A ‘common law’ of outdoor recreation?

As outdoor recreation activities on public lands surge, government agencies and courts have embarked upon an expansive form of rulemaking that can be characterized as developing a “common law” of outdoor recreation. The term was the subject of an excellent 2021 legal treatise by Robert B. Keiter, the Wallace Stegner Professor of Law at the University of Utah, Quinney College of Law: “…[W]ithout the extensive legal standards that govern other public land resources and uses, such as timber harvesting, mining, livestock grazing, water usage, and energy development, recreation law and policy is evolving piecemeal with little congressional direction.”

“Common law” meaning

But what exactly does the term, “common law,” mean? To understand, we must delve into the intersections of common law, legislative (in)action, the myriad forms of outdoor recreation, and the implications for public lands management.

The term “common law” originally referred to the body of laws developed through court decisions in contrast to laws enacted by legislatures. So, a “common law of outdoor recreation” suggests an evolving patchwork of rules, regulations, and case law forged through the actions of the land management agencies and the courts in response to the increasing recreational use of public lands and the absence of congressional legislation and oversight.

Outdoor recreation practices and laws that govern them

The U.S., with its 640 million acres of public lands, has become a focal point for evolving outdoor recreation practices and the laws that govern them. However, existing statutes regulating these lands have limited provisions specifically addressing recreation—unlike the enormous body of rules and regulations affecting other resource uses like timber, grazing, mining, and energy production.

In this context, over the past 47 years, Congress has effectively abrogated its responsibility to legislate public lands law and policy. From the mid-1970s, federal policy on critical aspects of public land use was often promulgated by executive order and issued directly to the National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), U.S. Forest Service (USFS), and the Bureau of Land Management (BLM).

The authority of Congress over public land is absolute

The authority of Congress over public land is plenary (absolute), guaranteed by the U.S. Constitution in Article IV, Section 3, Clause 2:

The Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States or of any particular State.

But Congress’ oversight of the federal land agencies has been eroded and ceded to the unelected and unaccountable bureaucrats of the alphabet agencies. Regulation and policy have been delegated to the land management agencies, leading to the development of a common law of outdoor recreation, as Professor Keiter suggests, not in a positive, unified set of regulations, but created passively—in a void created by inattentive elected representatives.

Common law is evolving

A multitude of factors has shaped this emergent common law. It is shaped by the relentless push to expand the autonomous bureaucratic authority and the guile to use conservation and environmental concerns to diminish the multiple-use mandate imposed by Congress in landmark legislation of the 1950s, ’60s, and ’70s.

The common law has evolved ostensibly to strike a balance between conservation and recreation—seeking to foster responsible recreational practices while preserving the natural resources that make these activities possible—an objective to which there could be no reasonable objection. However, in the practical application and the language of this burgeoning corpus of regulation, it is abundantly clear that the bureaucrats are working to counteract the economic and political power of the outdoor recreation industry (and also of consumptive activities, i.e., grazing, mining, logging, and energy production) by prioritizing environmental conservation.

Clear evidence of this is seen in the current initiative by the U.S. Bureau of Land Management to unilaterally change land use policy, without legislative action or approval, to, among other things, institute the use of “conservation leases” that would enable environmental interests to tie up public lands and shut out other lawful and equal interests, e.g., recreation, grazing, logging, and mining. RVtravel.com reported on the BLM Notice of Proposed Rulemaking earlier this month.

It is unnecessary to radically change current policy

Proponents of the BLM rule argue that it is necessary to put conservation “on an equal footing with other uses.” It is unnecessary to radically change current policy, as conservation has always existed as a legitimate use of public lands. In the absence of the exercise of congressional oversight, the BLM has arrogated to itself the authority to create federal law absent any legislative mandate or initiative.

Congress awoke to the overreach and the usurpation of its Article IV authority and, on May 17, 2023, passed a bill, HR 3397, directing the BLM to withdraw its NPRM (Notice of Proposed Rulemaking). The measure awaits action in the U.S. Senate, but the legislation moves in the right direction for public law and policy.

As Professor Keiter points out:

A disjointed legal framework governing outdoor recreation is emerging, albeit in a halting fashion. But the legal framework governing recreation on public lands remains incomplete and imperfect. In the face of mounting recreational and environmental pressures, there is an evident need for greater congressional guidance on multiple-use lands.

The time is at hand for Congress to consider filling that void with additional statutory detail as outlined in the proposed Public Lands Outdoor Recreation Act. Such an act would institutionalize outdoor recreation policy by both clarifying and expanding agency responsibilities and authorities, thus enabling officials to manage these valuable outdoor playgrounds. Failure to do so leaves the agencies with little guidance, which invites more piecemeal solutions and further judicial intervention.

Such untidy and unrepresentative rulemaking also creates a window of opportunity for special interests and invites their inordinate involvement in the process, as it is reasonable to deduce has occurred in the formulation of the bold BLM rulemaking initiative.

There is widespread consensus that as recreational activities increase, so does the potential for habitat disruption and the decline of wild lands and threatened and endangered species. In this context, the creation of a common law of outdoor recreation is not just about setting boundaries for recreational use. It also involves fostering an ethic of stewardship among outdoor enthusiasts, one that includes preservation and sustainable use.

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