Rail-Trails and the Planet
Author
Peter Harnik - Author
Author
Current Issue
March-April 2024
Issue
2
Testimony

There was a time in New York, more than a century ago, when bicycling was a glamorous sport of rich daredevils—physically superior men and socially courageous women—but by the time I was growing up there, in the 1950s and 1960s, cycling had deteriorated into a low-status fringe activity, a rather pathetic transportation mode for poor people and carless immigrants. While great fun for children in parks and on beachfronts, and a source of nostalgic pride for parents standing by with band-aids and “it’s all better” hugs, bicycling on roads with cars was too scary for most people. And in the 1960s, there was no such thing as a road without cars.

Then, one Sunday in 1966, a miracle happened. New York City Mayor John Lindsay closed to cars the main loop road in Central Park. It was just one day, an experiment, but it was a revelation.

Even with cars, Central Park was a wonderland for millions of city dwellers. But very few New Yorkers had any memory of what that 843-acre mecca was like before it had become an auto speedway. Actually, asking a New Yorker to notice the cars in Central Park was like asking a fish to notice water. The cars were as much a Central Park fixture as the trees, meadows, lakes, horse buggies, and surrounding apartment towers. Timed signals kept the one-way park loop flowing so that the bursts of traffic came in reliable waves, a few minutes of roaring swoosh followed by a few seconds of silence.

That all changed with one mayoral signature. Suddenly, a thundering auto thruway—circular, six miles long, three lanes wide, with a jostling throng of yellow cabs—became a public promenade. The quiet was profound. Bird songs in the city—whoa! Who knew? Yes, there were noises— squealing children, barking dogs, transistor radios, shouting teens, the eerie continuous clicking of bicycle sprockets coasting down hills—but not the blanket dull roar of traffic punctuated by unmuffled outbursts from trucks and motorcycles. And, for cyclists, no fear of being sideswiped, forced into a guardrail, or flattened.

After my initial delight, I found many novel implications. My first surprise was that the beneficiaries were far more than just cyclists. Eliminating cars liberated an entire ecology of roadway users—walkers and runners and skaters and scooter-riders and hula-hoopers and pogo-stick bouncers and chalk-art-drawers and musicians and dancers and drummers and painters. This was, after all, New York City, with every imaginable sport, activity, art form and lifestyle. Although the wild menagerie put off the hard-core racing cyclists, and some openly longed for a return to the predictable flow of autos, most others were fascinated and charmed by the unprecedented sights, sounds and smells.

The mayor’s Central Park experiment set off firestorms of both rage and exultation. Drivers were shocked and opposed, both the professionals in taxis and the others accustomed to a pleasure outing in their cars. But the even hotter emotion—jubilation—carried the day. It was just as Jane Jacobs had pointed out in her book Death and Life of Great American Cities. After lamenting the “erosion of cities by automobiles,” she pointed out that its good twin is the “attrition of automobiles by cities.” She wrote, “Tactics are suitable which give room to other necessary and desired city uses that happen to be in competition with automobile traffic needs.”

By the 1970s, when I was ensconced in Washington, D.C., at a time when only a few hardy souls were pedaling along the edges of the avenues, the National Park Service had already looked to New York and taken the small step of closing one section of one road in Rock Creek Park to cars. It wasn’t much—one Sunday per month during the summertime—but, again, it was a revelation. Suddenly, the park’s drive felt like nothing so much as a country road deep in West Virginia, minus the three-hour trek to get there.

As in New York, it was bicyclists who had provided the initial agitation and the ongoing political muscle, but as soon as the traffic cones went up, a wider array of regular folks came out to enjoy the found space. Who were all these runners, walkers, stroller-pushers, skaters, dog-walkers, plein-air painters, and binocular-toting bird-watchers? And where had they all come from? How did they get down to this hidden valley so far from transit and from most people’s homes? These were people who had made extraordinary efforts to get there without driving.

Not all bicyclists were anti-car, but I viewed the automobile as an adversary, checkmating us every which way we turned. Besides being smelly, noisy, hot, polluting, scary, and fast, cars were, most of all, ever there and in the way. Drivers sometimes came up behind and honked; other times they passed aggressively with only inches to spare; occasionally a passenger would gesture rudely or throw something. Even when cars were parked, there was still the threat of a deadly door being flung open in my path.

I longed for more car-free places, but they didn’t exist and were almost impossible to create. Every proposal was trumped by some other group—if not drivers, then nearby home-owners; if not residents, then shopkeepers; if not taxi companies, then fire departments; if not mothers with small children, then people with disabilities. The opposition wasn’t just in the big, crowded cities, it was just as bad in sprawling, low-density suburbs. And in rural areas a car-free road wasn’t even imaginable.

Yet, against all odds, there was a glimmer of hope.

Very softly, almost subliminally, whispered messages occasionally drifted in from the Midwest, showing up in obscure columns in new age magazines or stories from friends of friends. Some town in Wisconsin or Illinois or Minnesota had taken over an abandoned railroad track and converted it into a trail. People were now biking and cross-country skiing on it. Or something like that. Well. That definitely sounded like a lark . . . in a very theoretical, far-away and generally irrelevant way. Do they bike on the wooden ties? Next to the tracks? Do they balance on the rails?

Gradually, the concept started coming into focus. It turned out that abandoned railroad tracks weren’t just an occasional fluke here or there. There were hundreds of them, thousands of them, particularly in the Midwest and the rural Northeast, backwater locations that had once supported freight trains, as well as passenger locals and even interurban trolleys, but then had been battered by economics, by trucks, cars, and buses. The demise was sad for the culture, and it was bad for the environment, but there was at least one wonderful and little-noticed aspect of the retreat of that industrial glacier—these were corridors that no car had ever laid its wheels on. In the political tug-of-war, it was the evenest playing field bicyclists would ever have a shot at. And some of those rights-of-way were dozens and scores of miles in length.

The tracks, the ties and even the underlying rock ballast all had economic value and could be profitably removed and sold. Which left the “gold” for trail lovers—the cleared corridor itself, the carefully graded route that went under or over most road crossings, traversed every river and stream, and linked every small town on the route. Of course, completing these deals wasn’t easy, and in the beginning we lost many more than we won. There were arcane ownership legalities that varied from state to state and also by the year of the original railroad’s creation.

Rail companies had merged, had bought and sold tracks, and had gone into and out of bankruptcy over the decades. The federal Interstate Commerce Commission (and later the Surface Transportation Board) had laid down heavy regulatory strictures and then had abruptly removed them under instruction from Congress. State departments of transportation were interested in some segments, and adjacent landowners and farmers were often militantly opposed to any public access. Plus, as word spread, the price tags for some corridors skyrocketed.

Fortunately, we had some strong cards in our hand as well. One was the “railbanking” statute created by Representative Phil Burton (D-Calif.) and inserted into his National Trails System Act Amendments of 1983. Passed overwhelmingly by Congress, the provision allowed old railroad corridors to not be legally abandoned but to be “banked” for possible future railroad reactivation—and to be utilized as trails in the interim. We also had the 1976 Rails-to-Trails Demonstration Grant program, created by Senator Warren Magnuson (D-WA), which led to the early development of nine particularly outstanding and influential rail-trails in nine different states. And, most important, we had a growing cadre of users who became passionate, dedicated advocates as soon as they had been exposed to a rail-trail.

When we formed the Rails-to-Trails Conservancy we didn’t know what to expect. Our visioning had been nursed by the success of the Appalachian Trail, but rail-trails are almost the polar opposite of the AT. The Appalachian Trail traverses the high country, it is rugged and remote, it meanders up, down and around, and it originally depended upon the goodwill and handshake agreements of a continuous string of landowners. Rail corridors, in contrast, wend their way through the valleys, they are essentially flat with tunnels and bridges and trestles, they run from town to town, passing through the thick of commerce, and they are locked into a very specific route by bands of steel. Still, both stimulated their users’ imaginations in the same I’m-dreaming-of-life-in-the-past-and-I-wonder-what’s-around-the-next-bend kind of way.

When we started, there were perhaps 130 rail-trails (of which we only knew a dozen, not having discovered the others yet). Today there are more than 2,000 of them, totaling about 20,000 miles (plus another 5,000 miles of connections between the corridors). Every year an estimated 225 million user-days are spent recreating, commuting, or communing with nature on rail-trails, from the eastern tip of Maine to Hawaii. And scores of new rails-to-trails campaigns are currently in progress in virtually every state.

Can rail-trails help the planet? Can their creation and use mitigate climate change and otherwise reduce mankind’s environmental impact? I think so. Every time a rail-trail is used purposefully by bike or foot as a substitute for a driving trip, it is a victory for cleaner air and reduced fossil fuel extraction. And even recreational trail rides, if they are not facilitated by an extensive auto trip to a remote location, are probably net positives in comparison to most other recreation undertaken by Americans. In the case of my family (and several others in our rail-trail-served neighborhood), the trail has enabled us to be a one-car rather than two-car family.

In a larger sense, beyond each individual pathway, the concept of rails-to-trails is good for the planet. It stimulates and reminds us to think of ways of saving, repurposing, and reusing the infrastructure in which people have already invested so much money and resources (even if it was our grandparents’ and great-grandparents’). It’s recycling on a giant scale rather than trashing and starting over. It could be a model for what we do with old roadways, abandoned airports, defunct factories, unused ports. It is turning a brownfield into a greenfield, an important amenity for the communities they serve.

There’s no doubt that the original creation of the U.S. railroad system was highly environmentally destructive, but by utilizing what is left we can help get the nation’s economy on a less growth-oriented, steadier state.

TESTIMONY These recreational corridors serve an important transportation role, keeping cars and trucks off the road as users commute, stroll, work out, shop, tour, and go about their daily business.

Public Lands
Subtitle
Our National Endowment is Common Ground
Author
Lynn Scarlett - Former deputy secretary of the interior.
Former deputy secretary of the interior.
Current Issue
July-August 2022
Issue
4

Redwood forests, deserts, grasslands, mountains, coastal wetlands, cultural icons, historic landmarks—these lands and waters and human imprints on landscapes compose the 600 million acres of “common ground” that make up U.S. national public lands. Add in ocean waters under federal jurisdiction, and we comprehend the vast public estate managed by the federal government for the American people.

Though barely mentioned in the Articles of Confederation, from the birth of the nation and forward public lands have figured prominently. Their disposition lies at the center of debates over the respective responsibilities of states and the national government. Their management loomed large in paving the nation’s economic future. Their magnificence helped define American origin stories. And their history limns the tragedies and dispossession of Indigenous peoples.

Former Interior Solicitor John Leshy recounts this evolution in Our Common Ground: A History of America’s Public Lands. Leshy pens a tale of prodigious dimensions. He offers antecedents to present debates and brings alive the complexities of public lands and waters management. Over the centuries, this saga is one of tensions between private decisions and public directives that test the endurance of governing institutions, present environmental conundrums, undergird our quest for justice, and complicate our quest for healthy lands, dynamic economies, and justice. These challenges continue.

Consider questions I encountered while at the Interior Department. Where might we cut timber for our homes, find energy to warm our houses or minerals that transform into our pacemakers and computers? And who should decide? Where might ranchers graze cattle? How do we assess risks of oil exploration offshore? How much risk is too much risk? What about water—for agriculture, cities, wildlife, and businesses? What about the effects of a changing climate? And how do we conserve the diverse ecosystems that inspire us and underpin the health and prosperity of people? Preceding all these questions and persisting to the present, how does one bring justice to Indigenous peoples whose lands were often confiscated and to African Americans and others so often excluded from the benefit of public lands?

Leshy explores these questions and the continuing attempts to address them. He describes how public land and water managers face a tapestry of rights, ownerships, and responsibilities. They operate in places with private ownership of lands but public ownership of mineral rights and in places with vast stretches of public ownership interrupted by private in-holdings. They operate in places designated to include resource use and in others, like national parks, destined for preservation and public enjoyment.

Leshy paints a picture of both disruptions and continuities. But he illustrates that this is mainly a story of continuity in which conserving lands and waters for present and future generations has always loomed large, even amid pressures for resource extraction, privatization, or state dominion. And it is a story in which public sentiment has largely supported sustaining national commitment to these “common grounds” for broad public benefit, even amid times of deep conflict as reflected in the Sage Brush Rebellion of the 1980s or more recent state assertions of a right of dominion over these lands.

There has never been a “grand design” for these lands and waters. They have a “complex history, and several layers of management guidance . . . accreting over time like geological strata,” writes Leshy.

These layers have accumulated, often in reaction to trends—for railroad transportation, or westward population expansion, or quests for energy development, or enthusiasms for recreation, or, more recently, to the realities of climate change and pursuit of greater social justice. These laws are too numerous to delineate, but here I highlight a few. They include the bedrock National Environmental Policy Act that requires that all federal actions undergo impact evaluations and provides for a review of management alternatives to reduce impacts.

NEPA, as Leshy points out, is not ideal. It is sometimes cumbersome. Meaningful public participation has sometimes been lacking. Some analyses overlook important impacts. But in its basic framing, Leshy sees it as fundamental to conserving ecosystems, wildlife, and cultural and historic treasures. Despite periodic efforts to undermine the act, more often the focus has been on enhancing its implementation through better science and more meaningful public engagement.

Then there is the Endangered Species Act with its provisions for evaluating and protecting species. This act is a source of long-standing controversy—do burdens of protecting species disproportionately fall on private landowners? But, as Leshy suggests, it also underpins the sustaining of diverse flora and fauna—a value consistently affirmed by broad public support.

There is the Antiquities Act, by which presidents may designate monuments, a tool Leshy shows has been widely used by presidents of both parties for over a century. Shortly after its passage came the National Park Service Organic Act of 1916, with its intertwined goals of preserving lands “unimpaired for the enjoyment of future generations”—words, Leshy observes, that “came to describe the role that many public lands . . . play in American culture.” The Organic Act illustrates the endless tensions that have bedeviled so much management of public lands and waters with its vision of keeping these lands “unimpaired” but emphasizing access for their enjoyment, giving rise to endless questions about roads, buildings, and more.

Leshy points to these tensions but sees in this legislation a reflection of mindfulness and stewardship that recurs in many of the laws that have accumulated over centuries. This press for conservation has gained strength, manifested in the Wilderness Act. Despite periodic disputes about wilderness, Leshy depicts a history of bipartisan support for this statute.

But public lands management has also been a tale of accessing resources—minerals, grasses for grazing, forests for timber, fossil fuels and, more recently, places for renewable energy. This centuries-long tale is one of colorful characters, some scandals, and sometimes devastating exploitation. But throughout this tale, Leshy describes a general public appetite for stewardship and what we might today call sustainable management.

Leshy devotes much of his history on forested lands that, early in the nation, represented potential economic wealth but also played such an integral part in sustaining clean and flowing waters and abundant wildlife. Through this history, Leshy brings alive tensions among agencies, competing views of good management, the emerging role of science and planning, and an ever-present tug between environment and economy. Beyond forested lands, the same dynamics unfolded. By the 1970s, with pressures for ever-more development alongside desires for sustainability, the Federal Land Policy Management Act replaced a hodgepodge of laws and created a platform for balancing of minerals extraction, energy use, grazing, recreation, and conservation.

All these laws advance important public values. But no law—or its implementation—is perfect. We face questions about how to better incorporate science into decisions or how to reflect community experiential knowledge of time, place, and situation. Access to lands is uneven. Indigenous rights and sovereignty remain insufficiently honored. There are questions about effectiveness, fairness, empowerment, and more.

The challenge is how to hold thoughtful conversations about these matters, conversations sometimes impeded by nationally divisive politics for which public lands have often become symbols of broader conflicting visions about the role of government or the relationship between economies and the environment. The setting in which these conversations play out is complex. Today, 30 percent of all Americans live in the wildland-urban interface. Public lands once remote are now in our backyards. Where once our land managers saw a handful of cows, they may now see 1,000 off-road vehicle users in a single day. Public lands now attract over 400 million recreation visits each year.

We also see challenges evolving from site-specific to landscape-scale issues. Fire, water, species—all present management requirements that extend beyond ownership patterns. A central governing question becomes that of how to coordinate action across jurisdictional boundaries—both public and private. The story Leshy tells of agency silos and competition—often among larger-than-life personalities like Gifford Pinchot—has complicated collaborative action over two centuries.

But there is growing evidence of cooperation. Despite divisive national politics, we see an efflorescence of community collaboration across very diverse participants—public and private. And we see strong continued commitment by the American public across political and other divides for sustaining our “common ground,” evidenced most recently in bipartisan support for the permanent reauthorization of the Land and Water Conservation Fund.

The tale Leshy tells is of networks that blend stewardship into a shared enterprise. Agencies partner with agencies and the public to leverage resources and coordinate actions to enhance outcomes.

Yet there are challenges in aligning public land management, supporting laws, and organizational forms with the requisites of advancing collaborative, large-landscape conservation. These challenges situate within broader national divisions since, Leshy underscores, “questions of public land policy are ultimately political questions.” But as we confront these challenges, knowing the history of these lands and waters and the laws that govern them can help us understand the continuity of commitment to them for the public benefit, why that is important to nature and people, what grand mistakes not to repeat, and what narratives take us astray from the real legal history and complex realities of stewardship.

Lynn Scarlett was deputy secretary of the interior during the George W. Bush administration.

Lynn Scarlett on public lands as common grounds

Engage Tribes in Managing Public Lands
Author
Kevin Washburn - University of Iowa College of Law
University of Iowa College of Law
Current Issue
January-February 2022
Issue
1
Parent Article
The Forgotten Sovereigns
Black and white headshot of a man in a suit and tie smiling

For nearly 50 years, Native American tribal nations have been contracted to run federal programs on Indian reservations — primarily the activities of the Bureau of Indian Affairs and the Indian Health Service. These programs, authorized by Congress in an effort to promote “tribal self-determination and self-governance,” have been phenomenally successful. In 2021, the initiative amounted to thousands of tribal contracts, cumulatively worth billions of dollars. Through federal contracting, tribes have developed significant capacity to run federal programs and to serve federal public missions.

In 1994, Congress expanded the authority to contract with tribes to public land management agencies, including the National Park Service, the Fish & Wildlife Service, and the Bureau of Land Management. That authority was later added to the U.S. Forest Service. Contracting in the public lands space has a different purpose than supporting tribal self-governance, but it holds great promise as a means to engage tribal governments in public land management. However, despite early hope for this initiative, it has never really gained traction.

Since 1994, tribes have only entered a handful of agreements with Fish & Wildlife, Parks, the BLM, and the Forest Service. These have generally been very successful, but quite modest. None of them have involved the actual management of public lands.

To provide just one example, the Grand Portage Band of Lake Superior Chippewa on the Canadian border in northern Minnesota has a contract to provide services for the Grand Portage National Monument. The Band was heavily involved in establishing the monument in the 1950s, donating much of the land on which the monument sits. Given the remoteness of the area, one can imagine the economies of scale that can be achieved by the federal government working with the tribal government and sharing infrastructure, such as a water treatment system or a snowplow.

In such a remote place, cooperation is economical. However, the Band’s annual agreements have fallen short of co-management, with the monument contracting with the Band for a little more than a quarter of the annual operation budget. Although successful, this program is still quite modest.

Each year, the Department of the Interior is required by law to publish notice of the types of activities that can be contracted, and a list of parks and other public land units that are eligible for contracting. That list, published in the Federal Register in March, has not expanded in 20 years.

Tribal nations already control roughly 60 million acres of federal trust land in the United States. These are lands that tribes have managed for centuries. Indeed, this careful stewardship experience has been a significant source of their wisdom and traditional ecological knowledge possessed by tribes and Native people.

Modern tribal governments are well acquainted with federal contracting rules and adept at carefully managing federal property and funds. They can work efficiently and steward resources skillfully to meet federal objectives. They are very familiar with annual government contract audits. With strong engagement, some tribal governments may even be willing to use their own resources to improve facilities and functions.

With strong Native leadership at Interior and Agriculture, the time is ripe for greater cooperation between tribes and the public land management agencies. Interior should identify new activities and public land units that tribes can contract. The department should also conduct tribal consultations nationally and regionally to breathe new life into this program, which continues to have tremendous potential. USDA should do the same with the Forest Service.

The Biden administration has set an ambitious goal of conserving 30 percent of U.S. land by 2030. The federal government will need strong partners in meeting that goal. Engaging tribal nations is one crucial step to success.

Too Much Science in Ranching, Farming, Forestry, Public Lands Management
Author
Craig M. Pease - Ph.D Scientist and Former Law School Professor
Ph.D Scientist and Former Law School Professor
Current Issue
September-October 2021
Issue
5
Craig M. Pease

President Biden has made science advisor Eric Lander a member of the Cabinet, a first. The Bureau of Land Management now touts it is “listening to the science.” These developments are good news, of course, after four years of science denial. Yet like all tools, science has its limits.

Good science almost invariably promotes strong environmental protection. Yet sometimes, good science will never be available, as with the potential harm to the great-great-grandchildren of those exposed to nanoplastics.

Rotational grazing pioneer Alan Savory has enjoyed unparalleled success. He recently said, “People coming out of a university . . . , you take them into the field and they literally don’t believe anything unless it’s a peer-reviewed paper. It’s the only thing they accept.” His words are not hyperbole. I once got into a heated dispute with an accomplished biostatistician who simply could not believe that rotational grazing worked.

If one defines good science as the theories and their supporting data and statistics that one can publish in a peer-reviewed journal, then the best ranching, farming, and forestry being done today does involve good science. But agriculture in an era of climate adaptation involves complex ecosystems. Science, and statistics in particular, both have limited applicability to complex systems.

We live in a milieu of complexity. A smudge of dirt might contain over 5,000 species of microorganisms (bacteria, fungi, protozoans), and around 10 billion individuals, one individual containing some three million proteins. A diagram of a bacterium’s biochemical pathways looks like Escher painted a bowl of spaghetti. Scaling up, a 100- acre ranch might have over one billion pounds of topsoil and a multitude of native plants, insects, mammals, and birds, embedded in complex political-social-economic and climate systems, topped off with a dollop of cows.

The limits of statistics trace back to its very origins. Ronald Fisher and the other statistical pioneers of the first half of the 20th century specifically wanted to increase yields in farming and ranching. Their genius took incredibly complex agricultural systems, and, using randomization, replication and controls, gathered data on one or a small handful of variables, holding all else constant. Those data can then be analyzed with statistics.

We face a dilemma. There is a sort of complex systems uncertainty principle: The more successfully we isolate, rigorously study, and manage one variable in a complex system, the less we learn about and manage that complex system as a whole. It’s worse. When we demand good science when it is not appropriate, the limits of science induce serious pathologies in the very structure of our institutions.

Though most environmentalists will be horrified, I’d argue that the agricultural institutions most explicitly grounded in science are those of factory farms, corn monocultures, glyphosate herbicide, and processed food at the supermarket as the end product. Industrial agriculture focuses on one specific variable professionals can measure and manipulate-—pounds marketed per unit inputs of water, fertilizer, pesticides, and labor. The corps of agribusiness scientists maintains the intellectual heritage of the statistics pioneers, which heritage of rigor has now summoned forth a veritable catastrophe in the health of ecosystems and human consumers.

There are striking and disturbing parallels between industrial agriculture and science-based environmental litigation on public lands. The 2015 Sage Grouse Plan is grounded in a tremendous amount of science, and it protects millions of acres of high desert sagebrush. It originally arose to avoid the certain adverse political fallout from listing the Sage Grouse as threatened under the Endangered Species Act. It remains unlisted. Originally under President Obama, the plan withdrew many acres from gas and mineral development, which Trump attempted to undo, and Biden is now attempting to reinstate, per the government’s response to a March 2021 court order. The Sage Grouse Plan’s focus on one particular species within a complex ecosystem looks a lot like industrial agriculture.

Savory, the grazing pioneer, manages ecosystems in ways science cannot capture, but humans can comprehend. He is the intellectual heir not of formal science and statisticians, but rather the land management of indigenous peoples and medieval peasants.

January past, incoming President Biden sent Lander a letter posing five Panglossian questions, including the inevitable genuflect to progress. Nary a mention of limits to science, nor the disadvantages of technology. No hint that most all the economic, scientific, and technological progress of the last century would never have happened without fossil fuel consumption, which Biden has pledged to restrain.

Good science requires we recognize and respect its limits. Especially in ranching, farming, and forestry, science is often ill-suited, or even counterproductive.

Too Much Science in Ranching, Farming, Forestry, Public Lands Management.

District Court to Decide Whether Antiquities Designations Are Final
Author
Richard Lazarus
Current Issue
May-June 2018
Issue
3
Richard Lazarus

Federal courts are awash in lawsuits arising out of President Trump’s efforts to reverse almost every environmental initiative of his predecessor. Five lawsuits arise under one of the nation’s oldest environmental statutes — the 1906 Antiquities Act. The cases, now consolidated in federal district court in Washington, D.C., challenge Trump’s decision to reduce the size of two national monuments in Utah, one created by President Obama and one by President Clinton.

Under the act, the president may “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the federal government to be national monuments.” The law provides that the president “may reserve parcels of land as part of the national monument” while adding that the land set aside must be “the smallest area compatible with the proper care and management of the objects to be protected.”

For the past 100-plus years, presidents ambitiously exercised their Antiquities Act authority, seemingly undeterred by the “smallest area” caveat. Many have designated tens, even hundreds, of millions of acres of federal land as national monuments, sometimes to protect the lands while Congress considered and passed comprehensive legislation. President Carter designated 56 million acres in Alaska prior to passage of the Alaska National Interest Lands Conservation Act.

Because Congress now passes so little legislation, designations of monuments have taken on longer-term significance. Clinton designated several million acres of national monuments out West, including the 1.8 million acre Grand Staircase-Escalante National Monument in Utah. President George W. Bush designated 372,848,597 acres, consisting of ocean waters and 10 islands and atolls of Northern Hawaii, as protected monuments — the largest area ever under the Antiquities Act.

By contrast, Obama’s use of the act was fairly modest for much of his presidency. He frequently designated areas in the hundreds of acres or less. The monuments honored places affiliated with civil rights leaders, including Harriet Tubman and Cesar Chavez. During Obama’s final year as president, however, he designated several million acres as national monuments, including in late December 2016 the 1.35 million acre Bears Ears monument in Utah.

The litigation now pending in federal court challenges the decision by Trump, one year later, to reduce by 85 percent the size of Bears Ears and by one half Grand Staircase-Escalante. They are the first cases ever to involve a presidential decision to reduce the size of a national monument.

There are nontrivial arguments on both sides. In Trump’s favor, it does seem odd to suppose that one president has such unilateral, sweeping lawmaking authority that can bind all future presidents and only Congress can undo. At the very least, one is hard pressed to think of other examples of such irrevocable presidential lawmaking power binding on future White House occupants.

Nor is the current office holder someone who renders especially attractive the general notion of such irreversible presidential power. It is not hard to imagine possible designations of national monuments outside Mar-a-Lago or elsewhere that enhanced the value of the president’s own holdings.

On the other hand, it is not hard to understand why Congress might have intended such a one-way ratchet favoring conservation. Conservation measures need such an advantage in political forums that favor short-term economic incentives. The relevant statutory language also offers meaningful support, at least by negative implication. In contrast to the Antiquities Act, which never mentions the possibility of such subsequent presidential reductions, other public land laws expressly provide for such authority.

Each side also has its not-so-persuasive makeweight argument. Those supporting Trump point out that President Woodrow Wilson reduced one monument by half, but that is of no precedential significance because it was never contested in court. Those challenging the president stress that a federal statute expressly bars the secretary of the interior from reducing a monument’s size — which is bizarre because that secretary lacks power to create one — and argue the same must be true for the president. The problem of course is that the statute does not address that distinct issue.

The wild card in the avalanche of litigation triggered by this president is, of course, Trump himself. His lack of discipline, his impulsiveness, and the sustained absence of any evidence of considered judgment erode the rationale underlying the longstanding precedent that normally and appropriately supports judicial deference to exercises of presidential decisionmaking.

How to reconcile that tension is the challenge now facing judges in cases across the country. Including now in the pending Antiquities Act litigation in D.C.

District Court to decide whether antiquities designations are final.

Amid Urban Growth, Funding Cuts, Local Parks Face New Challenges
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2018
Issue
3
Linda K. Breggin

Public support for local parks is strong regardless of age, income, ethnicity, or even political affiliation. According to the National Recreation and Parks Association, 92 percent of the 1,000 people randomly selected for its annual survey last year agreed that parks are an important service provided by local governments. And, six out of seven surveyed had been to a local park in the last year, with visits averaging twice per month.

Furthermore, NRPA surveys show public support for local parks has not waned over the last 25 years. Nevertheless, the nature and role of local parks has evolved considerably and, as a result, the over 9,000 parks and recreation departments in the United States are facing new challenges.

Some of the changes are purely physical. The Trust for Public Lands explains that “potential parkland exists in unexpected places: from the top of freeway overpasses to parking lots and former industrial zones.” To wit, New York City’s popular High Line, an elevated linear park on a former train track, and its proposed Lowline, an underground park that would be illuminated by solar energy technology.

But it isn’t just the physical attributes of local parks that are changing. An Urban Institute report explains that “parks have long been recognized as major contributors to the physical and aesthetic quality of urban neighborhoods . . . . But a new and broader view of parks has recently been emerging.” Parks are no longer just “places of recreation” and “visual assets” but are considered “valuable contributors to larger urban policy objectives,” such as public health.

For example, the Centers for Disease Control and Prevention has recommended improved access to parks as a key strategy for encouraging physical activity. But, parks must be designed in a manner that facilitates such activity — and that can require additional investments. A recent study co-authored by RAND Corporation explains that walking loops encourage people to partake in physical activity, but less than one-third of neighborhood parks across the United States have such paths.

Local parks also are increasingly important from an environmental perspective, as the challenges associated with urban sprawl and climate change escalate. For example, local parks that include green spaces or trees can help mitigate non-point source water pollution, counter urban heat island effects, provide habitat for animals displaced by development, and reduce air pollution, such as ozone.

At the same time that local parks and recreation departments are expected to expand their traditional roles, they face budget constraints. Despite an NRPA finding that four in five Americans agree that local parks are “well worth the average amount of $70 per person paid in local taxes every year” to fund them, many parks are in need of additional money. Half of the local parks studied by RAND reported budget cuts in the last two years. As a result, localities are looking to a range of financing tools. According to TPL, among these tools are private-public partnerships, bond measures, and developer exactions.

For example, numerous privately funded groups support public parks, such as Friends of Warner Parks in Nashville, which has raised over $30 million dollars since it was established in 1974. According to Board Chair Kevin Roddey, the funds have been used to acquire new land and bolster the nature center’s education and research programs. Roddey says Friends is “filling an important role, because budgetary constraints limit what the local government can fund.”

In addition, gifts from wealthy individuals are more and more common, such as a recent $100 million gift for New York City’s Central Park. Other approaches include Houston’s 2007 open space ordinance, which requires developers to dedicate land for parks or pay fees.

In addition to budget woes, preserving land for local parks is increasingly difficult in fast-growing urban areas. As E&E News recently reported, lack of affordable housing in San Francisco is resulting in longer commute times, as people are forced to move well outside the city. When land is available within the city, affordable housing and environmental activists who support parks may be pitted against each other. And, from a sustainability perspective the choice may not be obvious, because long commutes contribute to greenhouse gas emissions.

To face these and other serious challenges, parks and recreation departments around the country may have to adopt the motto of Leslie Knope on the popular TV series Parks and Rec: “There is nothing we can’t do if we work hard . . . and shirk all other responsibilities in our lives.”

Amid urban growth, funding cuts, local parks face new challenges.

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