1. This Land Isa. your landb. my landc. the government’s land

A Short and Selective History of Federal Land Law and Policy

Environmental Law

Fall 2008

Columbus and the “Discovery” of the New World

• Columbus gets one-third of the profits from—– Gold– Silver– Wood

North American forests were vast—and valuable

Subsistence living, potash

Mast Trees

Tar and turpentine

Charcoal (iron and steel making, gunpowder)

Shingles and other wood products for use or export

In one human lifetime, much of the settled land is deforested

How do we realize the wealth potential in the

virgin forests?

• Remove Native American peoples

• Facilitate transactions by survey and recording of titles

• Transfer the property to private parties by bargain sale, auction, or “sweat equity”

• Make privatization uniform by maintaining federal control

Property Theories Aid Expropriation

• Labor theory of value

• Land used the way the Indian nations used it was unused

• Unused land was available for the taking

• Subduing the land was progress

Thomas Jefferson “Summary View of the Rights of British

America of 1774”

“From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself, are assumed by that society, and subject to their allotment only. This may be done by themselves assembled collectively, or by their legislature to whom they may have delegated sovereign authority: and if they are allotted in neither of these ways, each individual of the society may appropriate to himself such lands as he finds vacant, and occupancy will give him title.”

Federal Supremacy

• Constitution’s Property Clause—Congress enacts rules respecting the property of the United States

• 1812—General Land Office set up to survey and sell the public domain

• 1817—US Navy authorized to reserve from sale public domain lands with live oak and red cedar for shipbuilding

National expansion encompasses English, French and Spanish

property systems

PUBLIC DOMAIN (or Common Lands)

Lands belonging to the American peopleheld by the federal government until withdrawn for some federal purpose, given to the States upon statehood or based upon Federal law, or pre-empted into private ownership.

PUBLIC LANDSLands withdrawn from the public domainand reserved to a specific public purpose (can be within state or federal jurisdiction).

Dividing up the land

1787 – Northwest OrdinanceTownships – 6 miles square

6 5 4 3 2 1(640 acres

7 8 9 10 11 12

18 17 16 15 14 13

19 20 21 22 23 24

30 29 28 27 26 25

31 32 33 34 35 36

Clearing the way for settlement and Progress

With land clearing, growth in population and industrialization,

demand for forest products increases

Setting aside national parks

• 1864—Yosemite under grant to California to be held “for public use, resort and recreation”

• 1872—Yellowstone reserved “as a public park or pleasuring-ground”

• 1916—Park Service created

Non-park reserves

• 1885—New York creates Adirondack Forest Preserve

• 1891—Forest Reserve Act: President can “set apart and reserve . . . any part of the public lands

• 1897—Organic Act: President can “improve and protect the forests within the reservation” for water flows, timber supply

• 1898—Pinchot becomes Chief of Forestry

Pinchot’s approach (1905)

• National forests should be “conservatively managed to maximize their use value while protecting the long run viability of the resources, keeping in mind that local issues should be decided locally”

What uses should be maximized?

• Timber harvest• Water supply, watershed protection• Fish and wildlife• Other recreational uses• “Ecosystem services”• Wilderness preservation• Support roadbuilding, education (land

grant colleges)

Multiple Use Sustained Yield Act

• All of the above

• Forest Service decide (apart from wilderness)

Should local issues be decided locally in National Forests?

Reservations came late in the westward expansion

What interests do New Yorkers have in

administration of public lands in Oregon or Nevada?