The truth you don't hear about public lands

29 Aug

29Aug

If you don’t like what’s going on with public lands, I get it. Promoting responsible stewardship of public lands makes sense, because we all benefit.

But too often I see or hear things that are half-truths at best about what is going on with public lands and who is to blame for all the things that aren’t right. I’ll get to a couple examples here shortly. It’s a little disappointing, honestly, because it’s too easy to be better informed. And it’s an easily remedied weakness among us that we are so quick to be pulled into a negative emotional response. But, it certainly feels like we’re being baited for that kind of response.

In this post I will go over some things that are rarely mentioned about public lands that might help build a better framework for discussing what should change and how to best effect more permanent change.

What’s all The Noise About?

As one who very much enjoys the outdoors, access to public lands is extremely important to me. It’s a great privilege to be able to do this in the United States.

Approximately 40% of all land in the U.S. is non-private, or what many people call “public” lands. That’s either federal, state, county, municipal, or tribal owned land. The only other country with more public land than the US, by one percent, is Canada, which has 41%. Most countries have only a fraction of the public land that we have here in the U.S.

Then I hear all this uproar about the President or some mining or logging company ruining or threatening public lands. But rarely do I hear people complain about Congress. I’ll tell why that’s a total miss in a few minutes.

I hear things like public lands are a “national treasure”. Yes, but in more, and maybe bigger, ways than what is being talked about.

I hear people say that we, the people, are the “land owners” and have the right to determine how it’s used. This is a stretch. I’ll talk about the real owners, by design, shortly.

And, of course, much of this is coming from those who love the outdoors and spend time on these lands. The topic can turn passionate and even irrational very quickly.

Some of the rhetoric is true, no doubt. For instance, mining permitted under the General Mining Law of 1872 has billed the tax payer in excess of $50 billion to clean up toxins from those mining operations. This is not because we can’t do cleaner mining. It’s because the law has no environmental protection provisions. The mining companies have followed the law by attaining permits as required. It is Congress who, by exclusion, have allowed this to happen. It’s irresponsible to pass a law that allows for the extraction of natural resources without some provisions to minimize damage, require some level of restoration, or define some liabilities. The mining companies are just trying to run a business. Could they have done better? Sure, but at high costs and smaller profit margins, what’s the business incentive? It’s not reasonable – it’s laughable - to put this on the mining companies. Bottom line is that Congress didn’t do their job in protecting the people. But they won’t. There’s too much financial incentive for career politicians. It’s time for a more permanent change. I’ll talk about that more specifically soon.

Some of the hype is simply not true. For instance, we, as individuals, don’t “own” public land. We can’t build a house on it and put up our white picket fence. In fact, everything we can do on public land is strictly and intentionally governed. The authorizing entity is the real owner. Yes, it’s “public” by name, but public doesn’t mean “owner”. And, yes, our tax dollars fund the management of the land – but there are layers of rules, regulations, laws, and agencies that together give individuals very little liberty with the land. And without liberty there is no real ownership.

I’m not questioning the intent of those who want public lands to be something else, because I find that the intent is usually based on promoting what is good for the land and the citizenry. From what I see, many are motivated by their position on conservation and preservation. They don’t want a beautiful landscape destroyed. What’s wrong with preserving that which is beautiful?

MoreThanJustParks.com suggests that of the approximate 900 million acres of public lands, 595 (about 65%) is being threatened by some identifiable action such as a bill in Congress, a lease sale, a permit, a court case, or budget cuts. Assuming that number is accurate, that’s a significant amount.

But to be fair, the numbers they and others are reporting don’t exactly tell the whole story. For instance, if Congress passes a bill to allow permitting for natural resource extraction within a 1 million acre plot of land owned by the Federal Government, that doesn’t mean all 1 million acres will be permitted or actually threatened.

But what we see in the headlines is usually something like: “1 million acres threatened”. That’s just not the case; it’s speculative and meant to be provoking because no one knows what permits will actually be issued and what type of activity might eventually be done on the land. Understandably, the alarmists will announce the biggest numbers possible to get the most attention. The actual numbers will likely be far less. All I’m asking for here is more honesty in reporting that is based on what is actual or typical rather than the worst case scenario. The management of federal public lands requires, by law, balancing conservation efforts with resource extraction demands. The actual numbers that represent this balance are not publicly reported, which makes me question why, but we can say with certainty that the threat from all identifiable actions to public land is unquestionably less than 100% of what is being suggested here.

Yet, there is some truth to all this and maybe it becomes a slippery slope if someone doesn’t say or do something about it before the wrong momentum builds. And because I am one who enjoys the outdoors, should I be concerned or outraged by what some are reporting about what’s happening with public lands? Maybe.

On the other hand, like so many activist causes, it’s fair to ask how much of this is hate bait or otherwise politically motivated speech to fool people into thinking something is true when, at best, it eventually and potentially might be true over time, assuming the worst case scenario.

I would venture to guess that a good many people are a lot like me in terms of actual knowledge about public lands.

Until I did some digging while researching this piece, I really didn’t know much about public lands, other than all the unavoidable bias that flashes on my news and social feeds from time to time.

It would be good for us to reset and look at some obvious and elementary things that need to be understood before entering into any substative discussion about public lands. For instance:

What makes land public?
How did these lands come to be public?
For what are these lands intended to be used?
Who gets to make the rules on what activities are authorized on public lands?
What channels do we have in voicing opinions when we don’t like what is happening on public lands?

I have many more detailed questions, but let’s just first understand these very basic, foundational things.

The Constitution

The first definition of U.S. public lands, with respect to authority and governance of them, dates back to Article IV, Section 3, Clause 2 of the U.S. Constitution, which gives authority exclusively to Congress for making rules and regulations for public lands.

It reads like this:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

I won’t pretend to know enough to talk at length about what this actually means, but constitutional scholars suggest that the intent of the framers of the Constitution when they wrote this was three-fold:

First: It was to facilitate orderly expansion of the U.S. by providing the necessary framework for managing territories that could eventually become states.

Second: It was to establish and maintain federal authority over territories, preventing individual states from unilaterally creating new states or altering existing state boundaries.

And thirdly, it was to regulate the use of lands owned by the Federal Government.

Notice there’s no mention of the term: “public lands”. That’s a more modern term meaning land that is not owned by individuals or corporations.

Public lands came to be when either the states ceded land to the Federal Government, the Federal Government transferred land back to the states, or land was acquired by a government authority through purchase, treaty, or some other means.

Federal land ownership began when the original 13 states ceded their “western” lands between the Appalachian Mountains and the Mississippi River to the central government between 1781 and 1802. Substantial land acquisition in North America also came via treaties and purchases such as the Louisiana Purchase in 1803 and culminated with the purchase of Alaska in 1867. In total, over time, the Federal Government acquired 1.8 billion acres in North America.

Generally, the initial federal policy was to transfer ownership of many federal lands to private (think: the Homesteading Act) or to state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.3 of the 1.8 billion acres.

However, from the earliest times, Congress also provided for reserving lands for federal purposes, and over time has reserved or withdrawn areas for such entities as national parks, national forests, wildlife refuges, Washington DC, national defense installations, and lands to be leased for livestock grazing or natural resource extraction. Or in some cases, for multiple reasons of which Congress is fully authorized the power to do.

All this is to say that the Constitution exclusively gives Congress the authority to do essentially whatever it wants with all land owned by the Federal Government. The Congress, if you didn’t note that last part, is the real owners of Federal Property. And in a very similar way, State lands are governed by some sort of State legislative body.

Additionally, several U.S. Presidents have assumed authority in the past to influence federal land management through executive orders that direct federal agencies when and how to implement laws and manage resources. These orders have established policies that prioritize certain uses of public lands, such as energy production or conservation, thereby shaping the overall management approach.

BUT, referring back to the Constitution, it seems the Executive Branch does not have authority to make rules and regulations over Federally Owned land. In at least three cases there have been notable instances where Congress did not act against questionable executive orders that impacted the management of federal lands, allowing these Presidents to exercise considerable and possibly unauthorized authority without legislative approval.

Franklin D. Roosevelt issued numerous orders related to land management and conversation, expanding federal control over national parks and forests without direct congressional approval – scholars argue that this was unconstitutional.
Barack Obama implemented the Antiquities Act to designate national monuments, creating large protected areas, which again overstepped Constitutional authority by bypassing Congress.
Donald Trump signed orders to reduce the size of national monuments that were previously and questionably established or expanded by other administrations, undoing previous executive overreach. This too, because it was not an act of Congress as the Constitution says it should be, is arguably unconstitutional, even though it undid that which appears to be the same.

In this doing and undoing of executive orders, Congress is in contempt of their Constitutional responsibility. They should have acted. These are great examples of what happens when Congress does nothing to challenge when other branches of government usurp authority. These may be relatively small matters in the full scope of the government, but they are nonetheless important because they are slowly eroding our constitutionally mandated balances of power, which by definition actually threatens our Constitutional Republic.

Just a side note here. A national group called the Article V Convention of States Action is trying to directly and constitutionally address such overreach through taking appropriate action to call for a Convention of States, which if specific resolutions are passed by the convention and ratified by 38 state legislatures, Congress, the Executive Branch, and in some cases even the Supreme Court would be forced by law to fall back in line with Constitutional authority and might even cause the undoing of a number of unconstitutional actions that had been allowed to happen. It’s too much for this article, but it’s worth the effort to be aware of what’s going on here.

What is the purpose of public lands?

I mentioned previously that public lands are not just for conservation and recreation. They are also for resource management to include energy development, livestock grazing, timber harvesting, and mineral development, to name a few. In fact, they are for whatever Congress decides they are for at any time.

Timber harvesting is managed by the Forest Service and the Bureau of Land Management, as well as state and municipal laws.

Mining is permitted under the Mining Law of 1872, the Mineral Leasing Act, and several others.

The issue that many people have with those who are authorized to harvest off of federal land is that, if not carefully monitored and regulated, that it could lead to significant habitat destruction, pollution, other ecological issues, or that public access to the lands could be limited to these areas for outdoor recreation.

Because both types of activity have been authorized by Congress: conservation/recreation and resource management, the key, and in fact the requirement, is that there needs to be a balance between both, because they are both important in different ways.

It’s not crazy that conservationists would be concerned about any disruption to natural environments. But it is unreasonable and unwise to abandon the multipurpose of these lands for a single purpose. How can we do both? I think there’s a way. We just need to be reasonable and clear minded about our approach.

I’m not asking anyone to like what may be going on. But I am asking for us all to work within the rules and framework that governs the use of public lands in this country, and to make allowances for the full array of the intended and legal uses.

An example is when the extraction of oil and gas or rare earth minerals from a portion of our public lands has been authorized. These natural materials help make our country less dependent on those who are seeking to destroy our way of life, which is crucial for current and future generations of Americans. It is, by definition, contributing to national security. However, it’s also reasonable to put some limitations on this type of activity for all the previously stated conservation and recreation reasons. If we settle on a reasonable compromise, we get both: national security and conversation.

Answers and Actions

We’ve answered the question about what public lands are. They are essentially non-privately owned lands.

We also answered how these lands came to be owned by the Federal Government. States ceding land to the Federal Government, land given to the States from the Federal Government, land that came via some purchase, or lands gained through treaty. Then we noted that a great majority of this land acquired by the Federal Government has already been given back to the states.

We answered the question about the authorized use of the land. Congress has been given the exclusive power and authority through the Constitution to do whatever it wants with public lands. They have created laws that allow and permit extraction of many different types of natural resources, as well as for preservation, conservation, and recreational use. And a number of Presidents over the years have likely overstepped their authority by issuing executive orders impacting management of public lands.

What then can a person do if they do not like what’s going on with Public Lands? That person should contact their representatives in Congress or if the current one isn’t getting it done, get involved with electing someone different next time who might better respect constituent opinions about how public lands should be used and to oppose overreach from other branches of government. Do the same at the state and local levels.

The beauty of our constitutional republic is that “we the people” have a voice. But I would ask that everyone exercise that voice in the most appropriate, effective, and lawful way; by getting involved in the political process; not subverting it, but working within our constitutional framework.

Another action might be to become involved with an activist group. However, be sure the chosen group is more about doing good and little about lining the pockets of executives in perpetuity. It happens far too often. Fraud is everywhere.

I would also encourage joining the non-partisan Convention of States Action. In fact, this group may actually be the most effective and permanent solution for reining in authority over public lands.

If you love public lands, I hope you will take the time to educate yourself and understand how to best influence your state and federal representatives to help ensure these lands serve their many purposes in the best way possible for many years to come.

I have a short list of resources below. These are a good place to learn about the purpose, use, and management of public lands.

Go live like you want it, for as long as possible, on our precious public lands if you wish.

public lands

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The Truth You Don't Hear About Public Lands