Federal Land Policy Research Articles

Late Homesteading: Native Land Dispossession through Strategic Occupation

U.S. homesteading has been linked to establishing federal sovereignty over western lands threatened by the Confederacy, foreign powers, and the Indian Wars in the last half of the nineteenth century. However, the bulk of homesteading actually took place in the early twentieth century, long after these threats to federal ownership ceased. We argue that this “late homesteading” was also an effort to enforce federal rights, but in response to a different threat—a legal one. Questionable federal land policies in the late nineteenth century dispossessed massive amounts of Indigenous lands, and exposed the federal government to legal, rather than violent, conflict. Late homesteading was used to make the dispossession permanent, even in cases where a legal defeat eventually occurred. Examining the qualitative evidence, and using data on the universe of individual homesteads and federal land cessions across the 16 western states, we find evidence consistent with this hypothesis.

African Americans and federal land policy: Exploring the Homestead Acts of 1862 and 1866

AbstractWe examine the history of US land policy, with a focus on the Homestead Acts, underscoring the precarious position of African Americans during the homesteading period. We discuss the historical context and the shifting political landscape of the Civil War and Reconstruction era, providing the context for research on federal land policies and problems of race. Past research is almost entirely outside of the agricultural and applied economics profession. We believe that the applied economics discipline is especially suited for empirically examining the influence of federal land policies on past and present disparities and racial makeup of American agriculture.

Legislating the Landscape: The Battle for a Federal Wilderness Bill for Montana, 1979-1988

Federally owned lands in the western United States have long been a source of legal and political conflict. Clashes between development interests, environmentalists, legislators, and indigenous groups throughout the 1980s defined federal land policy in Montana as well. In 1988, after nearly a decade of effort, S.2751 – the Montana National Resources Protection and Utilization Act – was poised to designate over 7 million acres of federal land in Montana as wilderness, recreation areas, or for development,ending years of legal limbo. Despite broad support from both houses of Congress, President Reagan killed the bill with a pocket veto, and those lands remain undesignated today. This paper examines the political actors and processes behind S. 2751, and investigates the bill’s place in the changing political climate of 1980s American politics, particularly on issues of environment in the west.

Fertility Control and the Welfare of Free-Roaming Horses and Burros on U.S. Public Lands: The Need for an Ethical Framing.

Simple SummaryBecause the ethical foundation for the management of free-roaming horses and burros is very muddled, debates over approaches to their management, including fertility control, focus almost exclusively on practicality. In the U.S., this tendency is reinforced by the federal laws that govern public lands management, which center decision-making processes on calculations about how to divide yield among users. Inevitably, outside market forces bias these decisions towards overuse, which ultimately harms the land. In our view, the land and all its inhabitants, including free-roaming horses and burros, wildlife, and people, will only thrive if the pressures of commercial use are removed, and if management is guided by ethics of care, which have rich and diverse cultural origins. Application of care ethics will specifically provide more clarity to horse and burro management, including the selection of appropriate fertility control agents. To be effective and publicly acceptable, management of free-roaming horses and burros in the United States and elsewhere needs a consistent ethical framing of the animals and the land they occupy. In the U.S., the two laws that largely govern wild horse and burro management, the 1971 Wild Free-Roaming Horse and Burro Act and the 1976 Federal Land Policy and Management Act (“FLPMA”), rest on conflicting foundations, the former based on an ethic of care and the latter on largely utilitarian principles. These conflicts specifically fuel debates over the selection of appropriate fertility control agents for horse and burro management. Because land-use and management decisions are largely controlled by the FLPMA, and because the ethical treatment of animals is typically considered under conditions established by their use, both the larger debate about equids and land management and the specific debate about fertility control are dominated by cost/benefit calculations and avoid broader ethical considerations. In our view, the long-term health and ethical treatment of free-roaming horses and burros, the lands they occupy, and the wildlife and people they share it with will require the replacement of the resource-use model with a more holistic, care-based approach.

Agricultural Effects on Streams and Rivers: A Western USA Focus

Globally, croplands and rangelands are major land uses and they have altered lands and waters for millennia. This continues to be the case throughout the USA, despite substantial improvements in treating wastewaters from point sources—versus non-point (diffuse) sources. Poor macroinvertebrate assemblage condition occurs in 30% of conterminous USA streams and rivers; poor fish assemblage condition occurs in 26%. The risk of poor fish assemblage condition was most strongly associated with excess nutrients, salinity and sedimentation and impaired riparian woody vegetation. Although the Clean Water Act was passed to restore and maintain the integrity of USA waters, that will be impossible without controlling agricultural pollution. Likewise, the Federal Land Policy and Management Act was enacted to protect the natural condition of public lands and waters, including fish habitat, but it has failed to curtail the sacred cows of livestock grazing. Although progress has been slow and spotty, promising results have been obtained from basin and watershed planning and riparian zone protections.

Beyond the Antiquities Act: Can the BLM Reconcile Energy Dominance and National Monument Protection?

On December 4, 2017, President Donald J. Trump carved more than 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments. He also directed federal land managers to prepare management plans for both monuments. Draft plans have been released, and the preferred alternative under both plans promotes right-of-way development, minerals exploration, livestock grazing, and other traditional uses over protection of monument resources. Our paper argues that this approach violates both the Federal Land Policy and Management Act and the Omnibus Public Lands Act of 2009 because these statutes require the Bureau of Land Management to emphasize protection of monument resources over more impactive uses. We also argue that the Bureau of Land Management violated the National Environmental Policy Act when it failed to account for its statutory obligations to protect monument resources in the environmental baseline contained in the environmental impact statements for the management plans.

The Rocky Road to Energy Dominance: The Executive Branch’s Limited Authority to Modify and Revoke Withdrawals of Federal Lands from Mineral Production

The Trump Administration’s implementation of its America First Energy Plan, whose goal is achieving U.S. “energy dominance,” has relied heavily upon public mineral development. Mineral development on federal lands is largely governed by statute. The statutory legal mechanisms by which the Executive Branch can “open” or “close” an area of federal lands to mineral development, whether onshore or offshore, are withdrawal, modification, and revocation. The Federal Land Policy and Management Act (FLPMA) and the Outer Continental Shelf Lands Act (OCSLA) are the primary statutes that govern onshore and offshore mineral development on over 2 billion acres of federal lands. Both FLPMA and OCSLA authorize withdrawals, which the Executive can use to place federal lands off limits to mineral development. FLPMA also authorizes modifications and revocations, which can remove constraints on such development. The Trump Administration has relied on both statutes in its quest to expand the areas that are available for private mineral disposition through modification or revocation of withdrawals by prior administrations. The authority provided by FLPMA and OCSLA to determine the availability of federal lands for mineral development is subject to a series of substantive and procedural constraints. Because it regards those constraints as undesirable shackles on the implementation of its mineral development policies, and consistent with its expansive view of Executive Branch power in almost all contexts, the Administration has not been content to rely on statutory authorization to modify and revoke development-precluding withdrawals. Instead, it has also invoked non-statutory, implied or inherent authority to open vast areas of federal lands to oil and gas, coal, and other mineral development. The paucity of judicial precedent governing the parameters of statutory and non-statutory Executive Branch authority to reopen lands previously placed off limits to mineral development raises significant questions about the legality of the Administration’s efforts to alter the status of protected lands and resources. Although the Administration apparently regards downsizing or revocation of withdrawals by previous administrations as a quick and effective way to open up vast new acreage to mineral development, the legal basis for its actions is tenuous at best. This Article examines both statutory and non-statutory mechanisms for determining the availability of federal onshore and offshore lands for uses such as mineral exploration and development. It identifies the constraints that FLPMA and OCSLA impose on revocation or modification of previous withdrawals. It also explores the parameters of non-statutory Executive mineral disposition authority and assesses the legality of the significant Trump Administration withdrawal modification and revocation efforts to date. It concludes that Congress has eliminated any implied or inherent withdrawal, revocation, or modification authority that may once have existed. It also finds that the most prominent and controversial of the Trump withdrawal modifications and revocations exceeded the authority the Executive Branch retains under FLPMA and OCSLA. As a result, that the Trump Administration’s unauthorized pursuit of energy dominance should result in judicial invalidation.

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

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.

Imagining Opportunity: The 1909 Enlarged Homestead Act and the Promise of the Public Domain

Abstract The turn of the twentieth century brought a significant expansion of the nation-state, as the U.S. Congress passed new homestead laws that experimented with adapting land policy to regional conditions. That focus on creating opportunity on challenging, non-irrigable terrain presents a striking contradiction to the firsthand experiences of the western legislators who argued in support of the bill. Elected representatives from these districts justified larger acreages by candidly acknowledging the geophysical realities of the western landscape—those climatic and topographic conditions that were the most frequently cited challenges to settlers in the West—even as they argued that land law should be made more flexible to support new farms and ranches. Adapting to the limits of the western landscape became a paramount goal of legislators who drafted federal land policy, ultimately contributing to expanding the reach of the expert and interventionist state and signaling a new era in regional development.

Agency Legitimacy: A Reputational Power Analysis of the Bureau of Land Management

This article examines the organizational reputation of the Bureau of Land Management (BLM) using Daniel Carpenter’s reputation and power theory as a theoretical and methodological base. Federal Land Policy and Management Act (FLPMA) is utilized to guide and organize case selection, as it is the legal mandate behind BLM authority and represents the fullest extent of the agency’s activities. The findings of this case study indicate that the BLM has a negative reputation in all but the legal-procedural dimension. Three implications are identified: (a) FLPMA serves only to define the procedural-legal aspect of public planning process, (b) the inability of FLPMA to define a purpose to public lands management has its root in the large scope of activity required of the BLM by FLPMA, and (c) finally, retention has placed the BLM and the federal government in a precarious position of an owner rather than custodian of the public lands.

State of Wyoming v. U.S. Dep’t of the Interior Confused Agency Overlap with Preclusion: BLM Had Authority to Promulgate the Fracking Rule for Public Lands, Not Tribal Lands

State of Wyoming v. U.S. Dep’t of the Interior Confused Agency Overlap with Preclusion: BLM Had Authority to Promulgate the Fracking Rule for Public Lands, Not Tribal Lands

Distributive politics and congressional voting: public lands reform in the Jacksonian era

During the 1830s, Congress passed a series of laws reforming U.S. policy on acquiring public lands. These laws established a federal land policy of preemption, under which squatters on public land obtained legal title to it in exchange for payment of a minimum (and low) price per acre. Preemption significantly liberalized the terms of land ownership in the U.S. We analyze roll call voting on the preemption acts in Congress from a distributive politics perspective. The key finding is that a member’s region of the country consistently adds explanatory power on top of that provided by ideology or party: members of Congress from the original thirteen states were less supportive of preemption on Western lands, all else constant. Moreover, this effect is much stronger in the House of Representatives than in the Senate. This is inconsistent with explanations of a West-South coalition vs. the North often found in the historical literature, but is consistent with a distributive politics perspective based on rent seeking by Western landholders.

Federal Lands, Federal Authority: The Case for Federal Regulation of Fracking on Public Lands

Hydraulic fracturing, or “fracking,” continues to grow rapidly as an oil and gas extraction method in the United States, and its growth has recently led to the emergence of natural gas as the nation’s new leading energy source for power generation. However, the hydraulic fracturing process carries innumerable environmental and health-related concerns, and federal regulations to address these concerns have struggled to keep up with the blistering pace of fracking’s growth and development within the United States.In 2015, the Bureau of Land Management (BLM), under the Obama administration, promulgated a rule to ‘complement’ its regulations with respect to hydraulic fracturing on federal and Indian lands, citing the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA) as sources of statutory authority. This 2015 Fracking Rule faced intense opposition, first from industry and state parties within the federal court system, and later from the BLM itself under a newly-elected President Trump. This Note argues that the Bureau of Land Management has the statutory authority to regulate hydraulic fracturing on federal public lands under the MLA and FLPMA, by cause of the plain language, general history, and reasonable agency interpretation of these statutes. This Note further supports BLM’s authority to regulate hydraulic fracturing with justifications related to both natural resource protection and the effectiveness of federal-level regulation. Legal battles over BLM’s authority are ongoing, and the question of whether or not BLM has statutory authority to regulate fracking on federal public lands remains critical as the nation continues to struggle in deciding how to best utilize our commonly-shared lands and resources. Additionally, it will be increasingly important to continue developing and updating federal hydraulic fracturing regulations in order to increase our understanding of this extraction method, while hopefully mitigating its associated environmental and health risks.

Presidential Authority to Modify or Revoke National Monuments

This paper analyzes Executive Order 13792 and the authority of a president to modify or revoke a national monument. It reviews the history of the authorities of the President and the Congress over federal lands and focuses especially on the Federal Land Policy and Management Act to conclude that a president lacks the authority to modify or revoke a national monument.

The Blue and the Green: A Cultural Ecological History of an Arizona Ranching Community

Works in the history of western American ranching traditionally fall into two categories: those that explore federal land policies that evolved into the conflicted politics of public grazing management we have known for nearly a hundred years; and those that examine the history of a specific locale. In recent decades notable works of the latter type, particularly by environmental writers and historians, have immersed readers in the social and ecological worlds of western ranch families who both maintain strong attachment to place and struggle with scarce water, changing federal land policies, and unpredictable markets. Jack Stauder's book is kin to these works. It aims to open a window on the “cultural ecological history” of one place in the West—the Blue River watershed of eastern Arizona—but historians will note the very different approaches Stauder, a cultural anthropologist, takes to his material. Stauder introduces readers to the geographic area and to his subjects through a series of short historical chapters that swiftly traverse across the time of the “frontier,” when white American settlers first came into “the Blue,” to the fully established presence of the U.S. Forest Service in grazing regulations in the mid-twentieth century. While these chapters can be faulted for glossing over many important historical details and concepts, Stauder seeks to move beyond these stock chronological markers, which western historians will be familiar with, and arrive at the meat of his discussion: the “wilderness” ideas that Aldo Leopold and other conservationists at the time brought to the region, analyzing the origins and flaws in some of that thinking. He also pauses to discuss the many social changes that residents along the Blue experienced, particularly as they became increasingly able to break out of their geographic isolation through improvements in communications and transportation. He then moves to the latter half of the twentieth century and into the early twenty-first, slowing the pace of his narrative as he looks at the effect of, and ranchers' reactions to, changing Forest Service grazing regulations in the postwar period, environmental values, and wildlife issues, to name some of the most pressing topics he examines. He spotlights in particular the painfully difficult periods for ranchers that ensued from livestock reductions on their grazing allotments.

Executive Authority to Keep It in the Ground: An Administrative End to Oil and Gas Leasing on Federal Land

The United States maintains a federal program whereby private actors lease access to the federal mineral estate, including vast stores of fossil fuels. Issuing these leases to extractive industries means a considerable amount of otherwise-benign carbon is released into the atmosphere, which contributes significantly to global climate change. Environmental organizations have called on the executive branch to change this policy under a campaign called “Keep It in the Ground.” This article evaluates the executive branch’s authority to end onshore oil and gas leasing administratively, without action by Congress. I conclude that the Department of the Interior can terminate onshore oil and gas leasing under discretionary authority contained in the Mineral Leasing Act and the Federal Land Policy and Management Act. Based on this authority, the President, acting through the Interior Department, could create a national rule or set of rules, similar to the Forest Service’s 2001 Roadless Rule, ending oil and gas leasing nationwide. Only process, not substantive law, would limit the executive branch’s ability to stop the extraction of federal fossil fuels.

FLPMA Turns Forty: Providing Bureau of Land Management with Long-Term Vision

On the Ground Under the Federal Land Policy and Management Act (FLPMA) of 1976, the Bureau of Land Management (BLM) manages public lands to sustain their health, diversity, and productivity for the benefit of present and future generations. The task is complicated, and there are issues that need to be addressed. Public demands and expectations continue to increase, and the agency must pursue logical, transparent, scientific and sustainable resource decisions. I encourage the BLM to be more open, creative, and collaboratewith diverse publics. Aswe see frustration grow with multiple-use management, the BLM needs to do a better job of balancing the needs and wishes of the American public.

Western Sparks: The Constitutionality of Federal Land Management from the Founding to the Civil War

The constitutional basis for federal land ownership has not been seriously questioned in modern times. As early as 1840, the Supreme Court declared that Congress’ constitutional power over public lands was without limitation. The Court affirmed the federal government’s police power over public lands repeatedly, and as recently as 1976.This paper does not dispute that classic property clause doctrine is at odds with the contemporary jurisprudence regarding federal land ownership and management as adjudicated by the courts. Rather, this research focuses on exploring the original understanding of federal land ownership as seen through three parallel tracks: first, political doctrines, including dual federalism, compact theory, and nullification; second, federal land principles and policies, including acquisition and disposition; and third, early Supreme Court decisions. Moreover, this paper seeks to examine whether classic property clause doctrine and other constitutional origins of power regarding federal lands were consistent with historical events and developments that occurred along these tracks from the founding through the Civil War. This paper concludes that political doctrines that supported the classic property doctrine were live at least until the early 20th century. These doctrines were seriously undermined by the Civil War, Reconstruction amendments, and finally by the New Deal. While federalism saw a minor revival in the 1990s by the Supreme Court, these political doctrines are now largely regarded as antebellum relics. Furthermore, federal land acquisition and disposition policies generally supported the classic property theory, at least until Withdrawal and Reservation at the beginning of the 20th century. Finally, Supreme Court decisions provided support for both the classic and police power theories. However, the full-fledged police power theory embraced in Kleppe was not fully articulated until the 20th century.

Problem federalnej własności ziem publicznych na zachodzie USA

U.S. Federal government is an owner of more than 28% of area of the country. This has a big impact on a social and economic life, especially because it is a significant disproportion in treatment between Western and Eastern states by U.S. C ongress. This problem has lasted for decades. The federal ownership of public lands began when 13 mother-states ceded their rights to lands west from the Mississippi River after Treaty of Paris had been enacted in 1783. The initial federal policy to dispose public lands into new-formed states and privet individuals was formally ended in 1976 when the Congress enacted Federal Land Policy and Management Act . Since this moment it has been the increased dispute between federal government and state governments. In 2012, Utah passed Transfer of Public Lands and Related Study , which has opened a new chapter in this controversy because of using different arguments to the advantage of transferring rights to public lands than previous ones. TPLA bases on a contract theory which should be applicable to Utah’s Enabling Act of 1894. This article shows a general problem of the federal ownership in lights of economic, historic, ecological and law arguments. These latter ones refer to the arguments from TPLA.

Securing the West: Politics, Public Lands, and the Fate of the Old Republic, 1785–1850 by John R. Van Atta (review)

Reviewed by: Securing the West: Politics, Public Lands, and the Fate of the Old Republic, 1785–1850 by John R. Van Atta Kevin T. Barksdale (bio) Securing the West: Politics, Public Lands, and the Fate of the Old Republic, 1785–1850. By John R. Van Atta. (Baltimore: Johns Hopkins University Press, 2014. Pp. xi, 294. $54.95 cloth) In Securing the West: Politics, Public Lands, and the Fate of the Old Republic, 1785–1850, John Van Atta examines the evolution of federal western land policies. From the republican-infused ideals of the Revolution to the antebellum congressional debates over distribution, Van Atta traces the political, economic, and cultural implications of the ever-shifting western land policies and their consequences on the “character of American society” (p. 205). Van Atta begins his analysis of western land policies with the “original” blueprint for land distribution, which emerged out of the republican idealism of the Revolution. Rooted in the desire for an orderly and egalitarian settlement of the West that eschewed the aristocratic privilege of Britain’s speculator-friendly policies, America’s first land policies sought to populate the region with virtuous, republican farmers. Under Federalist leadership, this original land policy was replaced with a Hamiltonian vision for western land development, which emphasized a deceleration of settlement, ending squatting, and asserting federal control. Driven by fears of overexpansion, Indian warfare, lawlessness, and the alleged threat to eastern economic development, Hamilton and his Federalist allies crafted a “socially elitist” philosophy of western land development (p. 51). The Federalist policies sparked a backlash from westerners who criticized federal control of lands and the perception of anti-western sentiment in the East. After the Republican ascendency in 1800, Jeffersonian Republicans again altered western land policy (i.e., the Land Act of 1800) by accelerating land sales in an effort to pay off the national debt and fund western internal improvements. Following the Panic of 1819, land policies again underwent alteration as land reformers like Thomas Hart Benton and Jeremiah Morrow sought to avoid a western backlash caused by high levels of debt and to reverse the region’s moral decay. Morrow’s Land Act of 1820 and [End Page 737] Benton’s 1824 graduation legislation ended credit sales and auctions in order to curtail rampant speculation and to ensure regional settlement by morally upstanding individuals. Land reformers introduced the controversial concepts of graduation, the lowering of land prices the longer they remained unsold, and preemption, upholding the claims of original settlers, to the debates over western lands. Once again, westerners and their political allies (e.g., Virgil Maxey) opposed federal control of western lands and revenue. The debate over western lands intensified during the John Quincy Adams and Andrew Jackson administrations as Henry Clay’s western vision clashed with the agrarian-centered reforms promoted by Benton. Van Atta argues that historians have overlooked the critical role western land played in Clay’s American System. Clay’s western policies were rooted in protectionism (i.e., tariffs), the establishment of home markets, balancing manufacturing and agriculture, and using land sales to fund national internal improvements. As Adams’s treasury secretary Richard Rush implemented Clay’s vision, western political leaders (e.g., Ninian Edwards) flirted with nullification as a strategy to challenge federal control of western lands. The sectional nature of the debate deepened during Jackson’s presidency after Connecticut congressman Samuel A. Foot introduced legislation that would temporarily halt western land sales in an effort to maintain the eastern labor pool and protect New England manufacturing. Despite Van Atta’s assertion that there was no real New England anti-western bias, both western and southern political leaders condemned the Foot proposal and accused the Connecticut congressman of harboring hostility toward the West. Benton and his supporters alleged that the Foot proposal would harm western agriculture, slow migration, and disrupt the natural settlement process. The specter of nullification emerged once again during the “Great Debate” between Daniel Webster and states’ rights proponent Robert Hayne, as Hayne protested federal control of western lands and Webster sought to keep the West from developing in the image of the slave South. In the final two chapters, Van Atta examines the continuing efforts...