This land is your land, this land is my land…unless perhaps, the government owns it.

The legal fight over federal land continues to impact private citizens, tribal lands, and businesses, and a new administration has left many questioning the future of federal land regulation.

Just over 100 years have passed since President Woodrow Wilson enacted the Organic Act of 1916, which created the National Parks Service to “preserve unimpaired the natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations.”  Since then, there have been numerous conflicts over the use of public land in the United States, whether between private citizens and the federal government, Native tribes in their unending struggle for rights to tribal land, and even regulatory conflicts over the use of federal land between old and new administrations.

Approximately three years ago, a cattle rancher named Cliven Bundy made world news after coordinating an armed confrontation between local antigovernment activists and law enforcement in the small western town of Bunkerville, Nevada.  The standoff was a result of a 20-year legal battle between Bundy and the United States Bureau of Land Management (BLM), which had obtained court orders directing Bundy to pay over $1 million in overdue grazing fees, fines, and interest, all stemming from Bundy’s use of federally owned land adjacent to his cattle ranch.  Bundy repeatedly asserted he did not recognize the BLM’s federal police power over the land, stating he believed it belonged to the “sovereign state of Nevada.”

The armed group seized and held refuge headquarters for nearly six weeks…

Two years later, Cliven Bundy’s sons, Ammon and Ryan Bundy, led a small group of armed supporters to the federally owned Malheur National Wildlife Refuge in Oregon to support a 73-year-old rancher and his son who had been convicted of arson and sentenced to prison for setting fires on their property that accidentally spread onto federal lands.  The armed group seized and held refuge headquarters for nearly six weeks, demanding that the federal government give up the 188,000-acre property and turn it over to state and local control.

By February 11, all of the militants had either surrendered, withdrawn, or been arrested.  One armed protestor was even shot and killed during an arrest attempt.   More than two dozen of the militants were charged with federal offenses, such as depredation of federal property.  While 11 people pleaded guilty, an Oregon jury surprisingly acquitted the Bundy brothers and five others last fall.  The Bundy brothers, as well as their father, remain in federal custody due to pending charges against them for their involvement in the Nevada stand-off.

While many rejoiced at the Bundy brothers’ acquittal, numerous others praised the federal government only a few months later for its decision to designate more Western land as nature preserves.  In December 2016, President Obama unilaterally proclaimed 1.35 million acres in Utah as the Bears Ears National Monument, as well as 300,000 acres in Nevada as the Gold Butte National Monument.  President Obama was authorized to make the proclamations, which came as Congress was in recess for the holidays, under the Antiquities Act of 1906, which gives Presidents the power to proclaim national monuments on lands already under federal jurisdiction.

Western lawmakers reacted with outrage at the new nature preserves, viewing President Obama’s actions as “government overreach” and a “block to potential energy development.”  Environmentalists and Native American tribes, however, viewed the proclamations as a victory that will protect Native American artifacts and archeological sites.

[O]pposition remained focus on a federal easement that was needed…

Earlier in December, the Obama administration gave the Army Corps of Engineers authority to block construction of a disputed segment of the Dakota Access Pipeline, which the Standing Rock Sioux tribe had opposed for months as a threat to their drinking water supply.  The pipeline was over 70 percent complete at the time, but opposition remained focus on a federal easement that was needed to allow the pipe to run beneath Lake Oahe.  Standing Rock Tribal Chairman David Archambault II reportedly stated, “The Standing Rock Sioux Tribe and all of Indian Country will be forever grateful to the Obama Administration for this historic decision.”

President Obama also previously moved to block mining claims in Yellowstone National Park, as well as new oil drilling in the Arctic Ocean.  According to an article by the BBC, former President Obama has “protected more land and water acreage than other U.S. president.”

But President Obama’s legacy of conservationism may be under threat by his successor, President Trump, whose statements and actions have left many wondering exactly where he stands on federal land preservation.  During the Republican presidential primary, Donald Trump presented himself as a defender of public lands and seemed to oppose turning federal lands over to the states.  In a January 2016 interview with Field & Stream magazine, Trump disliked the idea of states taking control of federal lands, stating, “I don’t like the idea because I want to keep the lands great, and you don’t know what the state is going to do.” In the same interview, Trump also added “We have to be great stewards of this land.  This is magnificent land.”

Trump revived the Keystone XL pipeline…

Despite his previous statements advocating for land conservatism, within two weeks of President Trump’s inauguration, Trump revived the Keystone XL pipeline, which had sparked years of outcry from environmentalists, and ordered to expedite the previously blocked Dakota Access Pipeline, which the Standing Rock people and their supporters had publicly protested for months.  President Trump also recently signed into law a provision that reversed additional regulations imposed by the Obama administration regarding federal land use, and made it easier to use federal land for industrial purposes, such as coal mining or oil drilling.

In the final weeks of the Obama administration, the Department of the Interior proposed a plan which would have required the Bureau of Land Management to review more data when deciding whether to approve certain commercial uses of federal land, such as logging or mining.  It would have also reduced the amount of time required to make decisions about the use of federal land.   Critics of the plan said the Obama administration rule would “minimize local input in land management and stymie public comment, while giving the federal government more authority on what to do with the space.”  In the Trump administration’s first month, House Republicans sought to nullify the finalized regulation.  HJ Resolution 44, sponsored by Rep. Liz Cheney (R-Wyoming), aimed at lessening regulation of the millions of acres of public land managed by the Bureau of Land Management.  President Trump signed the resolution into law on March 27th.

But even before President Trump actually took the oath of office, House Republicans began taking the issue of federal land into their own state’s hands.  On its first day in session, congressional Republicans approved a provision, as part of a larger rules package, which made it easier to sell off federal land to the states.  According to an article in the Washington Post, before the provision was passed on a mostly party-line vote, “Many Republicans, including House Natural Resources Committee Chairman Rob Bishop (R-Utah), had been pushing to hand over large areas of federal land to state and local authorities, on the grounds that they will be more responsive to the concerns of local residents.”

Those on the other side of the aisle, such as Rep. Raul Grijalva (D-Arizona), expressed deep opposition to the rule change, stating, “This proposed rule change would make it easier to implement this plan by allowing the Congress to give away every single piece of property we own, for free, and pretend we have lost nothing of any value.  Not only is this fiscally irresponsible, but it is also a flagrant attack on places and resources valued and beloved by the American people.”

[M]any conservatives are now worried…

While Trump may have catered towards voters on the far-right, as well as his business world colleagues during his campaign, an article in the New York Times notes that the change in administration has actually resulted in a “countermovement of conservatives and corporate executives who are speaking up alongside environmentalists in defense of pubic land.”  With the new administration and its accompanying change in stance on federal regulation of land, the article points out that many conservatives are now worried about losing their access to valued hunting areas, while business executives seem troubled over losing customers who are attracted to national parks and wildlife.

On the other hand, some Trump supporters seem encouraged by the Trump administration’s anti-government rhetoric and seem to support the use of public land for private uses, especially blue-collar workers in industries such as coal mining, whose votes were crucial in Trump’s presidential victory.

With the United States government owning approximately half of all land in the West, the battle over the government’s use of federal land is unlikely to end anytime soon.  Meanwhile, private citizens, Native tribes, and businesses will wait to see how the land surrounding them will affect their lives as administrations and policies continue to change.

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About Lizzie Yelverton, Editor-in-Chief (10 Articles)
Lizzie Yelverton is a third year law student and serves as Editor-in-Chief for the Campbell Law Observer. She grew up in the small farming town of Eureka, NC, before moving to Raleigh to attend North Carolina State University. In 2015, Lizzie graduated from NC State with a Bachelor of Arts in English with a minor in Philosophy. The year following her first year of law school, Lizzie worked as an intern for Senator Floyd B. McKissick, Jr. in the North Carolina General Assembly. Lizzie is the Public Relations Chair for Women in Law, as well as a member of the Student Animal Legal Defense Fund and the Campbell Law Innocence Project. Over the summer, Lizzie served as a law clerk at the law office of Baddour, Parker, Hine, & Hale, P.C.