Page updated: 07/06/2001 03:19 PM

Isn't that title a mouthful?  It may sound complicated, but it's really not!  In the first installment a few basic points concerning the origin and structure of Federal land management policy and use designations are addressed. The article's treatment of the topic is meant to be introductory and not exhaustive but hopefully you will find the topic interesting and learn a few useful things about how your public lands are managed.

During the last ten or twenty years off highway recreationists have felt increasingly under siege. Land closures and limitations on access to public lands have become common place. A very real consideration in planning any four wheeling trip is whether the route proposed will even be open upon arrival at the trailhead. The last year alone has seen the closure of Surprise Canyon, an escalation of environmentalists efforts to get large areas of land in southeastern Utah designated as Wilderness, and even an attempt to close what is considered by many to be the crown jewel of jeep trails; the Rubicon-McKinney. Within the four wheeler community there has been much outrage and hand wringing but not much concrete action taken in response to this trend.

The tactics employed by the environmental groups in achieving their "lock it up" goals are varied. Fundamentally, however, they play the game in two principal ways. They use public relations campaigns where they lobby for support from the uninformed general public with direct mail letters and glossy brochures in which they characterize jeepers as beer-swilling hoodlums intent on running over wildflowers and endangered species. This resounds with the public, which doesn't know any better anyway, because, intellectually, who is not opposed to protecting the environment? In a one-sided discourse, public sentiment coalesces on the side of the environmental group and not vehicular recreationists. Second, and more importantly, these direct mailings, with claims often bordering on outright lies, generate the funds that the environmental groups need to engage in their most effective tactic which is litigation.

The environmental groups' ability to utilize the legal system to reach their goals is very sophisticated. But it's not black magic. One of the principal handicaps that the off-road community suffers in these legal battles is that it has few official representatives-and we rarely even show up. Often we don't have the dollars to underwrite sometimes lengthy court battles. That is a big problem unto itself. But, putting that issue to one side for the moment, there is a great deal that can be done which costs very little. Utilizing the system begins with becoming involved.

We have all heard the harangue before: get involved or lose your rights. Still, few of us actually do. Why? Most of us have bills to pay. Many have families to feed and kids to raise. All of us have jeeps to wrench on and trails to run. Time is short for everyone and that makes it difficult to get involved. But, it may also be true that alot of us don't understand the system such that we can use it to our advantage as the environmental groups do to theirs. Because we don't understand it we avoid it.

In this article, the first in what I (and your administrataholic) hope will be a series, I will cover some of the basic land use designations and its enabling legislation. These designations are often the bedrock of any land use litigation. I will describe each one in the broadest of strokes so as not to be too boring or long winded. In later articles I hope to outline, in detail, exactly the procedures that four wheelers can exploit in an effort to keep trails open. Here my intent is just to touch on the general points such that you might gain a working understanding of the relationship of land designations to land use management decisions and, ultimately, environmental group litigation.

Historical Disposition of the Public Domain:

With apologies, a brief digression and a bit of a history lesson. Thomas Jefferson bought the Louisiana Purchase from the French. Soon thereafter he sent Lewis and Clark to go check it out as he did not really know what he had purchased. They trekked around a bit, all the way to the Pacific in present day Oregon, and sent Jefferson back detailed notes and maps. A bit later on the US military, with some help from a few ornery Texans, chased the Mexicans out of what is now the Southwest and the metes and bounds were determined by the Treaty of Guadeloupe-Hidalgo. Manifest Destiny, sea to shining sea. We all remember that from school. Why is it important? Because this is how the Feds came to own the entire western US.

Originally the federal government believed that the land should be divvied up and settled (some say the better to displace the Native Americans). As a result, early on the government was principally in the land sale business. The Homestead Act, the Mining Law of 1872, the Desert Lands Act, even the creation of the Bureau of Reclamation, were all intended to get more Americans on the land, so that they could become states, and eventually create a large country which ultimately would be a world power. To do this the government had to get the land into the hands of the people.

The Origin of Land Use Designations and Federal Retention and Control Policy

Early in the twentieth century, the government changed its approach and started to engage in a policy of retention. The public lands were no longer for sale and were to be held in trust for everyone. Once this policy change occurred, the government had to decide what uses would be acceptable and where. Resource extraction, mining, grazing, agriculture, and logging were the principal uses of western land. Recreation was not a consideration. Federal management agencies or their precursors were created. The Forest Service, The Bureau of Land Management, and the National Park Service basically split up all the land. The FS got the lands suitable for timber production (national forests), the Park Service got the Parks (many fewer than there are today), and the BLM got everything else. Each of these agencies managed the lands within their jurisdictions independently. It was a general pool of land with differing management structures depending on the primary use to which the land was put.

Common Pool and Withdrawals

Any land not in the common pool has to be "withdrawn". This can be done through an Act of Congress or by Executive Order of the President. The authority for Congressional withdrawal comes directly from the Constitution and the authority for EO withdrawal comes from the Antiquities Act and the 1915 Supreme Court Case U.S. v. Midwest Oil (239 U.S.459).

Today, based on this now nearly century old power, most lands are withdrawn by executive order. All presidents, both Democrat and Republican have withdrawn lands from the common pool. Jimmy Carter withdrew such large tracts of Alaska that Alaska threatened to sue the federal government for violating the compact made when Alaska became a state! More recently the Antiquities Act is the authority President Clinton relied on in creating the Grand Staircase-Escalante national monument, in radically expanding the acreage of Death Valley National Park, and in any one of the number of last minute monuments and other designation changes he signed into law as he was walking out of the White House. Pointing to the Antiquities Act as authority for such sweeping actions seems dubious based upon a reading of the Act-which appears not to have contemplated more than small withdrawals such as prohibiting mining on the Mall in Washington, DC-but it has now been done this way for a hundred years and is well-settled law.

Absent an Act of Congress or an Executive Order withdrawing land from the common pool the land remains open to all beneficial uses. Currently the BLM controls the most land, 180 million acres in the Lower 48 and 90 million acres in Alaska. Most of this land is the least economically productive and includes much of the southwestern deserts. The Forest Service controls 201 million acres, most of it designated "National Forests", although the FS also manages some "National Grasslands". While the BLM's holdings are overwhelmingly concentrated in the West, the FS has significant holdings in all fifty states. The National Park Service controls 80 million acres, two thirds of which are in Alaska. The National Wildlife Refuge System comprises 85 million acres; all of it managed with conservation as a top priority.

The Wilderness Act:

The Wilderness Act is one of the primary ways that land is withdrawn from the common pool and it is the most limiting and most permanent. The Act, passed by Congress in 1964, seeks to keep untrammeled lands pristine and "forever wild". It is important to note that, since the implementation of the Act, one should no longer think of the word "wilderness" in laymen's terms. It means land designated within the federal land management system as Wilderness-not just the boonies. Wilderness designation can apply to lands within any agency's jurisdiction. Typically Wilderness has been within Parks and National Forests but more recently Wilderness designation has been placed on lands within BLM's jurisdiction as well.

As four wheelers we often see Wilderness designation as the end of vehicular access to the area. This is by design. The Act prohibits the use of any "mechanized vehicles" within the wilderness area. This includes mountain bikes. There are also to be no "man-made installations". This, by way of example, includes semi-permanent horse packer camps and maybe (there is still some potential litigation on this one) fixed mountain climbing anchors used for rappelling. There are very small exceptions for rescue operations and hiking trail maintenance requirements.

Wilderness designation doesn't just happen. An area will be proposed for wilderness designation, usually by the Department of the Interior staff, sometimes after environmental groups "suggest" it, and it will first be placed under study to determine whether it is suitable for such designation. This is referred to as a Wilderness Study Area (WSA). The study periods often take years. There are a number of criteria which are being studied during this period. One of the principal ones is the "roadless nature" of the area. Aha!, you say. Well, how can the places I go jeeping ever be considered roadless? The very fact that I go jeeping there means there is a road (at least of a sort). Wrong. The criteria clearly state that a non-maintained road should not be considered a "road" for the purposes of this study. A "roadless" area can be criss-crossed with jeep roads, mining roads, roads to a rancher's watering tanks, fence lines, etc.

If at the end of a wilderness study period the WSA is deemed suitable for wilderness designation then it will become an official "Wilderness". Any routes of travel will be closed and that's the end. You will never jeep there again. This is why it is so important not to lose the fight over the WSAs in Utah. If they are determined to be suitable for wilderness designation these huge areas will be forever closed to jeeping-no matter how many jeep routes are there now. This can happen on any federal land. And much of the west is, as noted above, federal land. (Nevada, with the most federal land, is 85% owned by the government.)

Modern Land Management and Multiple Use Mandate

The Forest Service has utilized management plans since its inception. This is because the FS (and earlier the Forest Reserve system) has always been in the business of "farming" timber. (For the record, old growth forests and spotted owls notwithstanding, the timber production from FS lands currently accounts for only 7-10% of total US timber production. Even before the recent roadless initiative controversy timber harvesting on public land got alot more media play than is truly warranted.) The NPS, with its stewardship of the Parks, has always managed based on a blend of recreational access and conservation-easily done because much of the Park acreage is Wilderness that limits the number of "recreations" possible anyway.

But BLM has never had a cohesive management structure. In 1934 Congress passed the Taylor Grazing Act which set up a system to manage grazing permits on BLM land. All other uses were not considered. BLM personnel gave lip service to recreation, mostly hunter's interests, but that was about it. In 1960 the Multiple Use-Sustained Yield Act was passed, which, in theory applied to all Federal lands, but BLM ignored it and was allowed to do so. In 1969 the BLM did start to institute planning structures under MUSY but much of this initial effort was superseded by the adoption of the National Environmental Policy Act (NEPA). [NEPA is hugely important in modern environmental litigation and will be covered in detail in another article.] Congress eventually lost their patience with the BLM when it became apparent that the agency was not ever going to get its act together and passed the Federal Land Policy and Management Act in 1976.

FLPMA requires all federal agencies to manage lands in consideration of multiple uses. This means, for example, that uses which are not mutually exclusive must be allowed. A timber company can close roads to a timber sale area it is actively harvesting on safety grounds but a rancher cannot keep hikers off his permit lands because hikers do not negatively impact his ability to graze cattle. However, uses may be segregated to minimize user conflicts-something to keep in mind as environmentalists often "manufacture" user conflicts to support the argument that vehicular use and almost all non-motorized uses are inherently incompatible.

It is important to remember the multiple use mandate of FLPMA because it can be used as a basis for judicial review in an administrative action against an Agency-the crux of the claim being that by closing lands to vehicular access the multiple use requirement has not been honored. The easy answer to this is, of course, that jeeping and, for example, protection of desert tortoise habitat cannot be successful on the same piece of ground but at least the debate has merits on both sides and at that point it will go to a judge for a determination.

A second area of interest to the four wheeler, at least those of us here in southern California, that comes out of the adoption of FLPMA is that it created the California Desert Conservation Area. The CDCA incorporates much of the southern California deserts. BLM is the management agency for this area. The Act directed BLM to institute a management plan, again with multiple use considerations being paramount, for the CDCA. The Plan divided the CDCA up into classifications from suitable for wilderness designation to "development oriented to meet consumptive needs". Areas of Critical Environmental Concern were also identified. All of the ACECs and many of the conservation classifications were closed to motorized vehicles. An early legal challenge by the American Motorcyclist Association (AMA v. Watt, US District Court, Central District California, 1981, aff'd on appeal, 9th Circuit 1983) asserted that classifications were not compatible with the multiple use mandate but the courts disagreed and classifications are now routinely used on many public lands as well as within the CDCA. These classifications were also the genesis of the current "open", "restricted", and "closed" vehicular travel designations now familiar to any user of federal lands. The BLM came up with these designations for the CDCA in 1973 and they remain the cornerstone of the CDCA Plan as it relates to vehicular use.

In Conclusion

All public lands utilize a management plan founded on these basic rules. Obviously there is more to the story. I have attempted to outline a basic thumbnail sketch of the origins of land use designations on federal land so that you might understand, in the most general sense, where we are today and the origin of the current system. There are a number of other legal mechanisms that come to bear on land use issues. Among these are the federal Endangered Species Act, state counterparts to the ESA, NEPA (and state "little NEPAs" in cases where the state is the actor), the Clean Water Act, the Clean Air Act, Council on Environmental Quality edicts, Water Law, the advent of Regional Planning Agencies, and, finally, some remaining vestigial common law principles such as takings.

I hope to get to each of these areas in due course. If you have any specific questions feel free to email me and I will do my best to provide an answer. In the meantime, stay tuned--and I hope to see you on the trails.