This land was our land

At a time when each day’s headlines trumpet new examples of federal ineptitude, the federal bureaucracy continues to have faith — in itself.  How else to explain the federal government’s appetite for swallowing up large chunks of land, adding to the millions of acres under federal control, with the click of a keystroke.  What follows are three examples of land grabs in the last 30 days alone — instances of the use of public authority of, by and for the federal government.

Last Friday afternoon, President Obama created three new federal monuments, with no input from Congress and no comment from the American public.  The president did so under the authority of the century-old Antiquities Act, further confirming him as the most exuberant executive user of the Act since Teddy Roosevelt signed the bill into law in 1906.  The newest monuments decreed by Obama — “more than any other President,” as the White House website proudly proclaims — brings the total of new land added to federal rolls under the current administration to 260 million acres. 

{mosads}Of course, large numbers can numb the mind, and — like the distance to the moon or number of FLOPs performed by a smart phone — it’s hard to picture just how vast 260 million acres is.  To put it in context, 260 million is a swath of land that would encompass the 15 states of the Eastern Seaboard, from Maine to Florida, including all of New York State.  For the West Coast set, that’s nearly three Californias.

Are there lands worthy of federal protection within this massive total?  Of course there are.  Have these protected lands been selected in a manner so that “…the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected?” — a proviso taken verbatim from the Antiquities Act?  Do we know what we are giving up by removing these lands from potential “multiple use’ as defined by federal law as “management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people?”  No one knows, because none of these federal land takings were subject to public disclosure and comment.

The second instance of Fed-creep is the issuance of the Environmental Protection Agency’s so-called “final water rule” at the end of June.  Within 24 hours, 27 states filed or joined federal suits against the EPA’s new definition of water.   

Billed by the EPA administrator as a necessary “clarification” of what the word water means, the rule was scored by the U.S. Army Corps of Engineers as having “No Significant Impact,” and therefore discharged from having to complete an Environmental Impact Statement.  Never mind that Webster’s dictionary manages to get the deed done in 55 words, the EPA’s new rule on the meaning of water runs 99 pages and more than 85,000 words.  

Will the “waters of the U.S.” now include backyard ditches?  Post-downpour prairie potholes?  That water hazard short of the 18th green?  Will that trickle of a stream on your property form a “significant nexus” with other waterways subject to federal jurisdiction?  We will find out, often by a case-by-case basis.  Disagree?  You’re free to hire a lawyer and petition the federal courts to prove otherwise.  

And then there’s this recent model of misdirection:  A notice in the Federal Register to nominate an area in Arizona for the National Register of Historic Places, a designation that would put the area off limits to further development.  Strangely, the nomination identifies the area using a name that doesn’t appear on official maps, nor does it delineate the area’s location and dimensions.  

The name used in the notice turns out to be a phrase used by a local Native American tribe for an area near a proposed copper mine that the tribe would like to see stopped.  But that area is near a different town 20 miles distant from the one mentioned in the nomination.  Will local residents — assuming they read the weekly installments of the Federal Register — be able to meaningfully participate in public comment about an area of land whose name doesn’t appear on a map, the size of which isn’t defined, near a town that is mis-identified?  

As a back-door bureaucratic ploy to end run the public process in order to block a mine, you can call it ingenious, if not downright disingenuous.   

What it’s not is democratic.  None of this is.  What’s more, the actions taken to fence off huge swaths of land from responsible development, bind not only the present citizens of the United States, but future generations as well.  

If you want to set land off limits, put up a proposal and open the door to public scrutiny.  Let the sun shine in, and the opinions fly.  But sneaking it through by presidential fiat or parliamentary maneuver is the kind of thing that destroys trust in government.  And that may be our most precious resource of all.

McGroarty is president of American Resources Policy Network, a non-partisan education and public policy research organization headquartered in Washington, D.C., which is dedicated to informing public opinion and public policy on the importance of developing U.S. metal and mineral resources.