Ground Shift is purposed to help “develop creative, durable, and transformative ideas to shape the next century of public land and water stewardship in the United States.” Though I won’t defend the status quo, I will speak on behalf of some of the laws and processes now being criticized and suggest caution in pushing public land law reform during what in essence is another Gilded Age, the late 19th-century era when business and industry dominated American life and politics. That era posed similar threats to federal public lands but was followed by “a wave of progressive reform” that fundamentally reordered “the social compact between citizens and their government.”
Instead of compromising our foundational conservation laws to build tenuous political support with dubious allies, we should make these laws more substantive and equitable. The real focus of reform should instead be on the laws and policies that are enabling powerful private interests to seize an ever-growing share of power and resources over our public lands and waters, at the expense of citizens, Tribal nations, and communities. Reform efforts, therefore, should begin with the most antiquated statutes, working up from the 1872 Mining Law and towards new authorities that restore tribal connections and safeguard the public interest in public lands.
The Rupture
The underlying premise of Ground Shift, as I understand it from Tracy Stone Manning’s essay, is that “when the smoke clears, much of the architecture underpinning the management of our public lands and waters will be in ruin [and] therein lies the opportunity.”
I too see the situation as dire and transformational. As stated in Davos by Mark Carney, Prime Minister of Canada, “We are in the midst of a rupture, not a transition.” Though Carney is speaking of international affairs and a fading “rules-based order,” his assessment and strategy seems applicable to Ground Shift’s focus on federal public lands and resources law and management.
What struck so many about Carney’s speech is the recognition that “the power of the less powerful begins with honesty” and the recognition that power asymmetry lends itself to a tendency amongst the less powerful “to go along to get along, to accommodate, to avoid trouble, and [to] hope that compliance will buy safety.” Carney rejected this view and borrowed from Czech dissident Václav Havel’s thoughts about the powerless participating in systems and rituals they privately know to be false. Havel called this "living within a lie,” and Carney used this framing to propose a new order based on core values and by “building coalitions that work, issue by issue, with partners who share enough common ground to act together.”
The rupture now evident in public lands deserves a recognition that more accommodation, capitulation and compromise—to go along to get along—with those currently in and adjacent to power is to continue living within a lie.
The rupture now evident in public lands deserves similar honesty and a recognition that more accommodation, capitulation and compromise—to go along to get along—with those currently in and adjacent to power is to continue living within a lie. To be certain, we have profound problems and pathologies in our management of public lands and its resources, from millions of acres of public lands failing range health standards, with millions more not even assessed, to roughly 1,700 species found in the emergency room that is the Endangered Species Act (ESA). Resonating most deeply with me are the federal “disaster determinations” for salmon on the Yukon and Kuskokwim Rivers in Alaska and the precipitous declines of other subsistence-based resources in the State, such as Arctic Caribou. These are, in essence, disaster declarations for the species and the Native Alaskans that have lived on and stewarded these resources since time immemorial.
To live within a lie is to keep moving towards the center to repeatedly appease and accommodate the unchecked corporate and special interests and predatory politics that is the very cause of these and other problems. That such a statement will be marginalized by some as radical tells you just how far our politics has shifted in recent years. I write this not as a radical or non-compromiser, but as a political moderate, independent and nerdy policy analyst—someone chronically fatigued with the excesses of both political parties, the tired talking points and tactics of the big green environmental groups, and the litigate-first mentality of some public land advocates. And I too desperately want to end the extreme pendulum swings that characterize public lands management, a political whipsawing that leaves in disarray our land, wildlife and the communities that depend on them.
In Defense of Our Core Public Land and Conservation Laws
As a student of public lands and wildlife law, history and politics, I have reservations about rethinking their governance when in the eye of this hurricane and without any pre-established ground rules, parameters and emergency rip cords. And I respectfully disagree with the central assertions and presuppositions made in one of Ground Shift’s opening essays by Brian Yablonski of PERC:
However imperfect, the purposes behind the establishment of these and other laws are more relevant and necessary today than they were when first created by Congress. Before the National Environmental Policy Act (NEPA), some federal agencies did not have the authority to even consider the environmental costs of their actions. The statute’s core principles and functions—to look before you leap, to infuse environmental considerations into agency decision making, to disclose information to the public, to consider alternatives to proposed actions, and to enable informed public participation—have saved millions of acres from dumb programs, plans and projects while making more socially acceptable decisions even better. Yes, NEPA needs work. But its core deficiency is not the process, public participation and analysis required of it but rather its lack of substantive and enforceable environmental protections.
Yes, NEPA needs work. But its core deficiency is not the process, public participation and analysis required of it but rather its lack of substantive and enforceable environmental protections.
As for the ESA, its purposes are the opposite of inaction: “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and for federal agencies to use “all methods and procedures which are necessary to bring [listed] species to the point at which the measures provided pursuant to the Act are no longer necessary.” Though I agree with John Podesta and Drew McConville that we are confronting a biodiversity crisis, the answer is most certainly not “scaling up clean energy” and a “massive infrastructure buildout” on public lands, even if we get it right and do it as carefully as suggested. Furthermore, to argue that the ESA is failing to recover species quickly enough and so we must once again make yet more concessions to industrial and commercial interests to find common ground misses the basic trajectory of the statute and its implementation since the Supreme Court’s famous snail darter decision in Tennessee Valley Authority v. Hill (1978). This is when the prohibitive uncompromising pitbull version of the ESA started its evolution towards a more permissive and accommodating statute, from Section 10 permitting schemes (e.g., habitat conservation plans) to the now ubiquitous use of 4(d) listing rules, which permit tailored, and sometimes weakened, protections for species listed as threatened. This isn’t all bad in my opinion, but the pervasive argument that the ESA needs an overhaul because it isn’t recovering species quickly enough is like hobbling a horse and then complaining about its performance.
“Planning, process, and litigation are crushing the soul of much needed conservation action,” writes Yablonski, who invokes Ezra Klein and Derek Thompson’s Abundance for the argument that the regulatory state is stifling not only the creation of affordable housing and transportation infrastructure, but also “the management of our bedrock public lands.” The problem here is that public lands, at least those still intact and functioning, already epitomize abundance, from providing clean water to wildlife habitat to myriad other ecosystem services. This natural capital doesn’t need more unfettered private capital or a dismantling of rules and regulations to accelerate more questionable development and infrastructure. This isn’t building more affordable housing on private lands in California; these are public lands. The distinction between public and private is why Congress explicitly instructed the Bureau of Land Management (BLM) and U.S. Forest Service (USFS) to make decisions weighing “the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”
Process and Public Participation Revisited
As for “planning, process and litigation,” I’ll offer a counterview based on democratic principles and the concept of accountability, core values that catalyzed public lands reform of the 1960s-70s and are now embedded in our foundational public land laws. That history is instructive now. Of course, such criticism is not new, but it hits now in an altogether different context, one where the public is being systematically disenfranchised from having a say in the management of its public lands. This is not hyperbole. Consider recent actions and proposals by the USFS, an agency intent on either eliminating public participation altogether or restricting it to truncated ten or twenty-day comment periods. No longer will the public even be notified of projects and activities in the agency’s schedule of proposed actions (SOPA), a simple but important mechanism designed to provide the public with a short summary of project proposals undergoing environmental analysis, before the work is underway.
We are back to the days when the USFS held the public in contempt and defended its actions with an elitist institutional arrogance. Take, for example, the current Forest Service Chief’s initial direction in 2025 to rescind the 2001 Roadless Rule: “It’s time to turn the page on the Roadless Rule and return land management decisions where they belong—with local Forest Service experts who best understand their forests and communities.”
Such contempt of the public was a dominant theme in the events leading up to passage of the National Forest Management Act (NFMA) in 1976. A catalyst for that reform was the clearcutting and terracing controversy on the Bitterroot National Forest in Montana, where local citizens rose up and challenged the agency’s “trust us, we’re the forestry experts” mentality and the prioritization of sawtimber production. The “Bolle Report” of 1970 famously assessed this situation and framed the problem in terms of the agency’s arrogant posture towards the public and local citizens:
Dean Bolle and members of his “Select Committee” on a “University View of the Forest Service” were even harsher and more direct in subsequent assessments of what caused the controversy. In taking aim at the foresters of the day that had no time or patience for public participation and process, Bolle writes that “foresters are no more competent to set goals for society than any other group of citizenry or citizens [and] unless foresters can accept this simple fact they have no basis for participation with anyone, except as professional high priests.”
This posture manifested itself in the formation of NFMA as well, with, as scholars have described, the USFS having apparently one goal in shaping the statute: “to maintain maximum discretion by saying as little as possible in the regulations.” A prominent member of the Bolle Committee and another well-regarded Forestry Dean, Richard Behan, goes even further to argue that the antidemocratic stance of the USFS, both pre and post-NFMA, is inextricably tied to corporate interests “that have evolved ever more refined means of preying upon the wealth and assets of the public at large.” (Richard Behan, Plundered Promise, 2001)
Planning can be one of the most effective ways for the public to shape and inform management from the bottom-up, from a local valley or watershed to a game management unit.
To be sure, criticism of planning, at least that done by the USFS and BLM, is warranted. For better and worse, I spent four years on a federal committee helping advise the USFS on the implementation of its 2012 NFMA Planning Regulations and most of my career helping citizens and Tribes navigate these processes. There is a lot to dislike about planning, but most of it is not due not to NFMA or its regulations; rather, it stems from the USFS’s hard-wired penchant to maintain its multiple-use discretion instead of providing regulatory certainty and a social contract with those engaged in the process. These problems notwithstanding, planning can be one of the most effective ways for the public to shape and inform management from the bottom-up, from a local valley or watershed to a game management unit. This is why it is so appalling to watch Congress use the Congressional Review Act (CRA) to essentially obliterate resource management plans prepared by the BLM and the public and Tribal Nations it serves.
A Reform Reading List
To live within a lie is to offer yet more accommodation instead of addressing the corporate influence and self-dealing that is now the defining feature of public lands management. What’s left of our public land agencies after soon-to-be trillionaire Elon Musk’s DOGE wrecking ball is now being directed or influenced by either industry interests, those with conflicts of interest, or by leaders that want to divest the public of its property.
Instead of casting blame on NEPA, the ESA, the National Historic Preservation Act and other conservation statutes, how about new laws, regulations and thinking pertaining to transparency, ethics, regulatory integrity, and whistleblower and civil service protections?
The recommended reading list for any reform agenda should not be the soon-forgotten Abundance or Friedrich August Von Hayek or some CEO or Secretary of the Interior writing about public lands as tradable “assets” to reduce the debt and “unleash America’s balance sheet,” but rather Aldo Leopold, Robin Wall Kimmerer, Bernard DeVoto, Charles Wilkinson, and the far drier political science literature on agency capture and political decision making during the last Gilded Age.
Channeling indigenous voices before him, Leopold’s Land Ethic and the concept of community could be our North Star in moving forward. His “A-B cleavage” in natural resources management can help us navigate the next period of reform; Leopold identified a distinction between those viewing public lands as nothing more than a commodity, akin to an agronomic-oriented forester growing cabbages, and those viewing the land and its functions as something broader and interconnected.
Robin Wall Kimmerer traces these interconnections back to the origins of public lands, all carved from aboriginal territory:
Kimmerer—acknowledging the history, time and biogeochemistry that unites us all—asks the all-important question in moving forward: “What kind of ancestor do you want to be?”
If Leopold and Kimmerer provide moral ballast, then Bernard DeVoto can guide us through the politics of this endeavor, just as he did when exposing the various public land grabs and fraudulent liquidation schemes of the 1930s and 1940s. He’d also warn of the perils of devolving, without safeguards and accountability mechanisms, yet more power and influence to economic and corporate interests operating on the federal estate. DeVoto would undoubtedly unleash his sulfuric commentary on Senator Mike Lee and his ilk and a BLM that is quite literally giving itself and its management obligations over to a concentrated subset of extraordinarily wealthy public land grazing permittees. Some of the same permittees that choke off public access to federal lands at checkerboarded corners. Instead of “reimagining” our public land laws because of their purported inefficiencies and “tenuous political support,” he’d fight like hell and remind his readers, as he did in the 1940s, “This is your land we are talking about.”
A Starting Point for Public Land Law Reform
As for where to begin any discussion of public land law reform, my vote is for what law professor Charles Wilkinson calls “the lords of yesterday”: “[A] battery of nineteenth-century laws, policies, and ideas that arose under wholly different social and economic conditions but that remain in effect due to inertia, powerful lobbying forces, and lack of public awareness.” (Crossing the Next Meridian, 1992)
Instead of starting with the conservation statutes of the 1960s and 70s, how about we begin with the 1872 General Mining Law, the lurking anachronism now poised to ruin yet more public and tribal lands and waters in the name of critical minerals. We could also start with the full sweep of public land, resource and wildlife laws that were enacted during the federal Indian policy era of allotment and assimilation (1887-1934): laws authorizing cooperation and revenue sharing with State governments while altogether disregarding the Tribal rights and interests rooted in the ancestral territories that would become public lands. A time for reconciliation.
I’d also include in this reform syllabus a refresher on agency capture and the type of patronage and corruption that defined political decision making in the last Gilded Age. Say what the “new governance” scholars will about the maladaptive nature of some public land and environmental laws, but they frequently provide the last bulwark and weapon in challenging those agencies captured by the special interests they are supposed to be regulating. Instead of casting blame on NEPA, the ESA, the National Historic Preservation Act and other conservation statutes, how about new laws, regulations and thinking pertaining to transparency, ethics, regulatory integrity, and whistleblower and civil service protections?
Easier yet, how about a repeal of the Congressional Review Act (CRA), the destructive weapon now being used to prioritize coal, oil and gas, and mineral development regardless of the processes required of federal land law and the role of public participation in federal rulemaking and planning. It is a short-sighted weapon favored by industry that “takes what’s best about the rulemaking process and replaces it with what’s worst about Congress.” A case study in nihilism and dysfunction, once a simple majority of Congress disapproves of a “rule” using the CRA, the law forbids replacing it with a new rule that is “substantially the same,” thus paralyzing the effective and orderly implementation of laws enacted by Congress.
Holding the Line
This new Gilded Age also gives me pause about convening some sort of public lands law review commission given the chances the undertaking would be hijacked by a small minority of Congress members and the billionaires that put them and keep them in office. This idea, kicked around for years, makes sense in the abstract but comes with untenable risks and the history of the last one raises one red flag after another.
Like the public land commissions before it, the 1964-1970 Commission was dominated by an agenda-driven politician that was out of step with prevailing public attitudes about public lands: Wayne Aspinall, the powerful representative from western Colorado. Used as a bargaining chip in the politics preceding the Wilderness Act of 1964, Aspinall pushed for the Commission to re-empower the commodity and economic interests operating on public lands. Though we often view the Commission’s work as the precursor to Congress’s decision in 1976 to retain federal lands in public ownership, it favored disposition of public lands wherever justifiable and was heavily skewed towards commodity users—reasons why it was so criticized by conservation interests and then “ignored by almost everyone.” (Samuel Dana & Sally Fairfax, Forest and Range Policy, 2d ed. 1980, p. 235)
My hope, more broadly, is that the reform undertaking comes with new voices and a recognition that however clunky and at times problematic, our foundational public land laws—and most importantly, the values on which they are based—should be fortified, strengthened, and made more equitable, not sold out.
When it comes to discussing reform of public lands management, count me in. Like other writers for Ground Shift, I have my share of ideas, starting with Tribal management and the sharing of public lands revenue with Native Nations and ending with a new compatibility framework for multiple use management. I’d also like to see guaranteed public access at corner crossings to be part of the “terms and conditions” for receiving and keeping federal grazing permits. But my hope, more broadly, is that the reform undertaking comes with new voices and a recognition that however clunky and at times problematic, our foundational public land laws—and most importantly, the values on which they are based—should be fortified, strengthened, and made more equitable, not sold out. There is also real danger in “reimagining” their management when in the midst of such turmoil, corporate control, agency capture and the nihilistic destruction of our public land institutions and processes.
Bold thinking and repair, yes. Backsliding, no.
To be fair, my criticism requires that I, myself, approach the rupture in public lands with similar honesty. To live within a lie would be for me to suggest that the status quo is working or that we pick up the pieces after this administration and start laying the groundwork for a Project 2029, brought to you by the same voices and perspectives. A new order is indeed called for, but it needs to be built not on fear, apologies and yet more accommodation—our current laws do plenty enough of that—but by “building coalitions that work, issue by issue, with partners who share enough common ground to act together.” If so, maybe then this Gilded Age can be followed by the type of reform, conservation thinking and public lands advocacy that followed the last one.
