Electriﬁcation Administration (REA) received Congressional authorization to develop as many as ﬁfty dams in the State of Missouri160 — several of them on the Current River.161 There were, however, some practical forces that combined to blunt these threats. The desultory economy of the 1930s curbed enthusiasm for private dam construction after Union Electric Company’s completion of the Bagnell Dam on the Osage in 1931.162 Federal efforts, as well as private efforts, were greatly slowed by the outbreak of World War II.163 In signiﬁcant addition, there was state and local opposition from agricultural and recreational groups.164 And therein lays another outside force that has complicated the lives and independence of the traditional highland community.
D. The Recreationists
The autonomy and insularity of the Ozark hill dwellers was also breached by the seemingly more benign inﬂux of tourists and outdoor sportsmen.165 Especially after World War II, there was a growing middle class in America with disposable income and leisure time.166 The cash economy, the automobile, and the modernization of Missouri roads167 led to a steadily increasing flow of city visitors, bound for the countryside, throughout the 20th century. They were drawn by the numerous riverways, the rapidly regenerating forests, the rhythmical, leisurely contrast to urban speed and modernity, and by the singular Missouri state park system.168 Three state parks — at Big Spring, Alley Spring, and Round Spring — were built on the Current and Jacks Fork Rivers during the 1930s, and were added on to by the Civilian Conservation Corps (CCC) and Works Progress Administration (WPA) during the Depression.169
The collision of cultures was inevitable. The city visitors tended to look with amazement at the rustic, chaotic living conditions and presume that the mundane simplicity reﬂected a lack of intelligence, ambition or ability.170 Indeed, the tourists’ casual arrogance and underestimation had been inﬂicted on the local population since the middle of the 19th century.171 Perhaps the new urban interventionists did not carry raiders’ weaponry or the timbermen’s axes and chainsaws, but, rather, ﬁshing rods and sport rifles. The sting of pompous superiority and smugness, however, can be perhaps as disabling as economic imperialism.172
Maybe even more galling was the fact that the locals were not just gaped at in their historic homeland by the recreationists, they were increasingly bound to them in service provision.173 The tourist industry necessitated accommodations of food, lodging, outﬁtting, shuttling, and guiding. Locals were called on to provide these services,174 and were often forced to suffer the ignorance and condescension of the city-educated, well-heeled outsiders.175 Even Aldo Leopold, who lived on and loved the Current River,176 occasionally had views on the needs of conservation that were quite distinct from the practices of the local inhabitants.177 The trick for resolution is communication and mutual respect.178 At their core local subsistence farmers, visiting recreationists and conservationists love the land, and have cooperated to stave off the transformative forces of dams, mines, and lumbering. They accept recreation and tourism as components of an enduring, though perhaps imperfect and sometimes contentious, future.179 The next great issue would be the forms and institutions of recreational management.
E. The National Park Service and the Establishment of the Ozark National Scenic Riverway (ONSR)
The great strength of an autonomous community is its internal self-sufﬁciency, which provides it an ability to chart and maintain its own course, on a continuing basis. The internal cohesion, and non-expansionist proclivities, however, may render such communities vulnerable to external aggressors. They become low-hanging fruit, sitting ducks, for the rapacious. As seen, the forces of war, growth, capitalism, and technology eroded the balance of the Ozark communities. Commercialized recreation and tourism might seem more benign, but the smiling faces might be a more enduring threat to local traditions — especially when spearheaded by the often ham-handed federal government.180
Both the United State Forest Service (USFS) and the National Park Service (NPS) have statutory agendas that include conservation and recreation, though the forest service also promotes multiple extractive uses,181 and the NPS attempts to balance the often implacable duality of preservation and public recreation.182 The most immediate threat to conservation and recreation in the Ozarks river systems was the dams. The ACE, operating under a divergent mandate, had the authority under the Flood Control Act of 1938183 to build dams on virtually any free-ﬂowing stream in the United States.184 Many of the great Ozark rivers, such as the White, the Osage, and the North Fork were transformed into plumbing — but the Current and the Jacks Fork Rivers were spared.185 The reason was politics. Throughout the 1940s and 1950s, the Missouri government, its Congressional delegation, and vocal, literate big-city environmentalists kept up a drum beat for preservation of the two rivers.186 The ACE, perhaps surprisingly, agreed. A major study of the basins in 1954 concluded that the Current and the Jacks Fork Rivers should remain free-flowing — though dams were still considered on the Eleven Point.187 The Eleven Point also escaped a dam in 1968 when it became an original component of the Wild and Scenic River Act.188
The continuing controversies for the Current and the Jacks Fork Rivers — and for the surrounding communities — included questions as to which agency should manage the area, what form and spatial di-mension should the protection assume, and what should the goals be — preservation and recreation, or multiple use?189 The NPS proposed, in 1956, a grand vision of a National Recreation Area190 that would include the entire watersheds of both rivers, and a total of 350,000 acres, much of which would be transferred from the NFS.191 Not surpris-ingly, the NFS was not enamored with the scheme, nor were many private land owners who feared displacement.192 The Forest Service attempted a partial preemption in 1958 by creating several special recreation areas on the Current and the Eleven Point.193
Though the Forest Service had, through much of its history, emphasized active management and extraction,194 it always had the capacity to focus on conservation and preservation.195 Indeed, Aldo Leopold, long a friend and sometime resident of the Current,196 had, as a forest ranger in New Mexico’s Gila National Forest, used the expansive character of the Forest Service mandate to administratively create the first institutional wilderness.197 The multiple use authority was made more explicit in 1960 under the Multiple Use and Sustained Yield Act198 which stated that the forests could be administered for recreation, fish, and wildlife, in addition to the timber and watershed purposes outlined in the original Organic Act of 1897.199 The Supreme Court held that the Multiple Use Act broadened the purposes for which the forests could be administered, but did not expand the reserved water rights impliedly set aside by the initial reservation.200
The National Park Service reduced the stature and size of its proposal to that of a national monument in 1960, and a number of bills were debated in Congress without result for several years.201 The momentum, however, was shifting toward the NPS as the lead agency, triggered in part by visits from Secretary of the Interior Stewart Udall, NPS Chief George Hertzog, and the writings of Leonard Hall.202
The Forest Service and prominent Missouri conservationist Leo Drey still resisted.203 Drey, the largest private land owner in Missouri, owned 130,000 acres in the Ozark highlands and thirty-five miles of river frontage on the Current and Jacks Fork.204 Drey called the area the Pioneer Forest, and he practiced careful management with soil conservation, tree replanting, selective, individualized cutting, and acres of total preservation.205 Drey’s opposition to the NPS plans were not premised of any desires for increased commercial timber profits, but, rather, on an idealistic and realistic concern that the mass recreation, attendant to NPS management, might damage or destroy the special wildness and serenity of the upper rivers.206 He was convinced that the balanced custody of the NFS, under its multiple-use mandate, could afford a potentially superior protection for the upper rivers, and substantial utilization and protection on the lower reaches.207 It is noteworthy, when considering Drey’s motives,208 that Drey later put up his own money to buy nearby Greer Spring when it was threatened by an Anheuser-Busch plot to commercially bottle the spring water, and he later added it to the Eleven Point Wild and Scenic River area that is managed by the NFS.209
Drey had other reasons for preferring the NFS multiple-use management policies: he felt that expansion of pre-existing NFS holdings made more sense than creating new territory under another agency’s jurisdiction.210 He thought that the forest service had gained the trust and acceptance of the native population which was ordinarily suspicious of outsiders;211 and he foresaw that the NFS was more inclined to use less-than-fee acquisitions in the form of conservation easements than was the condemnation-prone NPS.212
The controversy continued on into the 1960s, with Drey continuing his support for the NFS, and other Missouri conservationists, like Leonard Hall, local politicians and big-city editors backing the NPS.213 Both the NFS and the NPS presented bills in Congress in 1961 but, in 1962, the NFS relented and withdrew.214 The NPS bill went forward, but without including the Eleven Point and the lower Current, and with limits on the total possible acquisition of private lands set at 65,000 acres.215
In 1964, the same year the Wilderness Act216 was passed, the ONSR Act217 was signed into law by President Lyndon Johnson, creating the outlines of “ribbon-like units”218 of the National Park System that remained to be ﬂeshed with the acquisition of fee interests and conservation easements.219 The Eleven Point, excluded from that bill, and one of the original inclusions in the 1968 Wild and Scenic Rivers Act (WSRA),220 was to be under the jurisdiction and management of the NFS, thus providing a kind of Solomonic balance to the long-running inter-agency dispute.221
The ONSR Act asserted in Section 1 that the purpose of the River-ways was “conserving and interpreting unique scenic and other natural values and objects of historic interest, including preservation of … free-ﬂowing streams, preservation of springs and caves, management of wildlife, and provision for the use and enjoyment of outdoor recreation resources ….222 The ONSR Act thus repeats the dual — and inherently problematic — mandate of the National Park Service Organic Act223 which charges Congress with balancing “the enjoyment of the [national parks] in such manner and by such means as will leave them unimpaired for future generations.”224 Dwight Rettie has correctly noted that the “dichotomy is essentially unresolvable in any context other than the political give-and-take of competing forces in a democratic society.”225
A semblance of a balance between public and private interests, and between federal and state jurisdiction, was set forth in Section One226 provision limiting the ONSR proclamation to existent federal holdings, to no more than 65,000 additional acres presently held in private ownership, to no lands within 2 miles of the present boundaries of the municipalities of Eminence and Van Buren, Missouri, and to the state parks at Big Springs, Alley Springs and Round Spring, if the state of Missouri concurs.227 The state parks were transferred to NPS jurisdiction in 1970.228
The evolution of the paper proclamation and jurisdictional lines to an actual land management area would substantially depend on the federal government’s acquisition of fee and less-than-fee interests from the private parties near and adjoining the rivers.
III. Land Interest Acquisition for the ONSR
The setting of the ONSR boundaries was a somewhat ﬂexible process, involving several intersecting factors. First, there was the proximity and compatibility of substantial conservation lands held by the Missouri Department of Conservation, the Missouri Department of Natural Resources, the Mark Twain National Forest, Leo Drey’s Pioneer Forest and, later, the Nature Conservancy.229 Second, there was a precise statutory limit noted above.230 Third, the Secretary may, even within areas designated or altered,231 acquire scenic easements in the public interest which, as non-fee lands, would not count against the 65,000-acre cap,232 nor would any land transferred to the park by the federal or state governments.233
The minimum objectives of the ONSR boundaries and interest acquisitions were, like those in the WSRA system, to protect the free-ﬂowing river inclusions from dams234 and other physical and visual disturbances,235 and to aggregate or concentrate protection in areas of particular interest or use.236
Under the ONSR enabling act, areas of private ownership within the prescribed initial boundaries could be purchased through a voluntary transaction, protected against development through acquisition of a conservation easement — or, as a last resort, they could be condemned with eminent domain.237 Eminent domain has a ruthless aspect to it,238 and it looms as a veiled threat to the other forms of negotiation. Suffice it to say, eminent domain was an ultimate form of intrusion on the cherished autonomy of the hill people and the fear of it may have even out-stripped its reality.239 But the reality of eminent domain was not insubstantial. The federal government condemned over 200 individual tracts,240 and these actions provoked a resistance and a smoldering resentment that continues.241
A. Eminent Domain
Though the early Scotch-Irish settlers may not, as Judge Limbaugh suggested, have been ﬂeeing west to avoid federal eminent domain,242 there is little doubt about their fundamental opposition to the idea of involuntary seizure of private land.243 One might assume that the Fifth Amendment requirements of public use and just compensation would assuage private angst, as the aggrieved party gets compensation which approximated fair market value.244 Indeed, in American contract law, a plaintiff can generally only collect the loss of the beneﬁt of their bargain in monetary damages, and cannot generally count on a remedy of specific performance.245 Why, then, is the idea of just compensation as fair market value, instead of continued possession of speciﬁc property so unsatisfactory?246
The idea of property, especially in the mind of the 19th century American yeoman, was coextensive with values of autonomy, individual sovereignty, freedom and participatory democracy.247 This was far more nuanced and deeply set in the individual psyche than were contract expectation damages or the commodiﬁed monetary land value pursued by the urban and commercial speculators.248 Yeomen in the Courtois Hills, at the margins of civilization, may, at times, have been trespassing on the federal government’s unadvanced sovereignty or property rights, or they may have bought a legal entrance under the bargain rates of the Preemption and Graduation acts.249 But in reality, the price of land was the barest of beginnings. In truth, all these subsis-tence agriculturalists really had was an individual chance to unite skill and labor with the raw land, and complete what John Locke might see as inalienable property.250 It was protectable by the state and law — but was not created by the state or subject to its destruction.251
When the axe of eminent domain fell on property wrested from the wild, nerves and living tissue were cut, along with the lines drawn on a map, and the loss was not easily — or possibly — salvaged with the commodified fungibility of fair market value.
Rural agrarian people in general are bound to have a close relationship, if not a deep or emotional affinity, with the land they work. Those living in forested areas tend to have a great utilitarian knowledge of forest plants for purposes of food, medicine, dye-making, and other purposes. Many natives (as Ozarkers referred to themselves) of Missouri’s southeastern Ozarks fit this mold. Throughout the late 1950s and early 1960s, many native landowners described their profound attachment to their land and the reasons why the government should not condemn it. They evoked the pio-neer ethics of their frontier ancestors and compared themselves to American Indians. A contingent of local people was opposed to nearly any kind of change, including the “improvements” of electriﬁcation, better roads, and progressive forestry practices. These recalcitrant types may have epitomized what remained of a true frontier ethic, particularly pertaining to many migrants across western America who sought greater solitude and less society. But many times during the following years, Current River area natives reiterated their lack of interest in monetary wealth. Instead, these people expressed their personal attachment to their homeland and their choice to stay there for love of the land. As John C. Colley testiﬁed before the House of Representatives in 1963, “We live in this particular area because we want to, not because we do not have bus fare to leave.”252
Beyond this was the impact on the living tapestry of the community. Joseph Sax points out that eminent domain in the service of establishing national parks can cut through the non-economic bonds — the history, the sense of place and the relationships — and that payment of economic values as just compensation do not account for this.253
Eminent domain is conditioned by the Fifth Amendment, not just on the payment of just compensation, but also on the existence of a public use. Such use is clear enough when the objective is use by the public, such as in the case of a public road, a harbor, post ofﬁce, or courthouse. These uses are authorized expressly by Article One, Section 8 of the Constitution.254 If the use is not literally authorized in the Constitution, the Court may still ﬁnd implicit authority to use eminent domain for a public use in the margins or emanations of the express grants. The case of United States v. Gettysburg Electric Railway Co. found eminent domain authority for the public use of a park, as a war memorial, in the implications of the express constitutional power to declare war, and maintain an army and navy.255 The federal use of eminent domain to procure land for the ONSR was, in light of Gettysburg, clearly condemnation to procure a park, but the Gettysburg park was linked to Article One powers of war and armed forces.256 Preservation and recreation for land in the ONSR are not as clearly authorized by the Constitution, even though they do serve use by the public.
It is signiﬁcant that the concept of public use has expanded far beyond both Gettysburg and use by the public. It is now accurate to say that public use means essentially public purpose,257 andits scope maythusbeas broad as a legitimate use of the regulatory police powers to further the public health, safety morals and general welfare.258 In the late 19th and early 20th centuries, the Supreme Court came to view public use and eminent domain as encompassing community economic concerns, as well as public health and safety. Thus, condemnation to procure private easements of access to necessary economic resources like water, were deemed public uses that enhanced the economic viability of the community.259 This view of public beneﬁt beyond actual use by the public was supported by case law through the 20th century and into the 21st; in cases of urban renewal of blighted areas by private recipients of condemned property;260 by condemnation of concentrated land ownership and redistribution to private lessees;261 and by condemnation of private, non-blighted neighborhoods for redevelopment by private entities operating under a comprehensive area plan.262
In short, the public use for condemnation in the ONSR was not problematic — in one sense because it did contemplate use by the public. In another sense because the purposes of recreation, concessions, preservation, and aesthetics now have come to clearly fall within the scope of the public purpose protected by the police power and thus within the expanded scope of public use under a steady stream of favorable, though sometimes grudgingly modern, eminent domain cases.263
B. Conservation Easements in the ONSR
Despite the basic legality and constitutionality of eminent domain, the NPS was well aware of the simmering resentment in the area, and attempted voluntary approaches, including the use of conservation easements when possible.264
Conservation easements, as a variety of the common law negative easement, were fairly new in 1964. Some have suggested that they were first popularized by journalist and author William H. Whyte, in the late 1950s.265 Others suggest that Frederick Law Olmstead employed them in the late 19th century urban park design.266 What is clear, however, is that it was not until the early 1980s that land trusts and government agencies began to routinely use conservation easements to protect land against inconsistent development.267 The use of such tools in the ONSR was, then, at the forefront of the modern conservation easement renaissance.268 The NPS could, as an alternative to the use of eminent domain, pursue either voluntary purchase of fee title or conservation easements, for which they found no legal barriers under Missouri law.269
In effect, the conservation easement is a non-possessory, negative easement that is owned and held either by a unit of government or by a private not-for-proﬁt corporation.270 It differs from other negative easements because it is considered an easement in gross271 rather than an easement appurtenant, which is designed to beneﬁt a particular, usually adjacent, parcel of land.272 The negative easement in gross was not generally favored at common law, and its employment in the United States had often depended on either a flexible judiciary or speciﬁc enabling legislation.273 Most states, including Missouri,274 have responded with such statutes, even if there has been no particular problem in the state courts.275
The conservation easement, held either by the NPS, or a private non-proﬁt organized as a tax-exempt entity276 can preclude new development or inconsistent uses on the burdened tract, yet leave the private owner free to hold title, to continue living on the land, and to continue the customary activities.277 Thus, the transaction is voluntary, and the property remains productive and taxable. Even more, if the easement is perpetual in duration, and for conservation purposes, the donation or below market sale can serve as a basis for a federal tax deduction as well as lowered estate taxes and local property taxes.278 Since the conservation easement is ﬂexible in design, it can, with careful drafting, provide for public access, as well as preservation,279 and can allow the land owner to engage in new activities, as well as traditional ones, that are not inconsistent with the preservation and recreation objectives.280 In short, the conservation easement, held either by the NPS or a non-proﬁt conservation organization like the Nature Conservancy,281 represents a voluntary, noncoercive approach to preservation and possibly recreation that can bridge the gap between forceful condemnation and unfettered individual discretion. As of 2009, there were more than 9000 acres of conservation easements within the ONSR boundaries, and many more in the adjacent areas.282
Though less controversial than eminent domain, there are some problems with conservation easements at times. The Sierra Club notes283 that many easement violations have been ignored by the NPS, the holder charged with monitoring and enforcement.284 The Club charges that, in some cases, the NPS has deliberately compromised easement restrictions and breached its legal obligations.285
The case of Drey v. United States286 shows some peripheral difﬁculties, courtesy of the IRS. Drey, as noted, was Missouri’s greatest private conservationist and largest land owner.287 Though he preferred the administration of the NFS, under the WSRA, Drey was still willing to work with the NPS and the ONSR.288 Drey donated a number of conservation easements, on land he owned along the Current River, to the ONSR, and he sought to enhance the preservation and recreational objectives with the management of his retained forest lands.289 In one transaction in 1970, Drey executed and delivered to the United States a scenic easement deed on 961.47 acres that extended landward 300 feet from the Current’s low-water mark on various parcels.290 Drey retained the fee burdened by the easements, as well as the unencumbered fee beyond the 300 feet which varied from parcel to parcel but in no case was less than 800 feet.291 Drey later, in 1974, quitclaimed the burdened parcel fees to the L-A-D Foundation, a charitable organization created by Drey.292 Drey then sought a deduction under the IRC for both the value of the encum-bered fees donated to L-A-D, and for the consequential damage to the unencumbered upland in his Pioneer Forest293 — which theoretically did not have access to the River after the donation, but in reality did as Drey was the organizer of L-A-D.294 The IRS allowed only a fraction of the deductions Drey wanted, saying that consequential damages might be a valid concern under Fifth Amendment condemnations, but not in the case of Drey’s voluntary donations to L-A-D.295
Drey swallowed hard, but was not deterred from philanthropy. Later, in 2004, he donated 146,000 of his retained lands in Pioneer Forest to the L-A-D Foundation, the largest private gift ever made in Missouri, and one of the largest in the nation that year.296
The original settlers in the Courtois Hills had forged a sustainable economic community with the rugged land.297 The conservation easements, by allowing the transferor to remain on the property and to continue with activities that would not substantially affect long-term preservation or recreation, protected the core objectives of the national park and simultaneously sustained the individuals working in union and in community with the land. There was another community shared by the early settlers and their descendants, and that was with each other. The conservation easements may also share a role in the maintenance of that heritage.
The use of eminent domain to clear the grounds of a new national park can potentially have a devastating effect on the community of land holders, one that cannot be offset by the payment of just compen-sation to individuals. The infamous Poletown, Michigan condemnations, sustained by the Michigan Supreme Court as producing a public use in the form of a higher and better area economy,298 caused around 4,000 people to lose their still-vibrant community, even though it was not blighted.299 The Court felt that “a major adverse impact on the so-cial and cultural environment” was beyond the scope of the state en-vironmental protection statute and thus beyond the review of the court.300
The impact of eminent domain on the living communities on the Current and Jacks Fork was softened in signiﬁcant part by the decision to leave the towns of Eminence and Van Buren outside the park’s boundaries, creating some gaps in the park’s midsection.301 It is worth noting, however, that the scope of rural communities is far broader than their urbanized centers, and that community dissonance was not fully assuaged by the exclusions.302 Joseph Sax, one of the most astute of the National Park observers,303wrote that the creation of national parks with a blunt, preemptive use of condemnation, one that fails to account for or protect local community values, was ill advised.304
[T]raditional analysis fails to recognize the extent to which the nation, as the domi-nant community, has triumphed, and fails to accept that what local community values need most is to obtain recognition within (rather than as competitors of) national values. Moreover, the traditional mode of analysis takes little, if any, account of the special interests of a neighborhood, such as Poletown, though certainly that is one of the settings in which concerns about community need the most attention. Finally, conventional analysis has been too willing to yield to generalizations that impede, rather than advance, the effort to sort out the important, substantive interests that deserve attention in the setting of what we call “community.”305
Sax felt that the NPS approach to the small agarian village of Boxley, located within the boundaries of the Buffalo National River, was illuminating.
Within the River is a tiny agricultural village known as Boxley Valley. It originally consisted of approximately twenty dwellings, with attached small farms, a little church, school and community building and a store. Boxley is not a very prepos-sessing place, but it presents a highly attractive example of a traditional Ozark Valley farming community. Some of its buildings, houses and barns are considered ﬁne examples of vernacular county architecture.
Park Service policy for the Boxley Valley has gone through several stages. At first, the policy seems to have been to acquire all the properties and gradually move the residents out, with the notion that the land would revert to its natural condition and be available for River recreation …
Eventually, the historical value of the Valley came to the fore, both as a traditional landscape, and as a setting for several architecturally signiﬁcant structures, residences and barns. The Park Service, therefore, partially modiﬁed its policy and permitted some owners to remain as proprietors permanently. The Park Service nego-tiated for scenic easements designed to control development and to assure that the Boxley scene retained its rural, 1920s character. Plans for visitor use were largely abandoned.
Presently, the Park Service is in the process of developing a new plan for the future of the Boxley Valley. It seems to have decided that the village should not be returned to its natural, pre-settlement condition. Indeed, the Park Service is leaning in the opposite direction. It proposes to have the entire valley listed on the national register of historic properties so that the small farms, with their aestheticall pleasing fence lines, will be preserved and worked. The historically valuable houses and barns are to be occupied, maintained and, where necessary, restored.306
It seems a consideration that should be part of the future of the ONSR as well. The protection of the park boundaries, as well as the redevelopment of internal facilities and concessions such as the Big Springs Lodge and cabins should be done with a consideration of the larger, original community which continues to have a stake both in the park’s future and in the impact on their traditional lifeways.307 Conservation easements allow for the continuation of individual land holdings and utilization and a basis for the continuation of aspects of the traditional community.
Sensitivity to the living culture and economy need not preclude all change. Sax worried that Boxley could, without thought and ﬂexibility, become an unrealistic, perhaps unlivable, museum.308 He offered prudent suggestions for a balanced future:
What is suggested, using the Buffalo National River as an example, are some foci for decision making. (1) Maintaining a place like Boxley Valley, with its elements of distinctiveness, should itself be a part of the calculus of national goals in establishing and maintaining places like Buffalo National River. (2) The less distinctiveness there is, however, the less such a goal is appropriate; localism alone is not the determining factor. (3) The presence of a human settlement should not automatically be seen as an intrusion on the goals Congress has in establishing places like the River. (4) To the extent such places are seen as having value in themselves, that value cannot be maintained by forcing such places to be managed for the ed-ucation or amusement of others, but rather the communities must function as living organisms, with their own life and lifestyle, whose vitality is itself important. (5) Incentives are the preferred technique to assure that community residents are not asked to subsidize the national values that their lifestyle or community is providing the rest of us. (6) Coercive displacement of community values ought to be reserved for those situations where important values of national or regional communities are clearly threatened (such as the destruction of the redwoods, or the pollution of a river), and where no workable, less intrusive alternatives are available.309
IV. Water Rights and Regulation
A. Rights to Surface Use
There are a variety of water rights associated with the ONSR, even though the overarching presence is that of the federal government, a proprietor and supreme sovereign. The private riparian owners below the park also have proprietary-allocation rights, and a correlative right to surface usage on the entirety of the water body.310 Likewise, there are in-gross public rights to use the surface water of the ONSR under the federal navigation servitude and federal statute,311 as well as the state constitution.312
The federal government as a land- or water-right holder has proprietary rights which are related to but still independent of its constitutional regulatory powers.313 Under statutory waiver314 and United States Supreme Court decision,315 the state water allocation laws will apply to federal patents and, generally, to unreserved federal lands.316 Under Missouri law, riparian owners have the ability to, within reason, protect the ﬂow and quality of water passing their riparian property.317 That ability is subject to each other owner’s right to make a reasonable use and their corresponding duty to not make unreasonable uses.318 Reasonableness is a multi-faceted balancing engaged in by the court in light of an extensive list of potentially relevant factors noted in the Second Restatement of Torts.319 The reciprocal, correlative, rule of reasonable use extends to the quantity and quality of surface usage which can be practiced by reasonable means on the entire surface of the water course and its tributaries, not merely the water adjacent to particular riparian land.320
Since the United States holds the headwaters of the Current and Jacks Fork stream courses, as well as numerous extensive springs,321 it would seem that the NPS has clear riparian rights to control the natural ﬂow through the park, and could seek equitable relief to limit a downstream riparian obstruction that might cause the ﬂow to stop or back up.322
The federal government, as a riparian proprietor, would also be able to deal with water quality issues such as farm and animal waste that enters the stream from either ONSR tributaries or non-point source runoff.323 Instead of riparian rights and duties of reasonable usage, however, most cases of water pollution in the Ozarks are dealt with either under judicial causes of action in trespass or nuisance;324 or under the Clean Water Act,325 the Endangered Species Act,326 and the National Environmental Policy Act.327
The public has a right of free surface use in Missouri, along with the collective riparian owners on a stream course. This is clearly so on wa-ters found to be navigable for title at the time of statehood.328 Such waters, determined under a federal test of commercial suitability,329 provide the state with title to the bed, and the public with the right to navigate the waters, either under the authority of the Commerce Clause or under the federally retained navigation servitude on waters in their natural condition.330 The public’s right to navigate is not absolute and is subject to regulation by the state and by the federal government under its Commerce Clause and Property Clause authority.331
If a river or stream is not navigable for title at statehood, the bed is held by the federal government and would pass to riparian patentees.332 In such cases, trafﬁc on the water ﬂowing over the bed would be crossing above property owned by another. Is this a trespass, or do members of the public, like adjacent riparians, have a right to pass over private property rights?
Even if a court were to view a floater on a river, not navigable for title, as a trespasser on or over the property rights of an adjacent riparian, it might be possible for the individual to acquire a prescriptive easement or, if government has facilitated passage, possible for the public to acquire a prescriptive easement in gross.333 This indeed happened in places along the Buffalo National River where the NPS was unable to buy or condemn certain riparian tracts.334 The Eighth Circuit held that open and notorious passage, facilitated by the government, for more than the seven-year statute of limitations, resulted in the establishment of a public right of way by prescription.335
There is another possibility. The public may be able to assert a public trust right in the water itself and the right to travel on it, regardless of the ownership of the bed by another.336 The classic Missouri case, which Lori Potter refers to as the “public highway” case,337 is Elder v. Delcour.338 Elder had paddled his canoe down a stretch of the Meramec River that the court concluded was “non-navigable” as that term is used in the state for the purpose of determining title and “Appellant was therefore the owner of the bed.”339 However, the court concluded that Appellant’s title was not absolute and was subject to laws in existence when the patent issued — and there were several.340 An Act of Congress providing for the Missouri Territorial Government341 stated that “[t]he Mississippi and Missouri rivers, and the navigable waters ﬂowing into them, and the carrying places between the same, shall be common highways, and forever free.”342 The court noted similar language in the state enabling act and in the various Missouri constitutions.343 The sum total of the august federal and state backdrop to Delcour’s patent meant that it came encumbered with what was “in fact a public highway … open for public travel by boat and wading.”344
The long-term sense of public right of use on “water highways forever free” has thus been a backdrop to Missouri in general and Ozark residents in particular. Restrictions on the ability to use the water or its shores, made in ONSR by federal agencies is, perhaps inevitably, gasoline on the fires of rebellion, as is currently seen in the reactions to the new General Management Plan.345
B. Dams in National Parks
The issue of dams in the national parks, especially the river parks like the Buffalo and ONSR, have elicited statutory protection that goes well beyond the possibilities of a common law riparian rights case. Since 1992 there has been a federal statute346 that expressly forbids the Federal Energy Regulatory Commission (FERC) from licensing any new hydroelectric power project within the boundaries of any unit of the national park system, that would have a direct, adverse ef-fect of that unit.347 In addition, the organic act of the Buffalo National River has a provision specifically precluding FERC licensing, or any other federal agency authorization, that might lead to a water project with a direct, adverse effect on the river.348 This act was in part the basis for restraining the ACE from proceeding with a dam some twenty-six miles outside the park boundaries on a tributary of the Buffalo.349 The plaintiffs also relied on the National Environmental Policy Act (NEPA),350 and the permitting procedures for water projects under the Clean Water Act (CWA).351
The ONSR does not, like the BNR, have an organic act that specifically prohibits dams in and affecting the park,352 perhaps because, unlike the Buffalo, there was not a recent, imminent dam building threat on the protected segments.353 The 1992 Act354 and the attendant federal preservation and environmental statutes would likely prove sufﬁcient to protect the ONSR from internal and external water-based threats.355
C. Federal Reserved Water Rights
The doctrine of federal reserved water rights has played a signiﬁcant role in the western states since the case of Winters v. United States.356 Winters held that, when the United States sets aside reserved lands such as Indian reservations from the public domain, it impliedly reserves sufﬁcient water from adjacent sources to fulfill the purpose of the reservation.357 Cappaert v. United States358 applied this holding to the national park systems, in support of the water level in a cave, inside the Death Valley National Monument, that was crucial to the survival of a threatened species, the pupfish.359
This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserved appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.360
A subsequent Supreme Court case dealing with the national forests361 limited the scope of the reservation to the minimum amount necessary to fulfill the primary purpose of the forest reservation.362
The Federal Reserved Rights Doctrine has been exclusively applied to the western states,363 in part because water is scarcer and more contested in the West, and in related part because the prior appropriation system places its focus on priority, affirmative beneficial use and continuity of diversion.364 Since national parks and forests generally want water for instream ﬂow, and since such use is passive and without diversion, the claim would be vulnerable to subordination, were it not for the doctrines of federal reservation of sufficient water for the primary purpose, the concept of supremacy and the fact that many federal reservations preceded western statehood.365
Federal reserved water rights for national parks, though successfully protected in the West by decision,366 and by settlement,367 have not been claimed for any national park in the East,368 although they have been successfully asserted for Indian lands.369 This is in part because priority has been less critical in the humid, riparian climates — but not unknown. Professor Rowberry notes:
As water shortage issues become more prevalent in the East, it may become easier for the federal government to satisfy this necessity element by demonstrating that the reasonable use of water is no longer providing sufﬁcient amounts of water to satisfy the purposes of the national parks. However, these claims have yet to be tested in court.370
Could the reserved right doctrine be applied if necessary in the ONSR? Professor Michael Blum feels that reserved rights are the product of implied federal intent rather than ownership, as in the case of the public domain.371 Thus if federal intent were expressed in the ONSR Act, reserved rights would seem possible. This, unfortunately, was not done. The WSRA, however, was passed four years later in 1968 and a statutory reservation could be based on the intent for reserved water rights clearly manifested in that Act for the Eleven Point River.372 This might bear on the almost simultaneous intent implied in the creation of the ONSR.
In truth, the need for the assertion of a reserved water right for the ONSR is probably never to be necessary. Like the Eleven Point, the Current and Jacks Fork rivers are in control of their own year-round headwaters, in the form of the great springs. If any downstream disputes could arise, the preservation of balanced flow between stream course riparians would probably be dealt with, as Rowberry suggests, by negotiated settlement rather than litigation.373
D. Seeds of Rebellion
The modern disconnect between the local populace in the highlands and the federal government began to emerge with the NPS acquisition of land and water rights with eminent domain. This led in part to the federal role as a proprietary holder with reciprocal common law rights to avoid nuisance and unreasonable riparian usage. To the extent that the common law and statutory law was limited to protection of the free-ﬂowing rivers, there was no heightened tension. Indeed, the locals and national populations were united in the desire to protect the rivers from the massive disruption of water projects.
Division began to grow, however, with the subsidiary regulation that can proceed from but go beyond the property base. With the delegated authority under both the Commerce Clause and the Property Clause, the federal government can regulate both its riparian relationships and beyond, including the use of the public within and adjacent to the federal property.374 This arena can be the progenitor of anger.
V. The Modern Sagebrush Rebellion in Missouri
National park concessions are a species of government-sponsored monopoly, designed to permit a modicum of competitive gain — seeking within the framework of federal control and, simultaneously, to further the NPS dual mandate of preservation and recreation.375 Federal statutes and regulations can dictate the price, the manner, the volume, and the continuity of service.376 In return, the concessionaire, as a contract hol-der, acquires a possessory interest in capital expenditures and improve-ments made,377 a reasonable opportunity to make a proﬁt,378 and a leasehold interest for a deﬁnite term.379 A preferential right of renewal exists if the concessionaire grosses less than 500,000 dollars a year, and can submit a responsive proposal to any new federal prospectus.380
In the early days of the national parks, most of the concessions were small-scale, low-capital endeavors.381 The river parks, such as ONSR and BNR, are even more inclined toward limited operations as the park areas are mostly within long, narrow corridors — unsuited to resort-style concessions and more in need of a controlled volume of usage, for both enjoyable recreation and resource preservation. 382 The concessions within the national rivers essentially feature river outfitting services, modest cabins and small-volume restaurants.383 The cabins in both ONSR and BNR were built by young workers from the CCC and WPA during the Depression, and many are listed on the National Register of Historic Places.384 They are simple but elegant structures of native wood and local stone, with massive ﬁreplaces, screened porches and the sense of careful craftsmanship and solemn dignity emblematic of the parks’ central mission.385
Kim Davenport of Van Buren, Missouri, obtained her concession contract for the cabins and restaurant in the ONSR386 under the 1998 National Park Service Omnibus Management Act.387 The Act, while emphasizing the NPS primary missions and tight control over concession contracts,388 still afforded a preferential right of renewal for outfitters and other small business operators earning less than 500,000 dollars a year.389 Kim, whose family runs similar facilities at BNR,390 had learned her craft well,391 and had nearly completed her concession term in the spring of 2014.392 She was anticipating the exercise of her preferential right of renewal when the word came down that the NPS was going to renovate the cabins and the restaurant, and would close the facilities for an extended period of time. There would be no immediate prospectus circulated and no opportunity for Kim to respond and exercise her preferential right to renew.393
Even though Davenport would agree that renovation was needed, she was clearly opposed to lodge closure for a multi-year hiatus.394 She would be unable to maintain her inventory or personnel during a lengthy shutdown and urged that a staged approach to renovation could keep some facilities open at all times. This would beneﬁt visitors, operators and the area’s total economy.395 Davenport posted a petition against closure online, which drew considerable support from local residents.396
The NPS, which enjoys and employs considerable discretion in the administration of park concessions,397 felt that the necessary work was too disruptive and too extensive to mix with ongoing lodging services.398 It was thus not willing to bend to the need and desires of local economic interests. In its pursuit of national objectives and efficiency, however, and it its subordination of area residents and long-time concessionaires, the NPS may appear overbearing and uncompromising. The wedge deepens and the resentment grows.
B. Outﬁtters and the Property Clause
An outﬁtter is generally a small businessperson who provides recrea-tional experiences such as river-running, hunting, ﬁshing, horseback riding, camping, or climbing. Outfitters are likely to have modest cap-ital facilities and modest, seasonal returns. These features are limits under the 1998 Concession Management Act,399 if the outﬁtter as a concession contract holder in the national park system, wished to qualify for a preferential right of renewal.400 Such rights extend only to outﬁtters earning annual gross receipts of less than 500,000 dollars and who have both performed satisfactorily under prior contracts and who can submit a responsive proposal to any new prospectus.401
The NPS has speciﬁc regulations for outﬁtters that deal with the manner of operation and the impacts on the park,402 and has the discretion to balance the interests of various classes of users, and the impacts on both the recreational experience and the preservation of the park. In Wilderness Public Rights Fund v. Kleppe,403 the Ninth Circuit explored a permit plan in the Grand Canyon which established permit allocations for both private river-runners and commercial outﬁtters. The court said:
In issuing permits, the Service has recognized that those who make recreational use of the river fall into two classes: those who have the skills and equipment to run the river without professional guidance and those who do not. The Service recognizes its obligation to protect the interests of both classes of users. It can hardly be faulted for doing so. If the overall use of the river must, for the river’s protection, be limited, and if the rights of all are to be recognized, then the “free access” of any user must be limited to the extent necessary to accommodate the access rights of others. We must conﬁne our review of the permit system to the question whether the NPS has acted within its authority and whether the action taken is arbitrary.404
The court thus did not feel that giving a larger allocation of permits to concessionaires was arbitrary, invalid commercialization of the park since the NPS was providing a public service to those who could not otherwise see and enjoy the canyon without it.405 In addition, control of the concessionaires provides a direct means to regulate the volume and impact of trafﬁc on the river,406 and administrative planning and regulation in this regard and will be accorded substantial discretion within the limits of arbitrariness.407
The ONSR is far more limited in volume and difﬁculty, and far more accessible to visitation and trafﬁc than the Grand Canyon of the Colorado River. Canoeing has thus been both a recreational and socio-economic center point for the area for generations, unlike river running on the Colorado. In 1964, the number of canoeists on the rivers increased sharply, nearly quadrupling in the first decade of park operation.408 In the late 1960s, there were 16 canoe rental operations in the park under special permit and, in 1973, these were converted to concession permits.409 Concessionaires were required to pay a franchise fee, provide liability insurance, limit their rental rates and conform to certain safety and performance standards.410
In addition, the NPS began as extensive impact study which disclosed decreases in water quality, and increases in both law enforcement problems and visitor perceptions of overcrowding.411 The study found, also, that an increasing number of canoe rental businesses had located near the ONSR and were operating without concession contracts.412 These operators were charged under a park regulation413 forbidding commercial outfitting without a permit, but the federal district court found no liability. The court reasoned that the permitless businesses were located, and the rental contracts formed, on private lands outside the park, and the launching and retrieving of the rental boats was done from state roads that ran through the park.414
The Park Service responded with a more speciﬁc regulation415 that required a park permit for the delivery or retrieval of boats under rental contracts formed outside the park even if no separate fee was charged for canoe haulage.416 However, the district court was not impressed and acquitted the defendant, Williams, once again. The court felt that the United States had no constitutional authority to prohibit delivery or retrieval of canoes on a public road within the park, when the contract was made outside the park.417
The Park Service backed off for a while but, emboldened by the Supreme Court ruling in Kleppe v. New Mexico,418 and the Eighth Circuit opinion in Minnesota v. Block,419 they began enforcing the regulations once again. This time the district court agreed with the assertions of authority and assessed the minimal ﬁnes against the violators.420 The district court noted that both the Supreme Court in the Kleppe case421 and the Eighth Circuit in the Block case422 had concluded that it was within Congress’ power under the Property Clause to enact federal regulations affecting non-federal lands, if the regulation was deemed necessary for the protection of human life, wildlife, government land or government objectives.423 The judicial review of a regulation and its application was held conﬁned to the question of whether the NPS has acted within it statutory authority and in a non-arbitrary manner.424
The Eighth Circuit agreed, stating:
The boundaries of the ONSR incorporate federal, state, and private land, and the regulation makes no distinctions on the basis of ownership. Given the recognized federal power to regulate nonfederal land, there is no reason to doubt the Park Service’s interpretation of its own regulation, which is that it covers all the ONSR area, not just the portions that are federally owned. We conclude that in § 7.83(c)(3), the Service effectuated its intent to regulate all canoe-rental businesses serving the ONSR.425
In the socio-economic twilight that has followed the federal courts’ central holdings on the reach of the Property Clause, the delegation of authority to the NPS and the reasonableness of the application, one can note some residual discontent with both the essential inequality in the allocation of the concession contracts, and beyond to the sometimes questionable stewardship of the park managers.
As to the issue of inequality, it was noted by the Eighth Circuit in Watt that “when the current permits expire, non-concessioned operators will be able to compete with the concessionaires for permit renewals on an equal footing,”426 and that the Secretary was not required to honor preferential rights of renewal.427 The case of Current-Jacks Fork Canoe Rental Association v. Clark,428 however, held that prior concessionaires were entitled to the preference.429 The court concluded “the [Watt] language relied upon … is dicta.”430 Thus the statutory provision431 which holds that preferential renewal rights extend to existing concessionaires who have performed their contract obligations to the satisfaction of the Secretary governs the case.432 Though the government has the right to alter the terms and conditions of future contracts and require responsive bidding, it may not deny the plaintiffs’ then-statutory right of preference.433
Besides the often ham-handed interference — by the NPS and the courts — with what the local citizenry often calls “economic liberty” or “the free enterprise system,”434 one can also note an often sarcastic dissatisfaction with the federal government’s stewardship and approach to land and river management issues such as wildlife and erosion.435 Though these issues might not be as critical to the local populace as basic livelihood, they still may represent a rift in the fabric of the relationship. They may reﬂect the local belief that the government looks down on them and their native knowledge, which should always be a concern to those who occupy a position of power and want to preserve good relations. Beyond, it can be a source of embarrassment when the rule-makers overlook local options that were better. It may turn out that custom and experience can be the best teachers, and that a true sense of place can be superior to what seemed like good ideas in forestry or planning schools. We will explore this more in the next Section.
C. Management Plans and Use Restrictions: from Horses to Horsepower
In many ways, national parks are a land planner’s dream: the land is held within vertically integrated boundaries, at least arguably compatible with the scope of interests, if not external threats. Management is empowered by a Congress enabled with supreme plenary constitutional power under the Property and Commerce Clauses.436 The power is delegated to the NPS under a broad, though bifurcated, mandate of preservation and protection,437 and the means to achieve the objectives are infused with discretion and reviewed with deference.438 There are, however, some powerful, overarching constraints for general planning, provided by the Constitution and general federal environmental legislation, including park-speciﬁc establishment acts,439 and by political constraints at both the local and national level.440 In particular, one can note the powerful and pervasive preservation statutes that bind both the planning and operating processes within the national parks: the Wilderness Act,441 the Wild and Scenic River Act,442 the Clean Water Act,443 the Endangered Species Act,444 the National Environmental Policy Act,445 and the National Historic Preservation Act.446 These acts may require speciﬁc responses within the parks, appropriate and continuing planning duties, and may invite a good deal of challenge and litigation.447
1. THE WILD HORSES OF ONSR
In May of 1990 there were several small bands of wild, feral horses that roamed a twenty-four mile stretch of the ONSR.448 The total number of horses was about twenty and they appeared healthy and happy.449 They also seemed well-liked by the local inhabitants who regarded the horses as remnants of the open-range practices in the Ozarks in Missouri before World War II,450 and as symbols of the people, the area, and its history.451
The NPS however, characterized the horses as exotic species, a term of rejection rather than fascination, and targeted them for removal pursuant to the policies and guidelines for park management.452 A trapper was hired to capture and remove the horses, and plaintiffs, members of the Wild Horse League,453 sued to enjoin the efforts as unauthorized under the enabling acts.454
The district court, in considering the issues of authority, noted that the Secretary would have the delegated authority to remove or destroy the wild horses only if they were detrimental to the park.455 Judge Stephen Limbaugh, writing for the court,456 felt that the evidence did not show that the twenty horses were harmful either to the resources or any use of a park of nearly 70,000 acres.457 The court ﬁgured that that amounted to “one horse to 3,500 acres.”458
Beyond this, the court felt that the Secretary had failed to consider whether the horses constituted a cultural or historical resource, a fact demonstrated by the enactment of the Wild Free-Roaming Horses and Burros Act of 1971.459 The Act, upheld as authorized under the Property Clause in Kleppe,460 did not directly apply to ONSR461 but, according to Judge Limbaugh, “certainly demonstrates Congressional in-tent to protect wild horses.”462 Judge Limbaugh did not address it but, if the horses are a cultural or historical resource, then the Secretary might be under an obligation to engage in comprehensive impact re-view pursuant to the National Historic Preservation Act.463
The court, making its review under the Administrative Procedure Act,464 concluded that the decision to move the horses was “a clear error of judgment” that “failed to consider relevant facts” and was, therefore, inconsistent with purposes and authority of the Park Ser-vices Organic Act.465 The court issued a permanent injunction preventing the removal of the horses, and the defendants, arguing that the court erred in reviewing the decision de novo and substituting its own judgment, appealed to the Eighth Circuit.
In 1993, a divided panel of the Eight Circuit Court of Appeals overturned the district court and vacated the injunction in Wilkins v. Lujan.466 The majority held that, although Judge Limbaugh had properly identiﬁed the standard of review to be for arbitrary and capricious action, he had failed to apply it correctly. The majority felt there was sufﬁcient evidence of damage and threat by the horses to support the Secretary’s removal decision.467 Beyond, if the decision was in part premised on the Secretary’s failure to consider the cultural significance of the wild horses, the majority felt that the proper course of the district court was to remand the matter to the Secretary, rather than to make independent ﬁndings of fact at the trial.468
Judge Loken’s strong dissent stressed that the NPS had prejudged the issue, fabricated a series of unsupported rationales and then ignored well-founded objections from neighbors and patrons of the park.469 Judge Loken felt that the record established that the public announcement of the intended removal was made long after the actual decision was effectively made.470 He also felt that the NPS’s laws and management policies did not require removal of a non-detrimental exotic species — especially one that had been there long before the park was established.471 Loken was upset with what he thought were disingenuous, post-hoc rationalizations that the horses might be at risk of harm or hunger, or were likely to compete with other species for forage, or were inclined to overpopulate. Finally, Loken was especially irritated with the park manager’s ﬂat refusal to consider whether the wild horses were a signiﬁcant part of the area’s cultural heritage. This failure was to prompt a political response.
In 1994, Missouri congressman Bill Emerson, assisted by United States Senators Kit Bond and John Ashcroft, sponsored federal legislation to make the wild herd a permanent part of the ONSR.472 The ensuing act, signed by President Clinton on October 3, 1996, states:
The Secretary, in accordance with this section, shall allow free-roaming horses in the Ozark National Scenic Riverways. Within 180 days after November 12, 1996, the Secretary shall enter into an agreement with the Missouri Wild Horse League or another qualiﬁed nonproﬁt entity to provide for management of free-roaming horses. The agreement shall provide for cost-effective management of the horses and limit Federal expenditures to the costs of monitoring the agreement. The Secretary shall issue permits for adequate pastures to accommodate the historic population level of the free-roaming horse herd, which shall be not less than the number of horses in existence on November 12, 1996, nor more than 50.473
2. Limits on Horsepower - On and Around the ONSR
The development of comprehensive planning at ONSR was delayed by politics, litigation and turnover in park personnel.474 Both the Eleven Point River, as an initial inclusion under the WSR Act in 1968, and the Buffalo River, designated as a National River in 1972 had general management plans (GMPs) within 5 years.475 The ONSR, in contrast, did not get any management planning done until 1984 and that was incomplete: it did not deal with river uses.476 Finally, in 1989 a river management component was added to deal with canoe trafﬁc and power boat limitations.477
Both horsepower restrictions, and river access by roads and horse trails were, however, dealt with indecisively in the first plans.478 In fact, American Rivers declared in 2011 that sections of the ONSR were to be included on a list of America’s most endangered rivers.479 American Rivers stated, in their report:
The Ozark National Scenic Riverways feature clear water flowing from abundant springs and provide some of the Midwest’s best river recreation to 1.3 million visitors each year. However, poor management has led to motor vehicles and horses approaching and entering the river whenever they can, destroying vegetation, and causing severe erosion and pollution. Unless the National Park Service gives the Riverways the protections afforded to the country’s other national parks, the area’s clean water and rare remote experiences will be lost.480
The report noted, in more detail, that since 1984 river access points had increased tenfold and many were characterized by unplanned, unmanaged roadways that destroyed banks and vegetation, greatly increasing sedimentation. In addition, there are ten times more horse trails than officially designated and the illegal additions have meant extensive erosion as well as manure in the water.481 American Rivers was clear and unsparing in their conclusion:
If future generations are to enjoy the clean water and recreation opportunities by the Riverways, the National Park Service must do a better job balancing access and the range of recreation activities with the need to safeguard river health. NPS plans to complete several “capacity” studies prior to issuing a draft General Management Plan (GMP) for public comment in 2011. Prior to issuing the draft (GMP), the NPS must complete an updated study of roads, motorized intrusion at the river, primitive camps, and horse trails, with a full Environmental Impact Statement. Top NPS ofﬁcials must get involved with this Plan to ensure that NPS policies and standards are upheld.482
The NPS was, perhaps understandably, defensive about the report, and suggested that off-road use of ATVs and horse use beyond the designated trails was illegal, and that park law enforcement could not be everywhere.483
According to Susan Flader, the shortfall in planning and regulation is due in part to rebellious localism which causes NPS ofﬁcials to give in to local demands — and those demands have been, in general, for unfettered recreation.484 She noted that better planning and management is acquired — the best in fact.485 Perhaps 2014, the ONSR’s ﬁftieth anniversary, would see the unveiling of a new GMP and a new era in park management. But then again, perhaps the seeds of local rebellion are buried too deeply.
The draft of the new general management plan that emerged in 2014 seemed to stir resentment and resistance even before the locals really had read it. Donald Bradley noted,
“Speciﬁcs of the new “general management plan” aren’t ﬁnal. But whatever it says, some people aren’t going to like it because it comes at a boom time for anti-government fervor in the country — just more Washington telling citizens what to do.”486
In other words, many area inhabitants see this (or any) new government plan as yet another outside intrusion into the livelihood, leisure, and residual sovereignty of the native population. As resistor Thomas Cox of Van Buren, Missouri said, “this is our river.”487
The NPS, however, sees its continuing, and overarching dual mis-sion of preservation and recreation for all — the present and future generations. When contemporary overuse threatens the overall experience or integrity of the ecosystem, then planning, management, and limitations are legally and logically necessary.
The major changes that have provoked hostility from segments of the local populace center on horses, horsepower, and wilderness.488 The draft GMP seeks to control the number of riding trails — not those forged by the wild horses — but those used by human on foot and trail riders on horseback. There are, as noted, at least 100 miles of unofficial trails in the park, and numerous crossings of the river which led to increased erosion and pollution.489 The park plan would eliminate many of the unofﬁcial trails and expand the designated, official trails from twenty-three miles to forty-five, as well as engineer-controlled, limited river crossings.490
The plan would also set the amount of horsepower allowed to 150, and only on sections of the Current below Van Buren.491 As a balance, the NPS proposes to close the upper sections of the Jacks Fork and Current to motorized river travel and to recommend to Congress the designation of 3,430 acres of wilderness near Big Springs.492 As wilderness, the area would be closed to motorized travel by ATVs, though other forms of non-mechanized recreation including hunting would be allowed.493 The NPS plan can suggest wilderness suitability within the park, but the official designation requires Congressional action. There has been significant backlash against such designation from Jason Smith, Congressman from Salem, Missouri, who said, “You understand that I will ﬁght tooth and nail to stop any wilderness from ever being designated in that area.”494 Smith is certainly not alone.
In recent months, protesters packed public meetings. Park service employees hear mutterings in restaurants; their uniforms make them feel like they are viewed as an occupying army.
And President Barack Obama looms large.
At a debate in May in front of the Shannon County Courthouse in Eminence, Mo., Lt. Gov. Peter Kinder called for the federal government to turn the park over to Missouri, The Republican railed about British tyranny, quoted the Declaration of Independence and threw in Obamacare and Benghazi.
Thomas Cox, a member of the opposition group Voice of the Ozarks, also attacked the park service: “They want to take man out of the wilderness and we say, ‘No.’ They’ve gone from conservation to environmentalism. This is our river. The people are with me.”
Not everyone, said Josh Reeves, whose family lives on the Jacks Fork. He thinks a lot of locals would welcome more oversight of the park. The more radical voices, Reeves believes, are simply part of the anti-government rage of the times.
“I don’t see much difference between them and the supporters of Cliven Bundy,” said Reeves, referring to the Nevada rancher who faced off in April against federal agents over grazing fees.495
Ah, the Bundys, father and sons! They have heralded a new phase in the Sagebrush Rebellion — beyond vocal resistance or lawsuits to out-right armed conﬂict, deadly shootouts, and political turmoil. Can this new anti-federalist phase, this modern Sagebrush Rebellion, the out-right transfer or seizure of federal land happen in Missouri?
D. Assault on Federal Land Holding — in the West and in ONSR
For a century and a half, the Ozark inhabitants simmered with resentment at the intrusions of the powerful into what had been a self-sufficient, largely autonomous region of subsistence farmers.496 The anger of the people may have been directed at a variety of forces — military, technological, and economic — but not until well into the 20th century was the outrage directed at the federal government as a land holder. Indeed, Congress had devoted most of the 19th century to disposing of lands in Missouri, rather than holding or managing them. Longtime Missouri Senator Thomas Hart Benton is, in fact, re-vered by modern, conservative anti-federalists as “the transfer of pub-lic lands champion,”497 who fought for liberalized land disposal in the state.498 It is signiﬁcant that the federal government sold virtually all its public domain in Missouri, as it had nothing left to reserve for permanent protection in the form of national parks or forests. When, later into the 20th century, Congress did wish to create national forests and the ONSR, it had to buy the land back from private owners, or condemn it with just compensation.499 This is a major distinction between the transfer of federal public land rebellion in Missouri, as compared to the west.
1. THE WESTERN TRANSFER OF FEDERAL PUBLIC LAND MOVEMENT
Facilitated by the dispositional legislation of Benton and, later, the Homestead Act,500 the fertile eastern lands, including much of Missouri, were quickly appropriated. But disposition slowed in the West, especially beyond the 100th meridian where reliable precipitation failed,501 and at the Rocky Mountain front where the soil became thin and stony.502 Settlers turned more to grazing than farming, and needed extensive access to the unreserved public domain.503 It was the retention — and degradation — of this open range, and the increasing restrictions on grazing and free use of the timber, that led to the beginnings of the Sagebrush Rebellion in the West.504
Starting with the set-aside of Yellowstone and accelerating significantly with the General Revision Act of 1891, which allowed the President to reserve parts of the public domain as national forests,505 the traditional license of the free-grazers began to shrink and resentment began to rise.506 Ranchers, local governments, and states began to question the authority of the federal government to make permanent reservations such as the national forests, to regulate with time, place, and manner restraints, and to charge money for usage that had been previously free. Some looked to Pollard v. Hagen, the Supreme Court decision which dealt with the bed lands of Mobile Bay, a part of the United States’ public domain ceded at the constitutional formation and out of which new states like Alabama were formed.507 The Court held that the bed lands of navigable waters had been held by the United States in trust for the new states and these passed under the Equal Footing Doctrine at the time of statehood.508 The Court also suggested in dicta that the United States held all the public domain in a temporary trust, including the lands above the high water line, and all the public lands should be sold or granted to the new states.509
Subsequent cases, however, have held that the United States could, under the Property Clause, hold undisposed segments of the public domain on a continuing basis.510 In particular, the United States could hold these lands as a public trust for the people,511 one that can be managed — by Congress and its agents with discretion — as an exercise of both supreme federal sovereignty and propriety.512 By early in the 20th century, the limits on the scope of the equal footing doctrine as a political statement only,513 and the general authority of the United States to hold public lands under the Property Clause seemed clear.514
But the heat under the pressure cooker kept rising. People kept moving west, and gravitating to the most easily procured resources — water, timber, and fuel. The grazing commons continued to decline.515 The momentum of the western movement, however, slowed dramatically during the Depression and World War II. The Depression was accompanied and aggravated by the great drought and ensuing Dust Bowl which devastated the interior lands and the grazing industry, and led to the Taylor Grazing Act in 1934.516 The act effectively ended homesteading, and began the regulation of the unreserved public domain by creating grazing districts and regulating the allocation of grazing rights.517 The western ranchers, still reeling from the Depression and the degraded state of the lands and economy, did not relish the necessity of leasing what had formerly been free, but the rebellion that had emerged in the national forests in the early 1900s remained largely in remission. The reason for at least grudging, temporary tolerance, was that the Taylor Act was oriented toward the stabilization and, perhaps, the subsidization of the livestock industry, both of which were accomplished by below-market grazing fees and loose regulation by the local advisory boards.518 The lands, however, continued to decline.519
In the mid-1960s, the environmental movement, spearheaded by the Wilderness Act and the ONSR in 1964, came to ﬂuorescence.520 It was a counterweight to the central forces of industry and growth at the core of post-war America, and a setback to the unﬁlled economic desires of grazers. A further shock to the west was the Federal Land Planning and Management Act of 1976 (FLPMA),521 which created a detailed organic act of public domain management and made clear what state and local governments had long feared — there was no longer any semblance of a federal policy of public land disposition, only one of federal retention and control.522
These acts heightened the tension and tightened the economic and regulatory noose around the necks of ranchers, miners, timbermen, and local governments. They blamed their troubles on the federal government and land management agencies, rather than on entropy, demographics, technology, and changes in demand.523 They decided to revolt against the federal overlord, and proceeded initially in the courts arguing that the Constitution did not authorize continuous federal land holding or regulations in the form of leasing. In particular, they returned to Pollard524 and argued that it commanded a complete divestment of the public domain as a facet of Equal Footing,525 that the Tenth Amendment guaranteed general state sovereignty,526 and, more recently, that various state enabling acts bound the federal government to divest most public lands other than, perhaps, those held under the authority of the Enclave Clause.527
History, logic, economic necessity, and constitutional case law coalesced against the litigious rebels at the outset. Kleppe v. New Mexico,528 handed down the same year FLPMA was passed,529 conﬁrmed that the Property Clause independently empowered the federal government to hold land, to exercise a general sovereignty over all land-related objectives, and to preempt the States’ concurrent jurisdiction if conﬂicts arose.530
Beyond the futile, but oft-repeated argument that the federal government is an unauthorized land holder,531 rebels tried to convince the courts that individuals and local governments had vested rights to federal lands, based on binding leaseholds or pre-statutory tradition and custom.532 The courts have made short work of these arguments.
The Ninth Circuit has stated clearly that grazing permits are limited entitlements, and not vested rights,533 that customary access was a non-vested, revocable license,534 and that even water rights vested under state law can only be exercised in accord with federal rules on access.535
The latest gambit by the litigators may be to argue that the state enabling acts contain binding commitments by the federal government to dispose of most of their land to state and private recipients.536 Scholars have rejected these arguments.537 They feel that the enabling act language is indeterminate at best,538 and beyond that, there are insurmountable justiciability problems, such as the sovereign act defense to contract performance,539 and various statutes of limitation.540
Dogged rebels, ﬁnding out the long, hard way that litigation on new constitutional theories was, after several hundred years of contrary practice, ineffective at best, began seeking new, more contemporary fronts in land economics and politics. Right-wing think tanks like the Political Economy Research Center taught the superiority of private environmental stewardship.541 Conservative politicians sought to implement the return of land disposition policies — to reduce the national debt, to aid the states, and to fulfill the vision of the free market as the ultimate judge of resource allocation.542 The most dramatic political event has been the Transfer of Public Lands Movement (TPL), at the state and national level, which would require the federal government to transfer both proprietary rights and general sovereignty over federal lands within states.543 This movement is not a frontal assault on the constitutional holdings of Kleppe v. New Mexico544 but rather a subversive utilization of Kleppe’s genuﬂection to Congress’ plenary power under the Property Clause.545 If Congress has total power to protect and preserve the land and it objectives, then it also has the power to give the land away.546 Thus, the TPL movement becomes linked to free-market anti-federalism and the politicians who desire to shrink the federal government and repower the states.
The TPL movement got rolling in the aftermath of the sieges of Bunkerville, Nevada and Melheor, Oregon, where heavily armed rebels faced down the federal landlords with violence and martyrdom on their minds.547 Would it not be better, the American Lands Council (ALC)548 soothingly suggested, to transfer all the federal lands not speciﬁcally reserved as national parks, wilderness, Indian reservations, or military posts to willing states and their inhabitants?549
Robert Keiter and John Ruple have written a lucid reply to ALC’s arguments.550 They assert that Utah and the ALC have not accurately projected the economics of such transfers, including the additional state costs to manage the lands, and the costs to the public in terms of access and utilization.551 Moreover, the ALC and the states have not explained how the national interests in environment, endangered species, and preservation resources would be protected.552 In short, they see a dearth of real state planning, a thinly disguised guest for commodity development and increased revenues,553 and a clear necessity for more forethought and cooperation to avoid impairment of both state and national interests.554
Yet Missouri politicians seem largely unaware — or unconcerned. Their response to the ONSR draft general management plan has been instructive.
2. THE TRANSFER OF PUBLIC LANDS MOVEMENT IN THE ONSR
The draft general management plan for the ONSR, released in 2014, provoked, as noted,555 some fervent opposition among local residents and users who feared restrictions on horsepower, horse trails and ATV access to the river bank and gravel bars, and in a new wilderness area.556 Politicians responded. U.S. Representative Jason Smith (R. Salem), stated great concerns with the draft plan, especially wilderness, in a hearing of the U.S. House subcommittee on Public Lands and Environmental Regulation, promising to ﬁght the plan “tooth and nail.”557
Though Smith also said he thought the present ONSR management plan worked “just great,”558 he nonetheless proceeded to initiate a local TPL (transfer of public lands) movement — calling for the transfer of the ONSR from federal hands to the state of Missouri.559 Bill H.R. 4029, 113th Congress, 2d Session560 stated, in part:
SEC. 9. Not later than one year after the date of the enactment of this section, the Secretary shall convey to the State of Missouri, for no consideration, all right, title, and interest of the United States in and to all Federal land, facilities, and any other assets associated with the Ozark National Scenic Riverways, subject to the following conditions …
(A) that the State of Missouri shall maintain and operate the land, facilities, and as-sets conveyed under this section, at the cost to the State, in substantially the same fashion as such land, facilities, and assets were being maintained by the Department of the Interior on the day before the date of the enactment of this section;
(B) that if the State of Missouri attempts to sell, in whole or in part, the land, facilities, or assets conveyed under this section, such the land, facilities, or assets shall revert to the United States, at the discretion of the Secretary, at no cost to the United States;
(C) that if the land and facilities conveyed under this section are no longer used as described in subparagraph (A), the land and facilities shall revert to the United States, at the discretion of the Secretary, at no cost to the United States.561
It is not as sweeping as the western TPL bills which deal with millions of acres, but, in another sense it is extraordinary in that the proposed western bills exclude national parks.562 The Smith bill has a reverter clause, if the use changes, and it details state managerial responsibilities563 which might seem to make it more palatable to Congress — but Smith had not counted on his own state’s objections. Missouri foresaw the potential impact on its own pocketbook. As Donald Bradley noted, “Gov[ernor] Jay Nixon has no interest in the park which has an operating budget of $6 million a year and 120 employees and needs $34 million in repairs.”564
On April 8, 2014, the Senate Appropriations Committee of Missouri, never a state accused of unnecessary spending, stripped the six-million dollar appropriation line to fund the state takeover of ONSR from the ﬁscal year 2015 budget.565
The Conservation Federation of Missouri pointed out some other arguments that might have been independently persuasive to the Missouri legislature, had it not been so quickly convinced by its own financial interests. Ron Coleman and Susan Flader noted that the ONSR is a national park and, as such, it belongs to the people of the nation as a trust; indeed, 90 percent of the visitors are non-local and 95 percent of Americans support the idea of national parks as an appropriate function of the federal government.566 The ONSR, as national trust property, is an inalienable cultural legacy for all the people, and, as such, should never be sacrificed or subordinated to short-term, local self-interests.
The arguments based on national interest seem to have prevailed at the federal level. On June 10, 2014, Victor Knox, Associate Director of Park Planning for the NPS spoke to the House subcommittee regarding the Smith Bill to transfer the ONSR:
Our fundamental concern is that the bill would erode the idea of a Federal system of public lands, and the system of laws, regulations, and policies that govern the management of those lands. The management of Federal lands involves the exercise of inherently Federal functions and decision making by land managers for the long-term benefit of all Americans. State governments have very different responsibilities for the management of State lands than the Federal government, and are accountable only to residents within their particular States. Accordingly, each State would be under strong pressure to manage according to local rather than national interests.567
The local ﬁnances and national perspectives seem to have carried the day, and H.R. 4029 appears to have died in committee. The tensions still remain, however, and to the extent that federal ownership has become a political issue, rather than a constitutional one, it may be a repetitive concern.
Through it all, the Current and the Jacks Fork Rivers still run, much as they have for the countless ages it has taken to bow, but not subdue, the Ozarks. The human lifespan, and even that of societies, is shorter by far, but in bonding with the ageless lands and the timeless rivers, the people and their communities can gain continuity and coherence.568 Those who live by the rivers, or come to visit with respect, and perhaps with reverence, know that a life can be given meaning and even fulﬁllment simply by the sight of a shaft of late winter sun on the bark of a tree,569 or the sound of achingly clear water bubbling from the earth and flowing freely over ancient stones.570 We may be distracted by so many other things, and daunted by our ﬁniteness and ﬂeeting opportunities, but when we are alone with these visions and our senses, all doubts roll away and we are at peace.
And when these visions are disrupted or threatened, we can be jolted into defensive rebellion. It is, perhaps, easier to judge sides when the contest is between those who want to love the land and water, and save them, and those who want simply to commodify them and make a proﬁt. In the West, and in the Ozarks, the people who have long lived on the land are clashing, not necessarily with the proﬁteers, but with the administrators who have been formally charged with protection and management. One can sense the passion — and the misunderstanding — on both sides. One can only hope for resolution born out of discussion, cooperation, compromise and the understanding that the central quest of both sides is the endurance of the irreplaceable natural community.