Top Line: Understanding the history of public lands is useful if one is to be the best advocate for the conservation of public lands.
Our Common Ground: A History of America’s Public Lands. New Haven and London: Yale University Press, 2022. 736 pages.
The single most listed author in the bibliography in Our Common Ground is the author himself—for good reason. After all, he is one of the nation’s premier scholars of federal public lands. John Leshy is a distinguished lawyer who has long taught public land law and authored textbooks on the subject. We first crossed paths when he was the general counsel (“solicitor”) for the US Department of the Interior under Secretary Bruce Babbitt (1993 to 2001).
Leshy is also a historian who has written the most comprehensive treatment of the topic. In sixty-three chapters, Our Common Ground discusses the formation, selling, granting, looting, loss, conservation, and resurrection of the federal public lands. It covers the time span from the nation’s founding in 1776 to the present and includes a bit of speculation on the future.
I found Our Common Ground to be quite a lively read. (Of course, I do pen a Public Lands Blog post every fortnight.) It is a history full of facts and footnotes, but always the facts are presented with context. The book is replete with interesting stories, told through the passage of time and the evolving notions of what America’s public lands are for.
Creation Stories
In the beginning, it was all about divesting the federal estate, which had been acquired by a combination of conquest, purchase, and/or treaty. However, while the giving away of public lands to foster the development of railroads, roads, mines, and states started and continued in a gangbuster fashion, a countervailing trend emerged, that of retention of portions of the federal estate for public purposes. Today, Americans still fight over how best to use and manage the public lands, especially those administered by the Forest Service and the Bureau of Land Management, but there is essentially zero interest in significant additional divestiture of this magnificent estate.
In Our Common Ground, one learns the history of the congressional and executive designations that have changed both colors on the map and management on the ground. Our Common Ground tells the creation stories of the nation’s various national (park, forest, wildlife refuge, wilderness, wild and scenic river, trails, and landscape conservation) systems of conservation of federal public lands. It also outlines the origins of the four federal land management agencies—three “services” (Forest Service, 1905; Park Service, 1916; and Fish and Wildlife Service, 1940) and the Bureau of Land Management (1946).
Figure 1. Four federal land management agencies administer most federal public lands. Other federal public lands include military and reclamation lands. Source: Center for Biological Diversity.
The Role of US Presidents
The role of US presidents looms large in the fate of public lands. Some were visionary leaders bending the public will, while others were bent to the public will. For example, James Madison was instrumental, as a drafter and defender of the US Constitution, in the establishment of federal public lands. Leshy tells us that in 1818, the year after he left office,“Madison delivered a widely noted speech in which he warned against making ‘all the productive powers’ of the land ‘subservient to the use of man,’ and condemned the tendency toward ‘excessive destruction of timber.’”
History remembers both Roosevelts for their outsized roles in public lands conservation, but Leshy tells us that presidents before, in between, and after also took major actions. Leshy even has a chapter entitled “Taft’s Undervalued Record on Public Land Conservation.” By my count, Taft proclaimed thirteen national monuments (including Oregon Caves), totaling 34,735.06 acres. On the other hand, reduced the size of the Petrified Forest National Monument and one other, ending up with a monumental deficit of 575.34 acres (but who’s counting?). Leshy’s account tells us that there is more to the public lands conservation legacy of a president than just his national monument actions (except for Donald Trump who took out 1,961,974 acres of two national monuments, actions since overturned by Joe Biden).
Leshy notes that even before Congress authorized national forests, “in 1883, for example, President Arthur reserved 84,000 acres of public lands, including Mount Whitney, the highest point in the lower forty-eight states, in California’s southern Sierra Nevada. Although his executive order called it a ‘military reservation,’ the army never stationed anyone there.” Natural security is, after all, a matter of national security.
Personally, I find Dwight D. Eisenhower to be my biggest disappointment. Thank you, Ike, for liberating Europe and warning us about the military-industrial complex. While you did proclaim ten modest national monuments, you shrunk enough others to end up with a national monument deficit of -26,550.15 acres. (Yes, Donald Trump shrunk much more acreage, but I never expected any better of him.)
Fogire 2/ .
The Arc of Public Land History
In his magnum opus, Leshy argues that there are two remarkable aspects of federal public lands. The first is that 30 percent of the land surface of our nation—which is generally steeped in private property rights and a skepticism of the federal government—is federal public land. In his closing, Leshy says:
In his seminal work The Wealth of Nations, published the same year as the Declaration of Independence, the Scottish philosopher Adam Smith, the classic expositor of free-market capitalism, argued for the private ownership of property with a single exception. That was for lands held “for the purpose of pleasure and magnificence,” which, he wrote, a “great and civilized” nation ought to hold for everyone’s benefit.
Leshy’s second overarching contention is
that even though some of these lands have been subject to mining, logging, and other industrial activities, and a significant portion are grazed by domesticated livestock, today most primarily serve values of recreation, inspiration, environmental conservation, science, and the preservation of cultural heritage. . . .
For more than a century, the arc of public land history has bent decisively toward the national government conserving more and more lands for conservation, public education, and inspiration.
As I started the book, I had trouble agreeing with this contention. Mining, logging, livestock grazing, energy development (renewable or not), roads, off-road vehicles, and other ecological, hydrological, and psychological irritants have done lots of harm and have generally prevailed over nature, scenery, recreation, science, and culture when the bureaucracies that are the Forest Service and the Bureau of Land Management (BLM) are making their decisions. (In contrast, the other two bureaucracies, the National Park Service and the Fish and Wildlife Service, have a bureaucratic leaning toward conservation.)
Almost all of the bending of the arc of public land history toward public use and away from private exploitation has been done at the highest levels of the national government: Congress and the president. At the lowest levels, the BLM and the Forest Service mostly still bend—make that bow—to local special interests at the expense of the national public interest. Most significant conservation of the public lands has always come through acts of Congress and of the president. It is where Congress has vested discretion in the Forest Service and the BLM that most damage occurs. Most congressional statutes, presidential proclamations of national monuments, and executive orders have tended to limit agency discretion.
All, repeat all, power over federal public lands resides with Congress. The property clause of the United States Constitution (Article IV, Section 3, Clause 2.1) says:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
Any power exercised by the president, a cabinet secretary, an agency head, or any other bureaucratic office is under authority delegated by Congress. States, Native American tribes, county commissions, and even so-called “constitutional sheriffs” have no power over public lands other than what, if any, Congress has chosen to grant them. Leshy notes:
While the “furthest reaches” of that power “have not yet been definitively resolved,” Justice Thurgood Marshall wrote for the unanimous Court, “we have repeatedly observed that ‘the power over the public land thus entrusted to Congress is without limitations.’”
I fear the new majority on the US Supreme Court will reverse what its predecessors have long held.
Nonetheless, in a series of four charts, Leshy buttresses his case that “for more than a century, the arc of public land history has bent decisively toward the national government conserving more and more lands for ‘conservation, public education, and inspiration.’”
Graph 1. “Land reserved in national ownership and land protected as wilderness by Congress, 1870–2020. The units shown on the vertical axis at left are acres. The changes in acreage are graphed in ten-year increments, not year by year.” The lands protected by Congress as “wilderness” before 1964 include site-specific wilderness pronouncements by Congress before the enactment of the Wilderness Act. Source: Our Common Ground.
Graph 2. “Land reserved in national ownership and land mostly protected by acts of Congress, in acres, 1870–2020.” Note that this graph does not double count the wilderness protected by Congress in Graph 1, though wilderness is also protected by acts of Congress. Source: Our Common Ground.
Graph 3. “Land reserved in national ownership and land mostly protected by executive action, in acres, 1870–2020.” It’s not just, but more than not, national monument proclamations. Source: Our Common Ground.
Graph 4. “Land reserved in national ownership (in acres), land completely or mostly protected (in acres), and U.S. population, 1870–2020.” By Leshy’s accounting, more of the nation’s remaining public lands are generally protected than are generally not. Source: Our Common Ground.
As for that arc of public land history bending in the right direction, Leshy argues:
Extractive uses on public lands have diminished sharply in importance. Coal production has plummeted. Public lands are responsible for a declining share of petroleum exploration and development in the nation. Timber harvesting remains well below levels reached in the 1980s. Proposals to build new dams are almost unheard of; the removal of existing dams is much more likely to be on the table. Few new hard-rock mines are being proposed, and when they are, they attract considerable opposition. With a single exception, traditional extractive uses occupy an ever smaller share of the public lands, a trend that seems unlikely to change.
The one exception is grazing by domesticated livestock. It is still found on well over half the public lands in the lower forty-eight states.
And what an exception it is! Domestic livestock have done more damage to the earth than the bulldozer and chainsaw combined. Leshy generally favors paying federal grazing permit or lease holders to voluntarily relinquish their (strangle)hold on public lands, as do I.
Today’s Necessity
Leshy’s Our Common Ground is indeed a history of the slow but inexorable dedication of the nation’s public lands to, in the words of Adam Smith, “the purpose of pleasure and magnificence.”
It is useful for today’s public lands conservationists to know that on the whole, we have won more than we have lost. However, as many a public lands conservationist has observed, we must win or draw every battle, for to lose even once means the lands subject to that battle are lost forever.
Today, the climatical, ecological, hydrological, and psychological necessity of protecting the remainder of the public lands—and indeed reconverting private lands to public lands with comparable protections—is all the more pressing. Not only must the numerator of public land conservation increase, but so too must the denominator of public lands.
Bottom Line: More public lands history will be made, and it needs to be a history of good.