Public Lands and Natural Resources Law: LACJR..............last update: May 1, 1996

Recreation Resource: a partial summary

Sources:

See:
Lori Potter, Sierra Club Legal Defense Fund; Preservation and Recreation on the Public Lands, a paper presented at the Public Land Law special institute sponsored by the Rocky Mountain Mineral Law Foundation in 1992.

See also:
Coggins et al, Federal Public Land and Resources Law, 3rd ed., 1993, Chapter 10, pp. 888-966; and
Glicksman and Coggins, Modern Public Land Law in a Nutshell, Chapter 10, 259-288.

Recreational use is ubiquitous on the federal lands -- across 700 million acres.

Legal Protection

Statutory, by system:
  1. wilderness areas: sole use (passive, primitive rec.); Wilderness Act of 1964.
  2. national parks: rec. is one of two dominant uses (other is preservation); National Park Organic Act of 1916.
  3. national wildlife refuges: important secondary use; National Wildlife Refuge Administration Act of 1966.
  4. BLM lands: a prinicipal multiple use; FLPMA 1976
  5. national forests: a coequal multiple use; MUSYA 1960 and NFMA 1976.
  6. wild and scenic rivers: a secondary use (preservation is primary); Wild and Scenic Rivers Act of 1969.
Implied Recreational License
This is the legal and philosophical cornerstone of protection for recreation (cf. statutes) as protected in United States v.Curtis-Nevada Mines, Inc., 611 F.2d 1277 (9th Cir. 1980). That case enjoined an unpatented mining claim holder from barricading roads and requiring permits to cross "his" land, and held that access to hunting and fishing sites cannot be denied by holders of unpatented mining claims because under the Surface Resources Act (1955) all citizens automatically qualify as recreational licensees on federal lands despite having no actual permission for access -- at least on lands subject to post-'55 locations. Grounds for the decision were:
  1. Neither Congress nor the federal agencies have ever required permits
  2. Agency regulations assumed free access except to areas specifically restricted
  3. Congress has acquiesced to free recreational access
So, Congressional Intent is that "Americans have a right to enter public lands for recreation until Congress or the land management agencies say otherwise." (Coggins) (There is contradictory lower federal court law in Wyoming.) Federal agencies have begun to place limits on the implied right of access for recreational purposes. The increased use and presence (impacts) of off-road vehicles (ORVs) has caused controversies in numerous instances, and litigation continues as land use plans are made and implemented.

Role of Land Use Plans in Expanding or Limiting Recreational Use

Land use permits typically involve land use plans, which effectively zone federal lands for various purposes and provide extra protection in special areas:
  1. Under FLPMA: "areas of critical environmental concern"
  2. Under ESA: "critical habitat"
Land Use Permits and plans, by statute:
  1. FLPMA: "resource management plans (RMPs)" by and for BLM
  2. NFMA: "forest management plans (FPs)" by and for Forest Service
  3. National Park Recreation Act of 1978: "general management plans (GMPs)" by and for NPS, for parks, recreation areas, monuments.
  4. NWRAA: "master plans" by and for USFWS (not expressly mandated but required by implication)
  5. WSRA: "comprehensive managment plans" now required by judicial interpretation of statute for both designated rivers and adjacent areas.
Land Use Plans and Permits have authority to limit agency discretion.
  1. Sierra Club v. Lujan (concessioner's hotel enjoined at North Rim of Grand Canyon)
  2. Sierra Club v. Cargill (substantive standards in statute/plan invoked to ban a timber sale until amendment and proper interpretation made)
  3. The Wilderness Society v. Tyrrel (timber sale near wild and scenic river must await required plan).
Standing / ripeness for environmental groups as land users -- to challenge LUP's and accompanying EIS's on procedural grounds before site-specific injurious activities occur -- has been confirmed in Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) and other federal courts.

Conflicts among recreationalists and preservationists will abound in the future, as will those among recreationalists themselves (low tech./impact vs. high).

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