In this week’s episode, host Margaret Walls talks with John D. Leshy, an emeritus professor at the University of California College of the Law, San Francisco, about the history of public lands in the United States. Leshy discusses the legislation that enabled the creation and conservation of public lands, common myths about public lands, and how the government may open up public lands for mining or clean energy projects in the future.
Listen to the Podcast
- Public lands serve recreational purposes: “The primary uses of all 600-plus million acres of land today are inspiration and enjoyment—not extraction … The amount of public land, acre for acre, that’s used for broad public purposes is much larger than the ones used for conventional industrial and extractive purposes.” (11:34)
- Legislation has enabled the creation and preservation of public lands in the United States: “Since the Wilderness Act passed in 1964, Congress has passed dozens, even hundreds, of individual laws putting more than 100 million acres in the National Wilderness [Preservation] System—all with local congressional acquiescence. The Wilderness Act has emerged, along with the Antiquities Act [of 1906], as the two most prominent statutory mechanisms by which public lands are protected in large quantities.” (19:08)
- Public lands are an example of the United States prioritizing long-term interests: “I think that everybody now recognizes that we have to decarbonize the economy. The fossil fuel age is not going to end because we run out of petroleum or fossil fuels. It’s going to end because we realize there’s a better way to do things—and if we’re to avoid catastrophe, we have to do these things. Public lands overall have a powerful message along that line, because in the long sweep of history, they represent the political system making a collective decision that the longer-term interests of the United States outweigh the narrower, shorter-term interests.” (24:22)
Top of the Stack
- Our Common Ground: A History of America’s Public Lands by John D. Leshy
- The Mining Law: A Study in Perpetual Motion by John D. Leshy
- End of the Megafauna: The Fate of the World’s Hugest, Fiercest, and Strangest Animals by Ross D. E. MacPhee
The Full Transcript
Margaret Walls: Hello and welcome to Resources Radio, a weekly podcast from Resources for the Future. I’m your host, Margaret Walls.
My guest today is John Leshy, emeritus professor at the University of California College of the Law, San Francisco. John has served in multiple prominent positions in the federal government, including as solicitor of the Department of the Interior for the whole of the Clinton administration. He also co-chaired the Obama administration transition team for the Department of the Interior, and he is a noted expert on natural resources law and public lands.
John is here today to talk about his new book, Our Common Ground: A History of America’s Public Lands. The book provides a fascinating and incredibly detailed history of public lands in the United States, going back to the nation’s founding. It dispels some myths about public lands and discusses some of the current issues of the day. We’re going to talk to John about all of this. Stay with us.
Hello, John. It’s great to talk with you today. Thanks so much for coming on the show.
John D. Leshy: I appreciate the opportunity, Margaret. Thank you.
Margaret Walls: Before we dive into our topic of conversation, I want to ask you a bit about yourself. I mentioned your illustrious career, but can you tell us how you came to have an interest in environmental and natural resources law in the first place? What inspired you, and how did you become an expert on public lands?
John D. Leshy: About 50 years ago—and this will date me—I lucked into a job helping the Natural Resources Defense Council (which was a start-up national environmental organization) open its western office. My portfolio was basically to advocate for protecting public lands in any way I saw fit. I plunged into the area, and I became fascinated with the history and the politics of public lands. The rest is history. I spent most of my career working on those issues.
Margaret Walls: I want to make sure our listeners have some basic background about public lands before we dive into our questions. Let me start with a couple of facts.
First, the federal government owns a lot of land—640 million acres—which is about 28 percent of the country’s land area. In the 13 western states, more than half of the land is federal land, and four agencies manage most of the land. About two-thirds of it is managed by the Bureau of Land Management and the Forest Service, which manage their lands for multiple uses. The other third is roughly split between the Fish and Wildlife Service and the National Park Service. A couple of other agencies own a little. Those are the lands we’re talking about. There are a lot of them, and they’re important to the landscape of our country.
I want to start off with one of the big-picture messages in your book that is perhaps contrary to popular belief. You feel that public lands have not been particularly controversial and divisive over their long history, and that they have brought us together more than divided us. Some folks might be surprised by this. They might think about controversies over certain national monuments, or people might know about the Sagebrush Rebellion. You tell a different story. Can you say something about that and share some examples?
John D. Leshy: The book tries to dispel basic myths, including that public lands have been divisive, controversial, and subject to partisan politics. Through many examples of the politics of public lands over the last 240 years, my book does prove, I think, that that’s essentially not true—that the public lands have largely been a unifying force from the beginning.
One great example that I spend time on in the book is the creation of the National Forest System, which was done by Republican and Democratic presidents between about 1890 and 1910 with bipartisan and local support. The national forests in Colorado, for example, were created because the chambers of commerce in Denver and Colorado Springs and a lot of other community groups petitioned the federal government to have that happen. That happened all over the West. It happened all over the country.
Two other examples I talk about are Big Bend National Park in Texas and Everglades National Park in Florida. When both of those parks were created, they were private land that was bought with state taxpayer money by the states and donated to the federal government to make them national parks. These are typical examples of how the public lands have come about.
Margaret Walls: We could spend the whole episode on this, because I really find it fascinating. Many of us know some of the history of public lands, specifically about the National Park System or Teddy Roosevelt’s legacy, but I found some things you shared about the original 13 colonies and how the federal government came to own land in the first place fascinating, including what the impetus was for public land ownership in the founding and the westward expansion of the country. Can you talk about that early history?
John D. Leshy: I open the book with the story of how the first public lands came about. After the Declaration of Independence, the 13 former colonies were trying to form a national government. The colonies stalemated for about four years; they couldn’t bring all 13 former colonies together behind the Articles of Confederation, because six of the states had fixed western boundaries, and the other seven had open-ended boundaries and claims to western lands beyond the Appalachians.
The six states with the western-fixed boundaries feared that they would be dominated by the other states, because the other states had all these expansive claims. So, they refused to ratify the Articles of Confederation and give formal support to the national government until the seven states with the claims gave them up. Eventually they did, and they gave those claims to the national government. Those territories were the first public lands.
The US government started off with this idea that they were holding these lands west of the Appalachians and then used them over the next several decades to keep the nation together as the European expansion, in the form of infrastructure, roads, and railroads, went across the continent. Meanwhile, the US government began forming state governments and giving them lands to start them out. From the very beginning, the public lands played a unifying role, keeping the nation together as it expanded.
Margaret Walls: You said in the book that the Civil War broke a logjam that had stymied public lands legislation for about a decade. There were important laws that passed in the early 1860s that cleared that logjam. Can you talk about that a bit?
John D. Leshy: In the pre–Civil War era, like everything else, the public lands were caught up in the slavery controversy and the division of the country over whether to abolish slavery in the slave states. A lot of things got gummed up in that process. Most people have some idea of the disastrous Supreme Court decision called the Dred Scott case in the 1850s, which cemented slavery into the Constitution.
What most people don’t realize is that the Dred Scott case also dealt with the public lands. The Supreme Court, in that case, issued a truly astonishing decision that said the federal government had no constitutional power over public lands, because they feared that the federal government would use that power to help abolish slavery. Dred Scott was, in part, an anti–public lands decision, which was discredited at the time and thereafter.
No real significant public-land legislation got passed in the 1830s, ’40s, and ’50s because of the slavery controversy. When the Southerners walked out in the beginning of the Civil War, that freed up Congress to address these issues. Within four or five weeks, in June of 1862, Congress passed the Homestead Act, which was the first big agricultural settlement act. Congress passed the first Transcontinental Railroad Land Grant Act, which led to the eventual disposition of more than 100 million acres of public lands to railroads. Finally, Congress passed the Morrill Act, a significant law that used public lands to create higher education systems in every state. When we speak of land-grant colleges, that was the Morrill Act.
All those laws passed right at the beginning of the Civil War, because the slavery logjam loosened. That charted the course for the next several decades of what the public lands were going to be used for—primarily settlement, promoting education, and things like that.
Margaret Walls: The early uses and purposes of public lands were more for helping with settlement and resource extraction and use. When did we first start protecting public lands more for the value of their scenery, recreation opportunities, and the like? Could you talk about how that played out eventually with the creation of the National Park Service?
John D. Leshy: The first significant act along that line was right in the middle of the Civil War. In 1864, President Lincoln signed into law a piece of legislation that took the Yosemite Valley, which was owned by the federal government, and gave it to the state of California under the strict condition that it be maintained, for all time, for public use and enjoyment. Yosemite eventually came back to the United States in 1890 and was made a national park. That was the first incidence of recreational use of public lands, all of which began in 1864.
In 1872, Congress created the first real national park. That was Yellowstone, which was kept in federal hands and wasn’t given to the states. Those two existed alone until around 1890. In 1890, that idea gained more force, and new national parks were created. Other public lands, like the national forests that were coming into existence at the time, were also used for recreation and public enjoyment, not just for logging and other extractive purposes.
The idea of public lands as a source of inspiration and enjoyment was there from the beginning but gained force particularly in the 1910s, ’20s, and the ’30s. The National Park Service was created in 1916 and then took off from there. Over time, the other public lands managed by the agencies we mentioned in the beginning have come to be used for recreation, inspiration, and public enjoyment.
The primary uses of all 600-plus million acres of land today are inspiration and enjoyment—not extraction. That’s another myth out there. The amount of public land, acre for acre, that’s used for broad public purposes is much larger than the ones used for conventional industrial and extractive purposes.
Margaret Walls: You talk about various pieces of legislation that passed over the years. We’ve already touched on a few of them, but I’m going to ask you about two in particular. The first is the Antiquities Act of 1906. Tell us about the Antiquities Act, why it came to pass, what it does, and what its importance is today.
John D. Leshy: The Antiquities Act was the product of bipartisan cooperation in Congress. Its primary sponsor was a Republican from Iowa. The original impetus was to protect cultural and archeological sites on public lands, but the guy who drafted it was very astute and deliberately gave the president the power to set aside, reserve, and protect public lands in order to protect features of scientific and historic interest. The power is actually quite broad. Theodore Roosevelt signed it into law and quickly used it to protect 800,000 acres of the Grand Canyon in Arizona and, later, 500,000 acres of the Olympic Peninsula in Washington.
From the very beginning, the Antiquities Act was used to set aside broad areas of public lands to protect them. These public lands were created with the label “national monument.” Congress picked “monument” because Congress jealously guarded its power to put the label of “park” on public land. Only Congress could create national parks. Congress wanted the president to have a similar power while preserving theirs, so they gave the president the power to name national monuments—not national parks.
Over the last 120 years, the presidents of both political parties have used the Antiquities Act and are still using it today to protect more than 100 million acres of public lands. In almost every case, Congress comes along, ratifies, and approves what the presidents have done. For example, there are about 63 units of public lands that have the “national park” label. Half of them were first protected by presidents using the Antiquities Act. The executive and the legislative branches have always worked together under the Antiquities Act.
Margaret Walls: I’m going to follow up on that question, because there’s language in the Antiquities Act that says that the limits of the act in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected. People say that the language is the contentious piece of the legislation. We don’t know how large is “large.” You had some observations about that being intentional and strategic.
John D. Leshy: The drafter of that act knew quite well what he was doing in terms of creating an expansive power. The presidents used it that way, including Theodore Roosevelt at the Grand Canyon. Interestingly, from time to time, the president’s use has been challenged in court. There have been a number of lower federal courts, as well as the Supreme Court of the United States, that have passed on the president’s powers using the act and in every single case have upheld it without a single dissent by any justice or judge.
We’ve had the courts basically endorse how the presidents and Congress work together and use the act to protect these broad areas of land. I don’t anticipate that changing. When the Supreme Court passed on Roosevelt’s use of the act at the Grand Canyon, it said that 800,000 acres sounds like a lot of land. However, this is the largest, most prominent canyon in the world. If you’re going to protect that feature, you’ve got to protect a lot of land.
Margaret Walls: The second piece of legislation I want to talk about is the Wilderness Act. The Wilderness Act passed in 1964. You have a chapter on the Wilderness Act in your book, and you have a subheading in that chapter called “The Long Battle for the Wilderness Act.” Could you tell us about that long battle, how it came to pass, what its impact has been, and how there has been bipartisan nature in wilderness areas?
John D. Leshy: The Wilderness Act was a long battle in the sense that the idea of holding lands relatively undisturbed goes back for decades, as late as the 1910s or ’20s. Both the Park Service and the Forest Service started to keep lands in relatively undisturbed condition as far back as that. In the 1950s, the idea gradually emerged that this preservation should have legislative backing; Congress should specifically authorize agencies to protect lands in their wilderness state.
The initiative was bipartisan from the beginning. One of the prominent movers for this legislation was a conservative Republican from Pennsylvania named John Saylor. Hubert Humphrey of Minnesota, a Democrat, also was instrumental. The act took about eight years to get through Congress, where it went through many drafts.
Along the way, something interesting happened: A conservative Democrat from Colorado’s western slope named Wayne Aspinall didn’t like the idea of wilderness and instead favored industrial uses of public lands. He let the wilderness act go through under one important condition: He did not want any acre to go into wilderness unless Congress passed a law that put it there, thus making Congress the gatekeeper of the wilderness system. Aspinall thought that his condition would limit the amount of wilderness, given that you can’t pass a piece of legislation addressing an area of public land unless it has at least the endorsement or acquiescence of the members of Congress of that congressional delegation. Accordingly, you have an informal local congressional veto over legislation that applies to particular areas. Aspinall knew that well and thought that by making Congress a gatekeeper, wilderness would only exist if the local congressional representatives approved it. But he completely underestimated how popular the wilderness idea would be.
Since the Wilderness Act passed in 1964, Congress has passed dozens, even hundreds, of individual laws putting more than 100 million acres in the National Wilderness [Preservation] System—all with local congressional acquiescence. The Wilderness Act has emerged, along with the Antiquities Act, as the two most prominent statutory mechanisms by which public lands are protected in large quantities.
Margaret Walls: John, you explained up front in the book that this is not a history of the taking of lands from Indigenous peoples; that’s not what your book is about. However, one of the later chapters describes the modern era of Native American tribes vis-a-vis public lands. One thing I wanted to ask you about in this chapter is the increasing use of cooperative-management arrangements between tribes and the federal land management agencies for protected sites. Can you tell us about that and what you see the future looking like in that regard?
John D. Leshy: One note on why I don’t talk about the dispossession of Native Americans from their lands in the public land story: It’s a different story. It happened before my story started. My story starts in the 1890s, when the United States began setting aside and holding onto large areas of land. The dispossession started with Columbus and ended not long after the Civil War. It’s a different story told in many good books, and I didn’t have the space to add to an already lengthy book by talking about that story.
I do talk about how important development in public land law and policy has been the emergence, rise, and revitalization of Indian sovereignty. The tribes and the Indian nations are seeking to exert more influence over how their ancestral lands, which are now public lands, are managed.
They’ve had quite a few successes that I recount in this chapter. Public lands today are managed increasingly with an eye toward the concerns of Native Americans. That has sometimes resulted in what’s loosely called “co-management,” although it doesn’t have a strict legal definition. The idea is that tribes play a role in the management process and in defining management policies for particular areas.
In a few cases, Congress has given lands back and passed statutes that said, “The tribe in this place has such a strong and equitable claim to those lands that they ought to manage them and have title to them.” Congress has done this a few times. In the future, we’re going to see more of this. It’s obviously significant that the Secretary of the Interior, who presides over the agencies that manage most of the public lands, is a Native American and the first Native American cabinet member in American history. She obviously has an interest in pursuing this.
There are often discussions and negotiations over what role a tribe or a particular group should play, because Native American history is very complicated. When I first started to work for the Department of the Interior, somebody said, “Remember this: If you know one tribe, you know one tribe.” They’re all different. You have a lot of variation with what’s happening in this area, but it is a prominent feature of modern public-land policy that I expect will continue.
Margaret Walls: I’m going to take the interviewer’s prerogative and ask you a question that isn’t covered to a great extent in the book. I’d like to ask you about climate change and the coming energy transition away from fossil fuels and what role you see public lands playing. As background for our listeners, about 25 percent of US oil and gas production currently comes from federal lands and waters. A lot of that land is offshore waters.
Many people see public lands as an opportunity for extensive renewable resource development, like wind and solar. Public lands also are home to some critical minerals, like lithium, that are necessary for batteries. There are a lot of intersections between public lands and the energy transition. What role do you see public lands playing in the future? What conflicts or challenges might there be?
John D. Leshy: One of my favorite aphorisms is that the Stone Age did not end because we ran out of stones; it ended because we found better ways of doing things. I think that everybody now recognizes that we have to decarbonize the economy. The fossil fuel age is not going to end because we run out of petroleum or fossil fuels. It’s going to end because we realize there’s a better way to do things—and if we’re to avoid catastrophe, we have to do these things.
Public lands overall have a powerful message along that line, because in the long sweep of history, they represent the political system making a collective decision that the longer-term interests of the United States outweigh the narrower, shorter-term interests. They illustrate that we ought to hold lands like Yosemite, Yellowstone, and many more for long-term public purposes. That’s exactly what we have to do in order to deal with the climate problem. It’s a good, powerful lesson and a political success story for how to do that.
Now, what specific role are the public lands going to play in this process? It’s already happening. We had a 40-year fight over whether or not to develop oil and gas in the Arctic National Wildlife Refuge, which is a large area of public lands on the Alaska North Slope. Congress said no in 1980. And then in 2017, on a strict party line vote, Congress opened it up to oil and gas leasing.
Right before it left office, the Trump administration held a big lease sale up there, expecting to raise billions of dollars for the state of Alaska and the federal government to close the budget deficit. Almost nobody showed up. All of the major oil companies stayed away, because they didn’t want the public backlash and the costs were high. Ironically, one of the reasons the costs are high is because the Arctic is warming three or four times faster than the rest of the country, and building infrastructure for this new kind of development is expensive because you have to build it on frozen ground.
More ironically, one of the pending proposals to open up more of the western Arctic outside of the Arctic National Wildlife Refuge to oil and gas leasing involves the use of chillers. There, fossil fuels are used to refrigerate the permafrost to keep it frozen longer so you can put in the infrastructure more cheaply to extract more oil and gas to warm the planet further. It’s bizarre.
The Arctic Refuge oil and gas sale went nowhere. It raised a total of $14 million in bids. They expected billions. A year later, the Biden administration put offshore tracks off of Long Island up for wind energy leasing and incited a huge response—more than $4 billion worth of bids. They had a late sale last week off the coast of California that raised almost a billion dollars. The market is speaking here in terms of what the public lands are and how they’re going to be used.
That’s not to say there aren’t going to be challenging problems. There are going to be some complicated, challenging problems. One of the big problems is going to be transmission because, as we redo the electrical system, we are going to need more transmission lines. Inevitably, that involves public lands, because public land is prominent. And, particularly in the West, you can’t build anything without crossing public lands.
One of the things I’ve learned over a long time dealing with public lands is that every acre has a friend. The “Not In My Back Yard” syndrome is as true on public lands as it is anywhere else. It is not that easy to build something like a transmission line. There are going to be people objecting to it, and that’s going to be a challenge for the government to work through. That’s going to be a flashpoint.
The critical minerals issue that you mentioned is also a flashpoint, although there’s a lot of misinformation out there about critical minerals, because you have to go mineral by mineral in terms of deciding what role the public lands might play. Some of the critical minerals are not found on public lands or are as plentiful on private lands as they are on public lands. It raises interesting issues that way.
The primary law that governs these critical minerals is the General Mining Law that passed in 1872 and is still on the books. Anybody who knows something about that law knows that it’s not a very good tool. It’s archaic and antiquated and has so much red tape connected with it that it’s not an efficient tool for developing minerals. Congress will most likely need to address that if it’s going to move into this new era.
Margaret Walls: I’m glad you got in a little discussion of the General Mining Law, which you also have a book on—published by Resources for the Future, I’ll add.
John, it’s been great having you here. We close the podcast now with our regular feature, which we call “Top of the Stack,” where we ask our guests to recommend more good content—whether a book, an article, a podcast, or a movie—to our listeners. So John, what’s on the top of your stack?
John D. Leshy: The book I would recommend is by a guy named Ross MacPhee, and it’s called The End of the Megafauna. I read it a couple of months ago and found it utterly fascinating. It addresses the science of trying to unravel the mystery of why, starting around 50,000 years ago, these huge animals that roamed over much of the earth died out. There’s a big debate as to how much Indigenous peoples had a role in this, how much climate change had a role in this, and more. This book is a good, interesting examination of the science and the debates over this and is illustrated with wonderful artistic renderings of these animals. It’s a great book.
Margaret Walls: I’m going to put that on the top of my stack. That sounds fantastic. John, thank you so much for coming in today. It’s really been great having you here.
John D. Leshy: Thank you. I really enjoyed it.
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