Virtual Guest Speakers

April 3:

Toward a Bigger Picture: Law and Nature on the Wildland-Urban Border
Professor Federico Cheever, University of Denver College of Law
Biography
Virtual Lecture
Other links
Discussion List   (Professor Cheever will join the discussion list from April 3-7)

Biography

Federico Cheever is Professor of Law at the University of Denver Sturm College of Law. After graduating from Stanford University (B.A./M.A. 1981) and UCLA (J.D. 1986), and clerking for Judge Harry Pregerson of United States Court of Appeals for the 9th Circuit in Los Angeles (1986-1987), he came to Denver as an Associate Attorney for the Sierra Club Legal Defense Fund (1987-1989). He has been in Denver ever since. In 1990, he briefly commuted to Boulder to be a Research Fellow at Natural Resources Law Center, University of Colorado School of Law. Between 1990 and 1993, he was an associate at the law firm Faegre & Benson, in Denver, doing commercial and environmental litigation. He began teaching at the University of Denver College of Law in 1993 specializing in Environmental Law, Wildlife Law, Public Land Law, Land Conservation Transactions and Property. Professor Cheever served as the Hughes/Rudd Research Professor at the University of Denver College of Law 2002. He briefly left Denver again in 2000 to be a Visiting Fellow at Queen Mary and Westfield College, University of London. He served as a Visiting Professor at Northwestern Law School, Lewis & Clark College during the Summer of 2005. He is currently also an adjunct professor at the Colorado School of Mines, teaching Environmental Law.

Professor Cheever writes extensively about the Endangered Species Act, federal public land law and land conservation transactions. He has recently co-authored a natural resources casebook, Natural Resources Law: A Place-Based Book of Problems and Cases, with Christine Klein and Bret Birdsong (2005). He is currently working on another book “Toward a Bigger Picture: Law and Nature on the Wildland Urban Border” which considers the intersection of four historically distinct bodies of law: Public Land Law, Land Use Law, Environmental Law and Land Conservation Transactions in the “wildland/urban interface.”

Over the years, Professor Cheever has represented environmental groups in cases under the Endangered Species Act, the National Forest Management Act, the National Environmental Policy Act, the Wilderness Act and a number of other environmental laws. While in private practice he also represented regulated parties in disputes under the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Air Act.


Lecture

 DRAFT
(Please do not reproduce without authors’ consent)
Toward a Bigger Picture: Law and Nature on the Wildland-Urban Border
November 2005
Federico Cheever with Susan Sherrod, Thomas Andrews and Holly Kirsner

Chapter 1 – The Border Country

On sunny autumn mornings, I like to hike in Roxborough State Park, a short drive south and west of Denver, Colorado.  Roxborough is a local repository of nature: the kind that every healthy city has nearby, unlikely to make a national list of natural wonders, but worth a visit if you happen to be close.  Roughly 97 percent of the park’s visitors come from within 45 miles.  The circle described by that 45 mile radius includes the cities of Denver, Boulder and Colorado Springs[1] and perhaps two-thirds of the roughly four and one half million people who live in the State of Colorado. The park serves the urban and suburban core of the state: Colorado’s “Front Range” community, running south from Fort Collins to Pueblo in sight of the eastern-most escarpment of the Rocky Mountains.[2]

Most people come to Roxborough for its impressive tilted red sandstone outcrops, part of the Lyons and Fountain formations -- the “hogback” peeled up by the rising Rocky Mountains to the west -- and for the prospect of the mountains beyond.  I come to Roxborough for the quiet on weekday mornings and because, more than any place I know, it is a landscape of borders.

Roxborough park straddles the “ecotone” between montane and prairie life zones.[3]  The land to the east of the park is dun-colored short grass prairie, dry and dusty on a hot day and sprinkled, on the ridge tops, with a scattering of dark green, dwarfish Gambel oak trees. Here and there, in the hollows, between the prairie billows, the dark line of a creek runs between willow covered banks.  This is the western edge of the sea of grass that still covers much of the eastern third of Colorado and more of western Kansas. Almost of the prairie has been fenced and subtly or not so subtly transformed by grazing.  Only patches here and there have been obliterated by cultivation or development. Still, it remains an impressive sight.

The heart of the Roxborough Park itself, where the trail begins, is denser scrub land, dominated by stands of larger Gambel oak, crowded on early autumn mornings with spotted towhees rooting through the leaf litter.  It is part of a transitional zone that runs along the foot of the Rocky Mountains north and south from Alberta to New Mexico. As the trail climbs, the scrub gives way quickly to gray-green Douglas fir and the yellow-brown trunks and yellow-green needles of Ponderosa Pine.  After an hour’s walk, at the modest summit of Carpenter Peak, one can look west into the Rampart Range with its cladding of darker Engelmann spruce and sub-alpine fir rising to tree line.  Beyond the first mountains, there are other ranges and others beyond them.

The biotic transition is only one, and unfortunately not the most obvious, of Roxborough’s physical borders.  At the trailhead, around the bend from the parking lot and visitors’ center, surrounded by the great red rocks and Gambel oaks, the landscape seems almost undisturbed by humans.[4]  As the trail rises, the evidence of the city to the north begins to emerge over the ridges.  Then, after one steep climb and a turn, one confronts a development still partly under construction, houses on a long landscaped shelf: the high-priced, southern end of  “Roxborough Village,” like a misbegotten lava flow through the parkland.  The houses are enormous.   A few miles to the north, behind the newer, grander structures, clusters of more modest, more established, houses crowd in dense, irregular blocks on the otherwise sparsely settled dry prairie under dry mountains.

This is Douglas County, Colorado, through the 1990s consistently one of the fastest growing counties in the United States, the National Geographic’s poster child for urban sprawl,[5] what one writer termed “growth run amok.”[6]  Between 1970 and 1993, Douglas County’s population increased by 900 percent.[7]  Really, it does not look so bad.

Like many landscapes in Douglas County, Roxborough offers stark examples of the suburbs lapping at the edge of wilderness or, in a phrase current with western policy makers, the “wildland/urban interface.”[8]  This sort of landscape is not unique to Douglas County or to Colorado.  If you drew a line around the Rocky Mountains, beginning at Roxborough and returning there, you would encounter the wildland urban pattern again and again – west of Colorado Springs and Pueblo, north of Santa Fe and east of Albuquerque, west of Salt Lake City and around  Jackson, through Montana’s Bitterroot Valley, west of Casper and Cheyenne and west of Denver.

At first glance, Roxborough lends itself to an often told story of wild country invaded by development, the consequence of affluence, subsidized highways and the automobile.  The actual history is more complicated.  Homesteaders occupied most of Roxborough in the last three decades of the nineteenth century, cultivating crops, building houses as required by law to gain title to the land.  A little later, its red rocks, glades and meadows were a popular private pleasuring ground for Denverites who arrived by train and carriage before the advent of the Model T Ford.  In 1910, Denver Mayor Robert Speer (of whom we will learn more in Chapter 4) declared Roxborough should belong to the City of Denver “for the free use of the people.”  He was, however, unable to raise the money to buy it.[9]  In 1957, the State of Colorado identified Roxborough as a high priority for park acquisition, but was unable to get legislative approval to purchase anything until 1975 and then only 502 acres.  By then much of the area had been subdivided for development.  The core of the “wildland” state park I have come to know is less than thirty years old.[10]

As the tendrils of development reached south from Denver to threaten the wild, so the park and other forms of protected land have joined and expanded to meet them.  The Park’s original 502 acres grew to 758 in 1977 and 1,512 by 1986.[11]  By 2000, the park included more than 3,000 acres.[12] A chain of other protected holdings -- “Southdowns” (625 acres, protected 1997),[13]  “South Willow Creek Ranch” (590 acres, protected 1997),[14]  “North Willow Creek Ranch” (694 acres, protected 2000),[15] “Cherokee Ranch” (3,105 acres, protected 2005 (ten-year phased purchase of a conservation easement beginning in 1996))[16] and “Highlands Ranch Open Space” (8,200 acres, protected 2000)[17] -- funded by Douglas County, the Colorado Division of Wildlife,  private individuals and developers, have emerged north and east of the park.[18]  To the south and west, the park borders the Pike National Forest, managed -- and protected to a degree -- by the United States Forest Service.  While the park may never again be a wild place, it seems unlikely that it will be completely cut off from nearby forest and prairie.  It promises to persist for a long time on the border between wild lands and the city.

A. Four Traditions

This work considers other borders at Roxborough, transitions not so discernable by a hiker, even when their effects may be.  Roxborough’s landscape and landscapes like it across the West and across the country, for better or worse, embody the intersection of four once distinct legal traditions.  Each tradition has its own vocabulary and history.  Each draws its authority from a specific set of legal principles.  Each originally evolved to address a distinct perceived constellation of human problems, but now -- everywhere in the American west -- all four are drawn more and more into collision for the same purposes on the same landscapes.

The 1,288,383 acre Pike-San Isabel National Forest, roughly the size of Delaware,[19] dominates the high country to the south and west of Roxborough.  The Pike-San Isabel is federal “public land,” carved out of the federal public domain in the first decade of the twentieth century to be managed for “its most productive use for the permanent good of the whole people . . .  [u]nder such restrictions only as will insure the permanence of these resources,”[20] and to “be developed and preserved for the benefit of the many, and not merely for the profit of the few.”[21]  The National Forests, like National Parks, National Wildlife Refuges and Bureau of Land Management lands are the fruit of a century-old realization that what remained of the Federal public domain needed “management” and the decision that much of the federal public land, a little less than one third of all the land in the United States, roughly 650 million acres, (and more than one-third of Colorado), should remain under Federal control for the benefit of all Americans.[22]

The United States Forest Service manages the National Forest through a complex resource planning process dictated by the National Forest Management Act of 1976[23] and its legislative antecedents.  Since the passage of the Multiple Use-Sustained Yield Act in 1960, the Forest Service has been required to manage those lands for “outdoor recreation, watershed, wildlife and fish purposes” as well as timber and grazing. The 1960 Act enshrined in law two concepts which had guided or excused National Forest management for the-half century between 1910 and 1960: “multiple use” (“the management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people”[24]) and “sustained yield” (“achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land”).[25]

Since the mid-1990s, “multiple use” and “sustained yield” have largely been supplanted.  For a time the new guiding concept in federal land use planning became something called “ecosystem management.”[26]   While no one is quite sure what “ecosystem management” means,[27] most people would agree that “ecosystem management” places some emphasis on maintaining the integrity of the ecosystems that exist, in part, on the public lands. Most ecosystems that exist on public land also exist on adjacent land outside the generally recognized realm of the Public Land Tradition.  This does not mean, however, that “ecosystem management” has any generally recognized role outside the often arbitrary borders of the federal public land.

The control of the dark green valleys and gray mountainsides “on the Forest” behind Roxborough Park represents the legacy of a century of federal ownership. Although public land, it is shot through with private holdings, private rights and private expectations of almost bewildering variety and extent, unpatented mining claims, municipal reservoirs, ski areas, hiking trails and traditions of Christmas tree cutting.  For most of the last century, public land management meant most prominently logging, dams and water pipelines done by private contractors under the sometimes watchful eye of a uniformed federal service.  It also meant road building and fire suppression carried out by the government itself.   Since the 1970s, these lands have been the subject of a long running legal battle  -- a Forty Years War -- between environmentalists and extractive industry groups both seeking to shift the balance between exploitation and preservation.

The Federal government is not the only government holding land for the people.  The State of Colorado owns Roxborough Park and other state parks, areas of “outstanding scenic and natural qualities containing significant archeological, ecological, geological . . . values so as to make imperative the preservation of the area . . . for the enjoyment, education and inspiration of Colorado residents and visitors”[28] The state holds another three million-odd acres “to promote long-term productivity and value.”[29]  State land managers in 22 western states manage approximately 135 million acres of land,[30] an area more than twice the size of Colorado.[31]  State managers, like their federal counterparts, find a basis for control in ownership.  Most state lands were granted to the state by the Federal government at the time of its admission to the union.  Some, like Roxborough Park, were purchased much later. State public lands, like federal public lands, are supposed to be managed for the good of the people.  In 1996, Colorado voters, by ballot initiative, reordered the State Land Board and the way in which it managed state lands, allowing a significantly greater role for preservation.[32]  As with the federal lands, the significance of that victory remains to be seen.[33]

The land north and east of Carpenter Peak is lower and drier.  Ponderosa Pine gives way to Gambel oak and short grass prairie.  Douglas County regulates most of this land through law in the Land Use Tradition.  Douglas County, like most American jurisdictions with significant populations and budgets, has a comprehensive master plan intended to “influence” development “to preserve the county’s rich rural heritage and its natural beauty” and “to guide future growth and development decisions”[34] and a zoning code intended to regulate development; “to govern the use of land for residential and non-residential purposes, regulate and limit the height and bulk of buildings and other structures, limit lot occupancy, determine the setbacks and provide for open spaces . . .”[35]

Like the Public Land Tradition, Land Use Tradition has its own history and vocabulary.  It arose in the second and third decade of the twentieth century to combat the perceived evils of American cities and to give city dwellers aesthetically pleasing places to play in their precious time off.  While theoretically a function of state “police power,” delegated to counties and municipalities by statute, the Land Use Tradition draws much of its authority from the right of local communities to shape their own futures.

Recently, the world of land use planning has been convulsed by political battles over “sprawl.”  Urban areas around the country hold conferences and pass initiatives in an attempt to contain this multi-headed monster.  Coloradans regularly rank “sprawl” as one of the greatest threats to the State’s quality of life.  Yet, in 2000, Colorado voters rejected an anti-sprawl ballot initiative.  Commentators have called Colorado’s approach to land use planning “schizophrenic.”[36]   Coloradans value their landscapes highly, but appear to distrust direct state control of land use planning.

On the road into Roxborough, I passed a small green sign indicating that the area had won the Governor’s “smart growth” award in 1996.  Smart growth has become the slogan of choice, the Land Use Tradition’s response to sprawl.  The notion of “smart growth” speaks volumes about the Land Use Tradition: its acceptance of development and its commitment to conscious planning to order that development.  Volumes have been written on the subject.  The Public Land Tradition that governs activities in the mountains behind Roxborough is also a planning regime, but “smart growth” is not a concept likely to guide any federal land use plan.

All the lands one can see from Carpenter Peak are also subject to control by federal and state environmental laws, the Environmental Tradition.  There are “wetlands” along the prairie valleys subject to protection under section 404 of the federal Clean Water Act. In July 2002, many of the prairie creeks visible to the north and east were proposed as “critical habitat” for the Preble’s Meadow Jumping Mouse, a federally listed threatened species protected under the Endangered Species Act.[37]  In June 2003, some were designated.[38] Now those protections are in jeopardy because, in 2004, the United States Fish and Wildlife Service proposed “de-listing” the mouse on the ground that it was not genetically distinct from another slightly more numerous mouse species.[39]

My ability to see the landscape around me just a few miles from a large urban area is the province of the federal Clean Air Act and Colorado’s regulation of stationary and mobile sources of air pollution.  All federal “actions” on the landscape are subject to the environmental documentation and decision making requirements of the National Environmental Policy Act (NEPA).[40] In a dozen different ways, the Environmental Tradition shapes the Roxborough landscape.

Environmental Law burst on the scene in the 1970s driven by fears for the human health effects of pollution but also driven by a growing concern for what we had begun to call “the environment.”  While it built on older federal conservation legislation -- most of which falls neatly into the Public Land Tradition -- it represented a readily identifiable discontinuity.  As the historian Robert Gottlieb wrote, after Earth Day 1970, “the environmental issue and the newly defined environmental movement was afforded instant recognition by a media suddenly discovering the issue for the first time. Environmentalism became a movement without a history, with an amorphous social base, and with a clean slate on how best to proceed.”[41]

Like the Public Land Tradition, Federal law dominates the Environmental Tradition.  The tradition also has a strong (often ignored) state component. Unlike Public Land Law, Environmental Law’s capacity to manage and preserve is founded on regulation, not ownership. Unlike Land Use, Environmental Law flows from national and state-wide decisions to shape the future, not local ones.  Unlike the Public Land or Land Use Traditions, Environmental Law places little or no emphasis on landscape planning.

The open space holdings to the northeast of Roxborough are the result of a fourth legal tradition, “the Land Conservation Tradition.”  In the past two decades, many public entities, like Douglas County Open Space, and private land trusts, like the Douglas County Land Conservancy and the Conservation Fund, have taken to buying property rights in land for the preservation of open space, historical sites and biological communities through “land conservation transactions.”  Often these “land trusts” do not buy all the property rights associated with the land, but instead buy or are given “conservation easements,” popular, flexible but conceptually challenging negative servitudes which grant one party the power to prevent the owner of the land from developing it beyond certain specific limits.   These efforts are supported by “conservation easement” statutes in almost every state, including Colorado, and by favorable federal and state tax provisions.  Transactions often result from donations and private philanthropy but are also funded through local sales taxes, Colorado’s State lottery and, occasionally, the Federal Land and Water Conservation Fund.  Like the traditional public lands, the power of Conservation Land Transactions to manage and preserve is founded in ownership, but private ownership as well as public.  The hallmark of the Land Conservation Tradition is a voluntary transfer for preservation.

While the vast majority of the public lands are governed by federal law and local land use is a local exercise of authority delegated by the states, land conservation transactions are creatures of both state property law and federal tax law.  More than 1,500 private land trusts – incorporated under state law and tax exempt under the federal tax code -- operate in the United States.  More than 30 operate in Colorado.[42] By the reckoning of their national umbrella organization, the Land Trust Alliance, by 2003, local and regional Land Trusts nation-wide have preserved more than nine million acres of land, an area larger than Massachusetts.[43] Even more remarkably, this area is twice as large as what land trusts had protected just five years before.[44]  This includes more than five million acres subject to conservation easements.

The amount of land preserved through land conservation transactions will never rival the 650 million acres of Federal public lands,[45]  the 135 million acres of state public land in the west or the billions of acres theoretically subject to law in the land use tradition.  Still, the few million acres protected can play a role disproportionate to their size.  The lands people wish passionately to preserve through voluntary transactions (and the lands with value that will generate the greatest tax benefit for the donor), tend to be close to the edge of development, where the loss of their natural qualities is an immediate possibility.  Land conservation transactions crop up frequently in places like Douglas County, and the other counties in the Denver metropolitan area, and around Colorado’s burgeoning ski resorts: on the front lines in the battle to reconcile human development and nature, on the border between developed land and wild.  The emergence of a series of preserved lands on the flanks of Roxborough in response to encroaching development is almost exclusively the result of conservation land transactions.  Almost everywhere, the amount of land protected by land trusts is growing while the amount in public ownership, state or federal, is not.

While recognizable private land trusts have been around since the end of the nineteenth century, the volume of conservation land transactions increased significantly after the 1980 adoption of the current version of Internal Revenue Code provision 170(h) explicitly allowing significant charitable tax deductions for conservation transactions. Through the 1980s and 1990s the myriad federal and state tax benefits afforded to land conservation transactions were accepted uncritically by legislators across the political spectrum.[46]  In the early twenty-first century, revelations about overvalued easements[47] and scholarly attacks on the concept of preservation through acquisition[48] led to a fundamental reassessment.  In January 2005, Congress’s joint committee on taxation released a report recommending a dramatic reduction and partial elimination of the tax benefits supporting land conservation transactions.[49]

The Land Conservation Tradition is relatively new to Colorado.  Still, it possesses some developed qualities that distinguish it from the other traditions.  Planning plays a different role in land conservation transactions.  Public officials cannot simply draw lines on a map as they do in the Land Use and Public Land Traditions.  The necessity of willing buyers and willing sellers make planning difficult.  At the same time, the promise of preserving an entire vista intact, an entire valley undeveloped or an entire ecosystem undamaged will attract willing sellers in a way that piecemeal preservation will not.

Because both public and private actors may participate in land conservation transactions and because the property rights conveyed in conservation easements often have many of the qualities most people associate with regulation, conservation land transactions and the Land Conservation Tradition, of which they are part, erode the distinctions between public and private, ownership and regulation which are the touchstones of our other three traditions.

Despite their distinct qualities, there is a well established “special relationship” between the “Land Conservation Tradition” and the “Public Land Tradition.”  Most land trusts are far better suited to acquiring property rights for preservation than they are at managing the lands so acquired.  Much of the land preserved by private land trusts winds up in the public land base subject to the control of state and federal or state land management agencies.  Accordingly, many land trusts favor “pre-acquisition” transactions in which they act as intermediaries, accepting property rights from private owners and then transferring those rights into public ownership.  The recent expansion of Roxborough Park to 3000 acres was engineered by the Colorado land trust community.

Four legal traditions:  Public Land, Land Use, Environmental and Land Conservation all touch at Roxborough.  They touch everywhere on the border between wildland and developed land.  It is just a little more obvious at Roxborough.

B. One Landscape

From Carpenter Peak, it is easy to see these four bodies of law in operation.  To the west, the forest shows the lighter green patches and half-hidden brown lines, signs of the logging and road building, hallmarks of United States Forest Service management through the latter half of the twentieth century.  To the north, the tight bunching of the private development in Roxborough Village is the mark of Douglas County land use planning.  To the northeast, the empty prairie ridge tops, otherwise choice sites for houses because of the views they command, are subject to conservation easements that preclude development.  The apparently undisturbed line of willow by a prairie stream to the northeast will likely remain undisturbed because it contains wetland and, perhaps, Preble’s Meadow Jumping Mouse habitat protected by environmental laws.

Plainly, these legal traditions are operating on one contiguous landscape.  Equally plainly that landscape is part of the “wildland urban interface” or “the border between wildlands and the city.”  This border county is important in the American West.  The West is both the most open and most urbanized part of the United States.  The west is a thinly settled landscape (49.5 inhabitants per square mile) dotted with very dense cities.[50] Salt Lake City is more tightly packed than Philadelphia. Las Vegas is denser than Chicago. Ten of the country's 15 most densely populated metro areas are in the West (including California).[51] Western cities are, with few exceptions, urban centers surrounded by identifiable suburban doughnuts, surrounded, in turn, by open lands in one form or another.  Some of the open land adjacent to urban and suburban areas is farmland – like the lands in the Platte River Valley north and east of Denver.  However, in this arid region, much of this open land is relatively wild: National Forest, National Park, Bureau of Land Management desert or extensive state park.  It is a hallmark of western cities that the views from the taller skyscrapers afford a view of unspoiled country, generally of Congressional designated wilderness.  One has plainly entered the border country when the infrastructure of the suburbs gives way to be replaced by gravel roads, propane tanks and generators supporting scattered houses.  One does not leave it until the last human structure has vanished.  What happens within the border affects everything from the ecosystems in the highest mountains and deepest deserts to the dense human populations in the center of western cities.

Most lawyers who represent their clients in the decision making processes these four legal traditions provide do not generally think about the fact that all four legal traditions are functioning on one landscape.  Neither do most government employees or most environmental consultants.  For most practitioners, it is enough to master the intricacies of Public Land Law or Land Use Law, conservation easements or just the Clean Water Act.  Each legal tradition offers self-contained rules and procedures to further a client’s interest, to preserve or exploit a resource or an acre of prairie.  Each tradition has its own ways of doing things, its prominent practitioners, and its special trove of obscure knowledge. And, in case it is not obvious, each of these traditions is damnably complicated: daunting for the seasoned practitioner as well as the novice.

Professionals -- lawyers and others concerned with landscape protection and development -- build their understanding out from the shared knowledge at the center of the traditional body of law, ignoring the edges where it may mix with other bodies of law.  Borders are hard to learn. Often the unwillingness of lawyers to venture outside their traditional sphere of expertise -- to focus on the borders -- leads to unfortunate, unintended results.  More and more, better practitioners understand what I can see from Carpenter Peak: that their work requires reaching out to and beyond the edges of their own traditions.  Simply put, many bodies of law may offer solutions to problems when a single body of law does not.

From a broader perspective -- as citizens -- our shared interest in the preservation and sensible use of western landscapes, the imperative to consider these four legal traditions as one multi-faceted whole is even greater.  We can do a much better job of achieving our shared goals for the landscapes we inhabit, enjoy and value if we allow ourselves to see the larger picture.  We can all agree that getting what we want requires looking at the whole picture, even if we cannot always agree about what we want.

The entire Roxborough landscape connects in innumerable obvious and subtle ways – “when we try to pick up anything by itself, we find it hitched to everything else in the universe.”[52]  Thinking about two obvious natural features -- wildlife and wildfire -- illustrates the connections and the danger of carving the landscape up into bits to satisfy our own appetite for simplicity.

On the way up the trail, I passed a large sign cautioning me to beware of mountain lions.  Mountain lions and black bears have become frequent local news items in western cities, because they are attracted by the excellent habitat and food we provide and cannot be convinced to respect our jurisdictional boundaries. In 2004, David Baron published The Beast in the Garden tracing in vivid detail the dysfunctional relationship between Boulder, Colorado and a small population of mountain lions in the late 1980s and early 1990s.  This relationship culminated in the mountain lions attacking and eating Boulder area residents.  In his last chapter, however, Baron jumps fifty miles south and seven years after his main narrative to chronicle, in hair raising detail, a 1998 mountain lion attack on a hiker on Carpenter Peak in Roxborough Park.

Mountain lions are “large carnivores,” essential elements in many of the attempts of public land managers to retain or restore dynamic ecosystem components.  They are native species protected by public land law. Healthy predator populations are good news in the National Forest, hallmarks of good “ecosystem management.”

Mountain lions are welcome guests on the prairie ridge tops preserved through the Land Conservation Tradition, part of natural systems and consistent with open space.  Their occasional presence is noted in the environmental “baseline” documentation required by the Internal Revenue Service regulations and done to support many conservation land transactions in the area.

Mountain lions are less graciously received in the housing tracts to the north where they kill domestic pets and make parents fear for their children’s safety.  On a crisp fall day in 2004, at the summit of Carpenter Peak, within site of the roofs of Roxborough Village, I read a small group of law students David Baron’s account of the mountain lion attack that had taken place where we were standing six years before.  We returned down the mountain in a somber mood and a closely packed group.

The presence of large carnivores is a function of habitat.  Where they can find food and shelter they will persist.  Where they cannot they will not.  The current fragmentation of legal traditions precludes any option of creating a meaningful buffer between the people and these animals or developing another effective strategy for coexistence.  Where the forest ends the development begins and the distance between good wildland denning sites and the tempting food sources in the subdivision is less than the distance I walked from the Roxborough parking lot to Carpenter Peak.

On June 10th 2002, local officials ordered the evacuation of Roxborough Village.  Hundreds of families crowded relocation centers or moved in with friends elsewhere to avoid the threat of wildfire.  The day before, June 9th, had been a strange day in nearby Denver.  In the unseasonably hot weather, the usually clear early summer air was brown with ash from the “Hayman” forest fire burning in Park County sixty miles south and west of the City and twenty miles from Roxborough.  In Denver, you could not see the mountains.  You could not see more than a few hundred yards.  A metropolitan area, which regularly contemplates the possibility of declaring victory over air pollution, suddenly had an airborne pollution problem so severe that cars had their headlights on in the middle of the afternoon.  The smoky haze smelled distinctly of pine wood, but contained a familiar soup of air pollutants – particulates, nitrous oxides and volatile organic compounds – usually regulated under the Clean Air Act.  The Environmental Protection Agency presumably used its discretion under its “Natural Events Policy”[53] to prevent the fire from affecting Denver’s status.  That day, the Hayman fire which darkened the air in Denver was only one of more than half a dozen raging in various parts of the state.

But were the fires “natural events”?  By foresight or chance, the featured stories in the Denver Post opinions section that day dealt with wildfire and the wisdom of logging as a precaution against fire.[54]  Both Greg Applet of The Wilderness Society and Rick Cables, U.S. Forest Service Regional Forester, agreed that the “unnatural” density of timber caused by a century of assiduous fire prevention on the Federal public lands contributed to the problem.  They could not agree on what to do about it.

Television news programs about the fires – there were many – focused exclusively on displaced people and threats to “structures.”  Pictures showed flames marching toward mountain homes.  Colorado’s Governor Bill Owens, stepping from his plane after touring threatened areas, likened the effect to “nuclear winter.”  The strange and tragic story of the ex-Forest Service employee who apparently set the fire would become a staple for the Denver news media in the autumn to come.[55]

Wildland fire has many causes and many effects.  Fire destroys and through destruction reveals things we might not see otherwise.  As Applet and Cables made clear, wildfire is traditionally a public land problem. Most fires start on Federal public land and their frequency and intensity is largely a function of the legacy of public land management.  At the same time, “the human focus” of the wildfire problem has almost nothing to do with public land management.  It is the many housing subdivisions -- like Roxborough Village -- edging up to the public land borders that provide the human victims and multiply the monetary damage.  Between 1990 and 2000 the population of Colorado as a whole grew at the breathtaking pace of 3.1 percent annually, but population growth in the “forest fringe” – land within 1 kilometer of forested land cover grew at a whopping 4.6 percent annually.[56] Wildfire causes like illegal camp fires and high forest density have something to do with public land management, but the presence of the campers also has to do with the proximity of large population centers to the forests and the availability of high quality roads to the forest borders, the province of the Land Use tradition.  Very few people who move to the edge of national forests cheer when the Forest Service sells the timber in their publicly owned backyard, even if they believe the logging might decrease the chance of catastrophic wildfire at some unspecified future time.

Neither roads nor campfires, nor fire suppression, nor houses cause bad fire seasons.  By a minor effect of synchronicity, on June 3 in the week previous, the administration of President George W. Bush admitted that there might be something to “global warming.”  In the 2002 U.S. Climate Action Report, the administration, for the first time, blamed human actions for global warming. "The changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability," the report says in Chapter 8. "Human-induced warming and associated sea level rise are expected to continue through the 21st century."  2002 was one of the hottest and driest years on record in Colorado.  Whether the dry winter and warm summer that gave us the 2002 fire season were the effect of global warming or “natural variability” is difficult to say.  But the frequency of hot summers, dry winters and disastrous fire seasons in the last decade of the twentieth century and first decade of the twenty-first does have something to do with global warming.  Global warming will have an enormous influence on all four of our legal traditions in the twenty-first century.

Global warming is fundamentally an air pollution problem, causally linked to the human-caused emission of greenhouse gases, primarily carbon-dioxide and methane.  Methane and carbon-dioxide are not currently considered “pollutants” under Federal law.  If, however, the United States ever moves to combat global warming, it will, most probably, employ the tried and true tools for limiting gas emissions developed under the Clean Air Act in the Environmental Tradition.

In August 2003, EPA denied a Clean Air Act petition seeking EPA regulation of greenhouse gas emissions from mobile sources.  In that year, EPA also issued a new General Counsel memorandum that stated EPA lacked authority over such emissions.  In response, twelve states challenged the petition denial and memorandum in the U.S. Court of Appeals for the DC Circuit.  The states argued that the plain language of the Clean Air Act authorized EPA to set motor vehicle emission standards for greenhouse gases and that EPA acted unlawfully in refusing to regulate those emissions.  The court disagreed and dismissed the suit holding that even if EPA had statutory authority to regulate greenhouse gases from mobile sources, EPA properly declined to exercise that authority.  Global warming, according to the court, is an issue on the frontier of scientific knowledge; therefore, EPA’s policy judgments deserve deference.[57]  The story of greenhouse gas regulation is only beginning.

Wildfires also emit greenhouse gas in significant quantities.  Paleo-environmental data -- the presence of charcoal in core samples taken from lake bed and wetlands from the Rocky Mountain region -- indicate the wildfire frequency is closely linked to climate.[58]  As global warming increases the probabilities of wildfire, so wildfire will contribute to global warming.  Unlike more direct forms of human-caused emissions of greenhouse gases, wildfires do not lend themselves to regulation with the tools provided by the Environmental Tradition.  It is no easier to control a wildfire because it does not have a permit to emit smoke.

The Hayman fire is only a memory, occasionally refreshed by hillsides of charred trees.  It had long since dropped completely out of the news.  Yet, still, frequently the towers of downtown Denver were barely visible from Carpenter Peak.  In the summer and fall, the air can be hazy with the smoke from a dozen wildfires burning across the west.  This is an air pollution problem, “regional haze.”  In 1977, Congress amended the Clean Air Act and declared a “national goal”:  “the preventing of any future or remedying any existing, impairment of visibility in [“Areas of Great Scenic Importance”] which impairment results from man-made air pollution.”[59]   Roxborough is not a designated area of “Great Scenic Importance,” but Rocky Mountain National Park, whose summits are visible from Carpenter Peak on a clear day, is so designated.[60]  Is wildfire haze in Rocky Mountain National Park “man-made air pollution”?  A major contributor to this particular Environmental Law problem is a century of fire suppression on the Public Lands.

Wildfires do not only burn on public lands and around houses.  They also burn on lands owned or partially owned by land trusts: lands or rights obtained through conservation land transactions. Like most environmentalists, land trusts managers are inclined to think of fire as a natural part of ecosystem function.  Since the late 1980s, The Nature Conservancy – largest of private land trusts -- has employed “fire management” including prescribed burning in correct “altered fire regimes” on lands under its control.[61]  But hot fire seasons put pressure on conservation owners to remove fuel from their land to avoid antagonizing fire-averse human neighbors. The laws that govern conservation land transactions effectively require transaction documents to describe the features of the landscape the parties seek to preserve.  Such descriptions are signed and notarized in conservation easements, stamped and filed in the county courthouse with other property records to govern the management of those lands “in perpetuity.”  Unless these documents are drafted with great foresight, an hour of catastrophic wildfire can render these descriptions obsolete.  To date, very few conservation easements or other land conservation transaction documents make allowance for wildfire, as natural process or catastrophe.

C. One Purpose

That we are using four distinct legal traditions on contiguous landscapes governed by natural processes that do not respect our jurisdictional boundaries is important, but it is old news.  What deserves further examination is the distinct but related proposition that we are using those four legal traditions to do, more or less, the same thing -- protect and manage something called “nature.”

Nature?  There is some quality about a sunny morning at Roxborough that I value, that many of us value more than, say, a morning at a shopping mall.  While most of the public land is open without charge, I think nothing of paying $5 to enter Roxborough.  Even the $15 or $20 admission fees to National Parks do not stop me.  I would be very unlikely to enter a shopping mall that charged admission.  As economists would say, I have a demonstrated “willingness to pay” for what I get at Roxborough and I am not an exception in this regard.

What am I paying for?  The whole package: a place to walk, the quiet and the sound, the light and shadow, the smells, the views, the ability of the landscape to yank me out of my petty concerns with the liberating, disorienting force of a hook pulling a trout out of a stream.  “In Society you will not find health, but in nature.  Unless our feet at least stood in the midst of nature, all our faces would be pale and livid.  Society is always diseased, and the best is the most so.  There is no scent in it so wholesome as that of the pines, nor any fragrance so penetrating and restorative as the life-everlasting in high pastures.”[62]

While the word “nature “ covers everything from the patterns of ice crystals in the rings of Saturn to your desire to itch -- right now -- it is one of few words big enough to capture the everyday miracle I experience at Roxburough, so we will use it.  Recreation, solitude, contemplation, ecosystem health, and a dozen other notions are pieces of the puzzle.  These things do not emerge out of thin air.  What I enjoy in nature is an interrelated mosaic of “services” generated by the underlying ecological processes discussed in Chapter 2.

Our four legal traditions did not originally emerge to protect and manage “nature.”  Originally, they addressed other areas of human concern and they still do.  However, more and more, particularly in the border between wildland and the city, we have retooled all of them to protect and manage nature.

With only half of the twentieth century behind him, Aldo Leopold had the confidence to declare that the “great discovery” of the twentieth century was not the discovery of the “radio” or the various electronic gadgets (the proliferation of which had only begun when he wrote), but the “complexity of the land organism.”  The four legal traditions we will discuss have all been retooled to protect “nature” largely because we increasingly consider the things they are intended to protect and regulate aspects of the applied science of ecology.

Many of the people who originally created the Public Land tradition had passionate feelings for nature.  However, it is very hard to argue that the original purpose of the body of law had much to do with protecting nature.  As Gifford Pinchot, first Chief of the U.S. Forest Service, probably the most articulate and certainly among the most prolific, founders of the Public Land Tradition, put it, the purpose of the laws was “use of the people.”[63] The dragon he set out to slay was waste, the squandering of the public’s resources for the benefit of “the moneyed interests.”  As he put it: “Out in the Great Open Space where Men were Men the domination of concentrated wealth over mere human beings was something to make you shudder.  I saw it and fought it, I know.”[64]  Pinchot and his compatriots sought to save the nation from apparently perpetual concerns of timber famine or coal famine: resource supply crises that threatened to inflate the price of common commodities and line the pockets of “robber barons.”  Pinchot and Stephen Mather, first Director of the National Park Service, imagined a small army (in uniform) asserting the federal government’s rights of ownership on the “public land” and discharging the government’s obligation to manage those lands on behalf of the people.  They had seen mismanagement and waste with their own eyes.  They knew what they were fighting against.

While Pinchot and Mather, President Theodore Roosevelt and the class of gifted reformers they represent were personally partial to direct experience of nature on the public lands and took every opportunity to share that experience with potential political allies, they understood that, in the first decades of the twentieth century, a relatively small number of Americans would have a chance to wander the wilderness at leisure and that the public “good” derived from primitive outdoor recreation could be only a small share of the good the public lands could provide.

Sensibly, they focused their efforts on the tangible benefits the public lands could provide to Americans where Americans lived, through cheap timber, cheap coal, fat cows and running water.  They sought to prevent the resource busts and bubbles that made speculators happy and citizens poor.  When they made an effort to encourage Americans to visit their public lands they built railroad stations, roads, lodges and scenic view points to make it easier and take less time.

It is hard to imagine what those founders would have felt had they watched as, in the last four decades, much of the machinery of the public land management regime has been turned to the protection and management of nature.  It has not been a smooth transition and it is not complete.  However “ecosystem management,” the banner under which federal land management agencies sometimes march, is implicitly different from ecosystem destruction or even “multiple use” and “sustained yield.”  In the old balance between resource use and resource preservation built into the credo of most public land agencies, the pressure of increased use has forced a slow shift toward protection.  As Jack Ward Thomas, the outspoken chief of the Forest Service from 1994-1997  put it: “The overriding policy for the management of the national forests is the preservation of biodiversity. . .  That objective is closely followed by the assurance of water quality and then, if possible, some production of goods and services.”[65]

Not only do a larger portion of the American people visit the public lands than Pinchot or Mather could have imagined, a larger portion have made the public lands their backyards.  The population of the Rocky Mountain west grows faster (in percentages) than any other region in the United States.  “Rocky Mountain population and economic growth is now tethered to two major geographic features.  First counties adjacent to metropolitan areas or within an hour’s drive of them . . . [s]econd, high-amenity areas removed from cities have become new Rocky Mountain growth poles.”[66] That the fragile alpine woodlands and meadows around the strip city of Vail, Colorado in the recently unsettled heart of the White River National Forest would be the place that hundreds of Americans took their dogs for morning exercise is quite beyond the imagining of even the most prescient public land managers in the early twentieth century.  The explosion in “backyard wilderness” alters fundamentally what Americans can get from their public land and the dangers Americans pose to those lands. According to William Travis, David Theobald and Daniel Fagre, in Rocky Mountain Futures: An Ecological Perspective  this “amenity boom, based on the region’s natural qualities and enabled by the postindustrial economy [may] endure and outlast previous booms.  But, like previous booms, it too has the potential to remake Rocky Mountain landscapes in profound ways.”[67]

Originally, the Land Use Tradition embodied only the most simplistic notion of nature as a place development should not be allowed, a place where people might go to get away from work: “metropolitan open space” and parks.   Nature was Central Park, Jones Beach on Long Island[68] or Boston’s Fenways[69] --  the combination of artifice and open space associated with Frederick Law Olmstead or New York’s Robert Moses.  The boundaries and construction of even the most celebrated parks demonstrated little or no concern for the functioning of natural systems beyond the ebb and flow of the tides.

In the past decade the idea of “Ecology Based Land Use Planning” has taken root, opening the possibility that Land Use Law can protect nature.  Planning and zoning to protect wetlands and wildlife corridors is becoming commonplace. Future residents of western communities will pay money for the chance of seeing migrating elk outside the kitchen window, just as they will pay money for a decent neighborhood school.  Here again the notion of “backyard wilderness” is an engine of change.  Modern comprehensive plans consistently contain green belts and habitat corridors to maximize the persistence of natural systems within the fabric of the plan.  Cluster zoning, overlay zoning, planned unit developments (PUDs), Stream/Creek Zoning and Woodlands Protection Zoning offer regulatory tools to protect natural systems.[70]  While I would rather the houses of Roxborough Village did not extend into the heart of Roxborough State Park, the presence of those houses represents a powerful and occasionally positive trend on the demands that drive development and shape land use planning.

The Environmental Tradition has always been about the “environment.”  It has also always been about the protection of human health.  The environmental problems in the minds of the legislators who drafted the primary federal environmental laws in the 1970s – rivers catching on fire, catastrophic air inversions and pesticide poisoning suggested that environmental regulation naturally served both ends.  The prominence of the environmental problems they saw allowed them to see and forced them to accept the fundamental connection between the “ecology within our bodies” and the ecology around us.

The language of Federal environmental statutes regularly link protecting health and protecting nature.  One goal supports the other.  Together, they created the legislative consensus necessary to pass sweeping, complex national environmental statutes.  Legislators -- no matter how completely they accepted the link between the fate of nature and the fate of humans -- knew better than to define nature or “the environment” apart from human health and sow dissension in their own ranks.

The disappearance of the conspicuous pollution problems of the 1970s has allowed many of us, particularly politicians, to erect a fictitious wall between our health and the health of the living systems around us.  Recently, significant components of Environmental Law – regional haze prevention, wetlands protection, species protection, and most new water quality standards – are being devoted almost entirely to the preservation of nature in ways that appear to have only the most tangential effect on human health.  Others areas of Environmental Law, like hazardous waste regulation, seem to focus exclusively on the reduction of risk to humans, subordinating any notion of ecosystem health.

Although rooted in the federal environmental statutes passed in the 1970s – most obviously, the National Environmental Policy Act (1970), Clean Air Act (1970), Clean Water Act (1972), Resource Conservation and Recovery Act (1976) and Comprehensive Environmental Response Compensation and Liability Act (1980) – Environmental Law appears to be in the process of branching into two distinct bodies of law, one purportedly dealing almost exclusively with the effect of environmental contamination on human health and the other dealing almost exclusively with the effect of human activity on the natural world.

Many of the provisions that support these two separating bodies of law appear in the same statutes, statutes originally informed by the understood unity of ecological health and human health.  The Clean Water Act, which protects us from toxic water pollutants also protects wetlands.  The Clean Air Act, which seeks to protect us against breathing unhealthy quantities of ozone, particulates and carbon monoxide, also seeks to control the regional haze that diminishes the once spectacular views from the South Rim of the Grand Canyon or Sequoia National Park.  The National Environmental Policy Act, which requires the federal government to openly consider its options in siting a hazardous waste dump or incinerator, requires the same scrutiny when federal action may denude a mountainside or alter the flow of a wilderness stream. Even the traditional hazardous waste laws have a role to play in the protection of nature.  The “Superfund” remediation process requires consideration of both human health and ecosystem health in fashioning appropriate remedies and awarding natural resource damages.

In the hands of public and private land trusts, the active agents in the Land Conservation Tradition, land conservation transactions are flexible tools.  Within the limits imposed by conservation easement statutes and the Federal tax code they can be used for a broad range of conservation purposes as determined by the parties to each transaction.  A century ago when Massachusetts’ Trustees of Public Reservations began accepting conservation restrictions, the lands protected were places that had a specific significance in the minds of individuals or communities, places they wanted to pass on unchanged to their successors.  To be blunt, they were landscapes with sentimental and aesthetic value.

At the end of the twentieth century, the purposes pursued by the most prominent land trusts all involve the preservation of nature. The Nature Conservancy, the flagship large private land trust, has committed itself wholeheartedly to acquisition for preservation of biological diversity on a grand scale.  Its “mission” is “to preserve the plants, animals and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive.”[71]  Most smaller land trusts embrace the preservation of wildlife habitat or natural systems as among their primary “acquisition criteria.”   Five-hundred and eighty-four of the nation’s local and regional land trusts surveyed by the Land Trust Alliance in 2003 indicated that they were “primarily” involved in protecting “habitat for plants and wildlife.”[72]

D. Why Does it Matter?

Getting into the habit of seeing the border between wildland and the city landscape as a whole and not as disembodied bits of public land, environment, city edge and conservation easement, allows us to think in different and sometimes more productive ways about a range of landscape issues.  It makes the “playing field” bigger, the issues and potential solutions more numerous.  The strength of one legal tradition may compensate for the drawbacks of another tradition.   The elements of one legal tradition may offer insights that may assist in the evolution of others.  An apparently intractable Public Land dispute may become soluble by considering what management of nearby private land might offer.  Environmental problems beyond the effective regulatory power of the Environmental tradition might be within the power of conservation land transactions or Public Land management.  Perhaps most important, using all four traditions enhances citizen participation in the protection of nature by offering different ways of participating.

Anyone who has climbed even the smallest mountain (and Carpenter Peak is among the smallest) understands the transformative effect associated with a higher vantage point.  Seeing more things, together, allows you to see everything in a different way.  Understanding these four legal traditions together is (vaguely) like topping a ridge and suddenly understanding the relationship between a series of valleys you know well but had never thought about at the same time.  If you have absolutely no idea what I am talking about, put this book down now and climb a mountain.  Seeing the landscape as a whole encourages thinking far more consistent with the physical and biological reality you can see from any mountaintop anywhere.[73]

This is unabashedly a book about law in Colorado.  We draw our examples from the landscape around us because it is the landscape we are best equipped to understand. However, its relevance is not limited to Colorado or even to the American West.  Colorado is only one of a number of places in which this legal transformation is taking place.  Our parochialism has at least two functions.  First, it renders an extremely broad inquiry slightly more manageable in scope.  If we had to dot our “i”s and cross our “t”s regarding legal developments that affected any of twenty or fifty states we would be writing (and you would be reading) forever. Second, limiting the scope of our examples should buttress our proof.  Given an entire region from which to choose examples, we would be in a better position to pick case studies that supported our observations even if they bucked the national trend.  That fact that all we talk about is going on in Colorado helps establish that what we choose to discuss represents a trend.

[1]Colorado Division of Parks and Outdoor Recreation, Roxborough State Park Management Plan 7 (1987).

[2] http://quickfacts.census.gov/qfd/states/08

[3] Colorado Division of Parks and Outdoor Recreation, Roxborough State Park Management Plan at 2.

[4]Particularly if you don’t know anything about grass species.

[5] Michael E. Long, Colorado’s Front Range, National Geographic, Nov. 1996, at 80.

[6]William Shutkin, The Land That Could Be 191 (2001).

[7] Henry Diamond & Patrick Noonan, Land Use in America 28 (1996).

[8] Report to the Governor, Colorado’s Wildland Urban Interface (May 2001).

[9] Colorado Division of Parks and Outdoor Recreation, Roxborough State Park Management Plan 3 (1987).

[10] Dale Cavanagh, Roxborough State Park: Hogbacks and History (1999).

[11] Colorado Division of Parks and Outdoor Recreation, Roxborough State Park Management Plan 3 (1987).

[12] Dale Cavanagh, Roxborough State Park: Hogbacks and History 20 (1999).

[13] http://www.douglas.co.us/Recreation.htm.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Delaware contains roughly 1,266,000 acres,  BLM Public Land Statistics 2000, Table 1-3, page 7.

[20]Letter from James Wilson to Gifford Pinchot, 1905, in Gifford Pinchot, Breaking New Ground 261 (1946).

[21] Gifford Pinchot, The Fight for Conservation 46 (1910).

[22] See infra Chapter 3.

[23] 16 U.S.C. 1600 et seq.

[24] 16 U.S.C. 531(a).

[25] 16 U.S.C. 531(b).

[26] Paul Hirt  in  A Vision for the U.S. Forest Service: Goals for the Next Century 150 (2000 Roger Sedjo ed.)

[27] As William Weeks of the Nature Conservancy put it “some good attaches to the use of the words – some vestige of the meaning they had before they took on a life of their own  -- that has some effect of moving the user toward making better, more thoughtful, more conscious decisions with respect to the uses of lands and waters.”  W. William Weeks, Beyond the Ark: Tools For An Ecosystem Approach to Conservation 33 (1997).

[28] Colo. Rev. Stat. 33-10-102(23).

[29] Colorado Constitution, Article IX, Section 10.

[30] Sally Fairfax in  A Vision for the U.S. Forest Service: Goals for the Next Century 107 (2000 Roger Sedjo ed.).

[31] Colorado contains roughly 66,486,000 acres. BLM Public Land Statistics 2000, Table 1-3, page 7.

[32] See Branson School District v. Romer, 161 F.3d 619 (1998).

[33] I could identify the state public land tradition as something completely different from the Federal public land tradition.  For purposes of this work, I am not going to make that distinction.  Rather, I will lump them together as the “Public Land Tradition.”  While I will endeavor to remember state holdings in the analysis, the extensiveness of Federal land holdings and the voluminous Federal records make it almost inevitable that much of the unique quality of state public land management will get lost in the shuffle.  My decision to place state and Federal public land management together is arbitrary and deserves some abuse.  My only defense is that keeping this analysis relatively simple will make it comprehensible to more people.  My solace is that many writers in the field ignore state holdings entirely.   Fundamentally, Federal Public Land Managers and State Public Land Managers share a lengthy tradition of ownership and management on behalf of others, what lawyers call a “trust” relationship.

[34] Douglas County Comprehensive Plan 1-1 (May 2001), http://www.douglas.co.us/Planning/comp%20plan/2020_comp.htm.link..

[35] Douglas County Zoning Resolution, Sec 101 (March 1999).

[36] Henry Diamond & Patrick Noonan, Land Use in America 28 (1996).

[37] Proposed Designation of Critical Habitat Preble’s Meadow Jumping Mouse, 67 Fed. Reg. 47154 (July 17, 2002).

[38] Designation of Critical Habitat Preble’s Meadow Jumping Mouse, 68 Fed. Reg. 37276 (June 23, 2003).

[39] On March 30, 2004, U.S. Fish and Wildlife Service published notice of 90-day petition finding and initiation of status review for the 12 month finding indicating delisting may be warranted.   90-Day Finding for a Petition to Delist the Preble’s Meadow Jumping Mouse in Colorado and Wyoming and Initiation of a 5-Year Review, 69 Fed. Reg. 16944 (March 31, 2004).  On February 2, 2005, U.S. Fish and Wildlife Service published  a notice of 12-month petition finding and proposed rule to delist the Preble’s meadow Jumping Mouse. Proposed Delisting of the Preble’s Meadow Jumping Mouse, 70 Fed. Reg. 5404 (February 2, 2005).

[40]  In states with state environmental documentation statutes -- “baby NEPAs” -- state actions and many private actions would be subject to similar requirements.   E.g., California Environmental Quality Act, CA PUB RES § 21000 et seq.

[41] Robert Gottlieb, Forcing The Spring 113 (1993).  Richard Lazarus refutes this point in his Making of Environmental Law (2004).

[42] Karl Wunderlich, A New Institutional Examination of Colorado’s Community-Based Land Trusts 68 (unpublished doctoral desertion 2002).

[43] Massachusetts contains roughly 5,035,000 acres. BLM Public Land Statistics 2000, Table 1-7, page 7.

[44] http://www.lta.org/census/census_tables.htm.

[45] George Coggins, Charles Wilkinson, John Leshy, Federal Public Land and Resources Law 10 (5th ed. 2002).

[46] Elizabth Byres & Karin Marchetti Ponte, The Conservation Easement Handbook 80-99 (2nd ed. 2005).

[47] See Great Northern Nekoosa Corp v. United States, 38 Fed. Cl. 645 (1997).

[48] See e.g., Julia Mahoney, Perpetual Restrictions on Land and the Problem of the Future, Virginia Law Review 2002.

[49]  Staff of Joint Committee on Taxation, Options to Improve Tax Compliance and Reform Tax Expenditures, 288-307 (January 27, 2005).

[50] ttp://www.washingtonpost.com/wp-dyn/content/article/2005/08/10/AR2005081002110.html.

[51] SOURCE: U.S. Census Bureau 2000 census.

[52]John Muir, My First Summer in the Sierra 110 (Houghton Mifflin Co. 1911).

[53] EPA, Interim Air Quality Policy on Wildlife and Prescribed Fires, April 23, 1998 at 25.  Under EPA’s “Natural Events Policy,” states are to draw up a Natural Events Action Plan describing how the state will come back into compliance with EPA regulations after a natural event. See http://www.epa.gov/ttn/oarpg/t1/memoranda/firefnl.pdf.  In Colorado Air Quality Control Commission Report to the Public 2001-2002, the follow was said regarding the Hayman Fire’s effect on Denver Metro Area Air:

Link: http://www.cdphe.state.co.us/ap/down/01-02finalreport.pdf.

[54] Denver Post, June 9, 2002 E1.

[55] A fired Forest Service worker, Terry Lynn Barton, pled guilty in December 2002 to federal charges of igniting the Hayman fire, and then lying to investigators.  She admitted starting the fire by burning a letter from her ex-husband in a Forest Service campground fire ring.  In February 2003, she was sentenced to 6 years in prison.  She is currently serving this sentence.  Ms. Barton also pled guilty to a Colorado arson charge relating to the Hayman fire in January 2003.  She was later sentenced in state court to 12 years.  The sentence would run concurrently with her federal sentence.  However, in December 2004, the Colorado Court of Appeals overturned the state sentence because the district judge had “the appearance of prejudice” due to the fact that the judge had been personally affected by the fire.  The appeals court remanded the case for resentencing.  http://www.thedenverchannel.com/news/1823532/detail.html.

[56] Rocky Mountain Futures: An Ecological Perspective 16 (2002).

[57] Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005).

[58] Rocky Mountain Futures: An Ecological Perspective 50 (2002).

[59] 42 U.S.C. 7491(a).

[60] 40 C.F.R. § 81.406. (2002); 44 Fed. Reg. 69124 (Nov. 30, 1979).

[61] Jeff Hardesty, Wendy Fulks, Ron Myers, Jerilyn Levi, Paula Seaman, Deborah Jensen, Restoring Fire Adapted Ecosystems: The Need For a National Nature Conservancy Strategy (March 2001).

[62] Henry  Thoreau, The Essays of Henry D. Thoreau 4-5 (2002).

[63] U.S.F.S., Use Book (1906).

[64] Gifford Pinchot, Breaking New Ground 83 (1946).

[65]Jack Ward Thomas in A Vision for the U.S. Forest Service: Goals for the Next Century 10 (2000 Roger Sedjo ed.).

[66] Jill S. Baron, Rocky Mountain Futures 7 (2002).

[67] Rocky Mountain Futures: An Ecological Perspective 8 (2002).

[68] Robert Carow, The Power Broker: Robert Moses and The Fall of New York.

[69]Anne Whiston Spirn, Constructing Nature: The Legacy of Frederick Law Olmstead in Uncommon Ground (1996).

[70] Irving Schiffman, Alternative Techniques For Managing Smart Growth (2001).

[71]http://nature.org/aboutus/

[72]http://www.lta.org/aboutlt/census.shtml.

[73] In Chapter 8, we will discuss Senator Henry M. (“Scoop”) Jackson’s ill-fated National Land Use Planning Act of the early 1970s.  An often overlooked chapter in the law of the American landscape regulation “LUPA” offers both a perspective in how we found ourselves in our current fragmented reality and a cautionary tale of how we might, or might not, climb our way out of it.


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