America’s public lands are often in need of a good lawyer, and they have one in John Leshy. He has served America’s public lands (and its owners) as an academic, author, and advocate. In his long career, he’s published legal textbooks, written briefs, argued cases, and taught law students, and he was the top lawyer in the U.S. Department of the Interior for almost as long as Bruce Babbitt was secretary of the interior.
In 2018, Leshy gave his debunking lecture at the University of Utah College of Law. It has now been published. If you are illiterate or learn best by listening, the Leshy lecture is available on YouTube (introduction begins at 12:00, Leshy starts at 14:15). If you want to dive in deeply, check out Leshy’s February 2018 Hastings Law Journalarticle “Are U.S. Public Lands Unconstitutional?” (after 559 footnotes, Leshy concludes that they are not), which is the scholarly underpinning of his lecture. (In my Public Lands Blog post “The Constitutionality of Federal Public Lands” I conclude the same thing, without footnotes–but with links!–and with sarcasm.)
In his lecture and now his booklet, Leshy articulates a series of creation myths believed and spread by the detractors of public lands:
1. America’s public lands have been a constant source of polarization, a kind of centrifugal force that drives Americans apart.
2. The nation’s founding generation expected new states would, upon their admission to the Union, become entitled to own the public lands that national government held within their borders.
3. In the nation’s first several decades, the public lands were viewed solely as an economic asset, to be sold to generate money primarily to pay off Revolutionary War debts.
4. The United States did not start retaining ownership of some public lands to serve national purposes until almost a century after the nation’s founding.
5. The powerful movement to protect significant amounts of land in U.S. ownership . . . was confined to the western states.
6. The powerful movement to protect significant amounts of land in U.S. ownership . . . was limited to lands the U.S. already owned.
7. The public lands were safeguarded mostly over the opposition of local residents and state governments.
8. Holding onto and protecting public lands has been inextricably bound up in partisan politics.
9. For the last century and a quarter, the American people have blown hot and cold on the wisdom of protecting public lands in national ownership.
Leshy demolishes each of these myths by citing American history more than his usual citing of American law. Space here permits only one example.
Leshy reminds us that Republican “President Theodore Roosevelt was more responsible for the public lands we see today than any other single individual in American history. He tripled the size of the national forest system, launched what became a nationwide system of wildlife refuges, and used the Antiquities Act eighteen times to protect more than 1.5 million acres.” In the election of 1904, TR, by then an out-and-out conservationist, “carried every western state, including every county in Colorado where forest reserves had been created except one, which he lost by a scant twenty-five votes.” William McKinley, Roosevelt’s predecessor, had lost the states of Nevada, Idaho, Montana, and Colorado in 1900.
Near the culmination of his lecture, Leshy reminds us of the inherent and inevitable fragility of public lands protection.
While there is much to celebrate and treasure about America’s public lands, let me close with a warning.
Some libertarians call the public lands “political lands.” They use the term rather scornfully, but they are exactly right. The public lands remain a creature of politics and our political system. This means their future in hardly guaranteed.
While the national government has, as I have described, so far generally safeguarded the public lands for future generations, they can be eliminated. Let’s not kid ourselves. Ownership can be transferred to the state or private sector. No public land—not even iconic treasures like Yellowstone or Zion—is immune. All it takes is simple, ordinary legislation. Congress could do so tomorrow.
Moreover, even if Congress does not act, existing law gives the executive branch considerable authority to transfer effective control over many of these lands to states or the private sector, through leases and other long-term legal arrangements.
What this boils down to is this: each new generation of Americans must effectively decide what it wants to do with these lands. Without political support, public lands and the values they bring to us can be lost.
Leshy’s lecture culminates with his lamenting that “today’s sour, polarized, cynical political climate makes it practically impossible to make progress even on measures that command wide public support” and saying
One way to begin to change the political culture and reduce the polarization is to rekindle appreciation of the unifying role the public lands have played over the long sweep of the nation’s history and to celebrate the bipartisan workings of our political system that has produced the results we see today. . . .
It is, in other words, particularly important and timely to remind ourselves that America’s public lands are a huge political success story and a credit to the workings of our political system and our government, particularly our national government.
While bipartisanship was the norm for public lands legislation historically and even relatively recently, it is not the case now. Consider that the present Natural Resources Management Act (S.47), which will likely soon be enacted into law, is more a memorialization of numerous political horse trades than a coherent expression of public lands policy. The bill both protects public lands and gives them away. It is a package of separate bills that express some individual wishes of senators for national public lands in their respective states. Yes, the package has “bipartisan” support. But if the Senate took the time to vote on each of the bills from which the package is made, the underlying partisanship would become clear enough.
History is a useful guide until it isn’t. In another Public Lands Blog post, “Public Lands Conservation in Congress: Stalled by the Extinction of Green Republicans,” I argue that the modern sorting of the Democratic and Republican parties purely by ideology means that the years when liberal Republicans joined liberal Democrats to overcome conservative Democrats and enact legislation such as the Civil Rights Act of 1964 and the Wilderness Act of 1964 will not likely occur again.
It’s not enough that most Democrats and most (though not as many) Republicans support public lands conservation by wide margins. When in power in Congress, the Republican majority gives over the power over public lands to Intermountain West Republican senators and representatives, who uniformly despise public lands and the conservation of them.
Fittingly, the Leshy lecture was given in the state of Utah, where federal public lands are under assault by a significant majority of the state’s elected officials, be they in the Utah Legislature or Congress. On the cover of the printed version of Leshy’s lecture is an image from Bears Ears National Monument, which President Trump has—at the request of Utah elected officials—shrunk by 85 percent.
Leshy is far from alone in his pining for the public lands conservation bipartisanship of yesteryear. It is the central organizing principle of the Theodore Roosevelt Conservation Partnership—strongly believed in by the likes of Backcountry Hunters & Anglers and the Pew Charitable Trusts—and is given lip service by all the mainline public lands conservation organizations except the national League of Conservation Voters (LCV), the organization that does the overwhelming amount of the conservation movement’s electioneering. Of the 151 U.S. senators and representatives LCV endorsed in the 2018 elections, none were Republicans. Not one.
Alas, the bully views of a modern Theodore Roosevelt wouldn’t survive in the modern Republican Party—and not just his views on public lands conservation but also on government regulation, government graft, wealth redistribution, control of corporations, and consumer protection. Nor would the views of Dwight Eisenhower, Richard Nixon, the two Bushes, or even Ronald Reagan. The Party of Abraham Lincoln is no longer.
When the threat to public lands is existential and coming from the leadership of one political party, bipartisan consensus/compromise is not an option.