- It might be hard to believe in the current political climate, but public lands were a unifying issue for Americans until quite recently. Most Americans have supported the idea of the government owning and managing large areas of land for public use, and that bipartisan consensus has culminated in the creation of vast network of national parks, forests and monuments which are collectively visited by tens of millions of people annually.
- Does that mean public lands could serve as an opportunity to bridge gaps in a polarized America? John Leshy, an emeritus professor of law at the University of California Hastings and general counsel at the U.S. Department of the Interior during the Clinton administration, thinks it’s possible.
- Leshy has spent much of the past five decades working on public lands issues. Leshy is now working on “Our Common Ground: A History of America’s Public Lands”, a forthcoming title from Yale University Press.
- During a September 2020 interview with Mongabay, Leshy spoke about how public lands could help a divided America find common ground and heal as it works to address the daunting new challenges posed by climate change.
It might be hard to believe in the current political climate, but public lands were a unifying issue for Americans until quite recently. Most Americans have supported the idea of the government owning and managing large areas of land for public use, and that bipartisan consensus has culminated in the creation of vast network of national parks, forests and monuments which are collectively visited by tens of millions of people annually.
Does that mean public lands could serve as an opportunity to bridge gaps in a polarized America? John Leshy, an emeritus professor of law at the University of California Hastings and general counsel at the U.S. Department of the Interior during the Clinton administration, thinks it’s possible.
Leshy, who began his career litigating civil rights cases for the U.S. Department of Justice, has spent much of the past five decades working on public lands issues. He’s co-authored the standard casebook on federal public lands and resources, served as an administrator and advisor on public lands issues for governments and NGOs, written books on the Mining Law of 1872 and the Arizona Constitution, and penned influential thought pieces, including a recent commentary in the New York Times on the Grand Staircase-Escalante National Monument. In recognition of these achievements, in 2013 Leshy received the Defenders of Wildlife Legacy Award for lifetime contributions to wildlife conservation. Leshy is now working on “Our Common Ground: A History of America’s Public Lands”, a forthcoming title from Yale University Press.
During a September 2020 interview with Mongabay, Leshy spoke about how public lands could help a divided America find common ground and heal as it works to address the daunting new challenges posed by climate change.
AN INTERVIEW WITH JOHN LESHY
What inspired you to pursue your career path?
I grew up in a village on the western edge of Appalachia in southern Ohio and spent lots of time outdoors. I first encountered the grandeur of the public lands on a several-week-long “grand tour” of western national parks with my grandparents when I was twelve.
I was interested in politics and law as long as I can remember, and came of age in the late 1960s, when dissatisfaction was brewing with established ways of thinking. I was lucky enough to be admitted to Harvard College, stayed there for law school, and then joined the Department of Justice in Washington D.C., where I spent three years litigating to enforce civil rights laws, mostly involving desegregating public schools in the South.
In 1972 I caught another lucky break, landing a job with the two-year-old Natural Resources Defense Council (NRDC), an environmental advocacy organization, to help launch its western office in California. My five years there gave me a professional introduction to public lands issues. I became captivated by them. Over the ensuing years I’ve had the good fortune to advocate, teach, write and otherwise engage on public lands matters in many different settings, including nearly twelve years in the Interior Department and a stint on a congressional committee staff.
Historically U.S. public lands were a unifying issue, but today it seems politically divisive. What changed?
A great question. It is an under-appreciated fact that, as you point out, public lands have historically tended to unify the nation.
Yet many histories have sounded the opposite theme—that public lands were the product of a land grab by the national government, brought about after clashes that usually pitted it against states and localities, or one region or one political party against another.
Of course, conflict has not been entirely absent from public lands history. For one thing, there has always been a libertarian streak in American culture. Some folks dislike just about everything the government, especially the national government, does.
But overall, the historical record is quite clear. The decisions producing the public lands we see today were, almost without exception, supported by most of the people, including the people in the locales most directly affected. These decisions were also almost always bipartisan and have remained enduringly popular.
It adds up to an important, if little-known, political success story: how—in a country whose culture celebrates private property and distrusts government (and especially the national government)—that government came, with wide public support, to own nearly one-third of the nation’s real estate and to manage it mostly to serve broad public values like recreation, inspiration, education, science, and biodiversity conservation.
When I have told people this about the public lands (as I’ve had the opportunity to do many times over the course of my career), their reaction is usually something like, “I had no idea, how did that come about?”
Eventually I decided to try my hand at writing a readable history that would answer that question for a general audience. It seemed to me the story of how our political process produced this success is particularly worth knowing, and celebrating, in this era of widespread cynicism about government and politics.
The idea took on more urgency when a ragtag armed group took over a national wildlife refuge in Oregon in late 2015, spouting preposterous claims that all the U.S. public lands are an unconstitutional affront to our political traditions, and that these particular public lands had been wrongfully seized by the federal government (they hadn’t). The episode and its coverage in the media revealed the depth and breadth of ignorance about how America’s public lands originated and how they came to be managed as they are today.
Of course, much has been written about the history of particular subdivisions of public lands like national parks and national forests, and about important characters in the story like John Muir and Theodore Roosevelt. But it seemed to me important to step back and take a broader look at the public lands as a whole and show how this American institution has evolved over the history of the nation.
My book, called Our Common Ground, will be published in another year or so by Yale University Press. I hope it will help advance public understanding of this complex subject. One thing that makes it complex is that public lands are administered by four different government agencies. The least known, the Bureau of Land Management (BLM), looks after the most land, about 256 million acres. The other three are the U.S. Forest Service (193 million acres), the U.S. Fish & Wildlife Service (91 million), and the best known, the National Park Service (78 million). Although concentrated in the West, they are found throughout the nation—for example, public lands comprise more than 5% of the area of a dozen non-western states.
Each year, these lands offer many millions of people life-changing encounters with the nation’s natural and cultural heritage. Public lands–related tourism is the economic anchor of many communities. The lands carry many confusing labels—parks, forests, wildlife refuges, monuments, recreation areas, conservation areas, wilderness, preserves, scenic areas, and on and on. Behind each label is a political story that I try to fit into the larger picture.
I agree with your observation that today public lands seem politically divisive, but I believe this is more appearance than reality. Opinion polls over the last several years consistently confirm that the vast majority of Americans still regard the public lands as a huge national asset, a priceless legacy to hand down to succeeding generations. Not only that, but they want to hold and protect even more. In response, Congress has found ways to continue to enact legislation to do that despite growing polarization in the political climate in general.
It may seem surprising, but Donald Trump grasped that political truth much faster than his rivals for the Republican nomination in 2016. In February of that year, he told Field and Stream magazine that the United States should keep and be “great stewards” of its “magnificent” public lands. His celebration of public lands helped him carry five intermountain western states and Alaska, most by very substantial margins, in the 2016 election.
Trump’s words were camouflage because, once in office, his administration has worked relentlessly to transfer as much control over public lands as possible to fossil fuel and other industrial enterprises. In carrying out that agenda, it has done more than any since the Civil War to reverse the long-term trend toward holding and protecting more public lands. Its most prominent step in that direction—the president’s drastic shrinking of the Grand Staircase-Escalante and Bears Ears National Monuments in southern Utah, stripping legal protections from more than one million acres—was only one of many such actions. I’ve explained this and done a fuller analysis of Trump and his impact on public lands in recent articles that can be found here and at The American Scholar.
How can the constituency around public lands be restored? And along those lines, what would your strategy be to build a broader coalition of support so that everyone feels like the country’s public lands are theirs, whether they’re from the city or rural areas, or identify as people of color?
The constituency is still there, but much more needs to be done to mobilize and expand it. The first order of business is for that constituency to work to remove Trump and those in Congress who are abetting his assault on the public lands from power. The November election will determine whether U.S. policy will revert to its longstanding trajectory of safeguarding more and more public lands, or whether Trump will be free to continue on the contrary course he has charted.
Yet, even though it is a potential inflection point in the nation’s public land policy, the 2020 election is not likely to be a popular referendum on the Trump public lands agenda. Although most Americans voice strong support for protecting public lands, the fate of these lands is rarely a decisive issue for most voters, even in states with large amounts of them. That is probably even more the case now, given voter concerns about the pandemic, the economy and a host of other issues. That means, sad to say, that a Trump re-election could cement in place public land policies most Americans heartily dislike.
Regardless of the election outcome, the coalition supporting public lands needs to be broadened and deepened. An important way to do that is to increase engagement in communities of color. In the history of efforts to protect public lands, people of color, along with women, were not prominent, having been excluded from the political system at the time when many important public lands decisions were made. But they were not unknown. African-American “Buffalo Soldiers” helped protect some early national parks, and women played an important role in the campaign to preserve cultural resources and wildlife on public lands early in the twentieth century. In recent years, some long-overdue steps have been taken to use public lands to educate people about important episodes in American history. Examples include preserving sites along the Underground Railroad helping slaves escape to freedom, and camps confining Japanese-Americans during World War II.
The history of Native Americans and public lands is more complicated. A salutary development in recent years is greater engagement by Native Americans in public lands issues, especially regarding places where they have deep cultural connections. President Obama gave such efforts a prominent boost by establishing the Bears Ears National Monument on nearly a million acres of public lands in southern Utah, after being petitioned to do so by a consortium of Indian tribes with ancestral ties to the area.
There is a popular misconception that advocates for protecting public lands like John Muir were instrumental in expelling Native Americans from their homelands so they could become protected public lands. The truth is, almost everywhere, Native Americans were ousted from these lands well before a movement arose to advocate that they protected in public ownership. That is not to deny that conservation heroes like Muir and Theodore Roosevelt had racist views, just like most white Americans of their era. But it was mining, lumber, livestock and other interests—not conservationists—who spearheaded the movement to dispossess Indians and confine them to reservations.
It is heartening to see more and more people from diverse communities recreating on the public lands and engaging in efforts to protect them. But much more needs to be done, including, especially, among younger people. It is they who, after all, will be deciding public lands policies in the future.
History shows that much of the foundation for today’s public lands was laid during the heyday of the so-called Progressive Movement. It emerged in the wake of a severe economic recession in the 1890s, fed by public disgust with a political system that seemed ineffectual, and with an economic system marked by severe income inequality and dominated by powerful corporations and plutocrats, not unlike what many perceive to be the case today. The Progressive Movement was, notably, not captive to either political party. Republican Theodore Roosevelt was one of its biggest champions. This leaves room to believe that Republicans might someday once again enthusiastically embrace the cause of protecting public lands. After all, President Nixon called the public lands “the birthright of every American” in his first State of the Union address. Even libertarian icon Barry Goldwater eventually came to support measures to add protections to public lands.
Throughout history, the movement to protect public lands has bridged cultural and political divides like the ones that now separate large segments of rural and urban America and coastal and interior regions. The growing engagement of Indian tribes is a hopeful sign that public lands can still be a catalyst for bringing people together. Perhaps it is not too much to hope that, eventually, America’s public lands might once again furnish a platform for rejuvenating civic engagement and civil public discourse, and thus help to overcome the contemporary political climate’s toxic polarization and cynical disillusionment with established institutions.
Do you see an opportunity for public lands to be part of the post-COVID economic recovery; for example, akin to the Civilian Conservation Corps of the 1930s?
Absolutely. Several different kinds of jobs programs could advance public lands conservation. For example, in many places, infrastructure to accommodate visitors has decayed or not kept pace with rising demand. Public lands contain numerous sites for solar and wind energy projects to reduce carbon emissions. Adapting to a changing climate and helping protect biodiversity against threats offer many job opportunities for such things as fighting invasive species, restoring wildlife habitat, and helping protect wildlife migration corridors and connectivity. Last but not least, there are literally hundreds of thousands of abandoned mines on public lands, many posing safety hazards and some being significant sources of water pollution. Many billions of dollars could be spent on such efforts to good effect.
The CCC made some mistakes. It built too many roads and facilities in places that now seem inappropriate, its workforce was racially segregated and excluded women, and it was not always sensitive to biodiversity. But it also did an enormous amount of good. Perhaps most important, it introduced hundreds of thousands of young people to the inspirational outdoors, leading many to become lifelong outdoor recreationists and supporters of public lands.
Are there still opportunities to establish new public lands in the U.S.? And if so, what are the main criteria for these?
For sure. For one thing, there is a long history of the U.S. government buying degraded lands to restore them to productive health. Millions of acres of cutover forests east of the Rockies were purchased with that in mind beginning more than a century ago. Millions more came back into U.S. ownership as homesteads in the western Great Plains and other arid regions failed in the Dust Bowl era. Most of these lands are now national forests and grasslands managed by the Forest Service. Many other lands have been acquired to establish new wildlife refuges, long-distance hiking trails, and for a host of other purposes.
Many additional opportunities exist to acquire lands to serve all these ends. One important tool to do this is land exchanges, reconfiguring patterns of land ownership to better serve both public and private interests. For example, an important legacy of nineteenth century public land policy was a checker-boarded pattern of land ownership that still persists in parts of the country. It stemmed from the practice of making grants of public land to railroads in 640-acre alternating squares. (For more detail on how that worked, you’ll have to read my book.). The checkerboard poses all sorts of problems for public and private owners, which can be (and in some places has been) eliminated through land exchanges.
A good many protected areas of public lands are dotted with inholdings, tracts of land held in private or state ownership. These can pose many problems—a National Park Service Director once called them “worms in the apple.” Their use and development can increase the risk of fire and invasive species, fragment habitat and adversely impact visitor experience in numerous ways. There are millions of acres of such inholdings, and many of their owners are willing, indeed eager, to sell if they are fairly compensated; the biggest challenge has been finding the money to purchase them.
In 1964 Congress established a funding mechanism, the Land & Water Conservation Fund (LWCF), to bring more lands into public ownership for recreation and conservation. Its primary source was revenue the U.S. obtained from developing oil and gas on submerged public lands offshore. Fund moneys are shared among the four major federal agencies and state and local governments. Over the years, the LWCF has provided several billion dollars to acquire millions of acres for conservation and recreation, including inholdings.
As originally designed, the Fund had two chronic problems. First, it was not permanent, and had to be re-authorized every few years. Second, Congress had to vote each year to move offshore oil and gas revenue into the Fund through a legislative appropriation, and it almost never funded the full amount called for by the formula Congress enacted in 1964.
In the last two years, after a long campaign waged by a bipartisan pro-public-lands coalition, Congress has fixed both problems. First, in early 2019, it made the Fund permanent, ending the need for periodic re-authorization. Then, August of this year, by substantial majorities in both houses, Congress approved the Great American Outdoors Act. Its centerpiece bypasses the annual appropriations process to supply a steady stream of funding for the LWCF that will likely be on the order of one billion dollars per year. (Another part of it provides funding to help rebuild deteriorating infrastructure on public lands.)
Only days before President Trump unexpectedly announced his support for the Great American Outdoors Act, his administration had submitted a budget for fiscal year 2021 that proposed slashing LWCF funding to less than $15 million (compared to the $495 million Congress appropriated for it in fiscal year 2020). His startling (albeit welcome) turnabout on the issue did not signal a change of heart on the public lands; instead, it was a transparent attempt to boost the campaigns of western Republican Senators facing tough re-election fights where their support for protecting public lands had been seriously questioned.
The Trump Administration recently moved to open the coastal plain of the Arctic National Wildlife Refuge (ANWR) on Alaska’s north slope to energy development. What do you think the likelihood of this coming to pass and what are the broader implications for U.S. public lands?
For a half-century, the petroleum industry and the state of Alaska has sought to open the coastal plain of the Arctic NWR to oil and gas drilling. The Refuge, interestingly, was established in the Eisenhower Administration, and in 1980 Congress forbade drilling there without its approval. The state stepped up the pressure as diminished oil production from state lands on the North Slope reduced revenues on which the state is so dependent. A measure opening the Refuge to drilling passed Congress in 2017 on a strict party-line vote.
Interestingly, this was just about the only time the Trump Administration has sought the help of Congress in implementing its public land agenda. Instead, it has generally been content to act almost entirely on its own, pushing the boundaries of executive authority when necessary.
While the administration is now poised to issue leases giving oil companies access to the area, the industry’s interest has waned substantially as the world moves away from fossil fuels to control carbon emissions. Even if the administration holds a lease sale, in other words, it might attract only a few bidders.
If a new administration takes office next January, it would have the final say on development. If the Trump administration managed to issue leases before it left office, the leases could be cancelled, although the leaseholders would probably seek to have the taxpayers compensate them for what they would claim as lost profits had the leases remained in force.
If the Trump Administration wins another four years, there is every indication its relentless efforts to develop fossil fuels on public lands will continue, even as the changing climate shows ever more clearly the cost of fossil fuel production. It has, for example, stripped protections from some eleven million acres of public land on Alaska’s north slope in the National Petroleum Reserve to the west of ANWR. In an ironic twist, Conoco, pressing to expand its operations there, recently proposed to install “chillers” to extend the life of ice roads it needs to minimize damage to the tundra from oil development because Arctic warming—exacerbated by petroleum development—makes such roads less available.
As this suggests, the fate of the public lands is, like the fate of the planet, bound up with the challenge of controlling carbon emissions.
We’re two months out from the U.S. presidential election. If there’s a change in administration, what would you see as the top priorities when it comes to public lands? And if there’s not a change in administration, what do you see as the best way forward for public lands?
If Trump is defeated, the new administration will have much to do to reverse the harm this administration has done to public lands. The good news is that in many cases the protections the Trump Administration has stripped from public lands, like at the Utah national monuments, can be restored without too much difficulty.
But undoing other parts of the Trump legacy will be harder and take much longer. One is its undermining of science and the government’s capacity to do it and be guided by it. Another is its hollowing out of land management agencies and its sapping the morale of the civil service. Rebuilding basic agency capacity and credibility will take much time, effort and resources.
The need to do this could not have come along at a worse time. The effects of a destabilizing global climate—like the growing number and intensity of wildfires and droughts, grave threats to biodiversity, and sea level rise—pose formidable challenges to public land managers. All this is happening at a time when recreational visits to public lands have gone up dramatically.
The failure to take aggressive steps to undo the Trump legacy could destroy public confidence in federal management and, with it, public support for the public lands. That unhappy result is much more likely if Trump is given another four years in office.
While our governing system is famous for its interlocking system of checks and balances, there is much room to doubt they will function effectively to protect the public lands. Consider the Congress. While many Republican members have supported public lands protections in the past, Trump’s hold on the GOP has made most of its dwindling number of moderates unwilling to cross him. There is little reason to believe that would change in a second Trump term.
The judicial system, where multiple challenges to Trump initiatives are pending, likewise may not provide much of a check, unlike in the past where public-land-protection advocates have enjoyed considerable success. Thanks to Majority Leader Mitch McConnell’s conversion of the U.S. Senate into a judicial confirmation machine, Trump in his first term has put many young (in their 40s) and conservative (many are dedicated members of the right-leaning Federalist Society) judges on the federal bench. Going forward, the courts are almost certain to be much less receptive to arguments for protecting public lands than in the past. Giving Trump another four years to further remake the courts makes that even more certain.
Although states have had some success in resisting efforts to weaken protections for public lands within their borders, numerous examples show the limits on their ability to stop a presidential administration determined to make rollbacks.
And what would happen to public opinion in a second Trump term? Would Americans continue to support protecting public lands as droughts intensify and large wildfires increase in frequency? Would they want to maintain the strict protections of the Endangered Species Act as extinctions multiply? Would they support taking measures needed to prevent places from being “loved to death?” How much would the reported declining interest among younger people in outings in the great outdoors undermine support for public lands?
Adding all this up, a second Trump term could produce a kind of death spiral, as the public lands deteriorate and the agencies that manage them downsize, decentralize, and hand off more responsibility to state and local governments and private entities. Ultimately, the dreams of sagebrush rebels, those committed libertarians who want all or most of the public lands privatized, could be realized.
Looking beyond the upcoming election, what is your outlook for U.S. public lands mid-century and beyond? And are there lessons to be learned from the Trump presidency that might allow future administrations to be more resistant to political whims?
My outlook for mid-century relates back to my answer to your earlier question about opportunities for expanding the portfolio of public lands. For one thing, threats to biodiversity are mounting as the human footprint expands across the American landscape. A changing climate exacerbates the problem.
Forty years ago, the esteemed scientist E. O. Wilson called the loss of biodiversity from “careless misuse” and destruction of natural habitats the “folly that our descendants are least likely to forgive.” More recently, he has advocated setting aside about half the earth’s surface as a protected natural reserve. A movement is now underway, dubbed “30 by 30” that calls on the world’s nations to pledge to protect thirty percent of their territory (land and marine areas offshore) by 2030.
Today’s public lands give the U.S. a good start toward reaching that goal. But many biodiversity hot spots and important habitat types are not found on public lands. A more systematic effort should be made to identify and protect such places, using public lands acquisition as a tool where appropriate.
Overall, the federal land management agencies could take steps to steer LWCF dollars for projects that would do that, provide permanent protection for large landscapes, connect disparate federal land holdings, eliminate inholdings, and otherwise reconfigure public and private landholdings to better achieve this end.
Regarding lessons to be learned from the Trump presidency, the ease with which it has been able to ignore science, evade ethical and transparency requirements, and thwart meaningful congressional and public oversight of its public lands policies has exposed serious weaknesses in the governing structure. Congress can make it harder for future administrations to do the same by, for example, enacting laws toughening requirements that public land decision makers in the executive branch pay close attention to the teachings of science. It can also legislate to close loopholes, tighten requirements and increase penalties for non-compliance with ethical and transparency laws.
The administration has at practically every turn exploited and abused the discretion Congress has given the agencies regarding public land management. Congress can eliminate or narrow that discretion where appropriate and take other steps to head off a repeat of what many public lands protection advocates have regarded as an administration of their worst nightmare.
What are the most important things the average person can do to support public lands?
There are two. First, visit, appreciate and learn and derive pleasure from them. Second, engage politically in determining their future. Libertarians like to call the public lands “political lands,” and they mean it disparagingly. But they are right; what happens to these lands is determined by our political system. If the American people stop loving them, Congress will get rid of them, turning them over to the states or the private sector. In my judgment, that would be a grave mistake, but Congress can do it.
Another thing folks can do is respect and support the civil servants who are on the front lines managing these lands. They face many challenges, and in my experience nearly all of them are genuinely dedicated to serving the public and protecting the resources in their care.
Looking back on your career, what achievement are you most proud of?
My work on the several large national monuments President Clinton established during his time in office was very satisfying. For one thing, it helped revitalize the Antiquities Act of 1906 as an important tool for protecting public lands. Moreover, many of these were on lands managed by the Bureau of Land Management (BLM)—the first national monuments ever put in its care even though it manages more land than any other agency. I took great pleasure in that and the related work I did helping my boss, Interior Secretary Bruce Babbitt, instill the BLM with a genuine conservation mission.
Credits
