California Western School of Law CWSL Scholarly Commons Faculty Scholarship 2010 Foundations: The Public Domain and Natural Resources Law 1785 - 1960 Richard J. Finkmoore California Western School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs Part of the Environmental Law Commons, and the Natural Resources Law Commons Recommended Citation Finkmoore, Richard J. (2010). Foundations: The Public Domain and Natural Resources Law 1785 - 1960. In Environmental law and the values of nature (pp. 5-106). Durham, N.C. Carolina Academic Press. This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of CWSL Scholarly Commons. For more information, please contact [email protected]. Ch 1 - 1 C H A P T E R O N E Foundations: The Public Domain and Natural Resources Law 1785 - 1960 Section A. Acquisition of the Nation’s Environment 1785-1867 1. Early Land Policies, Lasting Effects 2. An American Landscape Then and Now Section B. The Saturnalia of Disposition 1803-1934 1. Consequences of the Land Laws, Intended and Otherwise 2. A Disposition Era Legacy: Obstacles to Resource Development and Protection 3. The Longevity of Nineteenth Century Statutes 4. The Lands Disposed Of: An Example from the Great Plains Section C. The Emergence of Conservation 1864-1934 1. The National Park Idea 2. Protection of the Public’s Forests 3. Firmer Control of the Federal Lands Section D. “Scientific Management” of the National Forests 1905-1960 1. Guiding Principles 2. New Demands 3. The Multiple Use Mandate in Law and Practice 4. The Modern Federal Lands Systems ______________________________________________________________________ Ch 1 - 2 Environmental law, although often described as a relatively new field that first emerged in the 1970s, is built on and borrows from the law which preceded it. The Clean Water Act, for instance, incorporated approaches found in the Rivers and Harbors Act of 1899. Old legal principles have been put to new uses and, as a consequence, become part of contemporary environmental law. The classic example is the public trust doctrine whose antecedents are found in English and Roman law and which was resurrected by environmentalists in the twentieth century. As stated by Richard Lazarus, “It is an oft-repeated fiction that environmental law spontaneously began in the late 1960s and early 1970s. Environmental law no doubt had its first, most formal, expression during that time, but its historical legal roots are far deeper and broader. They extend to the nation’s natural resource laws, which played such a dominant role in the country’s first 150 years.” RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 44 (2004). Moreover, as this chapter demonstrates, the current law governing natural resources in particular retains rules devised in earlier eras that continue to affect the environment and environmental protection efforts today. In a real sense, modern environmental lawyers are – at least in part – students of the past. Richard Andrews has rightly pointed out that laws affecting the U.S. are not only those originating in the last forty or so years. In reality, American environmental policy has far older roots. It includes not only the recent burst of legislation intended to protect the environment, but all the policies by which Americans have used the powers of government to exploit, transform, or control their natural surroundings. These include nearly four hundred years’ worth of policies establishing private rights, public restrictions, and economic incentives shaping human use of the natural environment, from colonial precedents and constitutional principles to subsequent laws, regulations, and other policies. Some recent policies are genuinely new, but far more are attempts to change or offset policies already in effect that reflect the environmental priorities and political power structures of previous generations. RICHARD N.L ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY ix (1999). As for the American environment itself, most of it – over seventy-eight percent – was at one time part of the public domain, that is, owned by the United States government as a sovereign. The policies and laws governing these federal lands were critical determinants of the condition of the environment. For most of the country, land was the raw material which passed through the public domain “mill;” the product was an environment in varied ownerships, retaining much of its original form in some places, drastically reshaped in others. These two foundations – one legal, the other environmental – are integral parts of our topic. And since our focus is federal, that is national, environmental law it is appropriate to begin our exploration at the nation’s beginning. The period examined in this chapter itself consists of four eras of public land law and policy: the acquisition of territory by conquest and purchase between 1785 and 1867; the Ch 1 - 3 disposition of most of the land and other resources from 1803 to 1934; the emergence of the idea conservation beginning in 1864; and, lastly, retention and management of the remaining public domain from 1905 to the present. The specific dates for each era are somewhat arbitrary, although the years chosen each refer to a particular legal event. The eras cannot be neatly compartmentalized; one overlaps with another. And several policies were often pursued at the same time. Even today, the federal government is acquiring land (more precisely, re-acquiring) and disposing of resources – although not on the same scale as in our early history. The legal developments which bookend this chapter are the adoption of the Land Ordinance of 1785, which provided an important foundation for the future expansion of the county, and enactment of the Multiple-Use Sustained-Yield Act of 1960. Although still in effect, this statute marks the end of the traditional view of federal land management that was dramatically changed by the emergence of modern environmentalism. As is true of the other chapters in this book, Chapter 1 presents the current law of the public lands and their resources – although a few references are made to laws now repealed and are clearly identified as such. __________________ Section A. Acquisition of the Nation's Environment 1785 - 1867 1. Early Land Policies, Lasting Effects The Land Ordinance of 1785 PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 61-65, 77, 80 (1968) Although the desire for revenue had not been a strongly motivating force in shaping the land policies of the Colonies . it was anticipated from the first Continental Congress that revenues from the public domain, when acquired, would be used to discharge the national debt. Before anything could be done to capitalize on land in the Ohio country, the title to it had to be perfected. This involved prolonged discussions with the states, particularly Virginia and Georgia, concerning the conditions of their acts of cession. When these negotiations were successfully concluded the Congress of the Confederation could draft a plan for the management and sale of the land. Thomas Jefferson, one of the few leaders in state and national affairs who had not been connected with any of the land companies, was a member of a committee to develop a plan for the government of the territory and management of the lands. His committee first reported a plan for the government of the Northwest Territory; it was adopted in 1784 but never went into effect; being displaced by the Northwest Ordinance of 1787. Its proposal for the survey and sale Ch 1 - 4 of the lands north of the Ohio provided that after the Indian title had been extinguished, the lands were to be surveyed on the rectangular system with a base line crossed by meridians every 10 miles, which were to be extended north and south with due regard to the magnetic deflection. Jefferson was an agrarian who in 1776 had said that he was “against selling the lands at all. To make a charge for the public lands would fix upon poor settlers an obligation they could ill afford. There is no equity in fixing upon them the whole burthen of this war, or any other proportion than we bear ourselves. By selling the lands to them, you will disgust them, and cause an avulsion to them from the common union. They will settle the lands in spite of everybody.” The most often-quoted statement of Jefferson on public lands and the land policy of September 6, 1789, is equally forceful: “Whenever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far as to violate natural right. The small land holders are the most precious part of a state.” . It must have been difficult for Jefferson, who was so sincerely devoted to agrarian democracy and who was, with Madison, critical of the activities of speculators, to have had a part in opening the public lands to them. Not only did his Ordinance of 1784 provide for the sale of public lands without naming the price and without restrictions on large purchases, but when President he took no steps to reduce the very high price of government land. Moreover, he signed an act authorizing the use of troops to expel persons who in the future should make any illegal settlement on public lands or who attempted to create any right in land by surveying it or even blazing trees upon it. Jefferson’s proposal for a land ordinance to provide for the sale of the western lands received little support in 1784 and nothing was accomplished. In 1785, however, the country’s financial condition had changed for the worse.