Public Lands: What They Are, What They Are for, and How We Use Them

by Maxwell Bridge, Cody Townsend

Raise your hand if you have ever been on a road trip and driven through a National Forest, National Park, a Wildlife Refuge, or across B.L.M. Land? I would assume everyone is raising their hands. The United States currently holds fee simple title (ownership) to roughly 650 million acres of land across the country, which makes up approximately 29 percent of the United States’ total landmass. Robert L. Glicksman and George C. Coggins, Modern Public Land Law (4th Ed. 2016). Most of these public lands are in the western United States.

Public Lands: How did they come about?

There are three main ways in which the Federal Government acquired Public Lands. The first was from the original thirteen colonies. After the Treaty of Paris in 1783, the Federal government controlled the land between the Alleghenies and the Mississippi River. Then the original thirteen colonies made a deal. They ceded all western land claims to the Federal Government; in return, the Federal Government would assume all the Colonies’ war debts incurred during the revolutionary war.

The second way in which the Federal Government principally acquired public lands was from foreign nations. The Louisiana Purchase in 1803 resulted in 523 million acres added to the public domain. The Florida and Northern border disputes resulted in Spain surrendering east and west Florida and its claims in the Oregon Territory. In 1818, Great Britain agreed to move the Canadian border further north. Disputes over western lands with Mexico and Texas eventually resulted in another massive expansion of the public domain with the Treaty of Guadalupe Hidalgo. The Oregon Compromise increased the public domain by another 180 million acres. The Alaskan Purchase with Russia resulted in another enormous expansion of the public domain in 1867. Lastly, the smaller acquisitions of Hawaii, Gaum, the Virgin Islands, the Philippines, and some other pacific islands occurred through various agreements with foreign nations.

The last way the Federal Government principally acquired public lands was from the Indian Tribes. In the landmark case Johnson v. M’Intosh, Justice Marshall held that the Native American tribes merely held a “right of occupancy” (not full ownership rights, and no ability to alienate title) over their lands. Justice Marshall exclaimed that from the “doctrine of discovery,” the U.S. had gained full title to the lands previously held by Great Britain upon their defeat (conquest) in the Revolutionary War. From this, the Federal Government gained the defeasible title to all Indian lands. Thus, if someone wished to acquire “Indian-Land,” they had to do so upon the approval of the Federal Government.

Public Lands: What are they?

The Public Lands or Public Domain are all the lands that are, in a sense, held in “trust” for public use and the public benefit, which includes resources. In common law, this idea and concept can be visible in the Public Trust Doctrine.

The Federal Government receives its authority to manage the public lands via The Enclave Clause Article. I §8, cl. 17, The Property Clause – Article IV, § 3, cl. 2, and The Antiquities Act of 1906.

Public Lands: What are they for?

First off, the Federal Management Systems manages eight resources: water, timber/forest, hard-rock minerals, energy, wildlife, range, recreation, and last but not least, preservation.

Six major management systems look over and “manage” the eight resources within the public domain. The Bureau of Land Management (B.L.M.) under the Department of the Interior (Interior) manages all eight resources depending on the specific land. However, it mainly focuses on range, hard-rock minerals, and energy. From within the Interior, the National Parks System manages preservation and recreation, the National Wildlife Refuge System, run by the Fish and Wildlife Service, manages wildlife, the Bureau of Reclamation manages the water resource, including its delivery and hydroelectric projects. The National Forest Systems manage the forests/timber via the United States Forest Service within the Department of Agriculture jurisdiction. Lastly, the National Wilderness Preservation System comprises specifically designated areas within each of the above systems; these include Wild and Scenic Rivers, Wilderness Areas, and National Trails. Glicksman & Coggins, supra, at 3. It is important to note that even though these are the specific resources these Management Systems are particularly for, there is much overlap of resources, especially when dealing with preservation. The System can include the management of a variety of the designated resources.

Public Lands: How do we use them?

Most Public Land and the agencies managing them maintain the purpose within their specific Management System, i.e., National Parks are still for preservation and recreation. However, these directives and management methods have changed over time. An excellent example of these changes is the passage of the Multiple-Use and Sustained Yield Act (“MUSYA”) of 1960 or 16 U.S.C.A §§ 528-531, and later the National Forest Management Act (“NFMA”) of 1976. Under these laws, the Forest Service must administer the National Forests for five different purposes: range, timber, outdoor recreation, watershed, and fish and wildlife purposes. Implementing this mandate does not mean that every single acre of land must promote all five purposes; however, the management of the national forests in the aggregate should equally consider all five purposes.

Public Lands: Conclusion

With this brief explanation of what our Public Lands are and where they came from, you can be sure to annoy your family with “fun” factoids about the lands you are driving over. Enjoy your next family road trip, enjoy our Public Lands, and remember, do not feed the wildlife.