Evolution of Federal Public Land and Resources Law

Let us start by summarizing, in a somewhat jaundiced fashion, the state of federal public land and resources law in 1997. The United States owns roughly 660 million acres in fee, plus less-than-fee interests in many millions more acres, and it controls the seas and seabeds from three to 200 miles offshore.1 Only a small fraction of the government's holdings are devoted to traditional governmental uses such as forts, courthouses, and post offices. The great bulk of the federal lands are under the jurisdiction of four main (and many other lesser) government agencies located in several departments. Those lands are divided into five major national “systems” — parks, forests, wildlife refuges, BLM public lands, and wilderness — each of which is further subdivided into many management categories.2 The “nongovernmental” federal lands are to be managed for seven major, overlapping resources or uses: water; minerals; timber; livestock forage; wildlife; recreation; and preservation.3

Traditional public land law comprised those legal rules and doctrines by which the public domain lands were transferred to states and private entities.4 Because very few such transactions now occur, the term “public land law” is obsolete; “federal public natural resources law” is a far more accurate description of current law in this area.5

In many respects, federal public natural resources