Public Land and Resources Law in the American West: Time for Another Comprehensive Review?

Abstract

The federal public lands, a defining characteristic of the American West, are embroiled in change and controversy. This is nothing new as these lands have long ignited passions linked to debates over resource development versus protection and federal-state relations. During the past fifty years, however, changes engulfing the region have helped enflame these historic debates, driven by unparalleled population growth, major economic and social shifts, water conflicts, energy development demands, climate change impacts, emergent recreational and environmental values, new scientific knowledge, extensive litigation, reduced agency budgets, new community-based collaborative initiatives, and the like. These remarkable changes are testing the legal and institutional framework governing the public lands, which has changed little during the past fifty years despite recurrent criticism directed toward its shortcomings. In fact, the last comprehensive review of federal public land and resource law occurred during the 1960s, when the Public Land Law Review Commission convened and issued a groundbreaking report that helped prompt much-needed legal reforms, such as the Federal Land Policy and Management Act, National Forest Management Act, Payment in Lieu of Taxes Act, and Public Rangelands Improvement Act. Given the level of controversy prevailing on the public lands today, this Article addresses the question whether the time has come for another comprehensive review of the relevant laws governing these publicly owned lands and their resources. The Article identifies the changes that are inexorably reshaping public land policies, reviews past efforts through federal commissions to examine and reform the laws governing these lands, and assesses the prospects for another comprehensive review. Noting the extreme level of controversy and distrust that persists today, it concludes by proposing a more limited review effort, one focused on accelerating recreational uses and conflicts that may present an opportunity to achieve consensus for the sake of the landscape that everyone is sharing and values.