The federal forests are not what they seem: Formal and informal claims to federal lands

Ecology Law Quarterly

Volumn 25, Issue 4, 1999, Pages 630-645

  Fairfax, Sally K ^a   Fortmann, Louise P ^a   Hawkins, Ann ^a   Huntsinger, Lynn ^a   Peluso, Nancy Lee ^a   Wolf, Steven A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 22644449939     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (82)

1. Previously, Professor Fairfax was so ill-inspired as to call the model the "myth of the green blob." See Richard H. Cowart & Sally K. Fairfax, Public Lands Federalism: Judicial Theory and Administrative Reality, 15 ECOLOGY L.Q. 375 (1988).
2. The cake analogy Is apparently inedible. It Is the result of work undertaken by Morton Grodzins and Daniel Elazar. See Morton Grodzins, The Federal System, in GOALS FOR AMERICANS 265 (1960);
3. see also DANIEL ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES (1966);
4. Sally K. Fairfax, Old Recipes for New Federalism, 12 ENVTL. L. 945 (1982) (reviewing academic theories of federalism) [hereinafter Old Recipes].
5. See generally Sally K. Fairfax et al., Federalism and the Wild and Scenic Rivers Act: Now You See It, Now You Don't, 59 WASH. L. REV. 417 (1983).
6. See generally Fairfax, Old Recipes, supra note 2.
7. See Charles Wilkinson, Public Lands are Essential to Our National Heritage, (unpublished paper presented at the Conference on Public Land Management at the Natural Resources Law Center, University of Colorado, Oct. 11-13, 1995) (arguing for the absolute necessity for federal management to protect the Kaiparowits Plateau, apparently without realizing that the major threats to the same area are almost without exception federal projects and federally approved projects).
8. See Fairfax et al., Federalism and the Wild and Scenic Rivers Act, supra note 3.
9. See Joseph L. Sax & Robert B. Keiter, Glacier National Park and Its Neighbors: A Study of Federal Interagency Relations, 14 ECOLOGY L.Q. 207 (1987);
10. see also William J. Lockhart, "Faithful Execution" of the Laws Governing Greater Yellowstone Whose Law? Whose Priorities?, in THE GREATER YELLOWSTONE ECOSYSTEM: REDEFINING AMERICA'S WILDERNESS HERITAGE 49, 55-56 (Robert B. Kelter & Mark S. Boyce eds., 1991) (deriding the BLM's position that it does "not manage public lands as a 'buffer zone'" for national parks, and discussing BLM's choice, to the surprising dismay of the author, to cite its own multiple use mandate as controlling on lands over which it has authority).
11. See generally Barbara T. Andrews & Sally K. Fairfax, Groundwater and Intergovernmental Relations in the Southern San Joaquin Valley of California: What Are All These Cooks Doing to the Broth?, 55 U. COLO. L. REV. 145 (1988).
12. See Sally K. Fairfax & Louise P. Fortmann, American Forestry Professionalism in the Third World: Some Preliminary Observations, 4 POPULATION AND THE ENVT 259 (1990) (discussing the anti-local bias of resource management professions).
13. See PAUL W. GATES, A HISTORY OF PUBLIC LAND LAW DEVELOPMENT 341-86 (1968) (discussing the history of railroad land grants).
14. Stock-Raising Homestead Act, ch. 9, 39 Stat. 862 (1916) (current version at 43 U.S.C. § 291-301 (1994)).
15. It is frequently asserted, therefore, that the BLM manages the lands that no-body wanted. This is a very destructive myth. A better point of departure is that the lands now managed by the BLM were effectively controlled by users who saw no reason to endure the burdens of ownership. See Leigh Raymond & Sally K. Fairfax, Fragmentation of Public Domain Law and Policy: An Alternative to the "Shift to Retention" Thesis (forthcoming 1999) (on file with authors).
16. See Sarah Connick & Sally K. Fairfax, Federal Land Acquisition for Conservation: A Policy History, (forthcoming 1999) (on file with authors). It is important to note that many of these variations arise from the fact that the four federal conservation agencies have significantly different acquisition authorities and use them to achieve very different purposes.
17. See Joseph L. Sax, Buying Scenery: Land Acquisitions for the National Park Service, 1980 DUKE L.J. 709 (1980).
18. See Sax, Buying Scenery, supra note 13. For a focused analysis of federal land acquisition policies, see Connick & Fairfax, supra note 13.
19. See Keith D. Wiebe et al., Finding Common Ground on Public and Private Land, 52 J. SOIL AND WATER CONSERVATION 162 (1997).
20. See SALLY K. FAIRFAX & CAROLYNE YALE, FEDERAL LANDS: A GUIDE TO PLANNING, MANAGEMENT, AND STATE REVENUES (1987).
21. See Leigh Raymond, Viewpoint: Are Grazing Rights on Public Lands a Form of Private Property, 50 J. RANGE MANAGEMENT 431 (1997).
22. See James L. Huffman, The Inevitability of Private Rights in Public Lands, 65 U. COLO. L. REV. 241 (1994). Not wanting to plunge in over our heads with Dan Tarlock and Joe Sax headed to the podium, we carefully eschew any comment on the impact of private rights to water on the normal model of federal ownership.
23. For an interesting view into part of this subject, see David Abelson, Water Rights and Grazing Permits: Transforming Public Lands into Private Lands, 65 U. COLO. L. REV. 407 (1994). Abelson concludes, in spite of his article's title, that water rights do not bolster grazers land claims. But there is little support for his claims, other than a religious faith in the normal model, and the outcome remains in doubt.
24. But see, e.g., Hinsdale Livestock Co. v. United States, 501 F. Supp. 773 (D. Mont. 1980).
25. See Rebecca McLain et al., Knowledge, Rules, and Policy Development: Non-timber Forest Products in the Pacific Northwest (1994) (unpublished manuscript on file with the Institute for Resources in Society, College of Natural Resources, University of Washington);
26. see also RANDY MOUNA ET AL., U.S. DEP'T OF AGRICULTURE, No. PNW-GTR-309, Biology, Ecology and Social Aspects of Wild Edible Mushrooms in the Forests of the Pacific Northwest: A Preface to Managing Commercial Harvest (general technical report, 1993).
27. See K. Mater, Factors Affecting Special Forest Products Marketing and Business Management Throughout North America, in DANCING WITH AN ELEPHANT: THE BUSINESS AND SCIENCE OF SPECIAL FOREST PRODUCTS (C. Schnepf ed., 1994);
28. see also NONWOOD FOREST PRODUCTS IN THE UNITED STATES: AN OVERVIEW OF RESEARCH AND POLICY ISSUES (Rebecca McLain ed., forthcoming 1999) (on file with authors);
29. Forest Products: New Crops Yield Money and Danger, GREENWIRE, Feb. 24, 1998 (summarizing articles on forest "gleaners").
30. Some would argue that the loss of this right has resulted in disastrous consequences in terms of overpopulation of deer and elk.
31. See United States v. Dann. 470 U.S. 39 (1985). On remand, the Ninth Circuit held that federal agencies are "limited in their ability to dispose of or manage lands where Congress has not extinguished Indian title." United States v. Dann, 873 F.2d 1189 (9th Cir. 1989). cert. denied, 493 U.S. 890 (1989); GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 55 (3d ed. 1993).
32. A number of articles have discussed the disputes between members of the Hispanic community. Anglo settlers, and the federal government in the Rio Arriba County of New Mexico. Land management agencies, including the Forest Service and New Mexico Game and Fish Commission, control lands that were once commonly held as community land grants under the Mexican government. See Donald D. Johnson, Around Los Ojos, Sheep and Land are Fighting Words, 22 SMITHSONIAN 37 (1991);
33. see also Susan Pulido, Sustainable Development at Ganados del Valle, in CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS 123 (Robert D. Bullard ed., 1993). Spanish and Mexican land grants were fragmented, dissolved, and lost to the community through the failure of the American judicial system to recognize community-held grazing and timber lands, the lengthy and costly process of adjudicating them, and outright land fraud and speculation schemes by land hungry American settlers and investors.
34. For New Mexican examples, see CLYDE EASTMANN & JAMES R. EASTMANN, COMMUNITY GRAZING: PRACTICE AND POTENTIAL IN NEW MEXICO (1987).
35. See also Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 NAT'L RES. J. 1039 (1985);
36. Calvin Trillin, U.S. Journal: Costilla County, Colorado: A Little Cloud on the Title, NEW YORKER MAGAZINE, Apr. 26, 1976, at 122 (analyzing a land grant based dispute in Southern Colorado);
37. PAUL STARRS, LET THE COWBOY RIDE (1998) (using the Rio Arriba County as a case study in describing the relationship between the federal government and Hispanic settlers, as well as "neo-traditionalist" Anglo ranchers).
38. In the case of the Chama Valley in Rio Arriba County, efforts to rebuild a traditional New Mexican grazing economy and lifestyle faltered on the lack of availability of grazing lands, most of which are today controlled by the federal or state government and Anglo ranchers. For a fictionalization of this dispute, see JOHN NICHOLS, THE MILAGRO BEANFIELD WAR (1974).
39. See Mark D. Spence, Dispossessing the Wilderness: The Preservationist Ideal, Indian Removal, and National Parks (1996) (unpublished Ph.D. dissertation, University of California at Los Angeles) (on file with the University of California at Los Angeles Library) (discussing Native American rights and peoples in the formation of early parks).
40. See Jesse Ribot, Decentralization and Participation in Sahelian Forestry: Legal Instruments of Central Political-Administrative Control (unpublished paper presented in the Environmental Politics Working Group seminar, Institute of International Studies, University of California, Berkeley. Mar. 1998) (on file with authors) (arguing that the participation process frequently undermines the historic claimant by allowing the agency to grant privileges rather than recognizing historic rights).
41. See WAYNE HAGE, STORM OVER RANGELANDS: PRIVATE RIGHTS IN FEDERAL LANDS (1994) (arguing that appropriative water rights held on the public domain by most public land ranchers are based on putting that water to "beneficial use," and restriction or elimination of grazing from the area is a violation of that water right);
42. see also Raymond, Viewpoint, supra note 17 (discussing the validity of legal versus customary claims to grazing).
43. See WILLIAM R. LOWRY, THE CAPACITY FOR WONDER: PRESERVING NATIONAL PARKS (1994);
44. see also Joseph L. Sax. Helpless Giants: The National Parks and the Regulation of Private Lands, 75 MICH. L. REV. 239, 240 (1976) (addressing the issue, although the author did not use the term). The idea quickly became a stock item in discussions of national park policy.
45. See NATIONAL PARK SERVICE, U.S. DEP'T OF THE INTERIOR, STATE OF THE PARKS (1980);
46. see also National Parks and Conservation Association, NPCA Adjacent Lands Survey: Part II, NATIONAL PARKS & CONSERVATION MAGAZINE, Apr. 1979, at 4.
47. See OUR COMMON LANDS: DEFENDING THE NATIONAL PARKS (David J. Simon ed., 1988), for a compendium of articles all based on the idea of external threats. While not wanting to minimize the problems created for any resource manager by decisions on any neighboring holding, we believe that it is worth focusing as well on the problems that Park managers themselves create, with their own errors, and therefore could more easily control.
48. For a brief introduction to some of the more obvious management problems that the Park Service creates for itself, see RONALD A. FORESTA, AMERICA'S NATIONAL PARKS AND THEIR KEEPERS (1984).
49. See also ALSTON CHASE, PLAYING GOD IN YELLOWSTONE: THE DESTRUCTION OF AMERICA'S FIRST NATIONAL PARK (1987);
50. KARL HESS, ROCKY TIMES IN ROCKY MOUNTAIN NATIONAL PARK (1993);
51. RICHARD W. SELLARS, PRESERVING NATURE IN THE NATIONAL PARKS: A HISTORY (1997). For perspective, it is worth trying to imagine a discussion of Forest Service or BLM management that ignores agency decisions and begins and ends with decisions made by neighbors.
52. See, e.g., Andy Stahl, Flood '96 Update, INNER VOICE, Mar.-Apr. 1996.
53. See Lynn Huntsinger & Cathy Lemp, No Lake is an Island: Lake Tahoe Case Study, in WILDLAND FIRE PROJECT (1998);
54. see also Lynn Huntsinger & Cathy Lemp, Linking Forest and Community Health: Quincy Case Study, in WILDLAND FIRE PROJECT, supra;
55. Joan Wright et al., San Bernadino Case Study, in WILDLAND FIRE PROJECT supra.
56. Funding limitations for vegetation management, as well as hands-off management policies, may lead to the perception that communities are inadequately protected. See Jeremy Fried & Lynn Huntsinger, No Park is an Island: Managing for Naturalness at Mt. Diablo State Park, SOCIETY AND NATURAL RESOURCES (forthcoming 1999) (on file with authors) (discussing the reaction of neighboring communities to changes in fire hazard management).
57. Attorneys are also concerned with the evolution of the parcel-based property system that gives rise to notions of federal blocks of land. See Joseph L. Sax. Ecosystems and Property Rights in Greater Yellowstone: The Legal System in Transition, in THE GREATER YELLOWSTONE ECOSYSTEM: REDEFINING AMERICA'S WILDERNESS HERITAGE 77 (Robert B. Keiter & Mark S. Boyce eds., 1991);
58. see also Joseph L. Sax, Nature and Habitat Conservation and Protection in the United States, 20 ECOLOGY L.Q. 47 (1993).
59. See Sax, Ecosystems and Property Rights in Greater Yellowstone, supra note 31 at 7.
60. Sax argues that a "fundamental purpose of the traditional system of property law has been to destroy the functioning of natural ecosystems." Sax, Ecosystems and Property Rights in Greater Yellowstone, Id.
61. Although Sax intended the argument to be a "slightly shocking statement," he does not back off from it. Sax, Ecosystems and Property Rights in Greater Yellowstone, Id.
62. Kleppe v. New Mexico, 426 U.S. 529 (1976).
63. Id. at 539 (1976) (citing United States v. San Francisco, 310 U.S. 16, 29 (1940)).
64. See Cowart & Fairfax, Public Lands Federalism, supra note 1.
65. See PHILLIP O. FOSS, POLITICS AND GRASS: THE ADMINISTRATION OF GRAZING ON THE PUBLIC DOMAIN (1960). The issue of whether grazing permits have ripened into grazing rights is a live one.
66. See Leigh Raymond, Are Grazing Rights on Public Lands a Form of Private Property?, 50 J. RANGE MANAGEMENT 431 (1997).
67. The pendency of legislation imposing the Quincy Library Group's plan on national forests in Northern California is a continuing saga, which you can follow in succeeding issues of PUBLIC LANDS NEWS, over the last year.
68. Note that the federal land management agencies have for the most part relied upon state standards and capacities for enforcement of air and water pollution on federal land. See Cowart & Fairfax, Public Lands Federalism, supra note 1:
69. see also Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.Q. 201 (1996).
70. See FAIRFAX & YALE, FEDERAL LANDS, supra note 16, at Part 2.
71. See generally id.
72. Since 1990, for example, Congress has established a revenue sharing formula for "owl country" based on historic rather than current receipts in order to diffuse local hostility to decreased timber harvest.
73. See Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347 (8th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).
74. There is a simple reason for states to pay intense attention to receipts which the federal agencies tend to ignore: the states gain enormous benefits from the leasing revenues while the federal agencies gain nothing. The programs generally run at a loss and the federal government, but not the agencies, derives most of its benefits from the leasing programs from taxing the income of the developers. The agencies accordingly have little incentive to invest effort in careful accounting of production and royalties. See FAIRFAX & YALE, FEDERAL LANDS, supra note 16, at 26-27.
75. U.S. COMMISSION ON FISCAL ACCOUNTABILITY OF THE NATION'S ENERGY RESOURCES, REPORT OF THE COMMISSION (1982).
76. See FAIRFAX & YALE, FEDERAL LANDS, supra note 16, at 73-76 (discussing FOGRMA, the Federal Oil and Gas Royalty Management Act of 1982).
77. See, e.g., Wyoming, IPAA Think Alike on Oil Royalty, in PUBLIC LANDS NEWS, Nov. 13, 1997, at 6.
78. See Does Shea Hold Key to State Oil and Gas Role?, in PUBLIC LANDS NEWS, Oct. 2, 1997, at 9. Much, but not all, of this authority shifting comes from Congress. See Arkla Exploration Co., 734 F.2d at 354 (embracing state's rights in federal declsionmaking based on their share of the revenues).
79. See Cowart & Fairfax, Public Lands Federalism, supra note 1.
80. During the McCarran years of the late 1940s and early 1950s, the Grazing Advisory Boards were actually paying BLM personnel when Congress cut their funds. See SAMUEL T. DANA & SALLY K. FAIRFAX, FOREST AND RANGE POLICY: ITS DEVELOPMENT IN THE UNITED STATES 182-83 (2d ed. 1980).
81. See Sally K. Fairfax, A Disaster in the Environmental Movement, SCIENCE, Feb. 1978, at 743.
82. See Gail L. Achterman & Sally K. Fairfax, The Public Participation Requirements of the Federal Land Policy and Management Act, 21 ARIZ. L. REV. 501 (1979).