Hastings Environmental Law Journal Volume 3 Article 4 Number 2 Winter 1996 1-1-1996 Devolution in Federal Land Law: Abdication by Any Other Name... George Cameron Coggins Follow this and additional works at: https://repository.uchastings.edu/ hastings_environmental_law_journal Part of the Environmental Law Commons Recommended Citation George Cameron Coggins, Devolution in Federal Land Law: Abdication by Any Other Name..., 3 Hastings West Northwest J. of Envtl. L. & Pol'y 211 (1996) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol3/iss2/4 This Essay is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Environmental Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. I. Introduction History has come full circle in just fourteen years. In 1981. divesture and deregulation were the bumvords in fed- eral land law as Sagebrush Rebels Reagan and Watt' took office. That movement to abdicate federal responsibility for land management, like the Sagebrush Rebellion itself, failed miserably.2 The wheel turned. Only two years ago, at the 1993 Conference on Public Lands,3 the theme was "ecosys- tem management," and the participants reached a consen- sus that this new wave was inevitable, even if no one could define exactly what it was.4 "Devolution" in Federal Times again changed quickly. The Republican takeover of the House and Senate in the 1994 elections has alarmed Land Law or elated the public land policy wonks who fear or hope that the old Sagebrush themes have arisen from history's scrap Abdication by Any Other Name... pile. The 1981 and 1995 situations on the federal lands are not precisely comparable, however.' Then. as now, divesti- ture and deregulation are fashionable themes of the theo- 6 George Cameron Coggins rists, but "devolution" is in some senses an even more prominent motif in the political and academic arenas. "Devolution" in general refers to a transfer of regulatory authority downward, usually from the federal government to the states.7 "Devolution" in this context basically means transferring authority to make public resource decisions from the federal land management agencies to local citi- zens. Power, thus, is 'devolved" upon localities. Oddly enough, virtually all of the major players in the federal land and resource drama-with the probable and notable exception of the national conservation organiza- tions such as the Sierra Club, Natural Resources Defense Council, National Wildlife Federation, and Environmental 0 Tyler Professor of Law. University of Kansas. A.B. 1963. Central Michigan University; j.D. 1966. University of Michigan. This essay Is taken from the remarks of Professor Coggins at the Natural Resources Law Center of the University of Colorado School of Law conference. Challenging Federal Ownership and Management; Public Lands and Public Benefits (Oct. 11-13. 1995). 1. Secretary of the Department of the Interior during the Reagan Administration. 2. George Cameron Coggins & Doris K. Nagel. Ntotng BesiLe Remains: The Legal Legij cl lamtes G. Waltfs Tenure as Sertanjci I& tntenron Fedmal Larnd Law and Pc !lcy. 17 B.ct. Arm. L REv. 473 (1990). 3. Natural Resources Law Center of the University of Colorado School of Law conference. A New Era for the Western Public Lands. (Sept. 21, 1993)lherelnafter A New Era Conferencel. 4. See George Cameron Coeggins. Elin Reasons to Disregard This Commentary on the Brae Nre, Worb! In Western PuEL Land La,. 65 U. Coo. L REv. 401 (1994). 5. In 1981. a conservative Republican Admminstration did battle with a Democratic Congress: in 1995. the reverse is true. 6. Terry Anderson. Bate to tFhFuture. Prnaiavng if Fe1dral Estate, A New Era Conference. supra note 3. 7. See. e.g.. John Pendergrass, Yc Say Y u Want a DevcfutL'n. Efon..Fomu:. 8 (winter 1995). Go e comeron coggins Volume 3,Numbef 2 GemCaeo oon ohn ,Nme Defense Fund 8 -seem to favor devolution in one by abdication/devolution in the past as a strong form or another. Privatization economists,9 ranch- argument for avoiding such damage in the future. ers, tree-huggers, sociologists, lumber company employees, and even some federal land managers II. The Premises Underlying Resource Allocation recently have asserted the value of local control Decisions On The Federal Lands over the use of federal lands in the area.'0 Philosophically, devolution is closely tied to divest- Except for asserting that local citizens will ment and deregulation, but its proponents seem to make "better" decisions than professional land believe that devolution of management authority is managers-an assertion disputed below4-devolu - possible under federal ownership and under exist- tion proponents seldom spell out in any detail the ing federal law. II premises upon which their position is based. While This essay disputes those conclusions and the they also frequently claim that federal ownership Is premises that necessarily underlie them. inherently "A Bad Thing," 15 and that federal land Devolution, as now advocated, is abdication of legal management reeks of overbearing, incompetent management responsibilities by federal land man- colonialism, 16 the western taste for hyperbole agers. The proposition raises both legal and policy should be disregarded and the real reasons exam- questions, and care should be taken in separating ined. All of the real legal and political premises those questions. Legally, the inquiry focuses on the upon which modern public land law is founded cut degree that current federal statutes allow land man- against the devolution notion. agement agencies to delegate their decision-mak- The beginning often is a good place to start. In Ing powers. Politically, the debate is over the desir- the beginning, the Constitution of the United States ability of allowing agencies to do so. This essay vested legislative power in the House and Senate, concludes that federal law allows the management judicial power in a Supreme Court and such other agencies wide (and perhaps undue) latitude to courts as Congress may create, and executive power structure their operations, but that the abdication in a President.i7 This simplistic rendering ought to contemplated by devolution proponents exceeds have real consequences. Article IV of the the limits set by the judiciary. 2 It also concludes Constitution assigns Congress-not the President, that, as a matter of policy, if not politics, devolu- and certainly not the Bureau of Land tion/abdication is a terrifically bad idea from any Management-the power to make needful rules but the most shortsighted perspective. 3 respecting the territory or other property of the The first part of this essay defines the premises United States.ia That power is plenary and preemp- on which the debate should proceed. The succeed- tive;i 9 the United States remains a sovereign even ing section briefly traces through history some when it acts as a landowner.20 It is for Congress, as prominent instances of abdication by all three trustee, to say whether the lands should be dis- branches of government in the public lands sphere. posed of, retained, protected, or exploited. 21 It also examines more closely four specific exam- Several related principles bear repeating. First, ples in which land management agencies intention- the United States, not the individual western states, ally abdicated their statutory responsibilities, and bought, conquered, or stole the present federal the three-year period in which Interior Secretary lands. Second, they are owned by the United States James Watt attempted to do so on a wholesale in trust for all of the people in the country (and, basis. The final section harps on the damage done increasingly, in the world), not just for the souvenir 8. E.g., Chip Dennerlein (National Parks and Conservation 14. See mnfra Part Ill. Association), Charging Public Land Users for Minerals, Grazing, and 15. Richard Stroup & John A, Baden, NATURALRESOURCES RecreationalUses, A New Era Conference, supra note 3. BURRAUCRATICMYTHS AND ENVIRONMENTAL MANAGEMENT (1983). 9. E.g., Anderson, supra note 6. 16. Remarks of Sen. Hatch. 125 Cong Rec, 22640-41 (1979) 10. A New Era Conference, supra note 3. passim. Whether (quoted in GEORGE c AmERO N COGGINS, CHARLES F.WILKINSON & JOHN hardrock miners share that passion seems unlikely in the wake of D. LESHY, FEDERAL PUBLIc LAND AND RESOURCES LAw 35 (3d ed, California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 1993)). (1987)(holding that there was no per se preemption of the 17. U.S. Co4sT. California Coastal Commission's permit system by federal mining law). 18. U.S. CoNsr. art. IV,§ 3, cl. 2. II. E.g.. Mary Chapman & Mike Jackson, Public-Private 19. Kleppe v. New Mexico, 426 U.S. 529. 539 (1976). Partnerships,A New Era Conference, supra note 3. 20. Light v. United States, 220 U.S. 523. 536 (1911 )(holding 12. See mnfra Part II. that Congress determines how the public lands of the nation, 13. See mnfra Part Ill. held in trust, are to be administered). 21. Id.at 536. W1inter 19 96 "Vn', 9,. hnii Fedird !rd lm sellers in Cody, Wyoming, 22 or the mining claimant seek to draw from that notion is that politics (or marijuana farmers in Califormia.23 or the county .raw politics""3 to some) is a positive evil to be commissioners in Garfield County, Utah.24 Third, avoided at all costs. That corollary is hypocritical Congress has determined, somewhere along the academism at its worst. Politics and law in a demo- historical line, that all of these federal lands should cratic republic are simply the means by which this remain federal because they serve some important nation transacts public business of all kinds. national purposes.25 These premises are beyond Politics, properly understood as the use of policy to reasonable dispute.