Public land is not ours: The Public Trust Doctrine

Entering (my) Public Lands

There is a gross misconception flying around about public land and it is this: that public land equates to ownership, the same way private land is owned. That belief is false. Our public lands, contrary to loud voices like the Bundy’s, are not ours. Public equates to use and access. It is a legal principle stipulating that certain natural and cultural resources are preserved for public use by the government whose job it is to protect and maintain them for that use.

Unlike private property that can be closed off to the public, public lands are owned and held in trust by the government as a guarantee to the citizens of this country, both present and future. The Public Trust Doctrine is the philosophy underpinning and guiding this principle. Though this idea was popularized by President Teddy Roosevelt who believed it was unethical to use up all of the Nation’s land and natural resources by current residents, it has roots in ancient Rome and the Magna Carta, which was carried forth and became a part of common law here in the United States. It is a conservation ethic that is still enforced by land management agencies today, whose job it is to manage those lands with the future in mind.

“No one user has the right to abuse or dispose of the property. Any dealing with the property has to take into account the entitlements of others. Besides, users of common property share rights to the resource and are subject to rules and restrictions governing the use of those resources (1).”

That is why the stunt to wrestle public lands from the Federal Government by Utah and other Western states is so egregious, insidious, and unethical. They are not only trying to steal our access to the land, but the access of future generations. Furthermore, they are trying to destroy a centuries old tradition that has connected public rights to natural resources that include water, air, minerals, animals, and the land. The only way individual western states can manage such huge swaths of land is by selling it to private enterprise and business, and once it is private, that access will be gone.

So no, it is not our land. It is not there for us to use whenever and however we see fit because we pay taxes to the government to manage it. It is there for your use and for the use of your children, their children, and each succeeding generation after them – at least, so long as we do not let greedy politicians steal it from us. This is why it is so imperative that we act as individual stewards of this trust, not only when we use the land, but when we vote and hold our elected officials accountable. If we are not careful, politicians will sell our birthright to corporations.

For an example of what could be in store for us if Utah politicians and others like them get their way, one need only look to Montana. From a New York Time’s news service report in 1993, Montana’s Sky and Its Hopes Are Left Bare After Logging:

“Throughout the 1980’s, the Champion International Corporation went on a tree-cutting spree in Montana, leveling entire forests at a rate that had not been seen since the cut-and-run logging days of the last century.”

“Now the hangover has arrived. After liquidating much of its valuable timber in the Big Sky country, Champion is pulling out of Montana, leaving behind hundreds of unemployed mill workers, towns staggered by despair and more than a thousand square miles of heavily logged land.”

“The deal has revived a century-old complaint about large, distant corporations exploiting Montana for its natural resources and then leaving after the land is exhausted.”

“Champion came in here promising they would be here forever, and then just overcut all the trees and left,” said Dr. Thomas Power, chairman of the economics department at the University of Montana in Missoula. “We are left paying the piper.”

“For Champion to leave has been very difficult, and we are very sympathetic to those people and very sad,” said Tucker Hill, a spokesman for the company. “But I don’t think you can hold a company’s feet to the fire for everything they did over the last 20 years (2).”

And therein lies the problem. Companies cannot really be held accountable. Contrary to popular belief, a company is not a person. Just try getting one sentenced to prison. In response to my suggestion that we err on the side of caution when discussing proposed uranium mining at the Grand Canyon, a county commissioner told me that there were laws in place to make companies clean up or pay for their contamination after they leave. He is right, there is a law, CERCLA, but one needs only look up superfund sites and who is paying to clean them up to see that the law is not working. See the Fox River Litigation, Orphan Mine Grand Canyon, or the Atlas Uranium Mine Moab for some examples. The problem is that most companies either fight paying for it in court or just file bankruptcy. Either way, they leave the bill to the tax payer. So not only do we end up with contaminated and polluted land, we get to pay to restore and heal it too.

As Wendell Berry said, “…the great, centralized economic entities of our time do not come into rural places in order to improve them by creating jobs. They come to take as much of value as they can take, as cheaply and as quickly as they can take it. They are interested in job creation only so long as the jobs can be done more cheaply by humans than by machines. To put the bounty and health of our land, our only commonwealth, into the hands of people who do not live on it and share its fate will always be an error (3).”

So when we talk about “our” public lands, we are referring to the treasure trove of National lands that we have access to, and we are talking about lands held in trust for our children. All the adventures, the memories, the moments of awe, quiet, and stillness, will be preserved in each succeeding generation that enjoys them and who will carry forth the enduring idea that keeping some things open and unfettered has value. We have a vested interest in protecting these lands, caring for them, and ensuring that they remain public – as stewards or trustees, not owners.

In ancient Rome the Roman Emperor Justinian held that the sea, the shores of the sea, the air and running water was common to everyone and could not be appropriated for private use. In England, the Magna Carta made this principle law when nobles made the case that obstructing free access to rivers infringed on their rights. And in the United States the court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters, or the soil and water, animals and minerals, over those public trust lands. We have a rich legal and ethical tradition of ensuring public rights to our public lands. We should safeguard them as trustees and ensure that their legacy lives on as living proof of one of the greatest ideas implemented by the United States of America.

The most fundamental duty that a trustee has is the duty of loyalty and an obligation
to act solely in the interest of the beneficiaries.

Sources:

(1) Patricia Kameri-Mbote, Law Environment and Development Journal: http://www.lead-journal.org/content/07195.pdf

(2) Timothy Egan, The New York Times, Archives: http://www.nytimes.com/1993/10/19/us/montana-s-sky-and-its-hopes-are-left-bare-after-logging.html

(3) Wendell Berry, Another Turn of the Crank