INSTRUCTOR: James B

INSTRUCTOR: James B. Snow

LESSON: History's Lessons: Politics, Policies, and Laws

COURSE: National Lands Training for BLM and Forest Service Line Officers and Program Managers

OBJECTIVES

Upon successful completion of this lesson, participants will:

1.Understand how the public land laws and policies evolved.

2.Identify the most significant laws and policies and discuss their impact.

3.Interpret how the past has affected the present, and how it may define the future of the Nation's publicly owned lands.

NARRATIVE:

I. WHY IS HISTORY IMPORTANT TO FEDERAL LAND MANAGERS?

A. As is often said, "Those who ignore the past are condemned to repeat it."

B. To intelligently and consistently manage Federal lands and resources, we should understand the context in which laws were made and appreciate the forces which shaped policy.

II. FOUR PERIODS

It is useful to divide the evolution of the history of the public lands into four periods discussed below.

1.Acquisition of the Public Domain - 1776-1867

2.Disposition (Disposal) - 1776-1891

3.Reservation - 1891-1905

4.Management and More Acquisition - 1905-Future

III. ACQUISITION OF THE PUBLIC DOMAIN

A. Summary: The public domain originated when 7 of the original colonies were obliged by the other 6 colonies to cede over 236 million acres between their western boundaries and the Mississippi River. This established the concept of common ownership for common benefits that underpins our present ownership and management of public lands and resources. What was later described as America's "manifest destiny", the westward expansion of the nation continued unabated for almost a century.

The land acquired by the United States was not vacant, it was occupied by Native Americans. Various theories attach to the legal effect of this American expansion. Title to land by conquest is a theory traditionally accepted in international law. Some scholars contend that all we acquired from England and other colonial nations was the right to govern, tax, and to purchase land from the Indians through treaties. If that is the case with Indian tribes, then we are probably not through paying the bills. However it is described, the effect westward expansion is well known -- the Indians were displaced, exterminated or confined to reservations.

B. The Public Domain.

The public domain lands of the U.S. originated when seven of the former colonies (Massachusetts, Connecticut, New York, Virginia, North Carolina, South Carolina, and Georgia) ceded 233 million acres to the Federal Government between 1781 and 1802. These cessions were forced by the other six colonies (New Hampshire, Rhode Island, New Jersey, Pennsylvania, Delaware, and Maryland) in order to:

1.Bring about equality in land resources among the various states.

2.Provide tangible assets to the Federal Government.

3.Strengthen the Nations political and economic solidarity fostered by common land ownership. Remember this goal of common ownership for common benefits, as it affects future laws and policies.

C. Chronology of Acquisition and Expansion.

1.Louisiana Purchase, 1803. President Jefferson's Administration negotiated from France the purchase of the Louisiana Territory (523 million acres) for less than 5 cents per acre.

Theodore Roosevelt, an unabashed expansionist had some strong views about the inevitability of American acquisition of the western lands. Writing in The Winning of the West, Vol. 4, he observed:

". . . the Americans would have won Louisiana in any event, even if the treaty of Livingston and Monroe had not been signed.... The winning of Louisiana was due to no one man, and least of all to any statesman or set of statesmen. It followed inevitably upon the great westward thrust of the settler-folk; a thrust which was delivered blindly, but which no rival race could parry, until it was stopped by the ocean itself."

2. Florida, 1819: Purchase of Florida from Spain and two small parcels (43 million acres) for 16 cents per acre.

3.Pacific Northwest, 1846: As a result of a treaty with Britain compromising the boundary between Canada and the United States, the United States acquired the Oregon Territory (181 million acres) at no cost.

4.California and the Southwest, 1848: By the Treaty of Guadalupe Hidalgo, Mexico ceded the entire southwest and California (335 million acres) for 5 cents per acre.

5.Texas Purchase, 1850: The Federal Government purchased from Texas 79 million acres for 20 cents per acre.

6.Gadsden Purchase, 1853: To provide a railroad corridor, the Gadsden Purchase acquired 19 million acres from Mexico for 53 cents per acre.

7.Alaska, 1867: Alaska was the final addition to the Public Domain. Over 366 million acres were purchased from Russia for a little over 2 cents per acre.

D. Indian rights.

Treaties were made to acquire lands from Indians and extinguish all Indian title in the lands so they could be opened to settlement and conveyance under Federal land grants. The principal purpose of treaties was to extinguish Indian claims, provide for peaceful and compatible coexistence of Indians and non-Indians, and provide compensation to the Indians for lands, which were being settled by the United States citizens.

The compensation actually paid to Indians and Indian tribes is hard to calculate, but includes hundreds of millions in individual settlements authorized by statute, over $850 million paid pursuant to the Indian Claims Commission Act of 1946, and $900 million and 40 million acres granted under the Alaska Native Claims Settlement Act of 1971.

E. The "Public Domain".

These various cessions and acquisitions constitute the original "Public Domain." It contained approximately -

1,804 million acres of land,

33 million acres of water

which is nearly 2.8 million square miles (exclusive of land already in private ownership and not including land subsequently purchased by the Federal Government). All of the Public Domain was subject to disposition under the general land laws passed by the Congress since the late 18th century until passage of the Federal Land Policy and Management Act ("FLPMA") in 1976.

Lands subsequently obtained in exchange for public land or timber were also subject to land laws applying to the original Public Domain, but purchased lands were not.

F. Constitutional Basis for the Control of the Public Lands.

The Constitution provides the fundamental basis for the control, acquisition, disposition, use and management of all Federally owned lands. Article IV, Section 3, paragraph 2 of the Constitution states:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.

The Supreme Court has repeatedly said Congress has full power to sell, give away, or retain the Public Domain and other property of the United States for such purposes as a sees fit. Since the founding of the Nation, Congress has done just that ... sometimes with abandon.

IV. DISPOSITION/DISPOSAL PERIOD.

A. Summary: For discussion purposes, some generalizations about this period are worth considering:

1.National policy was to settle and develop the west through agriculture and natural resource exploitation by disposing of significant amounts of the public domain. It worked.

2.Some legislation was enacted to ratify what was already happening - to legalize or anticipate squatters and preemptors.

3.Fraud marked many of the disposal programs.

4.Land use and landownership patterns established in this era include legacies of frustration for modern land managers, complicating everything from grazing administration to wilderness classification.

5.During the past 200 years, Congress has given away, sold, or otherwise disposed of nearly two thirds of what was once public domain in an attempt to pay the Nation's bills and foster orderly settlement of the continent. The story of that disposition is a fantastic one, but also a sad one marked by opportunism, fraud of monumental proportions, and a legacy of unsolved problems.

6.The major disposition era was from 1776 to 1891. The legal authority for disposition technically lasted until 1976 with the passage of the Federal Land Policy and Management Act. However, it ended for all practical purposes in 1934 with the passage of the Taylor Grazing Act.

B. Disposal Issues.

Between 1776 and 1891, nearly everyone agreed that title to lands should not be permanently retained by the Federal Government, but should be passed on to States and private owners as rapidly as consistent with orderly development. For years, what to do with the public lands generated more oratory and legislation than any other subject. Early debates primarily dealt with the purpose and terms of disposal.

1.Should the Government give land away to promote development?

2.Should land be sold to provide revenue?

3.Should land have to be surveyed before disposal?

4.Should surveys be rectangular or metes and bounds?

5.What price should be charged for land? Cash or credit?

6.What should be the maximum or minimum area available to an individual?

7.What about donations for education and transportation (canals, roads, railroads)?

Transcending these issues was the debate about who and what should benefit from the public lands. Should they be administered for the benefit of all the States or should they be managed for the newer States into which they were being divided? The original 13 States (and particularly the 7 who ceded their land) felt the public domain had been acquired "By the Common Sword, Purse, and Blood of all States" united in a common effort. Purchases had been made from a common treasury; therefore, the land should be disposed of primarily to defray the expenses of the revolution and benefit all States. As can be seen from the passage of the ordinances and acts that followed, Congress disagreed with the original 13 States. The Federal Government's expanding generosity to new States seemed to have no limit to residents of the old States. However, the seeds for future so called "sagebrush rebellions" were sown in the late 18th century.

C. Administrative Machinery over the Public Lands.

1. Since production of revenue was a prime objective of early public land management, the Secretary of the Treasury had responsibility for surveying the lands, establishing offices for their sale, issuing patents and maintaining records.

2. In 1796, Congress created the position of Surveyor General to take charge of the public survey system.

3. In 1812, Congress created the General Land Office and the duties previously undertaken by the Secretary of the Treasury were transferred to a Commissioner.

4. For 37 years, the General Land Office remained at Treasury, but in 1849, it was transferred to the newly formed Department of the Interior. The General Land Office (GLO) was the predecessor to the Bureau of Land Management.

D. Disposition Laws.

1.The first comprehensive public land statute was the General Ordinance of 1785. This was enacted by the Congress of the Confederation in response to offers of relinquishment of western lands by the states. The stated policy:

The inappropriate lands that may be ceded or relinquished to the United States, by any particular state ... shall be disposed of for the common benefit of the United States.

a. It established the public land survey system of 6 mile square townships for the sole purpose of making land easily identifiable and salable in subdivided tracts.

b. After survey, the lands would be sold, half in townships and half in 640 acre blocks, at auction for cash to the highest bidder for not less than one dollar an acre.

c. Section 16 of each Township was reserved to states and territories for schools.

d. Four additional sections reserved for later disposal.

The intent of the General Ordinance of 1785 was to promote settlement and to raise revenue. It failed to raise much money because land was so plentiful that it was cheaper for a person to buy it from the States, and most immigrants could not afford to raise $640 in cash. However, this early sales policy influenced everything that followed. Political organizations followed the same township and section grid pattern. Farmers plowed along the boundary lines and the idea of contour plowing and the management of watersheds was set back 50 to 100 years.

2. Northwest Ordinance of 1787.

a. This law required new States joining the Union to respect the right of the Federal Government to dispose of public land within their boundaries. The original 13 States disposed of their land without restriction. The new States didn't like the restriction in the Ordinance and wanted the public lands ceded to them. This tension between newer western states and the east continues to this day.

b. The Northwest Ordinance of 1787 provided for one-third of the sale price to be paid at time of sale and the balance to be paid in 3 months.

During this period public lands were also sold in large blocks to private companies. The purpose was to get the buyer to promote resale to actual settlers. There was no upper limit on how much land a company or individual could buy.

Because of the large amount of land available, the slowness of Government to survey, and the frustration of payment procedures, people simply squatted on the land.

3. Acts of 1796, 1800, and 1804, allowed delayed payments to solve problems of land not selling. These acts also raised the minimum price to $2 per acre. However, these acts also failed to solve the disposal problem since many people simply didn't have the money to buy the land. Many people never paid their debt, and many private relief bills were passed. Theoretically, the Government could evict the settlers and confiscate the land, but such action was a practical impossibility. Sales did increase, but payments lagged, and by 1820 the Government was owed $21 million.

4.Land Law of 1820. The thrust continued to be toward disposal of the public lands to promote development and raise revenue for the country. In 1820, the General Land Sales Policy was revised almost to its final form.

a. Sales on credit eliminated.

b. Minimum price was reduced to $1.25 per acre.

c. Minimum acres reduced from 640 acres to 80 acres (in 1832, it was again reduced to 40 acres).

d. No restriction on the maximum area one person could purchase.

e. Lands were not classified.

5. Military warrants.

a. During the Revolution and the War of 1812, a cash strapped Congress offered land bounties to recruits in the military. The amount of land offered varied according to rank. Privates in the Continental Army got only 100 acres, whereas Generals got 1,100.

b. The Land Ordinance of 1785 set aside 1/7th of the townships surveyed for the location of military land warrants.

6. Squatting. Squatting was a common practice even before 1776. While the Federal Government was strongly adverse to the practice of squatting, individual States and the public at large felt differently. Some Congressmen championed squatters as very respectable citizens, the hardy yeomanry, meritorious and industrious citizens, and benefactors, not malefactors. Nonetheless, the Federal Government used troops to remove squatters, burn their cabins, and plow up their crops. However, after the troops left, the squatters moved back in and rebuilt. In 1838, in what is now Iowa, 20,000 to 30,000 squatters were on land which was never offered for sale. Vigorous people bent on occupying territory were not deterred by legislation unsuited economically, socially, or psychologically to conditions. Even though anti-trespass laws were passed, and troops were used, squatting could not be controlled. To protect themselves from speculators, subsequent surveys, and sales, squatters formed claim associations. Basically, the associations protected the rights of the squatters when the land was surveyed and sales were held. Outsiders or intruders faced the association's form of justice if they tried to acquire land claimed by squatters who had developed the land. Again, many relief bills were passed to protect the squatters. Growing pressure to legalize squatting led to passage of Preemption Acts and the Homestead Acts.

7.Preemption Act of 1830 was the beginning of the end of the sale system. Preemption was the right of the squatter to be protected against the speculator and to gain title to his land without competing for it at auction. The 1830 Act:

a. Was for one year only.

b. Applied only to surveyed land.

c. A settler could obtain up to 160 acres.

d. Paid $1.25 per acre without bidding.

e. Required proof of settlement.

A number of subsequent Preemption Acts were passed with special conditions for specific areas to "right" what Congressmen felt were "wrongs" under the 1830 Act - such as allowing unsurveyed land to be preempted due to the Government's slow progress in surveying land. The Preemption Acts emphasized settlement rather than revenue. It was considered a victory for the West (which then was still basically east of the Mississippi River). While the Act was intended to favor the settler/squatter rather than the speculator, it was also used for fraudulent acquisition.

8. Preemption became basic policy in 1841 with passage of the "Log Cabin Bill." This Act:

a. Authorized head of a family, widow, or a single man over age 21 to acquire 160 acres for $1.25 per acre.

b. Applied to surveyed land only.

c. Required settlement and erection of a dwelling.

d. Required swearing land was for applicant's own use and benefit.

Because it was impossible to limit preemption to surveyed lands, the privilege was extended in 1862 to unsurveyed lands in all states.

The "Log Cabin Bill" also included a provision to grant 500,000 acres to each public land state for internal improvements, and an additional inducement to give each public land state 10 percent of the net proceeds from public land sales within its borders and the balance of the proceeds to be distributed to all states based on their representation in Congress.

Under that provision, 8 million public domain acres passed to states. The reason the provisions were included was a typical Congressional compromise. In 1837, Calhoun of South Carolina had introduced a bill to cede all public lands to the States. Eastern representatives feared a coalition of southern states and the west might make such a cession possible. The southern representatives were opposed to preemption, but favored distribution of proceeds. Eastern representatives were opposed to preemption and distribution, but recognized a south/west coalition could be their undoing. The bill that passed contained palliatives for all.

9. Land Grants to States.

a. Grants to states upon admission to the Union. The sales system was an attempt by the eastern representatives to retire the Revolutionary War debt. As the territories became states and had more representation, they forced disposal policies more generous to the new states. The Land Ordinance of 1785 provided for the grant of section 16 in each township to the state to support public schools. In 1853, California was granted two sections (16 and 36) in each township. Thereafter, the enabling legislation for each new state granted these two sections to the state to support schools, except that Arizona, New Mexico, and Utah were granted four sections (2, 16, 32, and 36) for schools. So, throughout, we find states without grants of federal land, and other states with different combinations and amounts of federal grant land, depending upon the date of statehood.

b. Grants for internal improvements. Grants of land to generate revenues and for internal improvements have been going on for a long time. In 1802 and 1803, laws granted 3 percent of net proceeds from land sales to Ohio for construction of roads. Later, 5 percent of proceeds was granted to all public land states and, as previously mentioned, with passage of the "Log Cabin Bill" in 1841, the amount was raised to 10 percent. In addition to the 8 million acres granted to states under the "Log Cabin Bill," 78 million acres passed to states with the education reservation of Sections 16 and 36. Grants to states between 1823 and 1871 included:

-million acres for wagon roads.

-4 million acres for canals.

-1.5 million acres for river improvements.

c. Swampland Grants. In 1849 and 1850, swampland grants were made to states for drainage and reclamation. Roughly, 65 million acres were passed to states under these Acts. Wholesale fraud and little reclamation took place. For example, whole townships of dry land were granted as swampland.

Between 1862 and 1890, 10 million acres were granted to states for the establishment of colleges of Agriculture and mechanical arts. Hence, the term "Land Grant Colleges." Between 1835 and 1890, various acts resulted in 94 million acres being granted to railroad corporations to aid in construction. States received another 37 million acres for the benefit of railroads.

10. The Railroad Grants:

a. The railroad grants overshadowed all other grants in both economic and political importance. The South opposed these grants because it feared linking the agricultural west to the industrial east would be to the south's detriment. The South also feared pressure for enactment of homestead legislation.

b. Substantial grants for the benefit of railroads provided for variable widths of alternate sections 20 to 80 miles in width in the states, and up to 120 miles in width in some territories. (The Northern Pacific Railroad was given a 2,128 mile right-of-way from Duluth to Tacoma and Portland, with 45 million acres of land, an area larger than the State of Missouri.)

c. Railroad grants excluded mineral lands but classified coal and iron as nonmineral.

11. Homestead Acts.

a. Politics of homesteading. Free land was always favored in the west and generally opposed in the east and south. The northeast supported the west because development provided an outlet for their manufactured goods. The southerners opposed free land because they feared their slave labor could not compete with small farms operated by their owners.

Free land in the west and free soil in the east created debate between west and south.

"Free land" involved giving land to the landless, and "free soil" referred to the opposition of slavery. The west supported free land and free soil. Therefore, the south opposed free land fearing territories becoming states without slavery would disrupt the balance in Congress.

b. Homestead Act of 1862. This was the first of many Homestead Acts which was passed by a Civil War era Congress from which most of the representatives of the south had withdrawn. According to the Act:

(1). Anyone could enter a Homestead who:

-Was over 21.

-Was a citizen or declared intent to be a citizen.

(2). Could acquire up to 160 acres for cultivation.

(3). Could get a free patent if they:

-Resided upon the land.

-Cultivated it for 5 years.

(4). Enter only surveyed lands.

(5). Paid certain fees.

(6). Given 6 months after filing before being required to reside on the land.

c. Legend versus reality. The homestead folklore stalled the reform of land disposition statutes for decades. Many homesteaders must have wondered if the Act was the boon it was supposed to be because, at that time, much productive land was gone:

125 million acres had been given to railroads -- The size of California (100.2 million) and Kentucky (25.5 million) combined.

140 million acres had been given to States -- Slightly less that the combined size of Oklahoma (44 million), Kansas (52.5 million) and Nebraska (49 million).

175 million acres were in Indian reservations -- Slightly larger than the State of Texas (168.2 million).

d. Speculation. Speculators often anticipated the demand for good land which they bought up in advance of homesteading. By 1862 the truly productive agricultural land was not available to homesteaders. The rewards for homesteaders on the remaining marginal land were drought, blizzard, dust storms, financial, and physical ruin.

e. Unrealistic acreages. Congress used its judgment to set acreage figures based largely on eastern experience. Therefore, unrealistic limits of 160 acres in the West were inadequate to make a living.

1909: The enlarged Homestead Act changed acreage to 320 acres in 9 Western States and specified the land had to be nonmineral, nonirrigable, and contain no merchantable timber.

1912: Congress decided 5 years was too long a residential requirement and passed the 3-Year Homestead Act.

The reforms were not very effective since 320 acres in arid country was no better than 160 acres. The last desperate effort was the attempt to farm the Great Plains with disastrous effects with the dust bowl of the 1930's.

f. Fraud.

There was always land fraud to some degree, but it was tremendous under the homestead acts, primarily due to the economic inadequacy of the size of homesteads and the arid conditions. Commutation (purchase of land for $1.25 per acre after 6 months of occupation) resulted in enormous landholdings being secured by stock operators and lumber companies. Cowboys, phony entrymen, loggers, etc. used commutation fraudulently. The General Revision Act of 1891 changed the commutation period to 14 months but the practice continued. In North Dakota, between 1900 and 1910, 5.7 million acres were commuted and 5.6 million acres approved up. Actual fraud took many forms. A 12' x 14' house might be a drygoods box and a shingle roof might be two shingles. Under the Homestead Act, 285 million acres were patented, and it is thought the majority was acquired fraudulently.

12.Timber Culture Act of 1873.

This Act authorized the granting of 160 acres of public land to any person who would plant 40 acres to trees and keep them growing and healthy for 10 years. The law was intended for the prairie states. The requirements of 40 acres and 10 years were too strict and were soon changed to 10 acres and 8 years. This was the first attempt to respond to public concern with conservation and propagation of forests. However, settlers had little knowledge or money to make it successful, particularly in the prairie states. Again, fraud by means of dummy entrymen was used to form large wheat farms and cattle ranches. The Timber Culture Act and the Preemption Act were repealed in 1891, but not until almost 11 million acres went to patent.

13.Desert Lands Act of 1877.

This Act was intended to encourage irrigation of public lands. Persons could file on up to 640 acres and acquire the land for $1.25 per acre if, after 3 years, they could show proof of production by irrigation. Again, the necessary skill and money were not readily available to individuals. Fraud was extensive and land and water rights were taken for grazing or hay production. Over 10.6 million acres were patented, but very few met the requirements of the Act. This much amended act was never repealed and has become a part of a large body of Federal and State water law.

14.Mineral Lands.

a. Historical Treatment.

Congress through the years had been reluctant to classify lands on the basis of productive capacity or physical attributes. They preferred, instead, the homestead theme of disposition. However, Congress did consistently recognize the special value of mineral lands.

1785: Ordinance reserved one-third part of gold, sliver, lead, and copper mines.

1796: Act reserved all salt springs and lakes. These were later turned over to the States.

1807 to 1846: A number of acts provided for the lease and sale of mineral lands. The acts were inadequately administered, and in 1850 the mineral lands were opened to preemption-the same as other public lands. The discovery of gold in California in 1848 and later in Colorado created new problems. Possessory rights were respected. Local associations similar to the old claim associations were formed. Their regulations became the law of the land.

b. Mining Law of 1866. This first significant legislation pertaining to mining declared the public domain free and open to exploration. The Act also authorized the issuance of patents to lode claims for $5 per acre if the claim was occupied and $1,000 had been spent for development. (In 1870, Congress modified the law to authorize the survey and sale of placer claims at $2.50 per acre). The local customs and rules were to be applied in dealing with claim adjudications. This Act also is significant in water law and use rights of public land which are affecting us today.

Another legacy of the 1866 mining law was the granting of rights-of-way across public lands for the construction of public highways. This was later codified at Revised Statute, section 2477. To this day, RS 2477 roads are a persistent problem in the management of Federal lands.

c. Mining Law of 1872.

Mineral lands became a distinct class of land materially different than other lands. The Act:

(1). Provided that any person could locate a valuable deposit anywhere on the public lands.

(2). Entitled the locator to the mineral without payment of a royalty or rent.

(3). Required no report of the location to the Federal Government (until 1976).

(4). Retained the 1866 Act cost of patents at $5.00 and $2.50 per acre.

(5). Required the expenditure of $100/year and a total expenditure before patent of $500.

For its times, the 1872 Act was relatively enlightened since it recognized the special value of particular lands for a particular purpose. It statutorily defined mining as the highest and best use of all Federal lands. In that respect it does not reflect modern value judgments.

15. Timber and Stone Act of 1878.

This act authorized the sale of 160 acre tracts of unoccupied, surveyed, nonmineral land not fit for cultivation at not less than $2.50 per acre. The development of this Act, the purpose, and the administration had some peculiar twists.

Public timberland was not easily acquired, since little of the public domain land supporting timber had been offered for sale. Perversion of the preemption and homestead laws was the only way available to acquire timber land. West coast Congressional representatives wanted a bill to allow individuals to acquire timberland. They shrewdly used the arguments that the "poor homesteader" needed timber and that the General Land Office Commissioner was urging the sale of timberland. They neglected to say that the Commissioner also urged retention of the land after the timber had been cut or that settlers could be offered free timber, as was done by the Free Timber Act of 1878 for the Rocky Mountain states. Purchasers had to swear they were buying the land for their own exclusive use. Fraud was rampant and was greatly facilitated by a Supreme Court ruling which said a settler who immediately sold the timber and/or land was nevertheless taking it up for his own exclusive use and benefit. Nearly one-third of the privately owned timberland in the Pacific Northwest was acquired by purchase under this Act. The Act originally applied to four States: Washington, Oregon, California and Nevada. In 1892, it was extended to all public land states. Entries of a little more than 13 million acres were made under the act (about the size of West Virginia).

E. Combating Fraud.

1. Homestead clauses in railroad grants. In the 1869 land grant to the Oregon and California Railroad (O&C), there was a requirement that the land be sold in 160 acre parcels to actual settlers for no more than $2.50 per acre. Similar conditions were added to railroad grants including those in Alabama, Louisiana and Tennessee as well as a grant for the construction of the Coos Bay Wagon Road in Oregon.

Several of these grants were forfeited in whole or part when the grantees failed to make the mandated disposals.

2. Reformers in the General Land Office. Until the 1870's, the GLO generally acquiesced in rampant fraud. The GLO was simply not staffed to enforce restrictions or undertake investigations. For decades, Congress funded the GLO primarily with low-salaried clerks.

However, as early as 1871, the Commissioner of the GLO urged Congress to repeal preemption laws due to the many frauds committed thereunder. In 1877, the Commissioner recommended that neither preemption nor homestead should apply to timbered or other nonagricultural land.

Commissioner N.C McFarland in 1882 pointed out the failure of Congress either to renew lapsed grants or to declare them forfeited. McFarland also attacked frauds under the Timber Culture Act, Desert Land Act and the Timber and Stone Act. McFarland was the first to speak up about the rampant fraud and the inability and/or refusal of the government to do anything about it. A modern commentary reflected on McFarlands final report to Congress in 1884:

McFarland warned that with the rapid alienation of the public lands the time is near at hand when there will be no public land to invite settlements or afford citizens of the country an opportunity to secure cheap homes. He deplored the vast stretches of land which had been acquired by evasion of the law and without compliance with the requirements of settlement and cultivation. Wasteful dissipation of the lands should cease and that could only be assured by rewriting the land laws to prevent fraud and evasion. Timberlands should be appraised, the most valuable set aside as forest reserves and the balance offered, as wanted, at their appraised value. He recommended specifically the establishment of a forest preserve on the headwaters of the Missouri and Columbia Rivers in Montana Territory.

Gates, Paul W., History of Public Land Law Development, Public Land Law Review Commission, 1968, p. 471.

McFarland was succeeded by William A.J. Sparks, who was outspoken in denouncing the Congress for its looseness in drafting land laws and its failure to adopt remedial measures. His well publicized criticisms resulted in some reforms in restoring fraudulently withdrawn lands to entry and causing the revestment of some lands fraudulently granted to railroads. In 1885, Sparks suspended all entries of the public lands, except for cash and scrip entries. He justified this sweeping order in response to the widespread, persistent, public land robbery.

Sparks also tackled illegal fencing on the public lands, and persuaded the military to destroy unlawful fences. For his efforts, Sparks engendered the hostility of the railroads, landed interests and western members of Congress. He was forced to resign in 1887.

In response to McFarland and Sparks, the Congress enacted only modest reforms requiring railroads to pay the costs of surveying their grants and to pay taxes on the lands.

F. End of the Disposition Era.

By 1880, due to the fraudulent uses and abuses of the settlement laws, the public was beginning to question the continuing disposal of the public domain.

The public seemed to be saying, "we have had enough."

Thus, the disposition era was drawing to a close. The disposal of 1,031 million acres had taken place by 1891. This is an area larger than the continental U.S. west of the 100th meridian. The original goal of settling the West had been met, but no one claims the process was orderly.

The era of reservation was beginning.

V. RESERVATION PERIOD

A. Summary:

1. Brief duration. "Short but sweet" is an accurate description of this period. It began when Forest Reserves were created, and ended with the creation of National Forests managed by the Forest Service. In between, the 1897 Organic Act spelled out a purpose for the Reserves, provided the basis for requiring occupancy (special use) permits, and wreaked mischief by enacting the "lieu lands provision" which lasted until 1905.

2. Shift in public policy.This was the time of "Great Discontinuity" in public lands policy. In about 15 years, the nation changed its collective mind about disposal and development on a real-time planning basis and looked toward the distant future for the public forest lands.

3. Early reservations. There had been some significant precursors to the reservation period. As early as 1864, Yosemite Valley was ceded to the State of California for public use, resort, and recreation. (State administration was not acceptable, and the land was receded to the Federal Government in 1906.)

In 1872, some 2 million acres on the upper Yellowstone River were reserved from "settlement, occupancy, or sale" and dedicated as a public park or pleasuring ground. Our first national park, Yellowstone.

B. The Development of Forestry in Public Policy

1. Intellectual Development of Conservation Theory.

Governmental forestry hardly existed in the 19th century. However, an evolution was unfolding among intellectual circles. The writings of George Perkins Marsh in 1864 (Man and Nature: Or the Earth as Modified by Human Action) pointed out the abuse and misuse of land by a millennia of societies, and recommended land uses that can sustain society in perpetuity.

Franklin Hough observed the effects of deforestation on society (On the Duty of Governments in the Preservation of Forests, 1873). Hough went on to be the first Federal forestry agent in 1876 in the Department of Agriculture. In 1881, the Forestry Division was established in USDA. Hough's principal achievement was to document the extent of depredations on American forests due to overcutting, theft, and public land policies. Between 1878 and 1891 appropriations for timber protection increased fourfold and the Government was slowly responding to the timber problem, particularly fire.

2. Forestry Legislation.

Congress responded tentatively to the mounting evidence of a forestry crisis. Efforts at forest preservation legislation were proposed unsuccessfully in 1882. By 1888, over two dozen bills were proposed dealing with forestry. One bill, which was written by Bernard Fernow, Chief of the USDA Division of Forestry, called for permanent forest reserves to be managed by the Department of the Interior.

In February, 1888, Congressman William S. Holman, chairman of the Committee on Public Lands, reported on H.R. 7901 "to secure to actual settlers the public lands adapted to agriculture, to protect the forests on the public domain, and for other purposes."The bill provided terms for the sale of timber and for the President to be empowered to reserve lands as forest reserves. The bill passed the House but failed in the Senate.

3. The Forest Reserve Act of 1891.

In the disposition era, land was not considered scarce and disposal was looked at as a means of achieving economic and social goals. However, by 1890 there was a perception of scarcity based upon the obvious fraud which occurred under the disposition statutes, and the desire to preserve the aesthetic beauty and ecological functions of open lands. These, coupled with concerns about forest fires, timber famine, erosion, unregulated grazing, and destructive logging operations prompted "conservation forces" in the East and West, and particularly the American Forestry Association for the Advancement of Science, to insist on legislation for forest reservations.

The birth of the National Forest System had an inauspicious beginning. After the failure of many forestry bills, Congress undertook in 1891 to clean up various problems in the public land laws, including the repeal of the fraud ridden Timber Culture Act. The House and Senate approve similar bills at the end of 1890. The bill went into conference with 23 sections and emerged with 24 sections.

Section 24 was inserted in the Conference by Congressman Holman, and included the reservation provision of H.R. 7901 which had passed the House two years earlier. Section 24 stated:

That the President of the United States may from time to time set apart and reserve, in any state or territory having public lands bearing forests, any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservation and the limits thereof.

The Forest Reserve Act didn't change the basic national policy of encouraging private enterprise by disposing of public domain for homesteading and other purposes. It did, however, allow a small experimental exception to that national policy by giving the President authority to set apart certain public lands as Forest Reservations. It was an experiment in public enterprise, and it is doubtful any member of Congress in 1891 foresaw that this experiment would evolve into the extensive system of National Forests we have today.

Section 24 said nothing about how such reservations would be managed. That would take another six years to figure out.

C. The first Forest Reserves.

On March 30, 1891, President Harrison first exercised his new authority under section 24 by designating the Yellowstone Park Timberland Reserve. Later, on July 1, 1908, the reserve was renamed the Shoshone National Forest.

President Harrison proclaimed 14 additional Reservations for a gross acreage of 13 million acres. President Cleveland created 15 more reserves, with a gross area of 25.8 million acres. (All total, about the size of the State of Washington). Thirteen of those fifteen were created by Cleveland just before he left office on February 22, 1897.

D. The Organic Act of 1897.

1. The Argument over Purpose.

After 1891, we had forest reserves, but how do you manage them? The debate mirrors what we hear today ranging from "locking up" to "multiple use." Over the next three congresses, several bills were introduced building on the forestry principles which had evolved in recent years.

The notion of forest reserves was far from popular among westerners in the Congress, and forestry proponents were almost derailed by President Cleveland's Washington's Birthday Surprise when Cleveland proclaimed an additional 21 million acres of forest reserves. Congress was furious and attempted to reverse the reservations; measures Cleveland vetoed. Subsequently, under President McKinley, the Forest Management Act of 1897 was passed (now referred to as the Organic Act of 1897) as part of the Sundry Civil Expenses Appropriations Act of 1898.

The debate over the bill focused two basic policy questions. First was the question of whether the country would have a permanent system of public forests which was a matter left ambiguous by the 1891 legislation. The second policy question was, "What should the country do with the Forest Reserves?"

2. Enactment.

Both questions were left unanswered by the 1897 Legislation. Under the wording of the Act, the forest reserves could be returned in total or in part to the public domain by action of the President. The major debate centered on the second policy question of what to do with the forest reserves. The 1897 Act did spell out the basic purposes for the forest reserves.

No national forest shall be established except to improve and protect the forests within the boundaries or for the purpose of securing a favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States.

Senator Pettigrew of South Dakota introduced the Amendments to the Appropriation Bill which opened the Reserves for use and development. It was his amendments which:

- Provided for the production of timber.

-Provided for the right of ingress and egress.

-Authorized settlers to obtain timber and stone free of charge.

-Gave jurisdiction for all waters within the Reserves of the States.

-Opened the Reserves to mineral entry.

-Provided for mineral and agricultural land to be restored to the Public Domain.

-Added the Lieu Lands Provision (finally repealed In 1905).

-Gave the Secretary of Interior authority to make Rules and Regulations for occupancy and use.

The major opposition to the 1897 Act came from Western irrigation interests. But, those supportive of commodity uses and forest management, along with preservationists, joined together in an alliance to get the bill passed. As in the past, the coalition between preservationists and conservationists came under stress after the common ground was won.

E. Establishment of the Forest Service.

By 1905, when the Transfer Act moved the administration of the Forest Reserves from Interior to Agriculture, the majority of the Reserves had been withdrawn from the public domain. The Reservation Era was closing. The hostility to Forest Reserves was expressed in the Appropriation Act of 1907. That Act changed the name of the "Forest Reserves" to "National Forests" and also withdrew the President's authority to create Forest Reserves. Roosevelt did sign Proclamations adding 16 million acres of Forest Reserves (the size of West Virginia) before he signed the Bill prohibiting him to do so in six states.

Pinchot described in his book Breaking New Ground the actions after the legislation passed on February 25 and the President had until March 4 to sign it: "

At once I saw T. R. and got his enthusiastic consent to our plan. Thereupon we set every available man at work drawing proclamations for National Forests in those six states. We knew precisely what we wanted. Our field force had already gathered practically all the facts. Speedily it supplied the rest. Our office force worked straight through, some of them for 36 and even 48 hours on end, to finish the job. As usual, our people were superb."

F. Public Land Law Reform Stymied. In 1903, President Roosevelt appointed a Public Land Commission to report on possible reforms in the public land laws. One element of their report was a favorable examination of some grazing leasing policies. Otherwise, the Commission recommended classification of public lands, establishment of grazing districts with grazing fees paid to the government, forest in-lieu selection rights should be abolished, the Timber and Stone Act should be repealed, the sale of timber on unreserved lands should be permitted, and reforms should be made to desert land entries.

Congress carried out only one of the recommendations, the repeal of the forest in-lieu selection right.

G. Other reservations.

An important aside to the National Forests is the establishment of wildlife refuges as lands reserved from the public domain. In 1892, President Harrison set aside Afognak Island in Alaska for wildlife and fisheries protection. In 1903, President Roosevelt set aside Pelican Island, which is recognized as the first unit of the National Wildlife Refuge System.

H. Turning Point in Policy

Thus, with important exceptions, the disposition era ended in 1891, when Congress authorized the creation of Forest Reserves. For a country whose policy from the outset had been to pass public lands into private ownership as speedily as possible, the reservation of lands for parks and wildlife and the passage of the Forest Reservation Act marked a major turning point in public land policy.

VI. MANAGEMENT AND MORE ACQUISITION

A. Early Management Challenges for the Forest Service.

The events of the 20th century seem easier to understand and relate to because they are more contemporary. They happened during the lifetimes of people we have known, and we may have a more personal feeling about those events and their results. The problems and opportunities faced today by the Forest Service Chief and BLM Director may be different than the ones Pinchot faced, but what went on 85 years ago - and 20 years ago - have much to do with decision making today. Look at what faced Pinchot and his organization:

-They had to locate the National Forest lands and identify the boundaries on the ground.

-They had to find out what was happening on the ground and determine whether it was legal and appropriate.

-They had to get that use under control - under permit.

For guidance, they had the philosophy that Pinchot had developed which had President Theodore Roosevelt's and Secretary of Agriculture Wilson's unshakable support. Wilson wrote Pinchot (in a letter prepared by Pinchot for Wilson's signature) a letter containing direction that is still quoted frequently. It is said the National Forests would be managed

... for the greatest good of the greatest number in the long run.

Pinchot followed that with direction to manage the National Forests always with an eye to national needs, but also leaning toward decisions that favored those most impacted by the decisions-- the local citizens and users of the land. It must be remembered that the individual forests are National Forests, and not Regional Forests, or State Forests, or local Forests. However, the Pinchot philosophy was to lean toward those most impacted by your decisions, the local citizens and users of the land.

Pinchot renamed the "Bureau of Forestry" the "Forest Service." It wasn't an accident that the word "Service" appeared. The forerunner of today's "Forest Service Manual" was Pinchot's "Use Book" which stated:

... [T]he timber, water, pasture, mineral, and other resources of the Forest Reserves are for the use of the people. They may be obtained under reasonable conditions, without delay. Legitimate improvements and business enterprises will be encouraged.

That direction was the beginning of the concept of service to the public and the implementation of the "Special Use" or "Temporary Use" policy. The matter of "reasonable conditions" was elaborated on in the "Use Book" and in subsequent Manuals.

The policy of permitting miners, settlers, residents, and prospectors to use timber for firewood, fencing, building, mining, and other domestic purposes has continued to this day, although in recent years the free-use permit has largely given way to charge permits. "Nonexclusive use" was emphasized by the Act of March 4, 1915, which limited the term of a special-use permit to 30 years and 80 acres.

The "Use Book" of the 1906 era provided for granting permits to existing communities to use adjacent land for community purposes, but not for occupancy in perpetuity. Even those permits had provision for termination, revocation, or cancellation. Exclusive private use excluding all else has basically been prohibited by policy since the "Use Book" was published.

Most special uses of National Forest System land are permitted on a temporary basis. Those that are for a longer term were permitted by Department of Interior easements prior to 1905, or by easements after 1905 in keeping with new laws passed by Congress until passage of the Federal Land Policy and Management Act of 1976.

Special uses need to meet several tests before being authorized.

Is the proposed use in keeping with National Forest purposes? This determination reflects the fact and intent of law, regulation, policy, and tradition.

What are the impacts of the proposed use and can they be mitigated? This is the role of an E.A. or E.I.S. and should include the cost of mitigation.

Is the proposed use in the public (National) interest? This has to be the key test.

"Public Interest" cannot be succinctly defined. Instead, it is defined by reviewing the ever-changing social, economic, and political scene. Laws, legislative history, regulations, policies, court cases, administrative appeals, and tradition shape and change the definition of "Public Interest."

For example, prior to 1915, residences were considered an appropriate use of National Forest land. In 1915, residences were restricted primarily to summer homes which were not to be used for full-time occupancy, and which would not interfere with the general public's use and enjoyment of the National Forests. In fact, summer home applications were actually solicited to help build a constituency for the National Forests! By the 1950's, summer home tracts were no longer being designated because of increasing demands for general public recreation and other uses of National Forest land. In the 1960's, the Forest Service discontinued issuing summer home permits for unoccupied lots on existing tracts because of the possibility of future need for those tracts to meet general public needs. In the 1970's, special-use permits for summer homes began, in some places, to be terminated because there was a higher and better use of the land, i.e., campgrounds to serve the general public . Thus, over a period of 80-plus years, the definition of public interest relative to dwellings has changed considerably. Similar transitions have taken place with such uses as pastures, sawmills, golf courses, schools, churches, and ski area base property.

The basic tenet of the 1908 "Use Book," that occupancy under permit grants no right or claim against the United States to the land, is so far still valid.

B. Early laws affecting the National Forest System.

1. The Forest Homestead Act of 1906.

This Act might be described as a throwback to the disposition/disposal period, and its impact on modern management is obvious. Look at the landownership map for almost any western National Forest. Where you see patented land carving out riparian areas, you see the result of the 1906 Act if the land had not already been taken up under the earlier homestead laws.

The 1906 Act gave the Secretary of Agriculture discretion to open to homestead entry agricultural lands not needed for public purposes. The Forest Service recommended the opening of lands to entry only in response to specific applications. By June 1910, the total area listed for entry was only 632,412 acres. The Forest Service used every device available to prevent and delay homestead entries. Pro-homesteading forces within Congress tried to enact legislation forcing the Secretary to open for entry all agricultural lands regardless of their value for other purposes. The effort failed, but a rider on the 1912 Appropriations Bill required and directed the Secretary:

... [T]o select, classify, and segregate, as soon as practicable, all lands within the boundaries of National Forests that may be opened to settlement and entry under the Homestead Laws.

By 1919, with the exception of Alaska, the classification was completed and 2.5 million acres were listed for entry. The total area patented amounted to 1.8 million acres and another 12 million acres were removed from National Forest by changes in boundaries.

The same 1912 Appropriations bill rider also proposed granting the National Forests to the States. It failed on a point of order.

2. Twenty-Five Percent Fund -1908.

The law which provided for giving local governments a portion of National Forest receipts for schools and roads in effect compensated for tax revenue foregone when opportunities for private ownership were foreclosed. The twenty-five percent fund concept has been a basis for much local and congressional support for Forest Service programs over the years. Attempts to tinker with the calculation of payments (as during the Reagan Administration) have been short-lived. The Clinton Administration presently is attempting to decouple the payments from revenues generated from any given forest in an attempt to take away the incentive to overgraze or over timber.

3. The Weeks Act of 1911.

The Weeks Law is clearly second only to the legislation of the Reservation Era in significance to the National Forest System. It made public land forestry truly national in scope.

From 1785 on there was continuing debate and disagreement about the timber, grazing, and recreational use of public lands. On the other hand, there was tremendous agreement about the importance of the public lands, particularly forested lands, to the water supplies of the country. While almost everyone agreed that the watersheds needed protection, there was little agreement about water use and watershed management. Irrigation and navigation were the major concerns.

Interest in purchasing lands in the east grew between 1905 and 1908, but the support for purchases actually had little to do with water or watershed management. Eastern loggers with large acreages of cutover lands preferred to sell them to the Federal Government rather than abandon them. Preservationists, conservationists, and naturalists clubs, such as the Appalachian Mountain Club, wanted National Forests in the East as a conservation measure. The Forest Service wanted a truly national system and had support as a firefighter on high fire hazard eastern cutover lands. These groups constituted a powerful alliance. Watershed protection provided the popular basis to accomplish the objective. Debates were frequent and claims and counterclaims about the value of the forest to stream flow were greatly exaggerated and often demonstrably false. The Weeks Act passed amid all the debate and discussion. It reflected a political decision rather than a technical one.

The Act authorized the survey and acquisition of "Lands located on the headwaters of navigable streams or those which are being or which may be developed for navigable purposes."

This provision enabled the Forest Service to become a truly national organization. The Secretary was also authorized to establish "purchase boundaries" and organize acquired lands as National Forests. Purchases were not to be made until USGS determined control of the lands would promote or protect navigation of streams and until the affected State consented to acquiring the land. These provisions were for the purpose of checking any exaggerated claims the Forest Service or others might have about the influence of forests on stream flow. No tract the Forest Service has wanted to buy has been turned down by a negative USGS report.

In 1913, the provisions of the Act were broadened to allow purchase of lands with rights-of-way, withdrawals, or easements. Lands with reserved minerals or timber were purchased. The Clarke-McNary Act in 1924 made lands valuable for timber production eligible for purchase. Many who did not understand the terms of the Act or the deeds of purchase blamed the Forest Service for not being able to control mining or logging on National Forest land. Following 1912, Congress for a time began to pay less attention to conservation and National Forest matters.

Note that Congress still assigns committees jurisdiction on the basis of the origin of National Forest land. Agriculture committees get bills affecting Eastern (Weeks Law) National Forests, while the Natural Resource committee gets Western (Public Domain) bills.

The Eastern National Forests comprise a gross acreage of about 47 million acres with a net Federal acreage of 23.7 million acres. This net acreage is about the size of the state of Indiana (23.1 million).

4. The Bankhead-Jones Farm Tenant Act of 1937.

The combined drought and economic disaster of the Depression years sadly proved the folly of much of the homesteading of the Disposal Era. Bad land use decisions had to be addressed by new federal programs.

The National Industrial Recovery Act of 1933 began the Federal acquisition and rehabilitation of tax delinquent lands. A series of laws passed between 1935 and 1953 established permanent federal management of the rehabilitation lands. The Emergency Relief Act of 1935 provided for establishing purchase boundaries for land utilization projects. In 1937, the Bankhead-Jones Act consolidated the lands under its management provisions and in 1953, much of the land was turned over to the States or converted to National Forest status. About 3.8 million acres were selected for permanent Federal ownership and turned over to the Forest Service ultimately to be managed as National Grasslands. The Grasslands comprise an area slightly larger than the State of Connecticut.

The management aspects of the Bankhead-Jones Act are interesting since the Act provides much more liberal and innovative opportunity than laws pertaining to National Forests.

Some of the unique aspects of National Grasslands are worth noting. The National Grasslands do not have boundaries as such, even though they occasionally show up on maps. Therefore, the Secretary's authority to sell, exchange, lease, or otherwise dispose of land is not limited to a particularly described piece of geography as is the case with National Forests. Because of Secretarial direction--not the direction of law--to use the grasslands to demonstrate grassland agriculture, the Forest Service has not moved aggressively to consolidate ownership. Since the mineral estate under grassland surface is mixed and involves public domain minerals, privately owned minerals, acquired minerals, and second and third party ownerships, it has complicated the management of the mineral estate and the surface.

5. The Multiple Use - Sustained Yield Act of 1960.

Since their inception, the National Forests had been managed under the principle of multiple use and sustained yield. However, this principle was enacted into law for the first time in 1960 leaving it to the discretion of the Secretary to determine the appropriate utilization and mix of uses for any given parcel of land.

6. National Forest Management Act of 1976 (NFMA).

NFMA prescribed the land management planning process as a guide for resource management, and it provided guides for the harvesting of timber. From a lands perspective, it defined for the first time the National Forest System as all lands managed by the Forest Service regardless of status. It also stated that land could be returned to the public domain only by Act of Congress. It also abolished the National Forest Reservation Commission by which the Weeks Act had been administered.

VII. THE B.L.M. AND PUBLIC LAND MANAGEMENT REFORMS

A. Classification and Homesteading.

1. Need for classification. As early as 1879, there was recognition of the need to classify the public lands. Valuable mineral and forest lands had been permitted to pass to private ownership as free grants, as donations to railroads or for cash at $1.25 per acre. Theodore Roosevelts large withdrawals for forests, watershed and power sites further necessitated some form of classification of the remainder.

In 1910, President Taft recommended that Congress authorize the classification of the remaining public lands according to their principal value or use.

2. Withdrawal Act of 1910. This Act authorized the withdrawal of land from entry for power sites, irrigation, and classification, but no funding was provided.

3. Homesteading and grazing. The Enlarged Homestead Act of 1910 allowed homesteading on 320 acres thereby promoting ranching in more arid areas. The Stock Raising Homestead Act in 1916 authorized 640 acre homesteads on land chiefly valuable for grazing and raising forage crops. Range damage increased under these added pressures. There were added pressures from the livestock industry and others for the government to establish a leasing system for the grazing of public lands.

4. Recreation and Public Purposes Act of 1926. The RPPA of 1926 (which is still in effect today) provided for the transfer or lease of recreational lands to states and local governments for free or substantially reduced consideration.

5. Garfield Committee. In 1930, Congress authorized the appointment of a Committee on the Conservation and Administration of the Public Domain, and President Hoover appointed James R. Garfield as its chairman. The Committees 1931 Report recommended cession of the public lands, but there was overwhelming opposition in both the east and west. Among the recommendations:

All the remaining public domain should come under responsible administration for the conservation and beneficial use of the resources.

High resource areas should be reserved for parks, forests and refuges .

Balance of land should be either given to states for administration if they want it, or managed by the Federal Government.

Minerals should be transferred to state administration with restrictions.

Other influential entities disagreed with the Garfield Committee. In 1931, the National Conference on Land Utilization called for retaining and administering the public ranges in a manner similar to and in coordination with the national forests.

B. Cooperative Management

1. Montana Experiment. In the 1920's there was a successful cooperative management experiment in the Mizpah-Pumpkin Creek managing grazing on intermingled private and public lands on 108,000 acres. This was the first grazing district.

2. Taylor Grazing Act of 1934.

The combination of drought, poor forage and low prices in the early 1930's brought the livestock industry around to the idea of cooperative management with the Government.

Edward T. Taylor sponsored the bill known as the Taylor Grazing Act which:

authorized the establishment of grazing districts to include up to 80 million acres of public land.

provided for transfers between Agriculture and Interior of lands respectively suited for forests or grazing.

The Secretary of the Interior was responsible for measures to protect, regulate and use and improve lands within districts.

The Secretary could issue permits for grazing, set fees and the animal capacity.

Lands within districts were withdrawn from all forms of entry.

While this Act was primarily aimed at regulation of stock grazing on the public domain, it did, in effect, result in classification of the public domain lands and essentially ended the period of free access to public domain lands. All the provisions of the Act, which were laid on top of a multitude of disposition statutes, were subject to the phrase "pending final disposition." Following passage of the Act, President Roosevelt withdrew all remaining public domain lands from homestead entry. The phrase "pending final disposition" kept the public domain lands in a state of uncertainty until 1976 when FLPMA reflected congressional intent that they would be retained in public ownership.

Secretary of the Interior Harold Ickes called the Taylor Grazing Act the Magna Carta of the conservation movement. Indeed, it placed 142 million acres of grazing land under his administration.

C. Division of Grazing. To implement the Taylor Grazing Act, the Secretary of the Interior established the Division of Grazing, later called the U.S. Grazing Service in 1939. This new entity was characterized by its decentralization from Washington and it being run by persons familiar with the grazing industry. Advisory boards were established between the agency and the ranchers to establish policies. The first agency head was Farrington R. Carpenter, a Colorado livestockman who happened to be a Harvard graduate.

Despite its highly productive efforts at implementing the Taylor Grazing Act, the Grazing Service came under intensive criticism from those who resisted higher fees and governmental control of the range. Drastic budget cuts in 1948 resulted in a reduction of 60% of the professional staff.

D. Expanded responsibilities of the General Land Office.

Under the Taylor Grazing Act, the GLO was given management responsibility for leasing rangelands outside of grazing districts. The Secretary of the Interior authorized the GLO to handle land exchanges, sales, entries and mineral leasing. Most importantly, GLO handled land classifications.

In 1934, President Roosevelt ordered a temporary withdrawal of public lands to determine suitability for inclusion in grazing districts and for classification for agricultural values.

E. O&C revested lands.

1. In 1866, Congress granted the Oregon and California Railroad (O&C) several million acres to construct a railroad from Portland to the California border. The grant stipulated that 3.7 million acres had to be sold in tracts no larger than 160 acres to actual settlers for no more than $2.50 per acre.

2. The railroad ignored the stipulation and, after protracted litigation including the Supreme Court, Congress revoked title in 1916 to more than 2 million acres of the grant.

3. In a similar move, in 1919, the Federal government revoked another 93,000 acres from the adjacent Coos Bay Wagon Road Grant.

4. The Forest Service made a determined but unsuccessful effort to include the revested lands within the National Forests. However, state and local governments preferred dealing with the General Land Office and sought a better revenue sharing arrangement than the 25% which the Forest Service offered.

5. The Oregon and California Revested Lands Sustained Yield Management Act of 1937 authorized the GLO to administer the lands for sustained yield of timber as well as other multiple uses.

F. Establishment of the BLM.

1. During and after W.W. II, efforts by the Grazing Service to raise grazing fees led to a firestorm of criticism. The agency was caught in a policy debate over the fair market value of the resource versus demands of western lawmakers. (The debate continues today).

2. Relations with the Hill and the Grazing Service deteriorated resulting in drastic cuts in the agencys budget in 1946.

3. In 1946, Secretary of the Interior Harold Ickes recommended a merger of the Grazing Service and the GLO, and the recommendation was accepted by President Truman as part of Reorganization Plan No. 3 of 1946.

4. The reorganization plan was legally effective unless both houses of Congress passed nonconcurrent resolutions in opposition. The House of Representatives did this, but not the Senate. Therefore, on July 16, 1946, the Grazing Service and the General Land Office became the Bureau of Land Management.

G. BLM - the Early Years.

1. The Reorganization Plan of 1946 didnt provide a mandate for the BLM, it simply transferred the previous functions of the Grazing Service and the GLO. It therefore had to manage based on the legal mandates established over the previous 150 years which authorized management activities on the public lands pending final disposition.

2. Integrating the GLO, one of the oldest federal agencies, with the Grazing Service, one of the newest, proved an administrative challenge.

3. Marion Clawson, appointed BLM Director in 1948, is credited with invigorating the new agency with forceful and effective reorganization. By 1953 when he left the agency, he had transformed the BLM into a multiple resource agency.

4. In 1955, the BLM introduced the Master Title Plat and Historical Index System which is the foundation of the public land records system today.

5. Also in 1955, Public Law 247 was enacted, known as the Recordation Act of 1955. It required any holders of various script and other rights to select land to record their rights within two years.

6. The multiple use management philosophy of the BLM and the Forest Service was the same, but differed in details (e.g. the BLMs multiple use includes minerals). However, the legal underpinnings came late. The Forest Service relies on the Multiple Use Sustained Yield Act of 1960. The BLM relies upon the Classification and Multiple Use Act of 1964 and, subsequently, FLPMA.

H. Classification and Multiple Use Act of 1964 (Pub.L. 88-607).

1. CMU Act was a temporary authority but legally defined multiple use as the combination of surface and subsurface resources of the public lands that will best meet the present and future needs of the American people. The Act listed ten elements of multiple use and directed BLM to classify its lands for retention or disposal.

2. By 1970 when the Act expired, BLM had classified 175 million acres for retention, and 3.4 million acres for disposal. Classification was no longer done on a case-by-case basis, but on an overall evaluation of the lands.

VIII. FLPMA and the Public Land Law Review Commission.

A. Public Land Law Review Commission. The increased demand for the use of public lands after World War II gave rise to a need for new management and disposal tools concerning the public lands. Committees of Congress were faced with a multitude of suggestions for resolving the problems of public land management. In response, the Congress enacted Public Law 88-606 establishing the Public Land Law Review Commission. In its report on the enactment, the Committees stated:

It is the considered opinion of the committee that the necessary comprehensive study required of the public land laws cannot be carried out successfully by this Committee acting alone. The committee believes that due to the many and varied factors, considerations, and interests involved, only a bipartisan commission supplemented by an advisory council made up of many interested users of the public lands would be in a position to coordinate and supervise effective such a broad study.

B. One Third of the Nations Land: A Report to the President and to the Congress by the Public Land Law Review Commission.

1. The Report. The Commissions report issued in 1970, One Third of the Nations Land, was an exhaustive examination of the nations public property, how it is managed and by whom, and for what purposes. It contained numerous recommendations, some of which were conflicting, to overhaul the public land laws. Among its recommendations:

Terminate disposal policies in favor of retention for future needs and benefits to the nation.

Review all executive withdrawals, set asides and classifications to ascertain their utility for public purposes.

Congress must establish policies for the management of all public lands.

Withdrawal authority and criteria should be established by Congress.

Land management agencies should promulgate regulations providing for administrative appeals.

Statutory goals and objectives should be established as guidelines for land use planning.

Federal statutory guidelines should assure that Federal public lands are managed only to enhance the quality of the environment.

The Federal government should receive full value for the use of public lands and their resources.

Land use authorizations should provide firm tenure and security of investment.

The U.S. should make payments to states in lieu of taxes.

Sale be permitted of lands more valuable for private utilization than for its retention in public ownership.

When not needed for Federal purposes, land should be made available for community expansion and for state and local governmental use.

The distinction between acquired land and public domain should be eliminated.

Federal land management should be consolidated to the extent possible.

C. The Federal Land Policy and Management Act of 1976.

1.FLPMA implements several of the recommendations of the Public Land Law Review Commission. It repealed scores of antiquated public land laws and replaced them with comprehensive authority for the planning, management and disposal of lands by the Bureau of Land Management.

The primary purpose of this important law was to establish that the public lands will be retained and managed in federal ownership and to provide an organic act for the Bureau of Land Management. FLPMA is also significant to the Forest Service with respect to exchanges, withdrawals, and land use authorizations. The law provides for fair market value fees, fee waivers, and reciprocal rights-of-way.

2. Major provisions of FLPMA:

- Revamped withdrawal provisions.

- Broadened disposal authorities.

- Consolidated provisions for granting rights-of-way.

- Prescribed land management planning for public lands.

- Provided for administration of BLM under multiple use principles.

- Enhanced law enforcement capabilities on public lands.

- Required recordation of mining claims.

- Designated special management areas.

- Repealed outdated public land laws.

D. Contrasting Multiple Use between Forest Service and BLM.

1. While BLM and the Forest Service operate under multiple use mandates, the subtle differences in those mandates underlies the differing management philosophies and requirements of the two agencies. Compare and contrast the statutory definitions:

2. Forest Service (Multiple Use Sustained Yield Act of 1960)

Note the 5 listed resources and the reference to renewable surface resources:

The National Forests are established and shall be administered for outdoor recreation, range, timber, watershed and wildlife and fish purposes. (Emphasis added)

Multiple use means the management of all the various renewable surface resources of the National Forests so that they are utilized in the combination that will best meet the needs of the American people... (Emphasis added)

16 U.S.C. 531.

3. Bureau of Land Management (FLPMA)

Note reference to renewable and nonrenewable resources and the broader scope of multiple uses.

Multiple Use means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people ... a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values... (Emphasis added)

43 U.S.C. 1702(c).

Interesting, FLPMA departs from the earlier definition of multiple use found in Public Law 88-607, the 1964 Classification and Multiple Use Act. That act, since expired, listed ten multiple uses: domestic livestock grazing, fish and wildlife development and utilization, industrial development, mineral production, occupancy, outdoor recreation, timber production, watershed protection, wilderness preservation, or preservation of public values that would be lost if the land passed from Federal ownership. 78 Stat. 986.

IX. TRENDS IN THE FEDERAL LAND LAWS.

1. Discretion evolving into Prescription.

Early laws governing the Federal lands were highly discretionary in the land managing agency. For example, the National Forest Organic Act authorized the Secretary of Agriculture to "prevent depredations" upon the public forests and to "regulate their occupancy and use."

For the first half of the century, the trend in the law was toward authorizing further development and granting managerial discretion. As representative examples, note the following:

Term Permit Act of 1915

Federal Power Act of 1920

Mineral Leasing Act of 1920

General Exchange Act of 1922

Minerals Act of 1947

Each of these laws granted power to the land managing agency to utilize or dispose of the Federal lands. There was considerable discretion as to how such laws would be exercised and little administrative, Congressional or judicial oversight.

Culminating the discretionary laws were the multiple use acts for the Forest Service (1960) and the BLM (1964) These laws defined broad general uses to which the Federal lands were devoted, but gave broad discretion to the land management agency to determine the appropriate mix and intensity of uses.

2. The 1960's.

The 1960's were not only a time of social turmoil, but of environmental awakenings. Rachael Carson's Silent Spring characterized this awakening to the poisoning of our environment by pesticides. The writings of John Muir, Bob Marshal, Aldo Leopold sparked a decades long effort to designate wilderness areas culminating in 1964 with the Wilderness Act.

In 1962, the Supreme Court handed down the monumental decision in Baker v. Carr (369 U.S. 186) requiring the reapportionment of state legislatures. Referred to as the case establishing one man - one vote, the case heralded the shift of political power from rural areas to urban ones. Future legislatures and the Congress would be dominated by urban interests whose views of the public lands are less consumptive and more environmental.

The decade ended with the passage of NEPA, proposed by Richard Nixon and enacted into law by a Democratic congress. The tide had turned.

3.Prescriptive laws.

Since 1960, virtually all laws pertaining to Federal lands have been prescriptive in nature and limiting of the discretion of Federal land managers. The following are but a sample of illustrations.

Special designations:

Wilderness Act, 1964

Wild and Scenic Rivers Act, 1968

National Recreation and National Conservation Area designations

Special protections:

Endangered Species, 1973

Wild Horses and Burros Protection Act, 1971

Archaeological Resources Protection Act, 1979

National Historic Preservation Act, 1966

American Indian Religious Freedom Act, 1978

Federal Cave Resources Protection Act, 1988

Environmental Protection:

Clean Air Act, 1955 (amended 1977)

Clean Water Act, 1948 (amended 1972, 1987)

CERCLA (Comprehensive Environmental Response Compensation and Liability Act of 1980)

Procedural Requirements

NEPA, 1970

National Forest Management Act, 1976

Federal Land Policy and Management Policy Act, 1976

Freedom of Information Act, 1974

Contract Disputes Act, 1978

Consultation requirements under ESA, NHPA.

X. THE FEDERAL LANDS IN THE 21ST CENTURY - Prognostications based on historical perspective.

1. Trends. Demographic and political trends at the end of the 20th Century point to the following:

-Increasing population with more leisure time.

-Continued population shifts to traditionally rural areas made possible by the "communication superhighway."

-Continued pressure on threatened and endangered species.

-Wood fiber needs will continue to grow, but better utilization will not increase harvest levels.

-People will strive for a healthy lifestyle reducing the demand for red meat, and that demand will be met from private farms, ranches or through importation.

2.The Federal Lands in 2050.

-With an increasing urban population, there will be increased use of the Federal lands for recreation. However, a reservation system will be necessary to prevent over utilization.

-Particularly in the east, Federal lands will be islands of green surrounded by development.

-If protections for endangered species continue under existing law, the Federal lands will become increasingly devoted to species preservation; virtual "Noah's Arks".

-Grazing of the public range lands will be sharply reduced as the demand for red meat is reduced.

-If payments to states are decoupled from timber production, there will be less of a demand for timber production.

-There will be selected forested areas where sustained yield forestry will be the norm, primarily located in the south east.

-There will be new Federal land management units created from the present corporate lands, particularly in New England.

-Federal land managers will be managing millions of acres of conservation easements, many of which were acquired in the latter part of the 20th Century by land trusts who, decades later, are unable to carry the burden of administration and costly enforcement.

-Congress will spend considerable energy on land consolidations. Legislated land exchanges will ultimately eliminate most of the checkerboard ownerships. Isolated state owned sections will be bought out or exchanged.

3.The Federal land laws in 2050.

-The BLM and the Forest Service will merge. Since the enactment of FLPMA in 1976 providing for the retention and management of the former public domain, the rationale for merger will eventually overcome the inefficiencies and illogic of maintaining two multiple use land systems.

-The Mining Laws of 1872 will finally be repealed in favor of a leasing system.

-There will be a Department of Natural Resources to consolidate all public land management. As National Forests move toward non-commodity objectives, the rationale for sustained yield management in the Department of Agriculture will be reduced.

XI. CONCLUSIONS

It is obvious that legislation from the late 18th century to the present has significantly shaped and determined and constrained the course of Federal land management.

We have seen that the large majority of land laws were passed for social/economic or social/ political reasons. Their origin was only rarely rooted in technical or professional concerns. As managers, you need to understand that professional or technical arguments were merely tolerated or were encouraged to meet social goals and objectives. It was the astuteness and genius of people like Pinchot and Roosevelt who understood and used the social-economic-political goals and objectives of society to accomplish their professional and technical goals.

Many issues and arguments remain much the same over time; only the people have changed. Times change and value judgments change. You are not managing lands for yourself, for the BLM or the Forest Service, or for your particular profession, but for the people of the United States. Management must be based on the public (National) interest. History can be a tremendous aid in understanding what the public interest is and is not, and how it changes.

XII. REFERENCE MATERIAL AND SUGGESTED READING

Dana, Samuel T., Forest and Range Policy, Second Edition. McGraw-Hill Series on Forest Resources; 1980.

Gates, Paul W., History of Public Land Law Development, Public Land Law Review Commission, U.S. Government Printing Office, 1968.

Marsh, George P., Man and Nature; or, Physical Geography as Modified by Human Action. Reprinted, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1965.

McCarthy, G. Michael, Hour of Trial: The Conservation Conflict In Colorado and the West 1891-1907. University of Oklahoma Press, 1977.

Muhn, James, and Hanson R. Stuart, Opportunity and Challenge, the Story of BLM, U.S. Department of the Interior, Bureau of Land Management, September, 1988.

Pinchot, Gifford, Breaking New Ground. Island Press, Washington, D.C. 1974.

Pinchot, Gifford, The Fight for Conservation, University of Washington Press, Seattle, 1910.

Portney, Paul R., ed., Current Issues in Natural Resources Policy. Resources for the Future, Inc., 1982.

Public Land Law Review Commission, One Third of the Nation's Land: A Report to the President and the Congress by the Public Land Law Review Commission, U.S. Government Printing Office, 1970.

Richardson, Elmo, BLM's Billion Dollar Checkerboard. Forest History Society. 1980.

Robinson, Glen O., The Forest Service: A Study In Public Land Management. Resources for the Future, Inc., 1976.

Roosevelt, Theodore, Winning of the West. Putnam and Sons, 1907.

Rowley, William D., Grazing and Range Lands. Texas A&M University Press, 1985

Shands, William E. and Healy, Robert G., The Lands Nobody Wanted. Conservation Foundation, 1977.

Steen, Harold K., The U.S. Forest Service, A History. University of Washington Press, 1976.

Steen, Harold K., The beginning of the National Forest System. US Department of Agriculture, FS-488, 1991.

U.S. Department of Agriculture, The Principal Laws Relating to Forest Service Activities, USDA Forest Service Agriculture Handbook No. 453, revised September 1993.

Wengert, Dyer, and Deutch, The Purposes of the National Forests: A Historical Re-interpretation of Policy Development, Colorado State University, 1979.

Wilkinson, Charles F., Crossing the next Meridian-Land, Water, and the Future of the West, Island Press, Washington, DC 1992.

NOTE: The narrative for this lesson was originally prepared