Book Outline

1. Public Land Law: An Introduction

Research Guide

  1. The Field of Public Land Law
    Robert L. Fischman, What is Natural Resources Law?
    John D. Leshy, Federal Lands in the Twenty-First Century
    Charles F. Wilkinson, Fire on the Plateau: Conquest and Endurance in the American Southwest
  2. The Federal Lands and Resources

    The periodic Public Land Statistics publication of the BLM is a treasure trove of facts and figures about federal land management.

    The National Atlas provides downloadable files of federal lands for each state.

  3. Management of Federal Lands
    1. The National Forest System

      The Forest Service home page is a hub of information about a range of issues and also includes a helpful interactive map.

    2. The BLM Public Lands

      Here is a link to the BLM home page.

      The BLM maintains a central library of the forms required for access to the resources it conserves.

    3. The National Wildlife Refuge System

      Here is a link to the National Wildlife Refuge System home page.

      The Fish & Wildlife Service’s "Annual Report of Lands" documents the location and extent of the refuge system.

    4. The National Park System

      Here is a link to the National Park System home page.

    5. The Preservation Lands and Other Special Categories

      Here is a link to the National Wilderness Preservation System

      Here is a link to the National Landscape Conservation System

    6. The Legal Offices

      The home page of the Interior Board of Land Appeals provides information about its jurisdiction and finding IBLA decisions.

      The Forest Service publishes its administrative appeals decisions electronically.

      The Office of the Solicitor at Interior and Office of General Counsel at Agriculture both provide a modest amount of information on their web sites.

    7. The United States Congress
    8. The Special Case of Alaska

      The federal land management agencies have a joint website providing information about Alaska public lands, including a helpful set of maps.

  4. Principles of Resource Allocation and Management

    The Financial Times published this succinct account of the overlap and differences between Garrett Hardin’s views, as illustrated by his Tragedy of the Commons article, and Elinor Ostrom’s Nobel Prize-winning work on managing common pool resources.

    1. Solving the Tragedy of the Commons
    2. Ecosystem Management
      Robert B. Keiter, Ecology and the Public Domain
    3. The Socio-Economics of Public-Land Communities in the West

      Here is the full text of Rasker, Gude, and Delorey’s 2013 article, “The Effect of Protected Federal Lands on Economic Prosperity in the Non-metropolitan West”.

2. History of Public Land Law: Ownership Rights and Obligations

Research Guide

  1. Acquisition of the Public Domain

    Then-professor Antonin Scalia noted that "Our present society contains no institution, with the possible exception of the federal income tax, whose importance to the federal government and whose effect upon the course of national development remotely approximates the dominating influence of the public lands during the nineteenth century." Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 882 (1970).

    The rocky history of the U.S. Department of the Interior ("The Department of Everything Else") is recounted in this on-line report.

    The Department's web site offers a wide range of historical and current materials.

    Wikipedia has a surprisingly thorough and graphically exciting entry on the United States territorial acquisitions from original colonies and foreign nations.

    1. From the Original Colonies
    2. From Foreign Nations

      This map shows the locations, dates, and sources of all the public land territory acquired by the United States from non-Indian foreign nations. It is from John K. Wright's 1932 Atlas of the Historical Geography of the United States, an excellent resource digitized by the University of Richmond's Digital Scholarship Lab.

    3. From Indian Tribes

      This map shows the Indian cessions to the United States over time—paralleling the movement of the frontier. It is from John K. Wright's 1932 Atlas of the Historical Geography of the United States, an excellent resource digitized by the University of Richmond's Digital Scholarship Lab.

      Eric Kades fills in the somewhat surprising historical facts surrounding the land grants in dispute in Johnson v. M'Intosh. You can access "History and Interpretation of the Great Case of Johnson v. M'Intosh," published in Law and History Review 19:1 (2001).

      What exactly invokes the doctrine of discovery? In his classic study, La Salle and the Discovery of the Great West (1879), Francis Parkman described the scene of European "discovery" of much of the land later covered by the Louisiana Purchase. Here is an excerpt from Parkman’s history, with the key legal language from the antiquated doctrine of discovery.

      This is what a land patent looks like.

      Johnson v. M’Intosh
  2. Disposition of the Public Domain
    1. The Disposition System

      It was not just the disposition of proprietary property rights that creates legal conflicts today. It was also the disposition of sovereign power from the federal government over territory to newly created states. Joseph Blocher has published a lively survey of boundary disputes between states and the tools available to resolve them. Selling State Borders, 162 U. Pa. L. Rev. 241 (2014).

      Abraham Lincoln wrote that, in 1816, his father moved the family from Kentucky to Indiana "chiefly on account of the difficulty in land titles" in Kentucky. The Collected Works of Abraham Lincoln 4:62 (Basler ed., 1953-55). At the time, purchasing land in Kentucky "was to buy a lawsuit. During Lincoln's boyhood, his father Thomas Lincoln owned three farms but lost two of them because of faulty titles. In Indiana, however, thanks to the federal land ordinances … [establishing rectangular surveys before sales, buyers acquired] secure titles." Eric Foner, The Fiery Trial: Abraham Lincoln And American Slavery 5 (2010).

      1. The Survey and Early Land Laws

        Here is an excellent explanation and diagram of the rectangular survey system at different scales.

        And here is more information on the public land survey system.

        This single graphic shows all the important public land survey elements.

      2. Disposition by Foreign Governments
    2. State Lands and Trust Doctrines
      1. The Equal Footing Doctrine

        Justice Sonia Sotomayor's 2009 appointment to the Supreme Court attracted attention to the note she wrote while a student, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, 88 Yale L.J. 825 (1978-79). The note argues that the equal footing doctrine does not prevent Congress from granting newly admitted states more property than existing states have. In particular, it argues that Congress could grant Puerto Rico seabed mineral rights up to 200 miles from shore. Does the argument work the other way? That is, could Congress admit Puerto Rico with no submerged land grants at all?

        PPL Montana, LLC v. Montana
        Comment: The Sagebrush Rebellion and States’ Rights
        United States v. Gardner
      2. State Trust Obligations

        The Lincoln Institute tracks current trends in management of and revenues from state trust lands.

        When the interests of state land users conflict with the fiduciary trust, the result can be politically potent. Idaho enacted a 1990 state statute shielding renters of recreational cabins on state trust lands from competitive auctions for renewal of their leases. This kept rents low and encouraged lessees to make improvements to their cabins, and even sell them (with the leases) for big profits. After the Idaho Supreme Court overturned the statute in Wasden v. State Bd. of Land Comm’rs, 280 P.3d 693 (2012), however, the state land board raised lease fees and decided to sell the properties in order to quit the politically unpopular role of landlord. The governor stated “I’m willing to do anything to divest ourselves of these headaches.” William Spence, Idaho Moves Forward with Priest Lake Cottage Site Sales, Lewiston Tribune (Aug. 17, 2014). Now the lessees are unhappy because they may not be able to outbid others to retain their cabins. Plus, the state will reap profits on the increased value. What it may mean for school revenue is uncertain, however. The Lewiston Tribune reported in 2014 that the 507 cottage site leases earned more than $5.5 million in 2013 for the trust while the 1.4 million acres of state rangeland earned less than $700,000.

        The Public Trust Doctrine
        Illinois Central Railroad Co. v. Illinois
        State Trust Duties for Express Grants
        Branson School District, RE-82 v. Romer
        Trust Problems
        Comment: Other Grants to States
    3. Grants to Private Parties

      This is what a land patent looks like.

      Here is an image of military warrant for public domain issued to a famous veteran.

      1. Grants to Farmers and Ranchers
        Credit and Cash Sales
        Preemption
        Homesteading
      2. Grants for Reclamation
      3. Grants of Timber
      4. Grants to Miners
      5. Grants to Railroads
        Camfield v. United States
  3. Withdrawal, Reservation, and Reacquisition

    The emergence of reservation, withdrawal and reaquisition as dominant themes of public land law coincided with an important shift in the American attitude. In a widely quoted portion of his classic study, A History of American Law (1973), Lawrence M. Friedman described it as follows:

    The pioneer, the frontier individualist, had been the American culture hero, free, self-reliant, unencumbered by weakness that inhered in the cities. The frontier had been a symbol of an open society; opportunity was as unlimited as the sky. In 1893, Frederick Jackson Turner wrote his famous essay, "The Significance of the Frontier in American History." He traced the influence of the frontier on American character and institutions; but when he wrote the essay, Turner also announced that the frontier was irrevocably dead.
    What really passed was not the frontier, but the idea of the frontier. This inner sense of change was one of the most important influences on American law. Between 1776 and the Civil War, dominant public opinion exuberantly believed in growth, believed that resources were virtually unlimited; that there would be room and wealth for all. The theme of American law before 1850 was the release of energy, in Willard Hurst's phrase. Develop the land; grow rich; all segments will gain. By 1900, if one can speak about so slippery a thing as dominant public opinion, that opinion saw a narrowing sky, a dead frontier, life as a struggle for position, competition as a zero-sum game, the economy as a pie to be divided, not a ladder stretching out beyond the horizon.

    A 2014 article explains why many longstanding users of public lands do not support further privatization of resources along the lines of the disposal laws of the 19th century. Bruce R. Huber writes, “durable private access to state-owned resources may be preferable to outright private ownership to many commercial actors. Indeed, there is some evidence that, at crucial moments in the development of modern natural resource policy, industrialists joined with conservationists in calling for such a regime.” The Durability of Private Claims to Public Property, 102 Geo. L.J. 991, 998. Some liability protection, relief from state property taxes, and preemption of certain state laws are among the benefits of pursuing commercial activities on federal lands. Also, amenable federal land officials may be easier to work with than private lessors and neighbors: “Though most conventional private property rights are cabined by adjacent rights, claims to public resources generally must be confined and contained, if at all, by a federal administrator.” Id. at 997-998.

    United States v. Gratiot
    United States v. Gettysburg Electric Railway Co.
    1. The Emergence of Withdrawal and Reservation: Forests and Scenery
      United States v. Grimaud
      Light v. United States
    2. Mineral Resources
    3. Range Resources
      Omaechevarria v. Idaho

3. Federal and State Authority on the Public Lands

Research Guide

  1. Federal Powers Applied Through the Supremacy Clause
    1. Jurisdiction within Federal Enclaves
      Fort Leavenworth R.R. Co. v. Lowe
      Comment: Assimilation of State Law in Federal Enclaves
    2. The Property Clause
      Kleppe v. New Mexico
      Note 1.
      The BLM continues to fall behind on removing wild horses that exceed the range capacity of the habitat. There are now twice as many wild horses on federal lands than the BLM says the range can sustain. The Oct. 1, 2014 New York Times reported on the problems faced by the agency and ranchers.
      Here is a link to the most recent state-by-state figures on wild horse and burro populations on public lands.
      Wild horses and the landscape in which they occur are photogenic. This video retrospective of the Kleppe v. New Mexico issue offers stunning images.
      Comment: Nuclear Waste Disposal on Federal Land
      The NRC posts several helpful documents on the high-level nuclear waste disposal issue. It also posts documents specifically relating to the Yucca Mountain repository application.
      The Property Clause and Non-Federal Land
      Minnesota v. Block note 9:
      Sturgeon v. Masica, --- F.3d ---, 2014 WL 4977583 (9th Cir. 2014), upheld an NPS regulation prohibiting hovercrafts within park boundaries as applying to non-federal lands (and waters). The NPS promulgated the rule under the 1976 Park Service Administration and Improvement Act, which authorizes the Secretary to "[p]romulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System, including waters subject to the jurisdiction of the United States." 16 U.S.C. § 1a-2(h). The ban on hovercraft applies to federally owned lands and waters administered by the NPS and "[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters." 36 C.F.R. § 1.2(a). The court upheld the legislation as within Congress' property clause authority, upheld the rule as within the scope of authority delegated to the NPS, and found that the NPS could apply the rule to ban hovercraft on waters within the boundary of Yukon–Charley Rivers National Preserve, even where the State of Alaska owns the underlying beds.
      This map shows the location of the BWCAW within the Superior National Forest. The remaining motorized recreation in the BWCAW continues to generate controversy. In March 2007, a coalition of environmental groups released this report documenting degradation from motors.
      The National Park Service does have a program dealing with light pollution at Chaco Canyon. This is part of a larger effort to increase awareness of and preserve the rare places where the sky remains relatively untainted by artificial light pollution: This is an article on the dark sky initiatives aimed specifically at the NPS. This 2007 article summarizes recent efforts to quantify and map the darkest skies in the U.S.
      Minnesota v. Block
      Comment: External Threats to National Parks
    3. Other Constitutional Authorities

      Note 4: In 2014 the Supreme Court decided Bond v. United States, 134 S.Ct. 2077. Chief Justice Roberts, speaking for a 6-3 majority, held that a statute imposing criminal penalties for possessing and using chemical weapons did not apply to a local offense committed by a jilted wife (Carol Anne Bond) to poison her husband’s lover. Congress enacted the statute at issue, like the Migratory Bird Treaty Act, to fulfill the United States’ obligation under a treaty, in this case the International Convention on Chemical Weapons. The court interpreted the statute as not reaching the local behavior of Carol Anne Bond. It therefore did not rule on the constitutional scope of Congress’ power to implement treaties through legislation. However, Justice Scalia, concurring with the decision, would have repudiated the broad congressional power described by Justice Holmes in Missouri v. Holland.

  2. Federal Preemption and Immunity
    1. Federal Preemption
      California Coastal Commission v. Granite Rock Co.
      South Dakota Mining Ass’n, Inc. v. Lawrence Cnty.
    2. Federal Immunity and Cooperative Federalism

      The Land Trust Alliance has useful information on regional, state, and local NGO easement holders, and best practices. The National Conservation Easement Database contains a wealth of information and GIS on easements.

      North Dakota v. United States
      Comment: Immunity and Estoppel Against the United States
      1. Cooperative Federalism

        This news story from the Missoulian illustrates how both revenue sharing and “procedural favoritism” (discussed p. 191) create incentives for local governments to engage in natural resource planning and to work with federal land management agencies.

        More information about the following examples listed in the Fischman excerpt on cooperative federalism can be found at these links:

      2. Delegation
        National Parks & Conservation Association v. Stanton
        The Niobrara National Scenic River remains one of Nebraska's most important recreational and ecological resources.
        Forest Service Employees for Environmental Ethics v. U.S. Forest Service
        Here is the farming permit at issue in Forest Service Employees for Environmental Ethics v. U.S. Forest Service. The permit was an agreement between the National Wild Turkey Federation (NWTF) and a farmer. Here is the stewardship agreement authorizing the NWTF to achieve land management goals on the national forest lands.

4. Overarching Legal Issues

Research Guide

  1. The APA and Judicial Review
    1. Barriers to Judicial Review: The Procedural Obstacle Course
      1. Standing
        Lujan v. National Wildlife Federation
        The Mahaweli Project is the largest multi purpose development program ever undertaken in Sri Lanka, covering thirty-nine percent of the total island.

        Note 6: Sierra Club v. Jewell, 2014 WL 4193636, --- F.3d ---- (D.C. Cir. 2014), reversed the district court decision in Sierra Club v. Salazar. The court of appeals held that the organizations challenging the decision to remove the site of the armed labor conflict (which would open up the site to surface mining) do meet the constitutional requirements of standing. The court found that the greater protections accorded the historic qualities of the site under West Virginia law, which protects places listed in the National Register, supported the plaintiff’s claims of causation and redressability.

      2. Exhaustion and Ripeness
        Ohio Forestry Association, Inc. v. Sierra Club
        In 2006 the Wayne National Forest adopted a new forest plan to supersede the one at issue in the Ohio Forestry v. Sierra Club.
      3. Reviewable Agency Actions
        Norton v. Southern Utah Wilderness Alliance
        Here is the 2002 environmental assessment for the Route Designation Plan. Here are some photographs of the area along the routes.
    2. The Scope of Judicial Review

      Northern California River Watch v. Wilcox, note 6:
      McMaster v. United States, 731 F.3d 881, n.4 (9th Cir. 2013), discusses the level of deference courts should accord to Solicitor’s Opinions. In particular, it contrasts judicial treatment of those Opinions with the higher level of deference normally accorded decisions of the Interior Board of Land Appeals, even though the IBLA is bound by Solicitor Opinions.

      Northern California River Watch v. Wilcox
  2. The National Environmental Policy Act (NEPA)
    1. Timing and Scope of NEPA Analyses
      Metcalf v. Daley
      The Olympic Coast National Marine Sanctuary is entirely encompassed by the traditional harvest areas of the Hoh, Makah, and Quileute tribes, and the Quinault Indian Nation.
      Here is an image which illustrates the migration pattern of the Gray Whale.
      Here is the Treaty of Neah Bay which was signed between the Makah and the United States in 1855.
      The International Convention for the Regulation of Whaling was signed in December of 1946 and set up the International Whaling Commission.
    2. What Must an Adequate EIS Discuss
      Robertson v. Methow Valley Citizens Council
      The Okanogan National Forest originated from the "Washington's Birthday Reserves" proclamation signed by President Glover Cleveland on February 22, 1897. The proclamation created 13 forest reserves covering 21 million acres in the western states.
      Climate Change: This website documents how the BLM currently approaches NEPA compliance for onshore oil and gas leasing impacts on climate change. It also links to helpful examples of BLM’s actual analysis.

      Climate Change Update: High Country Conservation Advocates v. U.S. Forest Serv., 2014 WL 2922751, --- F.Supp.2d --- (D. Colo. 2014), overturned an EIS for failure to consider the social cost of carbon generated by greenhouse gas emissions. Click for a description and excerpt.

    3. Mitigated FONSIs
      Friends of Back Bay v. U.S. Army Corps of Engineers
  3. The Endangered Species Act
    1. Introduction and Overview
      Tennessee Valley Authority v. Hill
      The snail darter feeds mainly on aquatic snails and was declared an endangered species in 1975, information regarding the snail darter can be found here.
      The Tennessee Valley Authority is the nation’s largest public power company.
      The Tellico Reservoir is located on the Little Tennessee River in East Tennessee; construction on the Tellico Dam began in 1967 and finished in 1979.
    2. Section 4: Listing and Delisting Species

      In re: Plar Bear Endangered Species Act Listing, Note 6.
      In 2014 the FWS and NMFS proposed 2 new revised critical habitat rules. One proposed rule would alter critical habitat designation criteria. The other would respond to Sierra Club v. U.S. Fish & Wildlife Service and several other cases that found a violation of the ESA in the existing rule that provides no additional section 7 protection to listed species from critical habitat. The new rule would revise the definition of “destruction or adverse modification” of critical habitat to include an action that appreciably diminishes the conservation value of critical habitat for a listed species even if the action does not affect the survival of the species.

      In re: Polar Bear Endangered Species Act Listing, Note 7.
      We spoke too soon in stating that all the state management regimes for the northern Rocky Mountain gray wolf succeeded in establishing new regulatory mechanisms to support delisting. In September 2014, a federal district court overturned the delisting for Wyoming wolves because the FWS unreasonably relied on nonbinding, unenforceable promises to maintain a particular number of wolves. Defenders of Wildlife v. Jewell, 2014 WL 4714847, -- F.Supp.3d -- (D.D.C. 2014). The court determined that Wyoming’s existing regulatory mechanisms were inadequate to support the delisting.

      In 2014 the FWS withdrew a proposed rule to list the contiguous United States DPS of the wolverine as threatened. The original proposal cited climate change as a major threat to the wolverine because of its reliance on deep, late-season snow to den. In that respect, the wolverine is cold-dependent in a manner similar to the polar bear. The withdrawal is based on the agency’s determination that the localized impacts of global warming on the wolverine’s range in the contiguous United States are too uncertain to support a threatened determination. There is also uncertainty about how adaptive the wolverine may be to forecasted changes in climate. If the FWS had made these findings about the Polar Bear, would Judge Edwards have upheld a decision not to list? Polar bears themselves may be more adaptable to a warming arctic than previously believed.

      Greater Yellowstone Coalition v. Servheen
      In 2014 the listing agencies promulgated a policy document to guide their interpretation of 16 U.S.C. § 1532's definition of an "endangered species" as one in danger of extinction throughout all "or a significant portion of its range". 79 Fed. Reg. 37,578 (July 1, 2014. The High Country News published a concise discussion of the debate over interpreting the meaning of "significant portion of its range." In the public lands context, a recurring question is whether patches of public land habitat can stave off listings of species in the path of widespread private development. See, e.g., Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).

      Tables and lists of ESA-protected species are updated regularly by the FWS. The most interesting table is the box-score tallying listed species numbers by jurisdiction and taxonomic unit. The agency also maintains a database of information about all of the listed species and critical habitat.

      In re: Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation
      Greater Yellowstone Coalition v. Servheen
    3. Section 7: The Action Agency’s Duty to Consult

      Thomas v. Peterson, Note 5
      In re: Plar Bear Endangered Species Act Listing, Note 6.
      In 2014 the FWS and NMFS proposed 2 new revised critical habitat rules. One proposed rule would alter critical habitat designation criteria. The other would respond to Gifford Pinchot Task Force v. FWS and several other cases that found a violation of the ESA in the existing rule that provides no additional section 7 protection to listed species from critical habitat. The new rule would revise the definition of “destruction or adverse modification” of critical habitat to include an action that appreciably diminishes the conservation value of critical habitat for a listed species even if the action does not affect the survival of the species.

      The FWS Ecological Services offices post their biological opinions on the web. For instance, the FWS Arizona web site contains many BOs addressing grazing impacts on listed species similar to those litigated in the Arizona Cattle Growers' Ass'n case. Consider the "no jeopardy" statement and the ITS in the Fossil Creek Range Allotment BO for the Coconino National Forest's proposed range management regime. In other regions of the country, the FWS posts BOs not by state but by species impacted. Consider the variety of federal actions requiring formal consultation for their effects on the Indiana bat in the Midwest region.

      Here are examples of biological opinions concerning public natural resources:

      Thomas v. Peterson
    4. Section 9: The “Take” Prohibition

      Sweet Home note 2:
      Aransas Project v. Shaw, 756 F.3d 801 (5th Cir. 2014), considers the issue of foreseeability in establishing take liability. The Court of Appeals reversed a district court’s finding that surface water consumption permits upstream of the Aransas National Wildlife Refuge and the adjacent San Antonio Bay proximately caused the deaths of 23 endangered whooping cranes by lowering fresh water flows in the drought winter of 2008-2009, which led to increased salinity in the bay, which led to a reduction in the food cranes rely on to survive the winter. Relying heavily on the discussion among the justices in Sweet Home, the court found that the Texas agency (TCEP) responsible for issuing the surface water consumption permits for the rivers feeding the bay could not have reasonably foreseen the connection between its actions and the death of the cranes. The court explained:

      The lack of foreseeability or direct connection between TCEQ permitting and crane deaths is * * * highlighted by the number of contingencies affecting the chain of causation from licensing to crane deaths. The contingencies are all outside the state’s control and often outside human control. To begin, the state’s control over water usage is at a macro, not a micro level. * * * While permits authorize usage, however, they do not compel it. Further, some users, such as domestic and livestock users, need not obtain permits. The independent choices of water users are also affected by the availability of water from alternative sources like reservoirs and the Edwards aquifer. The aquifer, indeed, is a major water source for South Texas, including San Antonio. TCEQ accordingly cannot control the amount of water that will be diverted from the rivers.
      Even more unpredictable and uncontrollable are the forces of nature. The weather, tides and temperature conditions dramatically affect salinity within and throughout the bay. As the district court found, a few rains in autumn 2009, for instance, restored salinity to desirable levels for crab and wolfberry production. That these natural conditions can change quickly is a truism, and that the seriousness or duration of a drought cannot be foreseen in advance is equally trite. Texas is prone to cyclical drought conditions, but the winter of 2008–2009 was an outlier among those.
      For another link in its chain of causation, the district court found that “with lower salinities, the greater the chances for a Whooping Crane to find a blue crab,” and that “decreases in freshwater inflows to the San Antonio bay/Guadalupe estuary results [sic] in a decrease in blue crabs as well as wolfberries on the critical habitat of the * * * cranes.” Even accepting these findings, the salinity levels that affect blue crab habitat choices and wolfberry production are also subject to varying and unpredictable contingencies of weather, tides and temperature changes. In addition, the blue crab population in this bay (as in many places) suffered a consistent decline since the 1980s because of overfishing. Yet inversely to the ongoing blue crab decline, which must have decreased the chances for a whooping crane to find a blue crab, the whooping crane population grew nearly every year.
      Contingencies concerning permittees’ and others’ water use, the forces of nature, and the availability of particular foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected 2008–2009 die-off found by the district court. This is the essence of unforeseeability.
      Proximate cause eliminates liability for actors when the resulting harm is too attenuated from their negligence (and there is no suggestion that TCEQ’s actions were even negligent). The chain of causation here, unlike any in the reported case law concerning the ESA, may have had an impact on the whooping crane deaths in 2008–2009. Finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far. Had the court considered proximate cause carefully, it must have concluded that the unusual die-off of cranes was, in the nearly half century of their population recovery process, a fortuity from the standpoint of TCEQ’s water regulation. The situation is similar to Judge Henry Friendly’s hypothetical, noted by the Supreme Court in the Exxon case, supra, in which a vessel colliding with a bridge should not be held liable for the death of a patient whose doctor arrived late because of the bridge closing. For these reasons, proximate cause and foreseeability are lacking as a matter of law.
      Babbitt v. Sweet Home Chapter
      Comment: Habitat Conservation Plans (HCPs)
      Comment: Reintroduction of Species
    5. The Relationship Between Sections 9 and 7
      Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Service
  4. Property and Contract Rights
    1. Regulatory “Takings” in Connection with Public Natural Resources
      Mountain States Legal Foundation v. Hodel
      This site provides program updates on managing wild horses in the Rock Springs district of Wyoming.
    2. Private Property Rights in Federal Lands
      Comment: Regulatory Takings Analysis on Federal Lands: Special Considerations
    3. Contract Rights
      Mobil Oil Exploration and Producing Southeast, Inc. v. United States
      A successor agency to the Minerals Management Service, the Bureau of Ocean Energy Management, now operates the outer continental shelf (aka “offshore”) leasing program, and describes how it works.
      Comment: What Provisions Should the Government Put in Contracts
      Comment: The “Sovereign Acts” and “Unmistakability” Doctrines as Government Defenses

5. Federal Land Management

Research Guide

  1. Access Across Non-Federal Land

    Sometimes access disputes mask larger disagreements about recreation and the value of land for development. This news story about access in the Bear Creek basin above Telluride has it all!

    Leo Sheep Co. v. United States
    If you want to get a feel for the place that spurred the Leo Sheep litigation, check out the beautifully illustrated Wyoming parks web site for Seminoe Reservoir.
    United States ex. rel. Bergen v. Lawrence
  2. Access Across Federal Land
    1. R.S. 2477 Rights-of-Way

      Southern Utah Wilderness Alliance v. BLM. Note 5.
      San Juan County, Utah v. United States, -- F.3d – (10th Cir. 2014), 2014 WL 1651959, affirmed the district court decision in rejecting the county’s claim of an RS 2477 right-of-way up Salt Creek Canyon. It also clarified some of the issues of proof in claiming RS2477 rights-of-way. The circuit court held that “uninterrupted use” of a right-of-way is a necessary but not sufficient condition “to demonstrate the existence of a public thoroughfare for purposes of R.S. 2477.” In response to the state and county argument that two 2008 Utah supreme court decisions altered this interpretation of state law, the circuit court ruled that the newer, more lenient standard, would retroactively broaden the rights-of-way “beyond what Congress could have intended to preserve” in 1976.

      The Tenth Circuit went on to endorse the district court’s conclusion that use of a path to travel to and from grazing sites authorized by federal grazing permits, is not sufficient to establish a public thoroughfare.

      These maps show the extent of R.S. 2477 right-of-way claims in some of the more contentious regions of the country:

      The Southern Utah Wilderness Alliance has posted some photos of Utah R.S. 2477 claims here [PDF].

      Here are photos of R.S. 2477 claims from Moffat Browns Park and Vermillion Basin.

      Southern Utah Wilderness Alliance v. BLM
      The counties of San Juan, Kane, and Garfield are located in south-eastern Utah, see image here.
      There are mixed reactions to the existence of RS 2477 claims. The Wilderness Society views the claims as a threat to the protection of public lands, while others defend these claims as property rights which must be protected.
      Note 1: The plaintiff in Hale was recently the subject of an unflattering book, Tom Kizzia, Pilgrim's Wilderness: A True Story of Faith and Madness on the Alaska Frontier" (2013). Reviewed in the July 27, 2013 NY Times.
    2. ANILCA Permits

      Here is an assignment (problem, and map link) that provides a common set of facts to the ANILCA standard for a right-of-way permit.

      The relevant Forest Service Regulations are here:

      Here is a sample call for public comments and decision for a Hoosier National Forest ANILCA right-of-way permit. Here is an administrative appeal decision challenging an EA for an ANILCA right-of-way permit.

      Colorado Wild v. U.S. Forest Service
    3. FLPMA Title V Permits
  3. Executive Power Over Federal Resources
    1. Presidential Prerogatives

      The Department of Energy describes the naval petroleum reserves that have their origins in Taft's executive order.

      United States v. Midwest Oil Co
      Comment: The President’s Power to Guide Agencies by Executive Order
    2. National Monuments under the Antiquities Act
      Tulare County v. Bush
      Giant Sequoia National Monument protects thirty-eight groves of giant sequoias.
      At the beginning of 2004, the Forest Service adopted a management plan for the Giant Sequoia National Monument which authorized logging. A federal district court enjoined the logging and the plan in California ex rel. Lockyer v. United States Forest Serv., 465 F. Supp. 2d 942 (N.D. Cal. 2006). The court found the plan's EIS inadequate under NEPA because it was "incomprehensible" and because it improperly tiered to a fire plan that itself violated NEPA. The court did not reach claims that the plan violated the term of the executive order creating the national monument. The Forest Service adopted a revised plan in 2012 that focuses on environmental restoration.

      Tulare County v. Bush, note 7
      In 2014 President Obama expanded by 308,316 square nautical miles the Pacific Remote Islands Marine National Monument that President Bush created in 2009. The U.S. FWS will continue to manage the area as part of the national wildlife refuge system, in consultation with the Secretary of Commerce, who retains primary responsibility for fisheries management in the area. Obama’s proclamation prohibits commercial fishing in the expanded monument, though sport fishing may be permitted by the Secretary of Commerce. The expansion includes the ocean and submerged lands that extend 200 miles offshore islands and atolls, which the United States claims as part of its Exclusive Economic Zone. With the expansion, the monument is nearly 490,000 square miles, nearly three times the size of California and is purported by National Geographic to be the largest protected area in the world.

  4. Land Acquisitions, Sales, and Exchanges

    The following problem requires students to integrate the material on withdrawals, exchanges, and sales with the APA and NEPA in a litigation context:

    1. Land Acquisitions
    2. Land Sales
    3. Land Exchanges

      The Ray mine land exchange began in 1994 with a proposal from ASARCO LLC (Asarco) to acquire Bureau of Land Management (BLM) lands near or adjacent to their Ray Mine operations and in the Casa Grande vicinity, in exchange for private parcels Asarco owns which have been identified by the BLM as desirable for public ownership. The BLM maintains this web site on the Ray Mine land exchange SEIS, designed to supplement the 1999 FEIS rejected in Center for Biological Diversity v. U.S. Dep’t of the Interior (casebook p. 406).

      Ctr. for Biological Diversity v. U.S. Dep’t of the Interior
      Comment: Swapping Lands Between Federal Agencies
      Comment: Federal-State Land Exchanges
  5. Planning and Organic Legislation
    Robert L. Fischman, The National Wildlife Refuges: Coordinating a Conservation System through Law
    Norton v. Southern Utah Wilderness Alliance

6. The Water Resource

  1. The Acquisition of Water Rights on Federal Lands
    1. The Origins of Water Law on Federal Lands
      California v. United States
    2. Federal Reserved Water Rights

      Cappaert v. United States, Note 8.
      The status of the Devil’s Hole pupfish continues to alarm researchers. In the fall of 2013, the population declined to 30 individuals, continuing a steady decline since 1997. The reasons for the decline are not understood. In response, the FWS continues to attempt to establish a captive population, an effort that has thus far failed. In 2014 the agency released pupfish into a brand new, ex-situ facility at Ash Meadows NWR designed specifically to sustain the pupfish. Emily Yehle, Tiny Desert Fish Inspires Heroic—and Extremely Expensive—Rescue, Geenwire (June 9, 2014).

      Arizona v. California
      Cappaert v. United States
      United States v. New Mexico
    3. Reserved Water Rights by Federal Land category
      1. National Forests
      2. National Parks
      3. National Monuments
      4. National Recreation and Conservation Areas
      5. National Wildlife Refuges
      6. Wilderness Areas
      7. Wild And Scenic Rivers
      8. Bureau Of Land Management (BLM) Lands
    4. Modern Congressional and Executive Practice in Federal Land Reservations
    5. Adjudicating Federal Water Rights

      Here is the settlement agreement between the United States and Idaho quanitfying reserved rights claims in the Hells Canyon National Recreation Area.

      Comment: Does the Executive Branch Have a Duty to File Reserved Rights Claims in Water Adjudications?
      Comment: Federal Participation in State Administrative Proceedings Concerning Water
  2. Beyond the Reserved Rights Doctrine: Other Means of Protecting Federal Interests in Water
    1. Water Rights Based on State Law
      State v. Morros
    2. Federal Non–Reserved Water Rights
    3. Controlling Water by Regulating Access to Federal Land

7. The Hardrock Mineral Resource

  1. Hardrock Minerals: The General Mining Law of 1872

    A recent minority party report from the House Natural Resources Committee estimates that gold, silver, copper, molybednum, palladium, and platinum mining on federal public lands generates about $ 5 billion in revenue annually. Legislation proposing a 4% royalty on federal hardrock mineral production would bring about $ 180-200 million annually to the Treasury.

    In 2014 the National Mining Association commissioned SNL Metals & Mining, a consulting and research group, to produce a report showing the relationship between minerals and U.S. manufacturing. It states that, in 2013, the United States was the 7th largest producer of metallic and industrial minerals in the world. In that year, miners in the United States extracted $ 74.3 billion worth of these raw materials.

    The U.S. Geological Survey Mineral Resources Program publishes authoritative surveys of hardrock resources. Here is the most recent searchable database for information on minerals.

    Domestic production of most of the important hardrock mineral commodities continues its 30-year decline as a proportion of total domestic consumption. As you consider the materials in this sub-chapter, consider whether the legal regime for disposal of hardrock minerals drives the mining industry overseas for cheaper production of minerals. For some of these minerals, there are national security concerns surrounding dependence on foreign sources of supply.

    Here is a link to the Environmental Working Group's database on hardrock mining. This interactive map showing claims, patents, and mines is particularly revealing of the broad reach of the General Mining Law.

    1. What Minerals are Locatable under the Mining Law?
      Andrus v. Charlestone Stone Products Co.
    2. What “Lands Belonging to the United States” Are Open to Claim Location?
      1. Modern Withdrawal Practice under FLPMA
      2. Is a Decision Not to Authorize an Activity a Withdrawal?
      3. FLPMA Withdrawal Procedures and the Legislative Veto

        Yount v. Salazar, 933 F. Supp.2d 1215 (D. Ariz. 2013), upheld the 2012 FLPMA withdrawals in public lands surrounding Grand Canyon N.P. against the challenge that the legislative veto provision of FLPMA is not severable from the secretary's withdrawal authority. However, the court deferred deciding the NEPA challenges to the withdrawal until 2014, when it found that the secretary had met the requirements of NEPA despite the uncertainties concerning how much mining might occur without a withdrawal and what the environmental impacts would be. Here is a map of the lands withdrawn by the Secretary in 2012, from the EIS upheld in 2014.

    3. How Is a Mining Claim Located?

      The federal government has a web-based mapping program that allows viewers to see various kinds of mineral claims.

      Here is an example of a certificate of location that a miner would file under state law, generally in a county courthouse, in order to protect the pedis possessio right and bolster a claim under the General Mining Law. Locations are alienable in a similar manner to most real property rights and may be transferred by deed.

    4. What Are a Mining Claimant’s Rights Before Discovery?
      The Pedis Possessio Doctrine Union Oil Co. v. Smith Geomet Exploration, Ltd. v. Lucky Mc Uranium Corp.
    5. Gaining Rights Against the United States: Discovery of a Valuable Mineral Deposit
      Castle v. Womble
      United States v. Coleman
      Comment: The Problem of “Common Varieties”
      Comment: Discovery and Uranium and Oil Shale
    6. Holding and Privatizing Mining Claims

      Privatizing: Patenting Claims
      Recall that the Wilderness Act limited patents in designated wilderness areas to only the minerals, not the surface estate, subject to valid existing rights. 16 U.S.C. § 1133(d)(3). McMaster v. United States, 731 F.3d 881 (9th Cir. 2013), upheld the reasoning of a 1998 Solicitor’s Opinion that overturned the BLM and USFS practice of issuing Mining Law patents that included the land surface even in wilderness areas. Until 1998, the BLM and USFS assumed valid existing right to the surface if the mining claim had been located prior to the wilderness designation.

      United States v. Locke
    7. Inroads on the Freedom of the Mining Claimant

      This news story about access in the Bear Creek basin above Telluride suggests that Chapman and Curry base their right to exclude hikers, in part, on ownership of hardrock mining claims. Is that possible after Curtis-Nevada Mines?

      United States v. Rizzinelli
      United States v. Curtis-Nevada Mines, Inc.
      Comment: Processes for Challenging the Validity of Unpatented Mining Claims
    8. Modern Environmental Regulation of Operations on Unpatented Mining Claims

      Here is the "plan of operations" form miners must submit to the Forest Service for surface disturbance of national forest lands. The BLM does not require a particular form, but each state office has its own recommended format. Here is an example.

      1. Forest Service Regulation
        United States v. Weiss
      2. BLM Regulation

        Mineral Policy Center v. Norton, note 1:
        McMaster v. United States, 731 F.3d 881, n.4 (9th Cir. 2013), discusses the level of deference courts should accord to Solicitor’s Opinions. In particular, it contrasts judicial treatment of those Opinions with the higher level of deference normally accorded decisions of the Interior Board of Land Appeals, even though the IBLA is bound by Solicitor Opinions.

        Mineral Policy Center v. Norton
      3. Regulating Mining in Parks and Refuges
        Comment: Reforming the Mining Law
  2. Split Estates: What Minerals are Reserved?
    1. Federal Minerals Under Private Surface
      Watt v. Western Nuclear, Inc.
    2. Private Minerals Under Federal Surface

8. Energy Resources

  1. Mineral Leasing

    The BLM publishes useful statistics on onshore oil/gas leases and coal leases.

    Here is a link to the Environmental Working Group's map on oil and gas leasing in the West.

    The federal government now has a web-based mapping program to view various kinds of mineral lease locations.

    Sample Onshore Lease

    • Here is the standard form for a federal onshore oil/gas lease.
    • This document, entitled Uniform Format for Oil and Gas Lease Stipulations, provides guidance for the standardization of federal oil and gas lease stipulations, uniform definitions, format, and wording.
    • Here is the standard form for a federal coal lease.
    • Here is the standard form for a federal geothermal resource lease.
    • Here is the standard form for a federal lease of other resources under the MLA, including sodium, sulfur, phosphate, and potassium.

    Sample Outer Continental Shelf Lease:

    1. Competition and “Fair Market Value” National Wildlife Federation v. Burford

      Here is a BLM web site that collects reports, maps, and statistics on Powder River Basin coal leasing in Wyoming.

      In 2007 the Departments of Energy, Interior and Agriculture released this report on federal coal resources. It contains helpful maps, especially of the vast Powder River Basin deposits, which constitute 55% of all U.S. owned coal.

      A 2013 GAO report found continued problems in valuation of coal leases and inadequate documentation justifying lease sales where the accepted bids fell below FMV estimates. The report notes that most of the leases made after 1990 had only a single bidder, which reflects the economies of scale in the surface mines of the Powder River Basin.

      Securing a fair market price for coal leases on public lands continues to present a challenge to the Interior Department. A 2012 study by the Institute for Energy Economics and Financial Analysis finds that low minimum bid standards have cost the United State $28.9 billion in lost revenue over the past 30 years in the Powder River Basin. Despite the scandals of the 1980s, the report finds that the federal government still has not fixed the competitive coal leasing system.

    2. Mineral Leasing and Environmental Regulation

      Kerr-McGee Corp. v. Hodel was not an unusual situation. Here is information on the extent of federal acquired minerals in the East subject to leasing.

      Kerr-McGee Corp. v. Hodel
      Permitting mineral activity on acquired lands may be important even in the western states. Gifford Pinchot Task Force v. Perez, 2014 WL 3019165 (D. Oregon 2014), overturned mineral prospecting permits under the 1911 Weeks Act for lands acquired in 1986 for the Gifford Pinchot National Forest. The 1986 acquisition was purchased with Land and Water Conservation Fund (LWCF) monies. The court found that the administrative record did sufficiently explain how the mineral exploration is “not inconsistent” with the Weeks Act purposes. But, the court found that the record failed to sufficiently address whether permits were consistent with the primary purposes of the acquisition under the LWCF. The court explained:

      While the 2012 EA supports the agencies' determination that the Project's impact to outdoor recreation is likely to be minimal and transient, this determination cannot satisfy the Reorganization Plan's requirement that the Secretary of Agriculture determine that the proposed activity is not inconsistent with the primary purpose of the land. The context in which the environmental assessment is made is relevant and a finding that the environmental impact is negligible is not equal to a finding that the Project is not inconsistent with the primary purpose of outdoor recreation. While I agree . . . that the LWCF Act does not require that the land be used exclusively for outdoor recreation, and while the requisite finding could possibly be inferred from the 2012 EA, the law requires an express determination by the Secretary of Agriculture. Because that is lacking here, the UFSF's consent is arbitrary and capricious in regard to the LWCF Act purpose of outdoor recreation.
      In summary, the primary purposes for which the land was acquired are timber production, protection of navigable stream flow, and outdoor recreation. The agencies made an express determination that the primary purposes are timber production and protection of navigable stream flow. Their determination that the Project is not inconsistent with those two purposes is not arbitrary and capricious. However, the agencies failed to recognize outdoor recreation as a primary purpose. Their failure to do so and resultant failure to make an express determination that the Project is not inconsistent with the purpose of outdoor recreation is contrary to the requirements of the governing law and thus, is arbitrary and capricious.
      Kerr-McGee Corp. v. Hodel
      Copper Valley Machine Works, Inc. v. Andrus
      Theodore Roosevelt Conservation Partnership v. Salazar
    3. NEPA Tiering

      Center for Biological Diversity v. BLM
      Following Judge Grewal's ruling, the BLM agreed to commission an independent review of the environmental impacts of fracking from BLM oil and gas leasing. After the California Council on Science and Technology (CCST) published its report in 2014, the BLM announced that it would resume oil and gas leasing in California in 2015. The 2014 CCST report covers fracking impacts from the latest technologies employed in the oil/gas industry on water supply, water quality, greenhouse gas emissions, seismicity, ecology, traffic, and noise.

      Climate Change Update: High Country Conservation Advocates v. U.S. Forest Serv., 2014 WL 2922751, --- F.Supp.2d --- (D. Colo. 2014), overturned a federal coal lease modification for failure to adequately account for the costs of greenhouse gas emissions. Click for a description and excerpt.

      Comment: Offshore Energy Development: The Interior Department’s Bureau of Ocean Energy Management hosts a collection of maps and datasets on energy resources of the outer continental shelf.

      Here is the now-notorious Minerals Management Service approval for BP's exploratory well that began spewing oil into the Gulf of Mexico on April 20, 2010 after the Deepwater Horizon rig exploded and sank. The MMS issued the approval as a categorical exclusion under NEPA. Many if not most of the drilling in the Gulf proceeds under this categorical exclusion. The 2007 EIS for the Gulf lease sales that included the BP site anticipated blow-outs to have only localized effects on water quality, negligible effects on fisheries, and no significant impacts on any wetlands.

      The 2011 final report of the Oil Spill Commission investigating the Deepwater Horizon disaster recommended both congressional and executive reforms to offshore o/g drilling.

      Comment: Geothermal Resources: Here is a link to the BLM's growing geothermal energy leasing program.

      Center for Biological Diversity v. Bureau of Land Management
      Comment: Offshore Energy Development
      Comment: Geothermal Resources
      Comment: Conflicts Among Leasable Minerals
      Comment: Regulation of Coal Mining
  2. Split Estates: Where Mineral Interests are Separated from Surface Interests
    1. Federally Reserved Minerals Under Private Surface

      These maps compare the federal surface estate with the vast federal ownership of coal in the Powder River Basin. The colorful map on p. 14 of this document is an excellent graphic of federal control of Powder River Basin coal. Other maps in this document illustrate the richness of these deposits. The Powder River Basin Resource Council also contains an excellent collection of materials on oil, gas, and CBM leasing. In particular, students may be interested in the sample surface use and damage agreements that the Council promotes.

    2. Private Mineral Rights Under Federal Lands Minard Run Oil Co. v. U.S. Forest Serv.
      Comment: Agency Split Estate Regulations and Application
  3. Solar and Wind Energy

    The BLM publishes useful statistics on renewable energy projects.

    John D. Leshy, “Federal Lands in the Twenty-First Century”
    Solar Energy Problem
    1. The Legal Framework
    2. The Siting Decision
    3. Diligent Development
    4. Duration
    5. Fair Market Value
    6. The Role of State Law and Policy
    7. Environmental Conditions
    8. Mitigation Measures: How Far Can the Government Go?
    9. Government Retention versus Disposition
  4. Hydropower Licensing

    This example of a FERC license order includes the terms of the license, the state water quality certification, and the Interior Department's section 18 prescriptions. Other orders are available on line by FERC region.

    A comparative look at how another hydropower-rich nation, Brazil, licenses its facilities can be found in Daniel Sherwood Sotelino, "Complexo Madeira: Environmental Licensing for Large-Scale Hydropower in Brazil," 43 Envtl. L. Rep. News & Analysis 10055 (2013). Click here for a summary of the article.

    Comment: Decommissioning and Removal: The National Park Service maintains a comprehensive web site on the Elwha Dam removal and Elwha River restoration. The time lapse video of the dam removal is particularly entertaining!

    Escondido Mutual Water Co. v. La Jolla Band of Mission Indians
    American Rivers, et al. v. Federal Energy Regulatory Commission
    Wisconsin Public Service Corp. v. Federal Energy Regulatory Commission
    Comment: Dam Decommissioning and Removal

9. The Forest Resource

  1. Traditional Forest Service Management

    Here is an example of a federal timber sale contract. In contrast, here is an example of a timber sale contract where the landowner is private.

    1. The Multiple-Use, Sustained-Yield Act of 1960
    2. The Resources Planning Act of 1974
  2. The Watershed: Clearcutting and the Monongahela Decision
    West Virginia Div. of Izaak Walton League of America, Inc. v. Butz
  3. The National Forest Management Act
    1. Forest Service Planning Regulations
    2. Timber Harvesting Methods and Physical Suitability
      Sierra Club v. Espy
    3. The Diversity Mandate and the Ecological Sciences
      Sierra Club v. Marita
      Sierra Club v. Martin
      Comment: Other NFMA Provisions Limiting Logging
    4. The National Forest Roadless Rule

      Climate Change Update: High Country Conservation Advocates v. U.S. Forest Serv., 2014 WL 2922751, --- F.Supp.2d --- (D. Colo. 2014), overturned a coal mining exemption to the roadless rule applicable only in Colorado because the EIS failed to consider the social costs of greenhouse gas emissions from coal mining. The vacated exemption permitted road construction for coal mines only on 19,000 acres in the North Fork Valley.

      Wyoming v. U.S. Dep’t of Agriculture
  4. Wildfire Management

    Here is the influential Beschta report on wildfire and salvage logging cited by Blue Mountains Biodiversity Project (top of p. 708).

    Wyoming v. U.S. Dep’t of Agriculture. Note 2.
    Organized Village of Kake v. U.S. Dep’t of Agriculture, 746 F.3d 970 (9th Cir. 2014), upheld the Forest Service’s 2003 regulation temporarily exempting Alaska’s Tongass N.F. from the 2001 roadless rule. The court remanded the case to the district court to determine whether the 2003 regulation violated NEPA for failure to prepare a supplemental EIS.

    The Lands Council v. McNair
  5. Place-Based Management: A Study of the Northwest Forest Plan

    The Lands Council v. McNair. Note 4.
    The 2014 Farm Bill restored some of the leeway that Sierra Club v. Bosworth had taken away to categorically exclude some “forest health” logging programs from NEPA analysis. But, the Farm Bill does not exempt the projects from the ESA. The Bill also establishes a new form of cooperative federalism, allowing governors to recommend areas for the Forest Service to conduct the categorically excluded projects. Agricultural Act of 2014 (H.R. 2642), Sec. 8204.

    Seattle Audubon Society v. Evans
    Steven Lewis Yaffee, The Wisdom of the Spotted Owl: Policy Lessons of a New Century
    Kathie Durbin, Tree Huggers: Victory, Defeat & Renewal in the Northwest Ancient Forest Campaign
    Lauren M. Rule, Enforcing Ecosystem Management under the Northwest Forest Plan: The Judicial Role
    Conservation Northwest v. Sherman

10. The Range Resource

  1. A Brief History of Livestock Grazing on Federal Lands
  2. Fundamentals of Public Land Livestock Grazing

    Here is an example of a grazing permit.

    Here are the forms needed to use BLM rangeland resources.

    1. Introduction to the Taylor Grazing Act (TGA)
    2. The Grazier’s Legal Interest in the Public Lands
      United States v. Fuller
    3. Administration of the TGA
      Public Lands Council v. Babbitt
      Comment: Grazing Fees
      Comment: Enforcing the Range Code
  3. Administering Livestock Grazing
    1. Agency Planning Processes
    2. Allotment Management Plans (AMPs)
    3. Individual Grazing Permits
      Western Watersheds Projects v. Salazar
    4. Annual Operating Instructions

      This 2001 grazing bill, which includes the Comb Wash allotment discussed at the top of p. 767, illustrates the late Professor Feller’s observation on p. 766 that the actual number of cattle authorized in a permit may far exceed the number actually grazed. The bill (p.2) indicates that 127 head (501 AUMs) were active on the allotment while 396 (1771 AUMs) were not used. Since 2002 no cattle at all were grazed in the Comb Wash allotment, despite the 2002 permit, which authorizes 508 head. The permittee has requested and been granted authorization for total non-use of the allotment every year since 2002. Nonetheless, trespassing cattle from neighboring allotments do graze Comb Wash.

      The stipulations to the 2001 bill, especially #4, respond to the Comb Wash decision. The absence of similar stipulations in the 2002 permit was the subject of an administrative appeal by the attorney representing NWF in the Comb Wash case (Professor Feller). In 2009 the BLM settled the appeal and completed the EA ordered by Judge Rampton in 1993. Here is the new permit. It and the 2002 permit illustrate typical BLM grazing permits.

      Here are Professor Feller's photographs of Comb Wash and vicinity.

      Oregon Natural Desert Association v. U.S. Forest Service
    5. Delegating Grazing Decision-Making to the Ranchers Natural Resources Defense Council v. Hodel
  4. Conservation Buyouts and Retirements of Grazing Permits and the Economics of the New West
    Public Lands Council v. Babbitt
    Comment: What Does an Agency Need to Show to Retire Public Land from Grazing?
    Comment: Who is Entitled to Hold a Grazing Permit?
    Comment: The Future of Federal Lands Grazing

11. The Wildlife Resource

  1. Introduction
  2. The National Wildlife Refuge System

    Here is the most recent information on the lands of the refuge system. The annual lands report shows the size and composition of each refuge unit, and breaks down refuge holdings by state and by category.

    This 2008 outside assessment of the refuge system describes the gap between the Improvement Act's mandates and on-the-ground management. Many of the current difficulties of the system appear to stem from the declining budgets. Since 2008, the budget has grown more austere.

    1. History and Issues of Administration

      The map on page 2 of this brochure shows the extent of the refuge system.

    2. State Law and Refuge System Goals

      Maps and other information on the National Elk Refuge are here.

      Here is the full text of the FWS Policy on Biological Integrity, Diversity and Environmental Health.

      Note 4: Here is the April 2007 record of decision for bison and elk management in the National Elk Refuge and Grand Teton N.P. that Defenders of Wildlife v. Salazar upheld in 2011.

      State of Wyoming v. United States
    3. Individual Refuge Establishment Purposes

      Here is the full text of the FWS Policy on National Wildlife Refuge System Mission and Goals and Refuge Purposes.

    4. The Compatibility Criterion

      Here is the full text of the FWS Policy on Compatibility.

      Here is the home page for Prime Hook NWR

      Prime Hook NWR's decision to phase out farming may not be isolated. In 2014 the NWRS Chief issued a memorandum promising to end agricultural practices in the system by January 2016 except in instances where it specifically contributes to wildlife objectives. It will also phase out the use of genetically modified crops to feed wildlife by the same date. Some temporary uses may be permitted to continue on a case-by-case basis. Though without a deadline, the memorandum also calls for transitioning all refuge farming to "restored native habitat."

      Delaware Audubon Society v. Secretary of the Interior
      Comment: Wildlife Management in the National Park System
  3. Wildlife Conservation and Management on Multiple-Use Lands

    Here is a bit more information on the history of wolf control on Alaska public lands.

    Comment: Protecting Subsistence Uses of Wildlife Resources on Federal Lands
    The BLM provides detailed information about subsistence uses of Alaskan public lands.

    Defenders of Wildlife v. Andrus (Alaska Wolf Kill).
    Recent conflicts between Alaska’s wolf culling program and federal land managers make for dramatic reading and disrupt some studies of wolf behavior. Krista Langlois, Alaska’s Wildlife War, High Country News, May 26, 2014.

    Defenders of Wildlife v. Andrus (Alaska Wolf Kill)
    Comment: Protecting Subsistence Uses of Wildlife Resources on Federal Lands
  4. The Migratory Bird Treaty Act (MBTA)

    The FWS does issue permits for takes of migratory birds protected by the MBTA in certain limited circumstances, described here, at the site dealing with take. Here is the permit application for MBTA take of nuisance Canada geese. The FWS now authorizes most states outside of the West to kill resident Canada geese without permits under the depredation order at 50 C.F.R. 21.61(d).

    The grisly toll of bird deaths may be explored at U.S. Fish & Wildlife Service, Migratory Bird Morality: Many Human-Related Threats Afflict Our Migratory Bird Populations.

    Comment: The MBTA as a National Hunting Law
    This web site links to a host of information about birds subject to federal hunting restrictions under the MBTA.

    Sierra Club v. Martin
    Humane Society of the United States v. Glickman
    Comment: The MBTA as a National Hunting Law

12. The Recreation Resource

  1. Acquisition of Lands for Recreation: The Land and Water Conservation Fund

    The National Park Service maintains a helpful web site on LWCF grants and standards for conversions.

    Friends of Shawangunks, Inc. v. Clark

    Note 6: This is the letter that the director of the Park Service sent to the California governor in 2009, threatening loss of LWCF monies.

    Shawangunks, Inc. v. Clark
    Gifford Pinchot Task Force v. Perez, 2014 WL 3019165 (D. Oregon 2014), overturned mineral prospecting permits under the 1911 Weeks Act for lands acquired in 1986 for the Gifford Pinchot National Forest. The 1986 acquisition was purchased with LWCF monies. The court found that the administrative record did sufficiently explain how the mineral exploration is “not inconsistent” with the Weeks Act purposes. But, the court found that the record failed to sufficiently address whether permits were consistent with the primary purposes of the acquisition under the LWCF. The court explained:

    While the 2012 EA supports the agencies' determination that the Project's impact to outdoor recreation is likely to be minimal and transient, this determination cannot satisfy the Reorganization Plan's requirement that the Secretary of Agriculture determine that the proposed activity is not inconsistent with the primary purpose of the land. The context in which the environmental assessment is made is relevant and a finding that the environmental impact is negligible is not equal to a finding that the Project is not inconsistent with the primary purpose of outdoor recreation. While I agree . . . that the LWCF Act does not require that the land be used exclusively for outdoor recreation, and while the requisite finding could possibly be inferred from the 2012 EA, the law requires an express determination by the Secretary of Agriculture. Because that is lacking here, the UFSF's consent is arbitrary and capricious in regard to the LWCF Act purpose of outdoor recreation.
    In summary, the primary purposes for which the land was acquired are timber production, protection of navigable stream flow, and outdoor recreation. The agencies made an express determination that the primary purposes are timber production and protection of navigable stream flow. Their determination that the Project is not inconsistent with those two purposes is not arbitrary and capricious. However, the agencies failed to recognize outdoor recreation as a primary purpose. Their failure to do so and resultant failure to make an express determination that the Project is not inconsistent with the purpose of outdoor recreation is contrary to the requirements of the governing law and thus, is arbitrary and capricious.
    Friends of Shawangunks, Inc. v. Clark
  2. The National Park System

    The NPS Management Policies are a rich source of information on park administration.

    River Runners for Wilderness v. Martin: Here is the 2006 Colorado River Management Plan upheld in River Runners for Wilderness v. Martin.

    Note 12: For an example of a cruise ship concession permit for Glacier Bay National Park click here.

    Southern Utah Wilderness Alliance v. Dabney. Note 7
    San Juan County, Utah v. United States, -- F.3d – (10th Cir. 2014), 2014 WL 1651959, affirmed the district court decision in rejecting the county’s claim of an RS 2477 right-of-way up Salt Creek Canyon.

    Southern Utah Wilderness Alliance v. Dabney
    River Runners for Wilderness v. Martin
  3. Special Recreational and Conservation Overlays

    Comment: National Trails: This web site describes the national trails program.

    Comment: National Trails
    The Interior Department is now designating “water trails” to create a system encouraging water-based recreation. The national water trail system began in 2012 with the designation of part of Atlanta’s Chattahoochee River. It is an administrative system established by the Secretary under the National Trails System Act of 1968.

    Oregon Natural Resources Council v. Lyng
    Comment: National Trails
  4. Recreation Fees, Concessions and Permits
    1. Recreation Fees
    2. Recreation Concessions & Permits
  5. Off-Road Vehicle Regulation
    1. Wheeled ORVs

      Sierra Club v. Clark (Dove Springs Canyon case)

      The current, updated, California Desert Conservation Area Plan seeks to accommodate a range of recreation and preservation interests. It can be found here.

      Wilderness Soc’y v. U.S. Forest Serv.
      In 2014 the U.S. Forest Service proposed revisions to its 2005 Travel Management Rule in order to require national forests to designate roads, trails, and areas where over-snow vehicle use is allowed, restricted, or prohibited. The 2005 rule authorized but did not require the national forests to plan for over-snow ORV use. The proposed rule comes in response to Winter Wildlands Alliance v. USFS, 2013 WL 1319598 (D. Idaho 2013), which found that the USFS violated the executive orders by declining to require designation of allowed, restricted, or prohibited routes and areas for snowmobiles.

      Biodiversity Conservation Alliance v. U.S. Forest Serv., 2014 WL 4349196, -- F.3d – (10th Cir. 2014), upheld a modification of trail use in the Medicine Bow National Forest to allow motorcycle riding in a roadless area. The opinion nicely illustrates how a ban on “roads” in roadless areas does not bar the use of motorized vehicles, as the Wilderness Act does in designated wilderness areas.

      Sierra Club v. Clark
      Wilderness Soc’y v. U.S. Forest Serv.
    2. Snowmobiles and Personal Watercraft

      Wilderness Soc’y v. U.S. Forest Serv.
      In 2014 the U.S. Forest Service proposed revisions to its 2005 Travel Management Rule in order to require national forests to designate roads, trails, and areas where over-snow vehicle use is allowed, restricted, or prohibited. The 2005 rule authorized but did not require the national forests to plan for over-snow ORV use. The proposed rule comes in response to Winter Wildlands Alliance v. USFS, 2013 WL 1319598 (D. Idaho 2013), which found that the USFS violated the executive orders by declining to require designation of allowed, restricted, or prohibited routes and areas for snowmobiles.

  6. Federal Liability for Recreational Mishaps

    Reed v. U.S. Department of the Interior:
    Here is the Burning Man Festival web site, which continues to attract tens of thousands of people to the wild event at the Black Rock Desert playa.

    Otteson v. United States
    Comment: Fees and the Sightseer Statutes
    The Discretionary Function Exception
    Johnson v. United States
    Reed v. U.S. Department of the Interior

13. The Preservation Resource

  1. Wilderness Preservation

    A 2014 special issue of the Lewis & Clark Law School journal, Environmental Law, contains 8 articles dealing with the Wilderness Act at age 50.

    1. The Origins of Federal Wilderness Preservation
    2. Wilderness Management
      1. Prohibitions

        The Wilderness Soc’y v. U.S. Fish & Wildlife Serv.
        Here is the 2008 FWS wilderness stewardship policy to guide management and designation of wilderness areas in the national wildlife refuge system. It deals specifically with fish stocking (section 2.18) and commercial activities (section 2.12). Special provisions address the relationship between Alaska wilderness areas and ANILCA (part 5). Does the stewardship policy or the court decision encourage active management to restore natural elements (e.g. fish stocks) of a wilderness to historic levels of abundance? In other words, does wilderness management focus on activity prohibitions or restoration? Should it? See John Nagle, The Spritual Values of Wilderness, 35 Envtl. L. 955 (2005).

        The Wilderness Soc’y v. U.S. Fish & Wildlife Serv.
      2. Exceptions
        Wilderness Watch v. Mainella
        Wilderness Watch v. U.S. Fish & Wildlife Serv.
        Sierra Club v. Lyng I
        Sierra Club v. Lyng II
        Comment: Livestock Grazing
        Comment: Other Wilderness Management Issues
    3. Expanding the NWPS
      1. The National Forest System

        Biodiversity Conservation Alliance v. U.S. Forest Serv., 2014 WL 4349196, -- F.3d – (10th Cir. 2014), upheld a modification of trail use in the Medicine Bow National Forest to allow motorcycle riding in a roadless area. The opinion nicely illustrates how a ban on “roads” in roadless areas is less protective than the ban on motorized vehicles (as well as roads) in designated wilderness areas.

      2. Bureau of Land Management
        State of Utah v. Andrus
        Comment: The Future of Wilderness Designations
  2. River Preservation
    1. Designating Wild & Scenic Rivers
    2. Managing Wild & Scenic Rivers
      Newton County Wildlife Ass’n v. U.S. Forest Serv.
      Oregon Natural Desert Association v. Green
  3. Preservation of Marine Resources

    Kathryn Mengerink, Evaluating Ocean Protection, Envtl. Forum, July/Aug. 2014, p. 22, provides an excellent overview of the various types of marine protected areas.

    In 2014 President Obama expanded by 308,316 square nautical miles the Pacific Remote Islands Marine National Monument that President Bush created in 2009. The U.S. FWS will continue to manage the area as part of the national wildlife refuge system, in consultation with the Secretary of Commerce, who retains primary responsibility for fisheries management in the area. Obama's proclamation prohibits commercial fishing in the expanded monument, though sport fishing may be permitted by the Secretary of Commerce. The expansion includes the ocean and submerged lands that extend 200 miles offshore islands and atolls, which the United States claims as part of its Exclusive Economic Zone. With the expansion, the monument is nearly 490,000 square miles, nearly three times the size of California and is purported by National Geographic to be the largest protected area in the world.

    National Ocean Policy Implementation Plan
    Craft v. National Park Service & National Oceanic and Atmospheric Administration
    United States v. Great Lakes Dredge & Dock Co.
    Comment: Marine Protected Areas
  4. Preservation of Archaeological, Cultural, and Historic Resources
    1. Archaeological Resources
      United States v. Shivers
    2. Cultural and Religious Resources

      Lyng v. Northwest Indian Cemetery Protective Association
      Note 4: Here is the part of the NPS guide to Rainbow Bridge N.M. that requests visitors to refrain from walking under the arch due to the religious significance of the site.

      Lyng v. Northwest Indian Cemetery Protective Association
      Navajo Nation v. U.S. Forest Serv.
      Comment: Free Speech on Federal Lands
    3. Historical Resources

      Here is the National Park Service's National Register of Historic Places. The Advisory Council on Historic Preservation also mainstains a helpful web site on the NHPA.

      Muckleshoot Indian Tribe v. U.S. Forest Serv.