University of Colorado Law Review
Volume 75, Issue 4, Fall 2004
FOREWORD
The papers that follow were first presented orally at a conference held January 30-31, 2004, at the University of Colorado School of Law, titled Constitutional Conflicts on Public Lands. The conference was a deliberate effort to consider constitutional questions outside the bounded realm of Supreme Court interpretations. As our speakers demonstrated, federalism issues about public lands are abundant, but most are addressed by politics, statutory interpretations, or agreements between federal managers and state and local interests.
John Leshy leads with an extensive review of Supreme Court interpretations of ambiguous federal actions respecting the public lands, actions well within congressional power under the Property Clause or other enumerated powers. His thesis is that the Court has shown an attitude toward the public lands that favors their retention, federal authority over them, and environmental preservation. He suggests that these decisions have constructed a constitutional common law of public lands. Dan Kemmis addresses failures of public land management and advocates a diversified portfolio of policy initiatives, which should include trying out experimental systems on a modest scale with state and local involvement. Bob Comer faces these problems on the inside as a Regional Solicitor for the Department of the Interior. His paper comprehensively reviews the broad range of federal statutes that have established cooperative federalism regimes to address conflicts over public lands. He points out the interesting history of conflicts about federal delegations of authority over the public lands by Congress and the Executive. Sarah Krakoff discusses the Government's recent settlements of lawsuits arising from wilderness land disputes in Utah. She argues that this constitutes an indirect and improper form of public land management that excludes the environmental community from any voice in the process. (T. Wright Dickinson, a rancher from the remote northwest corner of Colorado, gave the conference a fascinating local perspective on public lands that is not represented by a written paper.)
Of course, constitutional interpretation was fairly included, and our speakers responded with two lively exchanges. Dale Goble proposes an expansive interpretation of federal authority to regulate nonfederal lands adjoining public lands. His goal is to combat what he denominates the "Tragedy of Fragmentation" of landholdings, which disables the Government from efforts to address loss of biodiversity on a sufficiently broad scale. Allison Eid cogently replies that Congress lacks authority to impose regulations on nonfederal lands beyond what is needed to protect against activities that directly harm public lands, analogizing to common-law nuisance. Bob Cynkar presents the imaginative range of constitutional claims that the State of Nevada has advanced against the proposed federal nuclear waste storage site Yucca Mountain. John Yoo and Jennifer Koester counter that Nevada's claims are well beyond even a most respectful view of the State's constitutional right to countermand federal actions. They invoke authority over public lands but also point out that Yucca Mountain relates to national security.
Richard B. Collins
Professor and Director, Byron R. White Center
for the Study of American Constitutional Law,
University of Colorado