The Management of Public Lands and Wildlife - Module 5 of 5

The Management of Public Lands and Wildlife - Module 5 of 5


Module 5: The Management of Public Lands and Wildlife


The United States government has crafted a suite of laws designed to protect, manage, and restore wildlife species and public lands. Our last module provides an overview of the legal systems in place to protect America’s wildlife and public lands. We’ll focus on the agencies within the federal government and also national laws passed to protect publicly-managed lands.


Wildlife Protection and Public Land Conservation

The federal government owns approximately 640 million acres of land in the United States, which amounts to just shy of one-third of the entire nation. These lands are administered by federal land management agencies according to federal statutes that designate public lands for various uses. Throughout the American government’s history of public land use management, federal policy has attempted to strike a balance between ensuring that conservation and wildlife protection goals are achieved while good use is made of economically valuable land.[1]  

President Theodore Roosevelt, a famed conservationist, oversaw the passage of the American Antiquities Act of 1906, the first law that required the conservation of sensitive archaeological and natural sites on public lands.[2] In addition to creating the United States Forest Service, the Antiquities Act established 150 national forests, 5 national parks, 18 national monuments and dozens of bird and game preserves spanning millions of acres of public land.[3] President Roosevelt’s legacy of conservation has been carried on over the last century, and today the Forest Service, together with the U.S. Fish and Wildlife Service, maintain nearly 300 million acres of land in conservation for the protection of plants and animals.[4]

Wildlife protection and public land conservation go hand-in-hand because plants and animals need healthy ecosystems to build their habitats. Public lands, including national forests, monuments, preserves, and grasslands, provide protection from the environmental degradation that often results from economic development. However, not all public lands are managed for conservation. Rather, the U.S. government manages public lands for economic use, including logging, road building, oil and gas drilling, livestock grazing, mining, fire suppression and managing climate change.[5] Agencies within the Department of the Interior and the Department of Agriculture are responsible for the management of the vast majority of public lands, often utilized for either preservation, recreation, or development.


Managing Conflicting Public Land Uses

American public lands are extremely valuable for economic, recreational and natural purposes. That some of these uses conflict with each other is apparent, such as in the cases of mining extraction operations and wilderness conservation. But with more than 500 million people visiting America’s national parks, monuments, wildlife refuges and recreational sites every year, even seemingly consistent land uses can butt up against one another.[6] Conservation, recreation and economic interests compete with one another for preferential treatment in federal land use policy, and both lawmakers and courts have attempted to strike a balance among these competing values.  

One example of the clash in land use priorities is the widespread problem of hazardous abandoned mines on public lands now set aside for recreation. While federal environmental laws now require most of these sites to be cleaned up, until the late twentieth century, mines were simply abandoned once they became unproductive. As a result, there are over 33,000 abandoned mines known to cause safety and environmental hazards to the public on federally-managed lands. To address this ongoing problem, Congress earmarked over $100 million to clean up abandoned mines in the American Recovery and Reinvestment Act passed during the Obama administration.[7]

While it’s easy to see how mining and extraction operations can interfere with conservation and recreation, recreational activities and conservation priorities often interfere with themselves. For example, maintaining a body of water for recreational purposes opens potential conflict between fishermen and boaters. Setting aside a piece of land for conservation may block naturalists from accessing it to view the wildlife and the natural environment. As a result of competing priorities in the management of federal lands, the government is responsible for accommodating a variety of stakeholders. This is achieved through a diversified management system that includes multiple federal agencies.

 

Federal Agencies Oversight and Management of Public Lands

Public land is managed for multiple uses, including wildlife conservation, energy development, natural resources and recreation. The way the land is designated determines how the land is managed. Several federal agencies are responsible for overseeing public lands on behalf of the American people. The most prominent federal agencies overseeing public land use are the Bureau of Land Management, the U.S. Forest Service, the U.S. Fish and Wildlife Service and the National Park Service. [8]

The Bureau of Land Management works to promote the restoration, enhancement and protection of more than 3,000 species of fish, wildlife and invertebrates, and their habitats. The goal is to practice proper management of resources and to keep the working public lands healthy and productive.[9] This requires the agency to balance conservation and recreation goals against the economic value of natural resource extraction on public land. How an agency manages public lands depends on the land’s designation as a national monument, national forest, national park or national wilderness area.

National monuments, usually designated under the 1906 Antiquities Act, are protected land, water and historical areas. Landscapes can be designated as public land through this act, which is an executive power to protect cultural and natural resources. Several agencies are responsible for the management of national monuments depending upon their location and significance. However, most designated federal lands are managed by individual agencies.  

The National Forest Service and the Bureau of Land Management work together to manage America’s national forests. National forests are open places for hunting and fishing. Additionally, national forests are also leased for grazing, logging, oil and gas operations and mining. There are 193 million acres that make up the National Forest System, and 258 million acres of deserts, grasslands, scrublands, western forests, wetlands and Artic wilderness currently under Forest Service management. These open spaces provide places for people to connect with nature while providing valuable habitats for wildlife and plant life. Likewise, they also house valuable oil, gas, and mineral resources that the government is responsible for maintaining for the American people.  

The National Park Service within the Department of the Interior manages America’s national parks. The role of the National Park Service is to protect national parks and monuments and to keep the parks accessible for the recreational use of the public. Unlike national forests, which can be licensed for economic use, national parks are managed expressly for recreational and conservational purposes. National parks strictly prohibit hunting or economic activities unrelated to tourism and recreation. As a result, the National Park Service works to conserve and enhance the ecosystem, wildlife and cultural and historical heritage of the landscapes it manages.  

Wilderness areas have the strictest form of protections. These public lands can only be used for non-invasive recreation activities and scientific research. The Fish and Wildlife Service is dedicated to the management of fish, wildlife and natural habitats. It is a key player in regulating, implementing, and processing actions and permits around our public lands and wildlife.[10]  

Federal management of public lands attracts a great deal of controversy. Conservationists, recreationalists, and those looking to extract valuable natural resources often compete with one another for land rights. These conflicting uses gave rise to numerous policy debates and the enactment of a suite of federal and state statutes designed to protect wildlife, conservation and recreational uses of public lands.


The Endangered Species Act

Over time, Congress has passed a suite of federal laws meant to protect the health of our environment and the welfare of our wildlife resources. One major law is the Endangered Species Act, designed to protect wildlife and key habitat areas that have become threatened or endangered. There are 380 species listed under the Endangered Species Act, and the conservation of public lands is critical for recovering imperiled species.[11] However, the Endangered Species Act is not the only law that provides critical protection for wilderness and natural resources. The National Environmental Policy Act and National Forest Management Act also protect our public lands from the detrimental impacts of economic or recreational use.    

The Endangered Species Act, signed into law in 1973 by President Richard Nixon, provides a framework for conserving and protecting wildlife, plant life, ecosystems and ultimately, the natural systems that all humans depend upon.[12] It was among the suite of environmental laws passed in the early 1970s, and it’s a critical part of America’s modern environmental protection framework. The Endangered Species Act can halt economic development projects if they are found to have an adverse impact on protected species. This precedent was established by the Supreme Court in the landmark case of Tennessee Valley Authority v. Hill, in which the Endangered Species Act was used to prevent the construction of a major hydroelectric project that would have destroyed the habitat of a small fish that had been listed as endangered under the law.[13]  

The goal of the Endangered Species Act is to protect threatened and endangered species and create a recovery plan to increase the population of the species. It prevents anyone from harming species listed as threatened or endangered, prohibits import or export of endangered species, protects the land and water crucial to species recovery and creates productive recovery plans for endangered species.[14] In so doing, it provides balanced conservation solutions for government agencies, landowners, interest groups, and the public. Fortunately, the Endangered Species Act’s program has been largely successful.  

Species recovery is a long process and requires many factors to align for success, including the elimination of threats to the species and its habitat, securing food availability, sustainable reproduction rates and mitigating climate change disturbances. The Endangered Species Act relies heavily on voluntary agreements with landowners to find a balance between protecting critical species’ habitats on their land with productive use of the land. Despite these challenges, however, the Endangered Species Act has provided protection to more than 1,400 plant and animal species and to millions of acres of forests, beaches, wetlands, and deserts across the country. Despite the odds, 95 percent of all species listed under the Endangered Species Act have avoided extinction.[15]

For a species to gain protection, it must first be listed as threatened or endangered by an official agency process. The Endangered Species Act defines threatened species as those “likely to become endangered species within the foreseeable future throughout all or a significant portion of its range.”[16] The public, interest groups, or state agencies can propose a species as a candidate through a petition, which is reviewed by either the Fish and Wildlife Service or National Marine Fisheries Service.  

Once the Fish and Wildlife Service or National Marine Fisheries Service lists a species, it must also designate a critical habitat to protect the ecosystems that the listed species relies upon for survival. If a federal agency plans any action that may adversely affect a species, it is required to consult with the Fish and Wildlife Service and National Marine Fisheries Service before carrying out any action. After the consultation, the Fish and Wildlife Service issues an opinion stating whether the proposed action will modify, adversely affect or jeopardize a species or its habitat. If the action will result in a negative impact, the agency must find a way to mitigate the harm to avoid violating the protections of the Endangered Species Act.  

A violation of the Endangered Species Act results in what is called a “taking.” A “take” is any activity that harasses, harms or kills a listed species. Private landowners may be allowed to conduct “takings” if they obtain special permits, which may be issued if the taking is incidental to a lawful activity, such as the development of necessary infrastructure or farming activities. However, a permit to take a species under the Endangered Species Act is not a license to harm or kill wildlife at will. Rather, a take permit is issued upon compliance with wildlife and land use protection programs, include a Habitat Conservation Plan, Candidate Conservation Agreements with Assurances or Safe Harbor Agreements. [17]

 

National Environmental Policy Act

If private actions affecting public land use do not result in the taking of a threatened or endangered species, they can be carried out so long as they do not break any other federal, state or local law. The same cannot be said for public actions that affect public lands. The National Environmental Policy Act, or NEPA, is a national law used to mitigate major federal agency actions that may impact the environment. It was put into place to ensure that federal agencies consider environmental impacts their actions, projects and decisions may have. NEPA also requires federal agencies to report relevant findings through an Environmental Impact Statement or an Environmental Assessment.  

NEPA requires agencies to prepare an Environmental Assessment or Environmental Impact Statement of a proposed project, looking at the economic, social, health, cultural and safety impacts of a project. Most environmental reviews also require public comment and participation, so citizens, interest groups, and businesses can participate in creating public land use policy under this law. A major environmental impact during a NEPA review does not prevent a federal project from moving forward in-and-of itself. Rather, NEPA is an informational statute designed to ensure that environmental, archaeological, or cultural impacts of a federal land use action are identified and recorded.[18]

One of the most common federal actions subject to NEPA review is the licensing of natural resource extraction, such as the mining of precious metals, the extraction of fossil fuels or the logging of national forests. The National Forest Management Act of 1976 calls on the Secretary of Agriculture to assess forests and to develop a program based on “multiple-use, sustained-yield” principles. The “multiple-use, sustainable-yield” principle looks at the sustainability of each use while the land is subjected to the other use. No greater weight is assigned to one use over the other. The act requires the management of forests for renewable resources and the implementation of a resource management plan.[19] For example, logging and re-forestation might both be legitimate uses for forests, but before allowing logging, the Secretary might need to determine the extent to which logging could be allowed without frustrating the goal of re-forestation.  

The Federal Land Policy and Management Act of 1976 governs the management of federal lands used for mining and natural resource extraction. This law represents an important counter-balance to the General Mining Law of 1872, which gave U.S. citizens extensive rights over subsurface mineral extraction on public lands. The Federal Land Policy and Management Act secures public lands for “multiple use management,” which has been interpreted by the Supreme Court to prevent any one activity from causing undue harm or degradation to the public land at the cost of another.[20]

 

Conclusion

The federal government and the public work together to implement forward-looking policies, plans, and projects that conserve and restore habitats for all wildlife and plant species. However, conservation priorities are just one of many competing public land uses that the government must balance. To allow for conservation, recreational, and economic land uses to coincide peacefully, the federal government has enacted many laws and regulations directing the decision-making of agencies responsible for the management of federal lands.

            Thank you for participating in LawShelf’s video-course on the basics of environmental law. We hope that you now have a much better idea of the regulatory landscape and the tapestry of laws and regulations that the US government has set forth to try to protect the environment, but also maintain economic interests. We hope that you will continue to take advantage of LawShelf courses in other areas. Best of luck!



[1]Federal Land Ownership: Overview and Data, Congressional Research Service (March 2, 2017) (available at https://fas.org/sgp/crs/misc/R42346.pdf).

[2] The Antiquities Act of 1906. Ronald F. Lee, National Park Service, Department of the Interior, Washington, DC. (2000) (available at https://www.nps.gov/archeology/pubs/Lee/index.htm).

[3] Theodore Roosevelt and Conservation, The National Park Service (Nov. 16, 2017) https://www.nps.gov/thro/learn/historyculture/theodore-roosevelt-and-conservation.htm (last visited Nov. 27, 2018).

[5] Defending Habitat, Defenders of Wildlife, https://defenders.org/habitat-conservation/public-lands (last visited Oct. 6, 2018).

[6] Tourists, U.S. Department of the Interior, https://www.doi.gov/tourists (last visited Nov. 27, 2018).

[7] Current Policy and Legal Issues Affecting Recreational Use of Public Lands in the American West, Jan Stevens and Richard Frank (July 2009) (available at https://www.law.berkeley.edu/files/RFF_Report_RFrank.pdf_ )

[8] Why We Are Fighting for the Public Lands that Wildlife Depend On, National Wildlife Federation Blog, https://blog.nwf.org/2017/02/why-we-are-fighting-for-the-public-lands-that-wildlife-depend-on/ (February 15, 2017)

[9] U.S. Dept. of the Interior Bureau of Land Management, Fish and Wildlife, https://www.blm.gov/programs/fish-and-wildlife (last visited Oct. 10, 2018).

[11] Defending Habitat, Defenders of Wildlife, https://defenders.org/habitat-conservation/public-lands (Last Visited Oct. 6, 2018).

[14] 16 U.S.C.§ 1531; Protecting the Endangered Species Act, Endangered Species Coalition, http://www.endangered.org/campaigns/protecting-the-endangered-species-act/ (last visited Oct. 5, 2018).

[15] The Endangered Species Act Q&A, World Wildlife Fund, https://www.worldwildlife.org/stories/the-endangered-species-act-q-a (last visited Oct. 5, 2018).

[18] National Environmental Policy Act Review Process, U.S. Environmental Protection Agency (Jan. 24, 2017) https://www.epa.gov/nepa/national-environmental-policy-act-review-process.

[19] 16 U.S.C. §§ 1600-1614 (1974).

[20] Norton v. S. Utah Wilderness Alliance, 124 S. Ct. 2373 (2004). 

 

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