The Public Lands Paradox

Teddy Roosevelt did a great thing, unfortunately. It was a magnificent societal gift and a political disaster, and we’re still living that paradox. The recent fight over Senator Mike Lee’s proposal to sell public land for housing reflects well over a century of contested ideas, in a conflict that would have been familiar to Roosevelt and the people who argued with him. It’s not at all clear that we’ve found the balance that eluded earlier generations.

Roosevelt saw the West as a place for Americans to live freely and vigorously, hunting and hiking on public lands. In Europe, hunting was historically an activity associated with the aristocracy, since aristocrats owned the wooded estates where game ran free, and the enjoyment of nature was bound up with social class. But America would be different. Furthering a revolution in land tenure that had begun with Thomas Jefferson’s successful effort to ban entail in the new nation, Roosevelt grabbed and held federal land for permanent conservation and public use. 

Famously, Roosevelt was our most aggressive conservationist. He designated “150 national forests, the first 51 federal bird reservations, five national parks, the first 18 national monuments, the first four national game preserves and the first 24 reclamation, or federal irrigation, projects,” totaling nearly 230 million acres of public land. He took land from the control of the General Land Office, which was in charge of selling it off to private owners, and transferred it to the control of agencies — like the new Forest Service, also his creation — that would hold it and manage it for the good of the entire nation.

Pursuing interwoven purposes, Roosevelt sought to protect the natural world and to put it to use in the development of the national character. Americans would be made in those forests, through “the life of toil and effort,” in public lands that would forever remain open to any citizen who wanted to use them. As Mike Lee’s critics said, loud and clear, our public lands are our birthright, a great asset for the use of the whole nation. They offer space for behaviors that are associated with socially conservative character, for outdoorsmanship and rural life. Mike Lee, pulling his bill to sell public land, said he was listening to “hunter America,” to the red zones. Conservative America wants to protect its public lands.

But notice also how Roosevelt did it. The Property Clause of the Constitution (Article IV, Section 3, Clause 2) gives Congress the authority to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” but a conservationist president remade the purpose and destiny of a couple hundred million acres of public land largely by acts of personal will. Long before Barack Obama said that he didn’t need Congress because he had a pen and a phone, Teddy Roosevelt controlled enormously important economic and natural assets by signing his name on pieces of paper. He blew executive power wide open, evading checks and balances.

When Congress passed a bill ending the president’s authority to personally designate new forest reserves, Roosevelt signed it into law — seven days after it passed. He spent that week frantically designating new national forest land, totaling 16 million acres, before signing the law that said he couldn’t. Those last-minute public lands are still known as Roosevelt’s “midnight forests,” sneaked in before Congress could stop his unilateral exercise of power. So a great victory for conservation was a great act of unchecked executive power.

Moving power to the Article II branch, Roosevelt also moved power from the states to the federal government. He was both a great conservationist and a great centralizer, one of many presidents who helped to shift the balance in a system built on federalism and divided sovereignty. The founders of the American republic built a constitutional order in which states managed their own internal affairs, and a central government took responsibility for diplomacy, the common defense, and interstate commerce. No one anticipated, gathering to discuss a new Constitution, that the federal government would own and manage 80% of a state, as the federal government now does with Nevada. 

Enormous systems of federally owned land make the federal government of limited authority into a general government, managing internal matters within state boundaries. Giant system of federal land, giant federal government. Search the Federalist Papers for the discussion of the way the new government would manage its massive and permanent set of public lands, and see what you come up with. 

Losing the balance between federal power at the center and distributed state and local power around the country, we’ve developed giant federal land agencies that rule their fiefdoms on the basis of national standards and the judgment of centrally controlled bureaucracies. The Bundy Ranch standoff of 2014 followed a long conflict between Nevada cattlemen and environmental activists in the Bureau of Land Management who spoke openly of their desire to shift to “cattle-free” public lands, not asking if Nevadans agreed. Managerial homogenization, bureaucratic standardization, and a culture of itinerant federal managers remove public lands from local control, and even from local opinion.

Where federal authority rules, local culture wilts and recedes. In an important book on conflicts over land use at Point Reyes National Seashore, the environmental historian Laura Alice Watt describes the way that land agencies create “bounded, simplified, manageable space,” steamrolling the local and the particular. The National Park Service, like the other federal land agencies, applies national values, national rules, national judgment. It centralizes authority. 

I tested that theory. In the town of Point Reyes Station, a few months ago, I sat talking with a rancher who was being ejected from grazing land at Point Reyes National Seashore, after 200 years of local ranching on the same land. Locals stopped to tell him that they had just found out about the end of ranching on Point Reyes, as the story hit the newspapers, and they were shocked. They were shocked because they weren’t consulted. Settling a lawsuit with environmental groups, the National Park Service wrote centuries of ranching out of a new plan for managing the seashore — without consulting the ranching-dependent agricultural communities that surround it. Federal land is controlled by national managers who make national decisions.

Many values compete on public land. The preservation of space for families to hunt, fish, and camp, and in many places for livestock to graze, has socially conservative effects that are worth preserving. But the loss to federalism and local voices, the centralization of power, upends both our formal political system and our cultural desire for community. 

We should have public lands, and we should have a lot of them. But federal power over enormous systems of public land isn’t a given. We’re due for a rebalancing and a testing of political principles: public land plus federalism, with a place for community. The contest isn’t between having public land and selling it for tract housing, though that’s how Lee’s bill was discussed. The questions are about the location of authority in a constitutional system, and the need for balance. One of our most beneficial national assets is causing us considerable harm through the unchecked centralization of power. 

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