Tag Archives: illiberalism

Purdy on Public-Lands Populism

From the closing paragraphs of Jedediah Purdy’s Whose Lands? Which Public?

In its monuments proclamations, the Trump Administration asserts a sweeping power to reclassify fifteen million acres of protected federal land and hundreds of millions of marine acres. The proclamations already issued, which purport to strip more than a million acres of monument status, are redolent of this Administration’s illiberal and procedurally dubious tendencies. They elevate to federal policy the themes and goals of a strand of Western populism that is tainted with outlawry and racism. The proclamations also cater to extractive industries, particularly uranium, oil and gas, and coal, in ways that resonate with the Trump Administration’s relentless mixing of public wealth and private interest–in a phrase, its penchant for corruption….

Corruption is not a novel concern here. For well over a century, the field [of public-lands law] has been shaped by recognition that precipitate and opportunistic privatization is a perennial temptation in a body of law that governs nearly a third of the country’s acreage and a great deal of its natural wealth. The Executive branch’s capacity for rapid, unilateral, and obscure action makes it especially suited to this form of misappropriation. Recognition of these facts is built into public-lands law in the long-standing asymmetric preference for Presidential power to preserve lands over Presidential power to privatize them…. The kind of opportunistic favoritism that the Trump proclamations display is precisely what public-lands law has been structured over centuries to avert. These proclamations are paradigms of why unilateral Presidential reclassification toward privatizing natural resources would be anomalous in public-lands law. A Court would properly consider the anomaly in deciding whether the power to create national monuments should imply the power to unmake them.

In the case of the Trump proclamations, the question of opportunism and favoritism in reclassification decisions interacts with the influence of racially inflected nationalism and localist outlawry on the Administration’s priorities. Here too, as with corruption, these themes are not novel or alien to public-lands law. Extractivism, settler-colonialism, and the priority of property-style resource claims and local control are, in key ways, continuations of the themes that governed the first hundred years of public-lands law. Their constituencies have never left the field. It is partly because of these constituencies’ persistent opposition to preservation agendas that public-lands law has always been inflected by disputes over national identity, from the utilitarian nationalism of Gifford Pinchot and Theodore Roosevelt’s national forests to the national parks’ much-advertised status as the American answer to Europe’s cathedrals to the claim that wilderness preservation would keep the country from becoming a “cage.”

Here too, public-lands law has been shaped by grappling with the themes that the Trump proclamations raise. And here too its shape contains a good part of an answer. The public-lands populists’ claims on behalf of privatizing and extractive policies already have a specific legal expression that is deeply embedded in public-lands law: in long-standing public rights-of-way across the federal lands of the West, in mining and mineral-leasing regimes, in grazing rights, and in the default policy of extensive public recreational access — and, above all, in the private real estate that was substantially created under federal privatization schemes. In other words, these claims do not come from outside public-lands law. They are part of it, and they occupy a specific place in its structure. Where they have been vested, they tend to persist within new regimes that otherwise emphasize preservation over extraction and economic use. On multiple-use lands, they play a prominent part in the statutorily mandated planning process. Where, however, they are not vested but take the form of inchoate expectations of continued access, they yield on categorically protected lands: new privatizing and extractive claims are almost uniformly excluded under preservation regimes. For such claims to get traction again, the lands themselves must be reclassified. That reclassification is generally reserved to Congress. If the Antiquities Act authorizes the President to hand a victory to public-lands populists by reclassifying hotly contested lands, then it is a dramatic anomaly in public-lands law. It would authorize constant perennial and shifting reopening of precisely the disputes that the field exists to structure and resolve, and through a mechanism that is procedurally orthogonal to the rest of the field.

The Trump proclamations raise a novel question for interpretation of one of the most important public-lands statutes. Like much that this Administration does, however, it is not so much new as it is an effort to reopen questions that many of us had hoped were closed. In this case, they should remain closed.