Justice News

Assistant Attorney General John C. Cruden Delivers the Wallace Stegner Lecture at the University of Utah S. J. Quinney College of Law, Discussing the History of Public Lands and Federal Environmental Law
Salt Lake City, UT
United States
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Thursday, September 22, 2016

Remarks as prepared for delivery

When you enter my office at the Department of Justice, the first thing you see is a large poster of Angel’s Landing in Zion National Park, Utah.  I love our system of National Parks, but Zion is one of my very favorites and I have visited it multiple times.  I am proud of my hike up Angel’s Landing and the poster reminds me of the majesty of those towering mountains with breathtaking beauty.  So it is appropriate that I am here, in Utah, speaking to an audience of fellow land-lovers, in the centennial year of the creation of the National Park Service.  I am just coming from Montana, where the Governor, Attorney General and I announced the settlement with ExxonMobil, to resolve the oil spill into the Yellowstone River, the same river that passes through our first National Park, created over one hundred years ago in 1872.

More than 30 years after designating Yellowstone as a National Park, Congress recognized the need for more unified land-management and created the National Park Service to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 

And the idea spread:  Today more than 100 nations have created some 1,200 national parks or equivalent preserves, over 400 of which are in the United States.  This kind of success merits reflection – reflection as to why so many countries emulate our commitment to create and protect public lands and how our laws (and the work of the Department of Justice) embody the significance of these lands to the American people – from the Property Clause of the Constitution itself to the statutes establishing federal land-management policy.

Today I will discuss three things.  First, a quick summary of my division and its responsibilities.  Second, a refresher on public land use law and our role in litigating cases that arise from U.S. ownership.  Third, an update on current events going on in our litigation and developments in the Supreme Court.

ENRD’s History

I am honored to lead the Environment and Natural Resources Division (ENRD), which has responsibility for federal court litigation covering environment and natural resource statutes.  With nearly 650 people including 440 attorneys, we are the nation’s litigator on environmental issues.   From the very beginning of the division’s creation in 1909, public lands work has been an important part of our responsibilities.  And, the growth of the division, with additional responsibilities, closely follows the trajectory of laws governing our public lands in the modern era.

In 1870, the Department of Justice was a fledgling agency and the Nation’s resource-related disputes were handled by agency lawyers, U.S. Attorneys, or expensive outside counsel.  This decentralized approach to litigation meant the United States was frequently losing in court, even as the new department faced a large number of both “land claims” – litigation to define the boundaries of land grants made by the United States’ predecessor governments on the frontier – and “Indian claims” – efforts by Native Americans to compel performance of promises made by the United States itself.  In 1909, the Attorney General created the Public Lands Division and directed it to “protect the public domain.” 

By this point, our country had already recognized that there were limits to our seemingly inexhaustible resources.  Conservation was the legacy of President Theodore Roosevelt, who over the course of his presidency withdrew 234 million acres from private claims and endorsed the idea – still in practice today – that public lands should be managed for multiple uses.  In keeping with this focus, the division’s first work included setting aside water resources for irrigation and reclamation, defending Indian water rights, and protecting against unlawful incursions and enclosures of government land – efforts that continue to this day.  Conservation meant placing new limits on individual use of public lands for the benefit of all Americans.  These limits were upheld in a 1915 Public Lands Division case, in which the Supreme Court affirmed the Presidential power to withdraw lands from private access.  Congress memorialized the new conservation philosophy with the passage of the Mining Act of 1920, which authorized for the first time government leases to include conditions that would protect the environment.

The federal government continued to acquire land for various purposes, too.  When the Dust Bowl struck the country in the 1930s – one of the country’s worst environmental disasters and which displaced 2.5 million people – the U.S. acted.  Lands that had been settled and disposed of in the first hundred years of the Nation’s history were now repurchased by the federal government “for salvage and conservation” having been “depleted by years of prodigal waste and soil exploitation.”  The acquisition of land was used to resettle impoverished farmers, for irrigation projects that would provide jobs and energy and for the creation of National Parks.  By World War II, the Lands Division was the largest in the department, as we acquired property for airports, naval stations, fleet bases, bombing fields, proving grounds and other national defense installations.  After the war, acquisition for defense installations slowed, but the division also began assisting states in their condemnation of land for public highways. 

The environmental laws of the 1970s brought new authority to prosecute polluters and resulted in new public land statutes.  The Federal Land Policy and Management Act of 1970 and National Forest Management Act of 1976 codified the multi-purpose management ethos practiced as far back as the first Roosevelt administration, balancing competing values of recreation, grazing, timber, watershed protection, fish and wildlife and wilderness. 

Today’s ENRD is the heir to the work of the Lands Division.  Much as we have since our creation in 1909, the division litigates to defend United States’ management of public lands, including its water and mineral resources, government services and to provide for the conservation of resources.  Finally, with our nation’s wildlife more and more threatened by loss of habitat, our Wildlife and Marine Resources Section plays an increasingly large role in land-management disputes as it defends agency actions challenged for their impact on protected species.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Public Land Use Law

If the history of ENRD traces the development of modern land-use laws, we need to take a step further back in history to understand how it is that the federal government came to be a landowner in the West in the first place.

The short answer is that, after the American Revolution, the federal government owned all of the land outside the thirteen original colonies.  The lineage of these lands is clear:  Great Britain invoked the “doctrine of discovery” to lay claim to land that belonged to the Native Americans, and the original colonies won title from Great Britain after the American Revolution.  As part of the change from a confederacy to a constitutional government, the seven states with claims to land west of the Alleghenies ceded these claims to the central government.  The new Constitution contained the well-known Property Clause that gave Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Other western land, including the land that Utahans call home today, was purchased by the federal government from various foreign states.  Were it not for an 1848 purchase by the federal government, Utah would still be part of Mexico.

While modern public land law favors conservation and multiple-use management, the first half of our nation’s history saw the federal government disposing of public lands, both for revenue and to encourage settlement.  In 1790, Congress pledged to use the net proceeds from the sale of public lands to pay off the national debt.  The Supreme Court has since agreed that public lands are “held in trust for the people of the whole country.”

As settlers populated the territories, the federal government created new states and granted them public land for schools, for seminaries and for the benefit of the important natural resources they contained.  For instance, the United States granted to Utah 13.8 percent of its acreage at statehood.  The rationale for this gift of public lands was not that these lands were properly the dominion of the states.  Utah, like all other new states, disclaimed rights to unappropriated public lands in its boundaries and accepted the supremacy of the United States Constitution as a condition of joining the Union, including congressional control over federal lands.  Instead, the expectation was that state improvements on land grants would increase the value of remaining public lands and neutralize any loss to the Treasury.  By 1850, over 100 million acres had been given to new states.  None went to the original states:  Western leadership in Congress defeated matching bills for comparable grants in the east.

By the beginning of the Civil War, the national economy was diverse and strong enough that federal revenue from land sales was only a fraction of one-percent.  A movement for free homesteads to settlers took hold, led by labor reformers who thought that westward emigration would raise wages in the east.  President Buchanan vetoed the first bill because he did not believe the Constitution authorized free land, but the measure passed two years later as the Homestead Act of 1862.  The iconic Homestead Act captures our imagination as embodying the spirit of western expansion, but records indicate that a majority of settlers did not take advantage of it – they by and large preferred to pay higher prices for already settled lands than to farm the less expensive and less desirable parcels still unsettled.  Without the federal reclamation projects that bring water to the West today, many of these areas were too dry to be productive. 

President Theodore Roosevelt inspired the movement toward national parks, conservation and federal retention of lands.  His actions also found support among western ranchers.  Unregulated public lands in the west had become a battleground for competing grazing interests and many cattlemen favored leasing public lands in order to avoid range warfare and the destruction of the resource.  Today federal statutes such as the Federal Land Policy and Management Act of 1970 and the National Forest Management Act of 1976 regulate the use of federal lands for these purposes.

While there have been many challenges to U.S. ownership and use of its federal land, the Supreme Court has made it clear from the very outset that the United States owns the public lands and as sovereign “the United States can prohibit absolutely or fix terms on which its property can be used.  As it can withhold or reserve the land it can do so indefinitely.”

Importance of Public Lands

In total, nearly two billion acres of land in 32 states have been part of the public domain at one point.  Of these, approximately 1.2 billion of these had passed from federal ownership by our Nation’s bicentennial.  Why, if it was our policy for so long to dispose of public lands, do we continue to hold on to so many of them today?

The value of our public lands has changed over time.  When we had just emerged from a costly War of Independence, it was of the utmost importance to secure our borders by acquiring land all the way to the Pacific.  These lands not only expanded our country’s capacity for population growth, but provided a source of revenue and a means of repaying our veterans.

Our expansion came at a cost, and one that was born largely by those Indian nations that predated ours on this continent.  Public lands, therefore, also recognize our country’s obligations – both moral and legal – to its first inhabitants.  By pushing tribes westward and eventually onto reservations, the United States assumed a general position of trust with respect to Indian peoples, in addition to the specific obligations memorialized in treaties.  To this day, the division both brings suits on behalf of Indian tribes to secure resources guaranteed to them and defends against claims brought by Indian tribes that challenge federal resource policies.

Having acquired the raw materials for nation-building, one of the country’s early priorities was to put lands in the hands of settlers and enterprises that would populate the frontier.  With the Homestead Act, the federal government lowered the purchase price of public lands for settlement, which helped to democratize land ownership in the newly created West.  Sales to railways launched the early construction of the cross-country lines.  The federal government made outright gifts of land to the new states that made possible schools, universities and other public institutions.  And with the passage of the Mining Act, western miners persuaded Congress that private mineral extraction – long considered a drain on national resources – was not robbing the public fisc, but a valuable way of sparking commercial enterprise.  To this day, we rely on this as a model of how public lands can help shape local economies, through grazing authorizations, mining and other extractive industries, and tourism.

But public lands provide more than just a means for furthering private industry.  As President Theodore Roosevelt recognized, public lands reserved “in trust for the people of the whole country” are a means of preserving our country’s natural wealth and history for generations to come. 

The last reason that we value public lands is among the most important, but also the least tangible.  Wallace Stegner, this center’s namesake, once said of the areas to be set aside as wilderness:  “Save a piece of country like that intact, and it does not matter in the slightest that only a few people every year will go into it.  That is precisely its value.” 

Our Public Lands Litigation

We now know that, even in wilderness areas, more than “a few” people will visit.  Utah’s National Parks bring thousands of tourists here to see the “Mighty 5.”  One measure of the demand for your natural treasures is that the State has seen, according to a local news report, a $126 return for every $1 spent on advertising.  The remarkable desire to bear witness to our natural heritage speaks loudly in favor of preserving nature for its own sake.  But it also reveals the tension between the different uses, as those who come seeking a wilderness experience find it diminished by the host of similarly minded visitors, who nonetheless bring an influx of important investment to the local community. 

Balancing these competing interests is the bread and butter of the division’s public lands litigation, which can be broken down into six general types of lawsuits.  First, we defend federal land-management decisions.  Recent cases include defending BLM and USFS approval of coal leases in Wyoming’s Powder River Basin and USFS’s decision to permit a uranium mine close to the Grand Canyon in Arizona to restart operations – allowing the agency to advance its multiple-use mission while ensuring that the mine complied with all legal requirements.  In another of our cases, the Ninth Circuit recently affirmed that the Ivanpah Solar Electric Generating System, a solar thermal plant in California’s Mojave Desert, could proceed because the court held the project adequately accounted for the impact on the threatened desert tortoise. 

Federal permitting decisions themselves are sometimes challenged, not by environmentalists, but by industry associations who want to open up more of the resources.  We recently defeated claims brought by the timber industry seeking to expand BLM’s timber sale program in western Oregon, by a grazing association to protest the USFS’s reduction of grazing authorizations in the Carson National Forest in New Mexico, and by a recreational association that wanted to eliminate restrictions on rafting on the upper segment of the Chatooga, a Wild and Scenic River that passes through three southern states. 

Second, as we have throughout the division’s history, we take seriously our obligation to manage these lands for the public good according to law and will enforce boundaries and conditions of permitting so no one gets an unfair advantage.  When a county government in New Mexico resolved to remove trees from a National Forest without USFS approval, we sued them.  The federal district court found that the county’s interest in preventing what they claimed was a fire hazard did not relieve them of their obligation to comply with federal law under the Constitution’s Supremacy Clause and Property Clause.  We have also prosecuted those who repeatedly flout federal statutes and regulations for grazing on public lands, recently winning a conviction in the Ninth Circuit for a particularly egregious case.  Finally, we protect the sanctity of public lands from illegitimate claims of rights-of-way, as for example, where a road in the Idaho Panhandle National Forest that served a short-lived mining community in the 1880s had long since reverted to trail. 

Third, in furtherance of our trust relationship with Indian tribes, we litigate to protect tribal rights to resources.  Most recently, we successfully demonstrated to the United States Supreme Court that the boundaries of the Omaha Reservation in Nebraska had not been diminished since their establishment by treaty in the nineteenth century.  This victory preserved tribal sovereignty over the reservation and was a reminder that we will not fail in our promises to the first Americans.  We have assisted in the negotiation of two important water-rights settlements on behalf of Indian tribes: An agreement between Montana and the Confederated Salish and Kootenai Tribes resolving thousands of claims brought by the United States and Tribes for on- and off-reservation water rights has been approved by the state legislature and awaits congressional approval.  I also signed an agreement along with Secretary Jewell to support a congressional amendment of the 1988 San Luis Rey Indian Water Rights Settlement Act on behalf of five Southern California Bands. 

Fourth, we assert water rights in support of public lands.  Water rights for public lands are vital to maintain the integrity of their ecosystems and sustain the multiple uses for which they must be managed.  Since 1996, the Justice Department and the National Park Service have successfully negotiated and signed settlement agreements with the State of Utah recognizing and preserving federal reserved and state-based water rights for eight National Park Service Units, including Zion and Arches National Parks.  In addition, the parties have negotiated an agreement for Bryce Canyon National Park that is in the final stages of review.  Other recent efforts include securing rights on behalf of Edwards Air Force Base in California’s Antelope Valley and for instream flows as well as fire suppression, timber production and administration in the Coeur d’Alene-Spokane River Basin Adjudication in Idaho.

Fifth, although the United States’ rate of acquiring land has slowed considerably since the 1800s, we continue to acquire, condemn and clear title to land as necessary for important public needs including military installations, national parks, and conservation areas.  Every effort is made to first purchase the land by paying the fair market value.

Finally, the division also participates in what are known as Constitutional “original action” cases.  These are unique disputes in which states – unlike private parties – can request that the Supreme Court resolve their disagreements and they commonly involve disputes over boundaries or water rights.  When a state moves for leave to file a complaint, the Supreme Court will often invite the United States to provide its views on whether there is an appropriate controversy to invoke the Court’s original jurisdiction.  If the case proceeds, the United States may participate in such disputes if we decide federal interests are at stake.  The Solicitor General of the United States takes the lead, but ENRD provides support.  These are fascinating cases and I will describe a few current state-to-state cases.

Importance of States in Public Lands Issues

Although determining what the law will be is sometimes not possible without recourse to the courts, litigation is a costly and imperfect way to resolve complex land-use questions.

Federal land-management decisions present an opportunity for federal-state cooperation.  The cooperative working relationship between the state of Utah and federal government has been instrumental in the successful negotiation of the aforementioned National Park water rights settlements.  We hope to continue to work with the state to negotiate similar agreements for the remaining National Park Service Units in Utah.  In 2015, the United States and Utah were also able to cooperate to achieve the first universal settlement of a dispute over public rights-of-way.  The settlement provides limited public access across the Deep Creek Mountains Wilderness Study Area by granting three historic rights-of-way.  It simultaneously protects the area by ensuring that these rights-of way are kept in a primitive, undeveloped condition and by restricting motorized travel in certain seasons.  This settlement is an example of a mutually acceptable means of resolving these claims in a way that the federal government, the state of Utah and its counties and the environmental community can all support.

Federal-state cooperation, however, need not await litigation.  An important example of this comes from the wildlife context.  After the U.S. Fish and Wildlife Service proposed to list the dunes sagebrush lizard in 2010, New Mexico and Texas – two states that account for 88 percent of the lizard’s habitat – led the effort to secure long-term voluntary conservation agreements for the protection of habitat and significant reductions in the impact of oil and gas activities, off-road vehicle traffic, wind and solar projects and increased development across the species’ range.  In part due to the states’ efforts, the service determined that the lizard was not in danger of extinction or likely to become endangered in the future.

States also avoid conflicts with the federal government when they take the lead in protecting the environment.  It is state courts that adjudicate water rights and states can and do take action of their own accord to safeguard federally protected species.  When water-rights holders in Nevada applied to move their groundwater pumps closer to Devils Hole in Death Valley National Park, the state engineer observed that Devils Hole is the only habitat for a species of desert fish existing nowhere else on Earth and that there was no room for error if the Devils Hole pupfish was to be preserved.  The state engineer ordered additional review of like applications and curtailment of future appropriations.  This case represents an important example of a state administrative action to help safeguard a federal reserved water right. 

We also work jointly with most states, including Utah, on environmental enforcement matters.  Earlier this year, the United States and Utah announced a settlement with Salt Lake County to address violations associated with the county’s stormwater management.  The county has agreed to hire additional staff and to ensure that procedures required by law are being followed in order to reduce illegal stormwater and non-stormwater discharges to the Jordan River Valley.  This settlement is the result of a full partnership between the United States and Utah, who shared equally in the investigation and negotiation, and will also share equally in the $280,000 civil penalty.  Joint efforts like this have resulted in millions of dollars of shared civil penalties with states, as well as corrective measures by violators to clean up the contamination caused by their actions and prevent future violations. 

At the beginning of my tenure as Assistant Attorney General, I selected a senior career attorney to be the Special Counsel for State and Local Matters.  I did this in consultation with both the National Association of Attorneys General and the Environmental Council of States.  My goal was to enhance communication, provide support to state and local governments in environmental enforcement and to promote joint enforcement.  We have also developed joint training programs with our state partners on matters of mutual interest and worked closely to bring the most serious criminal violators to justice.  These examples typify cooperative federalism in environmental enforcement, a top priority for ENRD.  We place a high value on our partnerships with state and local governments, and we look forward to continuing to develop such partnerships in the future.

Enforcement Update

Of course, public lands work is only half of what we do.  This past year has been a record-making year for pollution enforcement.  In 2015, we brought to a close the largest environmental tragedy in our history, when on October 5, the district court judge approved our consent decree in the Deepwater Horizon oil spill case.  The combined settlement of over $20 billion is the largest such settlement with a single defendant in the history of the department and satisfies the claims of not just the United States, but of Alabama, Florida, Louisiana, Mississippi and Texas as well.

We’ve also made significant progress in cleaning up our air.  This summer, German automaker Volkswagen AG settled for $14.7 billion allegations that it had cheated emissions tests and deceived customers.  This settlement is noteworthy in that it sets the first priority in the enforcement case as protecting consumers, and assures that the polluting cars will either be fixed or repurchased by Volkswagen.  Nearly $5 billion of that settlement will go toward mitigating the pollution caused by these cars and investing in green technology.  States also filed and were compensated for their consumer claims. We have much to do yet in the Volkswagen case, however; indeed, just last week, we indicted one Volkswagen employee.

More recently, Harley-Davidson likewise agreed to stop selling and to buy back and destroy illegal devices known as “super tuners” that increase air pollution from motorcycles.  In addition, the decree requires that Harley-Davidson seek an Executive Order from the California Air Resources Board for any tuners it sells in the United States in the future.

Finally, let me tell you about something that is near and dear to my heart and should be to all of us: stopping the illegal traffic in wildlife that threatens its survival throughout the world, including the survival of our most iconic species, such as elephants, rhinos, great apes, tigers and sharks.  This trade has a grave impact on species, but it also generates billions of dollars in illicit revenues that contribute to global instability and insecurity.  The division continues to prosecute to take the profit out of wildlife trafficking and to bring these criminals to justice.  Most recently, a senior administrator at an auction house was sentenced to one year and one day in jail and a $10,000 fine for conspiring to smuggle wildlife products made from rhinoceros horn, elephant ivory, and coral with a market value of at least $1 million.  As the co-chair of the President’s Task Force on Illegal Wildlife Trafficking, we have now united the efforts of 17 federal agencies and developed a comprehensive plan that is available online.

Supreme Court Original Jurisdiction Docket

We do important and, we believe, interesting work in the division, so I’d like to take a few minutes to give you an update as to some of the original jurisdiction cases we’ve litigated before the Supreme Court.  As I mentioned, the Solicitor General represents the United States in the Supreme Court, so while I can discuss the original jurisdiction cases, the Solicitor General is the lead lawyer.

Until it issued an opinion in the oldest case last year, there had been five original jurisdiction cases involving water rights pending before the Supreme Court.  The case decided was Kansas v. Nebraska, which had been ongoing for over 12 years.  In 2007, Kansas renewed claims that it had first raised in 2003 that Nebraska had consumed groundwater in excess of its allocation.  Last year, the Court agreed.  The Court charged Nebraska $5.5 million in damages.  The next oldest case, Montana v. Wyoming, is a dispute over the 1950 Yellowstone River Compact and it is still pending.

In recent years, the rate at which states are pursuing original actions has dramatically increased.  The three newest cases on the docket were all filed in the last three years.  In Texas v. New Mexico, filed in 2013, Texas alleged that New Mexico violated the 1938 Rio Grande Compact by authorizing groundwater pumping below the Elephant Butte Reservoir, the delivery point for water to the Rio Grande Project.  Because the Rio Grande Project is a federal project, the United States has moved to intervene.  That case is pending decision on New Mexico’s motion to dismiss.

In the same year, Florida filed an original action against Georgia requesting equitable apportionment of waters in the Apalachicola-Chattahoochee-Flint Basin.  Florida claims that Georgia’s increasing water consumption injures oyster and other species in the Apalachicola Bay.  Finally, just last year, the Court allowed Mississippi to file a complaint against Tennessee and other entities for money damages for allegedly wrongfully taking groundwater from an aquifer that sits underneath both states.  This summer, a Special Master appointed by the Court agreed with our position that Mississippi may only sue for equitable apportionment (not damages), but decided to hear evidence before issuing a final decision.

Looking ahead, limited water supplies and climate change—which the scientific community has explained will lead to less predictable weather patterns and increased drought—suggests that these types of cases may become more common in the future.

ENRD’s New Authorities

Because of our diligence and careful stewardship of the laws we defend, the department has chosen to assign the division new responsibilities in worker safety and animal welfare.

We sought the additional responsibility for worker safety because we have become convinced that companies who cut corners when it comes to environmental compliance often do the same when it comes to worker-safety compliance.  We are working with the Department of Labor and the U.S. Attorneys’ Offices to enhance enforcement efforts in this vital area.  We have already initiated training of inspectors and prosecutors, development of resource materials and investigation into half a dozen worksite injuries and deaths.  We have more to do, but we are committed to protecting the health and safety of our workforce. 

And, we have now taken the first steps in implementing our new responsibilities in animal welfare.  We have met with the responsible federal agencies, conducted training and conducted a highly successful conference that brought together federal, state and local leaders to map out a coordinated strategy for the future.  In the past few months, we brought our first criminal case, charging and arresting nine defendants for their role in a multi-state dog fighting conspiracy and rescuing 66 dogs onsite.  We also brought our first civil forfeiture action to enable adoption of some of these dogs, and we have filed a civil subpoena enforcement action, to assist our client, the U.S. Department of Agriculture, with the enforcement of the Horse Protection Act.  We are only at the beginning, but this is important work that we will continue to move forward.

I am proud of our work at the Department of Justice and the natural splendor of this great state reminds me of the importance of protecting our lands, resources and wildlife.  Those of you who live in Utah are some of the luckiest among us, but all Americans can rejoice that parks like Zion preserve our Nation’s history and vast landscapes for our present security and future enjoyment.  We look forward to continuing to work closely with Utah and the land-management agencies to steward our natural treasures so that they may meet the needs of all Americans.

Updated September 22, 2016