The truth you don't hear about public lands

29 Aug

29Aug

So you don’t like what’s going on with public lands? I get it. I’m like you in that I believe in responsible stewardship of public lands.

But too often I see or hear uninformed, inflammatory comments, that are half-truths at best and are not helping make anything better. 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 the emotion of it all.

In this article I want to 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 designated as non-private or public lands. That’s either federal, state, county, municipal, or tribal owned land. The only other country with more public land than the US 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, the Congress, or some mining or logging company ruining or threatening our public lands.

I hear things like public lands are our “national treasure”. I hear people say that we the people are the “land owners” who should have a right to determine how it’s used.

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. For instance, mining could very well destroy some delicate environments. But if the mining company has followed the law by attaining permits as required, than maybe the heat should not be directed at the mining company. Maybe the push should be against the federal or state agency or legislative body who permitted it in the first place. The mining company, in this case, is just trying to run a business.

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 without first going through some government authority. The authorizing entity is the real owner. Our ownership is much more diluted than some people have made it sound. Yes, it’s “public”, 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 management that together give us very little liberty with the land, much less make us actual owners.

I think the intent of those who are outraged is usually based on doing good. 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 total 914 million acres of public lands, 595 million acres (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, what they are reporting isn’t exactly the case. 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, destroyed, or actually threatened. But this is what will be reported: “1 million acres threatened”. The congressional bill may only impact a very small percentage of the 1 million acers after going through a permit process and providing other stipulations are met, which are typically many. After all, it is the government. And so, there’s a good amount of understanding and homework that needs to be had before we can say how much is actually being threatened. Be skeptical when anyone quotes acreage threatened by such things.

Yet, there is some truth to all this and maybe it becomes a slippery slope if someone doesn’t say and do something about it when it's small and controllable. 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?

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 to fool people into believing something that isn't true. The hate often times is so loud that we can't hear the actual issue to be fixed.

I would venture to guess that a good many people are 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 disinformation that’s out there. Some obvious and elementary things that I think need to be understood are:

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 suggesting it is 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 (to include treaties with native tribes) 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 pick it up, is the real owners of Federal Property. And in a very similar way, State lands are owned by State legislative bodies.

Additionally, sitting U.S. Presidents, have assumed authority in the past to influence federal land management through executive orders that direct federal agencies 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, in at least three cases there have been notable instances where Congress did not act against questionable executive orders that impacted 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 – seemingly unconstitutional orders.
Barack Obama implemented the Antiquities Act to designate national monuments, creating large protected areas, which again seemed to have overstepped Constitutional authority by bypassing Congress.
Donald Trump signed orders to reduce the size of those national monuments that were previously and questionably established by other administrations, undoing the executive overreach of previous administrations. This too, because it was not an act of Congress, as the Constitution says it should be, is technically unconstitutional. Or did these orders merely erase a previous unconstitutional action?

There is much more to each of these examples, but the bottom line is that in each of these cases and more that Congress did nothing to challenge when other branches of government usurped the authority of Congress.

These may be relatively small matters in the full scope of government, but they are nonetheless important because they are slowly eroding constitutionally mandated balances of power, which by definition threatens our Constitutional Republic.

Just a side note here. The Article V Convention of States movement that is happening today could address this problem directly by passing resolutions to force Congress, the Executive branch, and in some cases the Supreme Court to fall back in line with Constitutional authority. 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.

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 most 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 could be limited to these areas for outdoor recreation.

The key to all of this is that there should be a balance between resource extraction and conservation, because both are 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 their intended and legal multipurpose.

An example is when the extraction of oil and gas or rare earth minerals from a small portion of our public lands has been authorized. This activity helps make our country less reliable on those who are seeking to destroy our way of life, which is crucial for current and future generations of Americans. 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. Let’s not forget that public lands are intended for many purposes; we should make allowances for all purposes.

Answers and Actions

We’ve answered the question of that public lands are: 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 to instruct federal agencies to either reclassify some public lands or instruct on how to prioritize public land use.

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, elect someone different next time who might better respect constituent opinions about how public lands should be used and and to oppose overreach from other branches of government.

The beauty of our constitutional republic is that “we the people” have a voice and the Federal Government's power is limited and enumerated by our Constitution. But I would ask that everyone exercise that voice in the most appropriate, effective, and legal way; by contacting congressional representatives.

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.

Joining the Convention of States Action is one of those good choices. 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