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51 Envtl. L. Rep. 10026 (2021)
An Enduring American Heritage: A Substantive Due Process Right to Public Wild Lands

handle is hein.journals/elrna51 and id is 28 raw text is: Copyright © 2021 Environmental Law Institute, Washington, DC. Reprinted with permission from ELRO, http://www.eli.org, 1-800-433-5120. AN ENDURING AMERICAN HERITAGE: A SUBSTANTIVE DUE PROCESS RIGHT TO PUBLIC WILD LANDS by Ariel Strauss Ariel Strauss is Of Counsel at Greenfire Law, P.C., in Berkeley, California. magine, on account of an economic downturn associ- ated with massive defense spending,' or a change in regulatory philosophy,2 or a pandemic,3 the U.S. Con- gress enacted legislation duly signed by the president to sell virtually all federal wild lands to the highest bidder with- out restriction. Would such action be constitutional? The principles behind this question are now of monu- mental importance. In the absence of significant changes Author's Note: I am grateful for the help of many and wish to specifically thank my colleague Jessica Blame for numerous comments and insights, Animal Legal Defense Fund Senior Policy Director Carter Dillard for a wealth of material on John Locke, Brandeis University Prof. Brian Donahue for introducing me to essential historical literature on this subject, and UCLA School of Law Prof. Adam Winkler for his generous criticism. I also thank the editors of ELR for their suggestions and correc- tions. All errors and deficiencies are, of course, solely my own. 1. Following proposed resolutions in the U.S. House of Representatives (H.R. Res. 265, 97th Cong. (1981)) and the U.S. Senate (S. Res. 231, 97th Cong. (1981)) to sell off federal property to reduce the national debt, in 1982, President Ronald Reagan directed federal agencies to sell off excess prop- erty. Exec. Order No. 12348, 47 Fed. Reg. 8547 (Mar. 1, 1982) (directing disposition of real property holdings no longer essential to their activities and responsibilities), revoked by Exec. Order No.12512, §4, 50 Fed. Reg. 18453 (Mar. 5, 1985); see also JAMES MUHN & HANSON R. STUART, OP- PORTUNITY AND CHALLENGE: THE STORY OF BLM 220-231 (1988); Sales of Public Land: A Problem in Legislative and Judicial Control of Administrative Action, 96 HARV. L. REv. 927 (1983) (contending executive policy of sale violated 43 U.S.C. §1701(a)(i)). 2. Ideological and practical opposition to absentee federal land ownership gained increased support in recent election cycles, though not to the degree of total divestment from federal holdings. Heather Hansman, Congress Moves to Give Away National Lands, Discounting Billions in Revenue, GUARDIAN, Jan. 19, 2017, https://www.theguardian.com/environment/2017/jan/19/ bureau-land-management-federal-lease; Jonathan B. Jarvis & Destry Jarvis, The Great Dismantling ofAmerica's National Parks Is Under Way, GUARDIAN, Jan. 10, 2020, https://www.theguardian.com/environment/2020/jan/10/ us-national-parks-dismantling-under-way (former director of the National Park Service (NPS) describing systematic dismantling of a beloved institu- tion to enable mineral extraction); see generally Richard D. Clayton, The Sagebrush Rebellion: Who Should Control the Public Lands, 1980 UTAH L. REV. 505 (1980) (discussing historical source of western opposition to fed- eral land control). 3. Exec. Order No. 13927, Accelerating the Nation's Economic Recovery From the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities, 85 Fed. Reg. 35165 (June 9, 2020); see, e.g., Paul Hannon, Global Economy Faces Hard Winter Despite Covid-19 Vaccine Hopes, WALL ST. J., Dec. 1, 2020, https://www.wsj.com/articles/global-economy-faces- difficult-winter-despite-covid-19-vaccine-hopes-11606822321?st=u0jg8syr 4uhkg6y&reflink=desktopwebsharepermalink (global economy shrunk by over 4% in 2020). in federal land management practices and a coordinated program to reverse the buildup of greenhouse gases in the atmosphere, several studies predict that significant portions of the nation's wild lands will be irreparably and drasti- cally altered from their historic natural state.4 Congress- man Radl Grijalva (D-AZ) explains: It's really difficult to imagine Glacier National Park without glaciers, Joshua Tree National Park without these trees. Yet, the evidence is clear that we may be facing just that kind of future.5 In light of the pattern of government refusal to address cli- mate change's effect on federal lands, it may fall to citi- zens to overcome petrochemical and agribusiness support for current policies, by directly vindicating public rights to wild lands in the courts.6 4. STEPHEN SAUNDERS ET AL., NATURAL RESOURCES DEFENSE COUNCIL & ROCKY MOUNTAIN CLIMATE ORGANIZATION, NATIONAL PARKS IN PERIL: THE THREATS OF CLIMATE DISRUPTION (2009), available at https://roc- kymountainclimate.org/website%20pictures/National-Parks-In-Peril-final. pdf; Press Release, NPS, National Park Service Report Confirms Climate Change in National Parks (July 2, 2014), https://www.nps.gov/aboutus/ news/release.htm?id=1609 (NPS director: This report shows that climate change continues to be the most far-reaching and consequential challenge ever faced by our national parks.); Patrick Gonzalez et al., Disproportion- ate Magnitude of Climate Change in United States National Parks, 13 ENV T RSCH. LETTERS 104001 (2018) (special analysis of historic and projected temperatures across 417 national parks shows special vulnerability because they set aside extreme environments), available at https://iopscience.iop. org/article/10.1088/1748-9326/aade09/pdf; Alex Horton, Climate Change Is Destroying Our National Parks at an Alarming Rate, Study Finds, WASH. POST, Sept. 25, 2018, https://www.washingtonpost.com/energy-environ- ment/2018/09/25/climate-change-is-destroying-our-national-parks-an- alarming-rate-study-finds/ (discussing research); Kara Manke, National Parks Bear the Brunt of Climate Change, BERKELEY NEWS, Sept. 24, 2018, https://news.berkeley.edu/2018/09/24/national-parks-bear-the-brunt-of- climate-change/ (National parks aren't a random sample-they are remark- able places and many happen to be in extreme environments especially vulnerable to climate change.). 5. The Impacts of Climate Change on America's National Parks: Hearing Before the House Subcomm. on National Parks, Forests, and Public Lands, 111th Cong. (2009) (statement of Rep. Radl Grijalva), available at https://www.govinfo. gov/content/pkg/CHRG-111 hhrg48662/html/CHRG-111 hhrg48662. htm. 6. This Comment does not address the political question doctrine or other jurisprudential impediments to substantive court review of this question. But see Juliana v. United States, 947 F.3d 1159, 1174 n.9, 50 ELR 20025 (9th Cir. 2020) (petition for rehearing pending Nov. 16, 2020) (lawsuit against federal government for fossil fuel policies causing climate change harms is not a political question but lacks justiciability). For an example of a legislative proposal addressing some of these issues, see the American Public Lands and Waters Climate Solution Act of 2019, sponsored by Rep. Radl Grijalva (D-Ariz.) (H.R. 5435, 116th Cong. (introduced Dec. 16, 2019)) ENVIRONMENTAL LAW REPORTER 51 ELR 10026 1-2021

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