Public Land Law Research Articles

Utah's Women Homesteaders

Utah's Women Homesteaders

탄소중립을 위한 토지공법적 과제

The whole world is proclaiming carbon neutrality to prevent climate crisis. Korea itself announced of ‘2050 Carbon Neutrality Proclaim’ on October 28, 2020 and following this, ‘2050 Carbon Neutrality Vision’ on December 10. The carbon neutrality scenario is classified into emission, absorption and removal and as per absorption and removal, we may say CCUS is the key. Currently, individual acts such as Framework Act on Carbon Neutrality and Green Growth for Coping with Climate Crisis, Wastes Control Act, Management of Marine Garbage and Contaminated Marine Sediment Act, Act on Promotion of Technologies for Coping with Climate Change, Restriction of Special Taxation Act, etc. stipulate about CCUS. Therefore, we have discussed about how to make an unified act in order to control carbon dioxide efficiently and rationally. In the process of the discussion, we studied about the problem of the aspects of public land law. For example, there are typical problems such as; 1) determining the public interest about carbon dioxide, 2) determining the obligation of securing land for carbon capture process and establishment of direct air capture, and, and 3) evaluation of environment influence and accommodation of storage. CCUS is not the one and only technology but a variety of technologies by each phase of capture, transportation, storage, and utilization. Also, there are many related government departments including Ministry of Science and ICT, Ministry of Trade, Industry and Energy, Ministry of Environment, and Ministry of Oceans and Fisheries. This makes it a consolidated system issue. Therefore, an unified act is required to link all the problems together. Current proposal of the bill includes the way to solve the public land law aspect as; 1) stipulating the obligation of the person in charge of the capture to secure land, 2) expanding the scope of capture that will enable to capture carbon dioxide in everyday lives, 3) introducing reduction of charges for occupying and using public water surfaces, 4) preparing rules and regulations on safety control, 5) resident accommodations, etc.

탄소중립을 위한 토지공법적 과제

The whole world is proclaiming carbon neutrality to prevent climate crisis. Korea itself announced of ‘2050 Carbon Neutrality Proclaim’ on October 28, 2020 and following this, ‘2050 Carbon Neutrality Vision’ on December 10. The carbon neutrality scenario is classified into emission, absorption and removal and as per absorption and removal, we may say CCUS is the key. Currently, individual acts such as Framework Act on Carbon Neutrality and Green Growth for Coping with Climate Crisis, Wastes Control Act, Management of Marine Garbage and Contaminated Marine Sediment Act, Act on Promotion of Technologies for Coping with Climate Change, Restriction of Special Taxation Act, etc. stipulate about CCUS. Therefore, we have discussed about how to make an unified act in order to control carbon dioxide efficiently and rationally. In the process of the discussion, we studied about the problem of the aspects of public land law. For example, there are typical problems such as; 1) determining the public interest about carbon dioxide, 2) determining the obligation of securing land for carbon capture process and establishment of direct air capture, and, and 3) evaluation of environment influence and accommodation of storage. CCUS is not the one and only technology but a variety of technologies by each phase of capture, transportation, storage, and utilization. Also, there are many related government departments including Ministry of Science and ICT, Ministry of Trade, Industry and Energy, Ministry of Environment, and Ministry of Oceans and Fisheries. This makes it a consolidated system issue. Therefore, an unified act is required to link all the problems together. Current proposal of the bill includes the way to solve the public land law aspect as; 1) stipulating the obligation of the person in charge of the capture to secure land, 2) expanding the scope of capture that will enable to capture carbon dioxide in everyday lives, 3) introducing reduction of charges for occupying and using public water surfaces, 4) preparing rules and regulations on safety control, 5) resident accommodations, etc.

A Case Study on some Problems of Administrative Punishment Regulations in the Field of the Korean Public Land Law

A Case Study on some Problems of Administrative Punishment Regulations in the Field of the Korean Public Land Law

A Study on Smart City in Perspective of Public Land Law

A Study on Smart City in Perspective of Public Land Law

The footsteps of administrative law and public land law - Focusing on land planning law -

The footsteps of administrative law and public land law - Focusing on land planning law -

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.

Are U.S. Public Lands Unconstitutional?

Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.

Treating the Blue Rash: Win-Win Solutions and Improving the Land Exchange Process

The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests. Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the process for administrative exchanges Congress could promote more efficient exchanges and increase cooperation between federal and state trust land managers. Thus, Congress should provide funding for land exchanges involving environmentally sensitive areas. Additionally, Congress should amend FLPMA’s public interest and equal value requirements to incentivize cooperation in the administrative land exchange process.

鈴木光著『アメリカの国有地法と環境保全』（書評）

鈴木光著『アメリカの国有地法と環境保全』（書評）

Seeing and Unseeing Like a State: House Demolitions, Healthcare, and the Politics of Invisibility in Southern Israel

A 2005 amendment to Israel's Public Land Law and the 1994 National Health Insurance Law (NHIL) are two policies that highlight the complex relationship between the Israeli state and the Negev/Naqab Bedouins. While the Land Law sanctioned house demolitions and the erasure of Bedouin villages, the NHIL granted Bedouins access to healthcare and increased their visibility within the medical system. In this article, I draw on these contradictory policies of inclusion and exclusion to argue that the treatment of Negev/Naqab Bedouins as equal citizens within Israel is contingent on state officials' seeing only particular aspects of this community. Crucially, this means that state officials actively make invisible the unequal and exclusionary politics that marginalize Bedouin citizens. While the case of the Bedouins in Israel is a specific one, I suggest that attending to how state officials make particular individuals, communities, and histories invisible clarifies how states, both in Israel and beyond, maintain the state's ideology of equality despite a hierarchy of privilege. It is through the production of invisibility that neglect and exclusion come to be justified and obscured, and that themes of inclusion and democracy can be highlighted. Therefore, an analysis of the making of invisibility allows for an examination of the active production of the state and of citizenship, and provides a more complex understanding of the role of visibility in state practices.

Antimonopoly in American Public Land Law

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies. Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.

The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation

This article explores the origins and precise meaning of the term organic act, which is widely used in public land law. The evolution in the meaning of the term reflects larger shifts in the role of legislation in public resource management. The article illustrates this with an analysis of the 1997 Refuge Improvement Act, a substantial revision of the charter for the Refuge System and the first major statute governing public land management enacted since the 1970s. The Refuge System's use regime is an important model for sustainable resource management. The article describes this regime in the context of the unique purpose, hierarchy of dominant uses, and substantive management mandates under which the U.S. Fish and Wildlife Service administers the national wildlife refuges. In addition, the article provides a critique of the planning, compatibility, and biological integrity, diversity and environmental health policies that the Service has promulgated to guide management of the refuges.

The Law: Presidential Proclamation 6920: Using Executive Power to Set a New Direction for the Management of National Monuments

The creation of law involves the representation and participation of many actors with varied interests and resources. Unilateral lawmaking, however, is unique in its independence from the traditional legislative process because it does not require input from a variety of actors, most notably Congress (Howell 2003; Moe and Howell 1999). Instead, this tactic gives presidents an avenue to act when an issue is high on their agenda but Congress is not inclined to proceed because of gridlock or other concerns (Howell and Lewis 2002; Mayer 2001). Proclamations are one type of executive power that presidents have used in such areas as international law, foreign trade, public lands, and matters of entry into the United States (Rottinghaus and Maier 2007). Their degree of importance differs, with some being merely declaratory in nature, while others have a substantive effect (Fisher 2007, 103-5). In the area of public lands, proclamations of national monuments are especially interesting because they are both declaratory (they proclaim the change in status of the public lands), and they have an impact on policy making (they preserve existing rights, restrict future ones, designate a managing authority, and provide implementation guidance). (1) Congress granted the president broad discretionary power to proclaim national monuments under the Antiquities Act of 1906 (16 U.S.C. [section] 431-433). The act provides for unilateral lawmaking because the president is not required to consult with Congress, the state in which the monument is located, or the public prior to designation. However, even though the proclamation is the result of independent executive action, it carries the force of Congress behind it because the president is acting pursuant to the authority vested in the act (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 [1952]). (2) The use of independent action by the president is best understood within the context of the conditions that fostered it, as well the long-term effect on public policy (Howell 2003, 177). This article, therefore, uses Presidential Proclamation 6920, which established the Grand Staircase-Escalante National Monument, as an opportunity to look closely at a unique example of unilateral lawmaking that will have a lasting influence on public lands policy (Mayer and Price 2002, 368-69). (3) The land that makes up the monument had served as a source of congressional debate for more than twenty years, and with what was considered by some to be an act of stealth policy making, President Bill Clinton decided the fate of the controversial lands by issuing Proclamation 6920, surprising both Congress and the state of Utah. An outraged Congress duly explored the implications of executive power under the act, but ultimately decided not to curtail presidential authority to proclaim national monuments. With Proclamation 6920, President Clinton also succeeded in laying the groundwork for a change of direction for both national monuments and the Bureau of Land Management (BLM). Since 1933, the National Park Service (NPS) had been the agency responsible for managing national monuments, and had done so in a manner that preserved monuments by restricting land uses. (4) When President Clinton issued Proclamation 6920, he put express restrictions on future land uses that would impact nearly any type of resource development within the Grand Staircase-Escalante National Monument. However, instead of assigning management to the NPS, he gave responsibility to the BLM, an agency whose mission supports resource development and multiple resource (or use) management. This change would result in an expansion of permissible uses within monuments while restricting future uses as constrained by the language in the proclamation. The Use of Presidential Proclamations in Public Land Law Public lands are those owned by the U.S. government and held in trust for the public interest (U.S. …

Public Land Law - Looking into the Future: The Need for a Final Judgment on the Validity of the Roadless Rule, Wyoming v. U.S. Dep't of Agric.,414 F.3d 1207 (10th Cir. 2005)

Public Land Law - Looking into the Future: The Need for a Final Judgment on the Validity of the Roadless Rule, Wyoming v. U.S. Dep't of Agric.,414 F.3d 1207 (10th Cir. 2005)

Modelling public land-use decisions as a cooperative game

The process with which to involve the public in national forest management planning and decision-making is analysed. Owing in part to various statutes that mandate the early and frequent involvement of the public in national forest system land management decisions, stakeholder conflict and often litigation surround these decisions. Many approaches have been used in an attempt to resolve these conflicts. These approaches can be generally grouped into two categories. The first category, conflict management, brings conflict under control and recognizes the importance of positive conflict in relationships. It has been examined through both non-cooperative voting mechanisms and decision analysis. The second is conflict resolution, which attempts to terminate the conflict by facilitating a consensus decision. Conflict resolution has been modelled using tools such as cooperative game theory, voting models, and a variant on decision analysis. An application of two types of cooperative solution is applied to the management of USDA Forest Service lands in Wyoming. This paper will model conflict resolution as a cooperative game that considers the Forest Service position imposed by public land laws and regulations.

Roman Law in the Water, Mineral and Public Land Law of the Southwestern United States

Much of the arid zone of the Southwestern United States was under Spanish (and later, Mexican) rule until the fourth and fifth decades of the 19th century. This includes the present states of Texas, New Mexico, Arizona, California, Utah, Nevada, and parts of southern Colorado. Only Texas, New Mexico, and California were populated before the change of sovereignty. Texas had about 36,000 inhabitants in 1836, 24,000 of whom were English-speaking. The populations of New Mexico (55,000) and of California (3,000) were Spanish-speaking. There were also small Spanish-speaking settlements in Arizona and in Colorado before 1848. The present legal systems of these states are based on the common law, which was introduced in Texas in 1840, in California in 1849, and New Mexico in 1876. To a greater or a lesser extent, these legal systems respect rights acquired under Spanish and Mexican law. Mexican property rights are also protected by the Treaty of Guadalupe Hidalgo (1848). Until 1821, the law applicable in the settled areas of the American Southwest was what is commonly called the derecho castellano e indiano, i.e., the law specifically enacted for the ultramarine possessions of the Spanish Empire, supplemented by the law of Castile. After Mexican independence (September, 1821), Mexican central legislation, and (after 1824) Mexican state legislation was superimposed on this corpus of Spanish imperial and Royal Castilian law, but neither Mexican water law nor Mexican mineral law were (as such) codified or even substantially modified in the few decades of Mexican rule in what is now the Southwestern United States.

On the Cusp of Property Rights: Lessons from Public Land Law

On the Cusp of Property Rights: Lessons from Public Land Law

Powell’s Vision of Arid Land Settlement Reexamined: Owens Valley, California

John Wesley Powell’s Report on the Lands of the Arid Region of the United States (1878) xpressed the concern that the nation’s public land laws were being used in the arid West to the advantage of monopolistic and fraudulent practices. Hence Powell included a series of proposals which he believed would foster bona fide settlement of the region. Although it is widely recognized that Powell’s recommendations for arid land settlement were prophetic, this study of two sample townships in Owens Valley suggests that the applicability of his proposals is linked to the environmental attributes of particular places, and that they therefore could have borne some revision. Infact, it was the refinements to his original proposals that emerged from Powell’s Irrigation Survey a decade later which were eventually incorporated into law.

Patenting and Arid Frontier: Use and Abuse of the Public Land Laws in Owens Valley, California

ABSTRACT Five nineteenth-century policies for alienating the federal public domain only partially fulfilled their objectives when applied in the arid setting of Owens Valley, California. The Homestead Law was most successful in advancing the family farm ideal, to judge by the persistence of small holdings several decades after land entry. Preemption claims, coincident in time and space with homesteading, were more often consolidated into larger farm units. The Desert Land Act, though designed to encourage irrigated farming in the arid West, tended to attract nonresident speculative entries on marginal lands, most of which were eventually consolidated into large grazing units. State Land Grants also contributed to large-scale holdings, whereas the Timber Culture Act, though used for entry in the 1880s, had little relevance to final settlement. Public land policies were generally adequate for settling the well-watered north end of Owens Valley, but they were unsuccessful in reclaiming most of the irrigable ...