Trespass laws in Idaho are now harsher - and more confusing

Photo: Ryan Stoa

In the 2018 legislative session, the Idaho Legislature passed a sweeping new bill aimed at reforming Idaho's trespass laws.  It will go into effect tomorrow - July 1 - but not without controversy.  The new law changes the definition of trespass, while ramping up penalties for potential trespassers.  It represents the latest installment of the public vs. private lands battle taking place across much of the western United States.  I wrote an op-ed on the new law that appeared in newspapers in Idaho, Washington, and Oregon.  Link to the Idaho Press edition here.  Text below:

For many of us, myself included, Memorial Day marked the unofficial start of summer. I spent the holiday weekend camping in the Sawtooth National Forest, humbled by the surrounding jagged peaks still locked in winter’s grasp. Driving up on the Ponderosa Pine Scenic Byway, I passed through the Boise National Forest and Salmon-Challis National Forest, making note of countless summer adventures to be had in the Mores Creek, Payette River and Salmon River watersheds. When I look at Idaho’s wildlands, I can’t help but see a landscape to be explored. In this, I am sure I am not alone.

And yet, the seduction of outdoor wanderlust must be tempered by the responsibility that comes with a Western land ethic. We are blessed to live in a state with an abundance of public lands — over 60 percent of Idaho’s land area. Our public lands include state and federal parks, forests, refuges and wilderness areas, many of which are managed to provide a diverse range of recreational opportunities. The other 40 percent of our state must be respected for what it is — private.

Most Idahoans understand and respect the difference between public and private lands and their distinct access rights. Still, given the wild and vast nature of the Idaho landscape, it can be difficult to know if a parcel of undeveloped land is public or private. Fences and “no trespassing” signs can be few and far between. Maps can be hard to read. Trespasses happen, often inadvertently.

Idaho’s trespass laws have been criticized over the years, largely for being confusing or inconsistent. During the 2018 Legislature, Idaho lawmakers passed a sweeping bill that altered the meaning of “trespassing” and increased penalties for violators.

Unfortunately, the bill was hastily drafted and pushed through into law, without meaningful input from sportsmen or law enforcement. If the goal was to eliminate confusion and inconsistencies in Idaho’s trespassing statute, the bill largely missed the mark.

As Idahoans prepare for summer adventures, it is important to understand the impact and consequences of our new trespass law, which goes into effect July 1.

For private landowners, it means significant changes to posting and marking requirements, as well as unclear rules about where public land ends and private land begins. The law is inconsistent regarding the ways citizens can obtain access permission from landowners; one provision requires “written authorization,” while another provision suggests an “implicit invitation” is sufficient.

The trespass bill also imposes harsher penalties on violators. Civil trespass is now considered a “strict liability” offense, meaning violators may be subject to a civil suit even if their mistake was honest and didn’t cause damage. The standards for criminal trespass are similar, such that any trespass could be considered a criminal offense with the possibility of criminal sanctions and a criminal record. In some cases, repeat trespassers will be subject to a mandatory felony charge. Parents or guardians with minors in their care should be aware that the trespass bill does not provide extenuating circumstances or special provisions for juveniles.

Those of us who enjoy Idaho’s great natural wonders and wild landscapes must practice responsible land stewardship. That responsibility includes an awareness of our access rights to public and private lands. Unfortunately, the new trespass bill makes it harder for landowners and citizens to navigate this responsibility. Let’s hope these problems are addressed during the 2019 Legislature.

In the meantime, Idahoans venturing into their favorite wild places must know their rights and responsibilities. Recognize the difference between public and private lands, get permission to access private land and tread lightly. The Idaho summer we’ve all been waiting for is here. Plan ahead and enjoy responsibly.

National Monuments, Arctic drilling, DAPL highlight final acts of Obama administration

The Road Canyon Citadel in the 1.35 million-acre Bears Ears National Monument in southeastern Utah.  Photo: BLM.

As expected, the final "lame-duck" months of the Obama administration provided several bombshell announcements regarding American public lands and natural resources.  First, the US Army Corps of Engineers denied the permit needed to complete the Dakota Access Pipeline (DAPL).  The denial comes on the heels of the federal government's Sep 2016 announcement that it would be withdrawing the permit in order to consult with affected tribal groups.  Apparently, the consultation was effective in convincing the Corps to deny the permit (though skeptics claim the meetings were pretext for a political decision) and initiate another round of environmental review instead.  There is a good-to-very good chance that the Trump administration will instruct the Corps to issue the permit, but even if that is the case, the permit denial sets precedent for tribal consultation in a more meaningful way.  Perhaps more importantly, the victory for tribes and environmental groups will almost surely inspire and encourage more pipeline protests in the future, having been successful in blocking two consecutive high-profile pipeline projects (DAPL and Keystone XL).  

Second, the Obama administration invoked the Outer Continental Shelf Lands Act of 1953 to set aside wide swaths of the Arctic off-limits for off-shore drilling.  The American portion of the Chukchi Sea will be entirely off-limits, while most of the Beaufort Sea will be as well.  In a corresponding move, Canada declared a freeze on drilling in its portion of the Artic seas.  The OCSLA allows a President to declare portions of the continental shelf off-limits for oil and gas exploration, though up to this point presidents had put a timetable on a drilling moratorium.  Obama's declaration puts these portions of the Artic off-limits "indefinitely."  Trump has appointed notable oil and gas industry supporters to his cabinet (including the Secretaries of State and Energy, as well as the Administrator of the EPA), and it seems clear his administration will not be fond of these drilling withdrawals. But there's not much precedent to reverse a decision of this nature, or at least not unilaterally (the Republican-controlled Congress could always amend the OCSLA).  If reversed, the decision would almost surely be forced to defend itself in the federal courts.

Finally, President Obama established two new National Monuments.  The 1.35 million-acre Bears Ears National Monument in Utah, and the 300,000-acre Gold Butte National Monument in Nevada.  The Antiquities Act of 1906 authorizes the President of the United States to establish National Monuments as part of the federal public lands system.  Devil's Tower in Wyoming was the first such monument established.  Over time, the Act has been used by presidents to establish substantial areas of land as federally protected.  In total, President Obama has established 29 National Monuments, of which Bears Ears and Gold Butte are his final two.  The move was met with praise and celebration from environmentalists, and scorn and disdain from drilling/grazing interest groups.  Like the OCSLA drilling withdrawals, there is little authority for a president to reverse a National Monument designation (in fact it has never been done before).  But, with a Republican-controlled Congress, several of whom are outraged by the new monuments, there is talk of amending the Antiquities Act or repealing it altogether.  That would be a drastic move, but not altogether surprising if Congress wants to consolidate power over disposition of public lands.

All of this brings us now to the Trump Administration.  President Trump (sworn into office today) will oversee America's public lands and natural resources at a very interesting time.  Climate change continues to dominate debate and negotiations within the international community, the fracking boom is continuing apace domestically, and tensions between public vs. private land supporters remain high.  Meanwhile, with a Republican-controlled Congress and White House, the stage is set for their agenda to dictate the terms of these conflicts.  Already Congress is considering bills that would overhaul the balance of power between Congress and administrative agencies.  It is clear, however, that Obama-era activists will not be backing down from these political and legal battles.  

Presidential Transitions and the Hyperactive Administrative State

President-Elect Donald Trump.  Photo: Gage Skidmore

A couple years ago, in response to Congressional obstructionism frustrating President Obama's legislative agenda, he said the following: "I’ve got a pen and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward."  What the President meant by that was that, even without Congressional support, the federal executive's administrative agencies are so broad in scope and powers that the President can still use administrative rules and regulations to govern the country.  This approach was the source of the Clean Power Plan, for example, which itself was a reflection of the administration's commitment to the Paris Climate Treaty it had negotiated with the international community.

At the end of a President's term, and especially when the president-elect is of a different party from the incumbent, there is a sense that there is little work left to be done, or little that can be done.  The "lame-duck" President merely waits out the 6 weeks or so until the inauguration.  Since the rise of the administrative state in the twentieth century, however, that is anything but accurate.  In fact, the past few presidential transitions have seen Presidents continue to create new rules and regulations, often up until their last day in office.  That's because administrative agency rule-making, while technically reversible by the next administration, is in reality difficult to overturn.  Even when rules are reversed or abolished, the process requires considerable human and political investments to pull off.  

A prime example of this was President Clinton's Roadless Rule.  The Roadless Rule prevented logging, mining, drilling, and road-building across millions of acres of undeveloped national forest lands.  The Rule was published a week before President Bush took office.  The Bush administration delayed its enactment, and were not in support of enforcing it.  Overturning the rule would have required a lengthy administrative rule-making process, however, something the administration did not have the stomach for at the time.  The fight then moved to the federal courts, state governments, and the US Congress, as forces battled to preserve, modify, or abolish the Rule.  Eventually efforts to overturn the rule died in front of the DC District Court in 2013, twelve years after the Rule's enactment.  While not all administrative rules and regulations experience such a colorful history, the Roadless Rule demonstrates that a President's powers to set policy for the country do not end on election day.

Next semester I will be teaching Administrative Law.  From an educational point of view, it will be one of the most exciting times in recent history to teach this course.  The Obama administration will be announcing and promulgating hundreds of new rules up until the inauguration, and soon thereafter the Trump administration will do its best to undo or minimize the impact of those new rules.  Some of that has already begun.  A couple weeks ago the Department of the Interior announced a 5-year plan for offshore drilling in the Arctic, prohibiting oil and gas development entirely in most areas.  The Trump administration, which appears to be more friendly towards oil and gas interests, could overturn this plan only after extensive environmental studies and consultations.  

Also of interest will be the Obama administration's handling of the Dakota Access Pipeline, and the Trump administration's approach to that pipeline as well as Keystone XL.  The DAPL permits are still withdrawn, and could be granted or revoked by the current administration.  Or, the Obama administration could kick the can down the road and let the Trump administration handle it (Trump has declared his support for construction of the pipeline).  If it wanted to, the Trump administration could revisit Keystone XL as well.  The original project was denied, but a slightly modified project could be submitted again by TransCanada.  It would take some time to go through the administrative review process, of course, but it would not be surprising if Keystone XL is back on the table next year.  There will surely be more administrative agency drama to come in the next several weeks and months.  

Public Lands and the Social Media Effect

Photo: Ryan Stoa

I have to admit, I'm a sucker for nature photography.  I love taking landscape shots, and I love seeing them.  A couple months ago I visited the Boise Art Festival to check out the multitude of drool-worthy nature portraits being hawked by the pros.  And although I don't really follow celebrities on social media, I do follow many federal public lands agencies on instagram (more interesting than it sounds).  The Bureau of Land Management, Department of the Interior, Fish and Wildlife Service, and local Idaho photographers keep my Instagram feed populated with photos of our country's most iconic natural landscapes, and some that are off the beaten path.  When I get the opportunity, I like to contribute my own amateur photography as well.  The above shot was taken in Idaho's Sawtooth Wilderness on a beautiful Sunday in late September.

The rise of nature photography on social media may be motivating people to get outside, but it is also taking its toll on wild places.  The Ringer's Molly McHugh explains the conundrum:

Manifest Destiny is defined by the nation’s westward territorial expansion, but it’s also a philosophy about the need to conquer, to discover. What happens when social media increases the rate of outdoor discovery? How long until every corner of the planet has been Instagrammed and geotagged?

These may seem like ridiculous questions, but they’re more legitimate than you might think. It’s become so easy to tell the world what you’ve discovered, and technology can so accurately plot it, that we have arrived at a curious moment in a kind of digital manifest destiny: keep cataloguing, or keep things secret? As every place becomes attainable and collectible, tourist attractions that aren’t prepared — or, really, meant — to host hundreds or thousands of yearly visitors are bombarded with them; national parks visitor numbers have increased 26 percent over the last decade, according to the Associated Press [...]

While the National Park Service and bigger recreation agencies in general have courted the social media ticket, smaller staffs don’t have the same ability to do that, and instead find themselves struggling to deal with the onslaught. National Parks can find this a challenge, too, but the degree of impact is lessened by their resources. “Oregon only has one national park, Crater Lake, and even it’s struggled with crowds,” the Statesman’s Urness told me when I asked about the disparity between larger and smaller departments. “But national parks were already designed for high volumes. A lot of the areas getting hit now weren’t designed for it, and the management in place was never prepared for this. The mechanisms to do anything about it are slow — it’s government paperwork.”

The effect is emblematic of a broader tension between wanting the public to care about wild places and public lands on the one hand, while preferring not to run into other people when visiting those places on the other hand.  Leave No Trace principles can help, and the LNT Center publishes an annual list of Hot Spots designed to raise awareness of places where public use has intensified and threatens the ecological integrity of an area.  Several hot spots are popular rock climbing destinations I'm fond of (North Carolina's Linville Gorge; Kentucky's Red River Gorge; Nevada's Red Rock Canyon).  In general, many share the same characteristics: natural beauty and reasonable access.  Surely there are many other places stressed by increased traffic that didn't make the list.  

While the public can take measures to reduce impacts, appropriations should reflect the increase in demand for park administration and services.  When I was conducting research on Biscayne National Park, a large marine preserve off the coast of Miami, it was evident that both the Florida Fish and Wildlife Commission and the National Park Service were not receiving sufficient funding necessary to enforce public use and fishing regulations.  Many state and federal public lands agencies are under similar constraints.  With an election next week and new governments in place in January, it's a good time to revisit the impacts of recreation on public lands, and the resources agencies need to maintain access sustainably.  

Big Cypress: Oil and Gas Rights and Multiple Use in the National Park System

Big Cypress.  Photo: Franco Tobias.

Last semester I taught Natural Resources Law for the first time.  Some of the themes we encountered throughout the course included: the federal government's constitutional authority over public lands, the National Park Service's dual mandate to promote conservation and enjoyment of NPS lands, "multiple use" principles, tribal natural resources, wilderness designation, federal energy policy, oil and gas exploration and development, environmental review requirements, and designation of critical habitat for endangered species.  As if tailor made as a law school exam hypothetical, controversial management of the Big Cypress national preserve in South Florida invokes each of these themes.

National Parks Traveler has an excellent rundown of the preserve's troubled past.  A recent decision from the NPS to forego an Environmental Impact Statement in favor of an Environmental Assessment (or more simply, to forego more rigorous environmental impacts review) will allow Collier Resources (owner of oil and gas rights in the preserve) to study the preserve area to determine if oil and gas development is feasible.  The decision is reigniting concerns over many dormant ambiguities in the preserve's enabling legislation and management history.   Consider just a few of these ambiguities:

• the Big Cypress National Preserve is part of the National Park System and thus its ecological integrity must be maintained, but its enabling legislation provides for some oil and gas development;
• NPS management of the preserve has, at times, appeared to promote the principle of "multiple use" of public lands (allowing for extensive Off-Road Vehicle use for example), even though the principle does not apply to NPS lands;
• when the federal government acquired the lands that now make up the preserve, subsurface mineral values may have been taken into account when Collier Resources was paid for surface lands; 
• Assuming Collier's mineral rights are secure, it is unclear if meaningful energy deposits are located in the preserve, making it difficult to valuate Collier's property interests in advance of a potential buy-out;
• there are several endangered species living in the preserve - such as the Florida panther - but critical habitat has never been designated
• federally recognized tribes retain certain use rights in the natural resources of the preserve
• as a vast wilderness expanse, the preserve is an obvious candidate for designation as a federally protected wilderness area, but park officials disagree on which lands should be designated as wilderness and which lands should not;

If the seismic testing and exploration moves forward as anticipated, at least one of these issues will be cleared up, as Collier and the NPS will have a better sense of how much oil and gas is located in the preserve.  Historically Florida has not been an oil-rich state, so there's a good chance the exploration phase comes up empty.  If that's the case, a buy-out of the mineral rights would be more feasible.  If, on the other hand, Collier finds extraction worthwhile, the company will still face a difficult road.  Collier will have to submit an oil and gas development plan to the NPS for approval.  At that point, a full-blown Environmental Impact Statement is likely, and the fragility of the preserve's ecological resources might limit the extent of development.  The low cost of oil might make such a complex extraction scheme financially impracticable even if the plan is approved and survives third-party litigation.  In any case, potential oil and gas development in a national preserve (and potential wilderness area) is something to keep an eye on.  If nothing else, it makes for a great case study for students of natural resources law.

National Bison Legacy Act makes the bison America's national mammal

Photo: Kabsik Park.

There hasn't been a lot of bipartisanship in Congress this year, but a broad coalition of support from conservationists, ranchers, and Native Americans led to passage of the National Bison Legacy Act.  The Act makes bison the official national mammal of the United States.  Most people are familiar with one phase of the bison's North American history.  Massive bison herds used to roam freely across the great plains and American West (with a peak population estimated at 60 million), but due to human settlement, disease, and most significantly, market hunting, the bison nearly went extinct by 1900.  

A combination of conservation and private bison ranching help bring the bison population back.  Today there are an estimated 500,000.  That number is somewhat misleading, however, as many of those are now domesticated livestock bison, cross-bred with cattle.  As few as 30,000 are on conservation lands, with only 5,000 un-fenced and healthy.  And even the wild bison are subject to annual "culls" conducted by the federal government in Yellowstone National Park:

In 1995, the state of Montana sued the park service to control bison that roam outside of Yellowstone’s boundary. Montana stockmen feared that bison could infect local cattle populations with the disease brucellosis, which can cause cows to abort their calves. For years, the Montana Department of Livestock had killed bison that left the park.

In 2000, a court- mediated settlement resulted in the Interagency Bison Management Plan, which remains in effect today. It basically requires the park service to do the bidding of Montana stockmen. The park service, in cooperation with the state livestock department, captures bison inside the park and ships them to slaughterhouses. This effort has cost an estimated $50 million since it began 15 years ago. Ninety-five percent of that funding has come from the federal government.

There is very little science to back up the brucellosis fear, however.  Some believe brucellosis to be a cover for ranchers' concerns that wild bison will compete with other livestock for prime grasslands.  In any case, the bison, despite a promising recovery, faces many challenges to a return to historic habitats and grazing freedoms.  So, does the fact that the bison is now America's national mammal provide some hope?  Here are the two operative clauses of the National Bison Legacy Act:

  In other words, the first clause adopts bison as the national mammal; the second clause clarifies that the designation changes nothing.  The Interagency Bison Management Plan, for example, is not affected by this law, nor is any other statute or federal management activity. Unlike state legislatures, however, Congress has not been in the habit of designating official animal species.  The only other animal to receive this distinction is the bald eagle, the national bird, which has enjoyed a successful rehabilitation success story.  The bald eagle's recovery can be attributed to other federal laws and management actions (such as the Endangered Species Act), but the bird's status as a national icon surely help garner support for conservation efforts.  Similarly, while merely designating the bison as America's national mammal is unlikely to make a difference on its own, it can't hurt to raise the profile of the bison and its plight.  If nothing else, the bison lives on as a reminder of our predecessors' unbalanced approach to natural resources management.

The Klamath River Dam Removal Agreement: Lessons for Negotiation

The Klamath River.  Photo: Linda Tanner.

An agreement to implement the largest river restoration project in the United States was signed last week on a fish cleaning table at the mouth of the Klamath River in northern California.  The agreement hasn't garnered much national attention, but serves as a model for negotiating a complex stakeholder agreement over water resources.  This week I've been running negotiation simulations in my Natural Resources Law and Ocean and Coastal Law classes to drive home the significance of multi-party conflicts over natural resources, and the challenges of coming to a mutually beneficial agreement when so many parties have an interest in the resource.  The Klamath River is a textbook example of a multiple use resource conflict.  

The river and its network of dams provide irrigation to farmers in Oregon's upper basin and California's lower basin, hydropower to energy markets, instream flows to federal public lands, domestic water and aquatic species for several tribes, and sustain a diverse ecosystem that includes three species listed under the federal Endangered Species Act (including the Coho Salmon).  The operator of the dams is owned by Berkshire Hathaway, the river provides recreation and tourism opportunities to local communities, and its path crosses the state boundary between Oregon and California.  In other words, stakeholders include large-scale farmers, small-scale farmers, federal agencies, endangered species, tribal governments, conservationists, corporate interests, two western states, and watershed communities.  For many years the dynamic of the conflict pitted the dam operator and farmers benefiting from the irrigated water dams provide against the downstream tribes and conservationists who were critical of the cumulative impacts dams were having on the watercourse as a whole.  There has been extensive litigation and political wrangling in the last several decades, intensifying the conflict.  Compounding these issues is a decline in the absolute quantity of water resources available in recent years.  

It seems remarkable, then, that this diverse group of stakeholders could have come to an agreement.  Upon closer inspection, it seems that ancient doctrines of water law and the judicial system may have played a necessary role in getting the parties to the negotiating table.  The United States federal government holds a reserved water right to sustain federal public lands, from which it must also protect and preserve the water rights of the several tribes.  In this case, the Klamath Tribes (established by the Klamath Treaty of 1864), had priority water rights.  In the western water law system of prior appropriation, senior water users have priority over junior water users, but it can take many years of legal battles to validate senior water rights.  In 2013, an arbitration court finally validated the tribes senior water rights over upstream farmers using the dams.  In a previous case, United States v. Adair, the judge concluded:

"Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation."

That court decision prompted the stakeholders to negotiate an agreement that would operationalize the tribes' legal victory.  And it didn't hurt, I suppose, that the dam operator's financial projections were ambivalent: it might have been more expensive to continue maintaining and licensing the dams than removing them.  These new legal and financial developments gave the parties the mutual reality needed to get the deal done, which included a second agreement designed to compensate farmers and ranchers who stand to lose from dam removal. 

The Klamath River restoration agreement is remarkable in its scope, representing the largest river restoration project in the country.  It is remarkable in its promise, providing hope to tribes, conservationists, and local communities dependent on the health of the river's ecosystems.  But it might be most remarkable in its resolution, providing a fascinating example of a multi-party stakeholder negotiation that will likely result in a ground-breaking restoration agreement.  While centuries-old water laws are much maligned, it is clear they still have a powerful role to play in twenty-first century water management.  

Supreme Shocker: Environmental Law in the Scalia Era

Photo: Ryan Stoa.

Last Thursday in my Ocean and Coastal Law class, we discussed the Supreme Court's majority opinion in Lucas v. South Carolina Coastal Council.  The opinion, written, by Justice Scalia, required the state of South Carolina to find "background principles" that would have prevented the plaintiff in the case from building on his property before the state enacted regulations that prevented construction on coastal lands for the purpose of environmental protection.  Unable to do so, South Carolina was eventually required to pay compensation for the regulation.  Although a controversial case, most of my students found Scalia's reasoning persuasive, a testament to his skills of argumentation.

After his passing, many have questioned what his death will mean for the Clean Power Plan.  I wrote last week about the stunning implications of the Supreme Court's stay of the plan (putting it on hold until the DC Circuit Court hears the case).  Since Scalia was part of the 5 justices voting for the stay (with 4 against), his passing makes it less likely the CPP will be struck down.  As many others have speculated (see examples here, here, and here), a justice appointed by President Obama, or a hypothetical President Clinton or Sanders, would very likely be more friendly to the CPP than Justice Scalia.  If the Supreme Court doesn't have a ninth justice by the time the DC Circuit issues its ruling, then a 4-4 decision from the Supreme Court would simply maintain the DC Circuit ruling.  And as has been noted, the government got a bit lucky there: the 3-judge panel selected from the DC Circuit court (which has a reputation for being conservative) consists of two judges appointed by Democratic presidents.   

Here's another wrinkle: one of the judges on the DC Circuit panel hearing the case is Sri Srinivasan, an early front-runner for the Supreme Court vacancy in the eyes of many observers.  If he recused himself from the Circuit or was confirmed by the Senate fairly quickly, another judge would be appointed to the Circuit court, which could alter the outcome of the decision.  Alternatively, if Srinivasan participates in the Circuit decision and then gets confirmed, he might recuse himself from the Supreme Court hearing of the case, leaving the door open for a 4-4 decision.

It will be interesting to see how this all plays out.  In the meantime, Dan Farber provides a summary of Scalia's environmental legacy that bears reflection:

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the “unreasonable” agency was EPA.  To be fair, in American Trucking, he did admit that another portion of the statute unambiguously required air quality standards to be based solely on health effects, not cost.

Property rights.  Justice Scalia wrote two major opinions elevating property rights over land use controls.  In the Lucas case, he held that a government regulation is a taking if it completely blocks development or other economic use of the land.  In the Nolan case, he held that even when the government would be justified in denying a permit completely, it can’t impose “logically unrelated” conditions on the permit, even if those conditions are in the public interest. In Stop the Beach Renourishment, he tried to freeze property law in place for all time by holding that a decision by a state supreme court reinterpreting state property law can be a taking.

Standing.  Justice Scalia wrote major opinions limiting standing for environmental groups in National Wildlife Federation, Defenders of Wildlife, and Summers v. Earth Island Institute, Scalia narrowed standing law, making it more difficult for environmental groups to sue.

Federal jurisdiction. In Rapanos,  a plurality opinion by Scalia attempted to cut back drastically on federal authority over wetlands and streams.  Justice Kennedy, the swing voter, wrote a more nuanced opinion that gave the federal government more maneuvering room.

Malheur and Misfortune on Federal Public Lands

The Malheur National Widlife Refuge. Photo: John Bromley

Over the weekend armed protesters stormed and occupied a federal building at the Malheur National Wildlife Refuge in northeastern Oregon.  Their complaint?  In this instance, the group is protesting against criminal charges brought against ranchers starting fires on federal lands in the region.  In general, the group is part of a small but vocal movement to return federal lands to states or private landowners.  Here is Jed Purdy on why their argument stands on shaky ground:

The Bundys’ side of these fights is rooted in the radical idea that the federal government was never supposed to hold Western lands permanently, but instead should have ceded them to the states or granted them directly to private owners. It is possible to piece together this argument from the text of the Constitution, but courts have never accepted it. It is not really a legal theory but a political wish that history ended in 1891, when the federal government began to create national forests, or even back in 1872, when Congress made Yellowstone the country’s first national park.

So it seems the best bet, if the law isn't on your side, is to make a spectacle of federal lands management.  In the Malheur Refuge, the group is exploiting recent disagreements between ranchers and wildlife refuge officials, who are required to prioritized the well-being of (you guessed it) wildlife.  Except that those disagreements may be overblown.  The ranchers in question have not backed the largely out-of-state protest group, and locals who participated in the most recent management planning process saw the Malheur as a model for collaboration, not conflict:

In 2013, Malheur completed its Comprehensive Conservation Plan. This is a long-range vision and management plan that all refuges are required to complete. Malheur stood alone in the refuge system for deciding to have a very inclusive, transparent stakeholder process which included local ranchers, county commissioners, tribes, conservation groups, local, state and federal agencies, etc.

We met many times over the course of three years and much to everybody’s surprise emerged with a consensus, collaborative approach that includes major initiatives on both the refuge and surrounding ranch lands. It is a plan that tries to respect both the ecology and the economics of the region. The groups involved have remained actively engaged in implementing the plan. It includes one of the largest wetland restoration efforts ever undertaken.

Having witnessed and participated in the stakeholder engagement process for Biscayne National Park's General Management Plan, which sparked a similar conflict between marine conservationists and fishermen, I can attest to the challenge it can be to satisfy every stakeholder's demands.  That's especially true when ideals like exploitation and conservation appear mutually exclusive.  There is some irony in the calls for federal relinquishment of public lands, as well.  First, because it was federal control that may have saved the Malheur in the first place:

Before the federal agencies came to eastern Oregon, large ranching operations from California had monopolized hundreds of thousands of acres of rangeland. Irrigation developers controlled water, cattle barons controlled the grass, and settlers were essentially locked out. Tensions were high.

During the 1890s, a populist, anti-monopolist rhetoric emerged among settlers and news editors. The local newspaper deplored the fact that the great Western ranges were passing into “the hands of a few big cattle or sheep companies,” and predicted that soon “an aristocracy of range lords and cattle kings would rule our mountains and plains.” In 1897, Peter French, the cattle baron who controlled the largest ranching empire in America, along the Blitzen River, was murdered by an angry homesteader. Arson, violence and grinding poverty flourished.

And second, because these lands were already occupied when the federal government laid claim to them on behalf of western settlers.  Purdy again:

Harney County was largely Paiute land until the Civil War, and later settler pressure and violence eroded the tribe’s claim to lands that were nominally reserved to it. The age of settlement lasted a few generations in eastern Oregon, beginning with the bloody dispossession of indigenous peoples and ending with the rather gentle conclusion of federal privatization.

American vigilantism is never racially innocent. Its two parents are self-mobilization on the frontier, usually against Native Americans at a time when homesteading was reserved to whites, and the racial terror of the Ku Klux Klan in the South during and after Reconstruction. It is too much to call the occupiers “domestic terrorists,” as the Oklahoma City Bomber Timothy McVeigh or the Klan were, but it is also obtuse to ignore the special comfort that certain white men have using guns as props in their acts of not-quite-civil disobedience. After all, guns were how they acquired their special sense of entitlement to public lands in the first place.