Volume 39 Issue 4 Fall 1999 Fall 1999 Fragmentation of Public Domain Law and Policy: An Alternative to the Shift-to-Retention Thesis Leigh Raymond Sally K. Fairfax Recommended Citation Leigh Raymond & Sally K. Fairfax, Fragmentation of Public Domain Law and Policy: An Alternative to the Shift-to-Retention Thesis, 39 Nat. Resources J. 649 (1999). Available at: https://digitalrepository.unm.edu/nrj/vol39/iss4/1 This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. LEIGH RAYMOND & SALLY K. FAIRFAX" Fragmentation of Public Domain Law and Policy: An Alternative to the "Shift-to-Retention" Thesis" ABSTRACT Conventional wisdom asserts that after a century of disposition, Congress changed course and began retaining land in federal ownership during the Progressive Era. This "shift narrative" shapes our understandingof conservation history and federal land holdings in the Western United States. Unfortunately, it is largely incorrect. We propose an alternative narrative that emphasizes instead a fragmentationof policy. Fragmentationgrew in part out of changes in the nation'spolitical economy after the Civil War. Expanding centralgovernment power in some cases underwrote federal ownership of natural resources. However, the diverse priorities of increasingly effective corporate interests and scien- tific/professional groups assured a fragmentation of policy. Fragmentationalso blossomed when Progressive Era theories of property began to gain support. These more social and utilitarian views of ownership did not replace their Lockean antecedents, but simply supplemented and confused American ideas of ownership. The result to this day is a conflicted vision ofproperty that suggests to us a need for a more dialecticalanalysis of property rights along the lines of G.W. Hegel. The final part of the article details a revisionist history of public domain policy based on the political- economic changes just described. Rather than a sudden or incre- mental shift to retention, we describe a wide variety of policy decisions.Among these are choices to strongly retainsome selected lands, retain and later dispose of others, weakly retain some lands, split the estates of still others, and only nominally retain a good portion of the remainder. We conclude that the idea of a shift to federal ownership conceals the diverse public domain tenure B.A. Yale University (19.88); M.S. Wildland Resource Science, University of California, Berkeley (1996); Ph.D. Candidate, College of Natural Resources, University of California, Berkeley. B.A. Hood College (1965); MA., New York University (1968); M.A., Ph.D., Duke University (1974); Professor of Natural Resources Policy, Law, and Administration, College of Natural Resources and College of Environmental Design, University of California, Berkeley. ** The authors are happy to acknowledge the assistance and comments of Charles Geisler, Sarah McCaffrey, Bonnie McKay, Robert Nelson, Andrea Peterson, Sarah Connick, Barton A. Thompson, Jan Stevens, and Laura Watt on many previous drafts of this work, and James Burson and Sue Umshler for their assistance during the editing process. NATURAL RESOURCES JOURNAL [Vol. 39 arrangements and makes meaningful conversation about historic policies and future paths more difficult. Better understandingof both the political-economic setting and the ideas of property of the period, we argue, will help us to better understand the resulting policies as they affect the present day. I. INTRODUCTION A. Goals and Structure of Paper The received wisdom tells us that near the close of the nineteenth century, after more than one hundred years of granting and selling land to raise money and to encourage orderly settlement of the western territories, the federal government reconsidered. It decided to retain at first selected lands, and then, essentially, all public domain lands in federal ownership. This reorientation of policy is typically portrayed as a "shift" from land "disposition"1 to land "retention." It is generally described as a decision by the wise men of government to stop the pillage of our common heritage and to scientifically manage those lands remaining in federal ownership for conservation purposes.2 The standard "shift-to-retention" story, as we will 1. In this article, we are not going to concern ourselves much with the problems in the construction of "disposition" or the "disposition era." However, an argument could be made that the glossing of the cash and credit sales, preemption, grants to states and corporations, and free land elements of the disposition era is not reasonable. Much of the land passed to the states was not, for example, entirely disposed of-it remains under state management. See JON A. SoUDER & SALLYK. FAIRFAX, STATE TRUST LAND: HISTORY, MANAGEMENT, AND SUsrAINABLE USE 6,18-24 (1996). For build up on the homestead act see, e.g., HELENE SARA ZAHLER, EASTERN WORKING MEN AND NATIONAL LAND POLICY, 1829-1862 (1941). For detail on the disposition era policies, see PAUL W. GATEs, HISTORY OF PUIc LAND LAW DEVELOPMENT (1968). 2. The classic "aha" story is Gifford Pinchot's formulation of his now-famous horseback ride through Rock Creek Park "The forest and its relation to streams and inland navigation, to water power and flood control; to the soil and its erosion; to coal and oil and other minerals; to fish and game; and many another possible use or waste of natural resources....Here were not isolated and separate problems....Here were no longer a lot of different, independent, and often antagonistic questions, each on its own separate little island, as we had been in the habit of thinking. In place of them, here was one single question with many parts. Seen in this new light, all these separate questions fitted into and made up the one great central problem of the use of the earth for the good of man." GIFFORD PINCHOT, BREAKING NEw GROUND 322 (1947) [hereinafter BNG]. Pinchot credits himself with having discovered consermation, a whole new way of thinking about the world. See id. But he also clearly expressed the driving image of his confreres in the Roosevelt administration: "the crux of the gospel...lay in a rational and scientific method of making basic technological decisions through a single, central authority." SAMUE P. HAYS, CONSERVATION AND THE GOSPEL OF FpRqCMJcY: THE PROGRESSIVE CONSERVATION MOVEMENr, 1890-1920,271 (1959). Fall 1999] FRAGMENTATION OF PUBLIC DOMAIN LAW & POLICY 651 refer to it, thus depicts a clear change in policy direction, generally presented with strong moral implications. The purpose of this article is to reconsider this standard narrative regarding changes in public land law and policy at the turn of the century. Much of the narrative is misleading in ways that are of great importance to current debate. The monolithic nature of the term "retention" masks a wide variety of policies and tenure arrangements that presently operate on the public lands. The moral power of the asserted "shift" obscures multiple and conflicting motivations behind the diverse policies enacted in a way that prevents clear discussion and understanding of many public land conflicts to the present day. We believe it is important to understand the "shift-to-retention" story because we are among those who believe that narratives have power in law,3 in policy definition and analysis,' and in decision making.' Policy stories tell us what the problem is, who caused it, whether things are improving or disintegrating, and what to do about it.' They are especially useful when the conditions for policy making are uncertain, complex, or difficult to explain. We argue that the "shift-to-retention" story is a useful summary of one side-the Progressives'--in a complex and protracted debate. But, like any tale told by a passionate advocate, it is a poor guide to what actually happened and why. Without doubt, the narrative has had a powerful grip on public domain policy and the conservation movement, more generally, throughout the twentieth century. We do not cavil at the simplifications of the "shift-to-retention" narrative per se, for it is a model and perforce must simplify the reality it represents. Our objections to the "shift-to-retention" tale arise from the core ideas and events that are omitted, concealed, and distorted therein. Those inaccuracies confound our understanding of both historic and current choices. Therefore, we believe an improved story is needed. We propose to weave a different tale in which policy does not shift in unity but rather fragments. In our account, public domain policy does not manifest a single coherent vision, but splits onto a number of fre- quently incompatible paths, reflecting different combinations of ideas about the nature of government, the nature of ownership, and the economic and environmental priorities for developing specific resources. There was no single moral direction or guiding light to these multiple 3. See, e.g., CAROL M. ROSE, PROPERTY AND PERSUASION: ESAY ON THE HISTORY, THEORY, AND RHETORIC OF OWNERSHIP ch. 2, at 25-45 (1994). 4. See, e.g., EMERY ROE, NARRATIVE POLICY ANALYSIS: THEORY AND PRACTICE (1994). 5. See generally Deborah A. Stone, CausalStories and the Formationof Policy Agendas, 104 POL ScL Q. 281 (1989); William Cronon, A Placefor Stories: Nature, Historyand Narrative,78 J. AM. HIST. 1347 (1992). 6. See Stone, supra note 5, at 282. NATURAL RESOURCES JOURNAL [Vol. 39 policies. Instead, multiple visions of ownership and equity engendered multiple and conflicting policy solutions. We present our revised narrative in five sections. Part I will dearly identify our target-the "shift-to-retention" story as it has appeared in the literature over the years. We will observe the standard narrative in its original telling and as it continues to shape our understanding of public resource management and institutions.