This Land Is Your Land: The Dark Canon of the United States Supreme Court in Natural Resources Law

This article treats four Supreme Court opinions that have had a lasting impact, largely negative, on public lands and resources. They rest on highly selective statements of fact, and dubious footing with precedent and statutory law. As a quartet they make the protection of natural resources extremely difficult. Resources that, in law, belong to us all.

The first case, Southern Utah Wilderness Association, opened up a designated Wilderness Area too off-road vehicle use, where these uses are explicitly prohibited by law. In this opinion Justice Scalia managed, inter alia, to turn congressionally-mandated management plans into (unenforceable) wish lists, and find that the impacts of heavy-duty ORV use would not impair Wilderness values. The second case, Ohio Forestry, made management plans of the United States Forest Service, covering over 180 million acres of spectacular beauty, effectively immune from judicial review … no matter how much these plans violated the mandates of the National Forest Management Act. What made this opinion deplorable is that, although the Forest Service plan was both final and binding law, the challenge to it was held to be “not ripe” for review.

The third case, Rapanos, effectively removed federal protections from large swaths of American wetlands, opening them up for development, no matter how willful the action, indeed in this case no matter how criminal the actor. The mishmash of opinions in this case, including Justi8ce Scalia’s highly deceptive treatment of fact and law, a stinging concurring opinion, and a solid four dissenters, have led to widespread confusion in national wetland law. The last case, New Mexico v. United States, held that federal forests have no right to water even for their own survival, when forest reservation of water was essential to supply downstream users. In so doing, Justice Rhenquist managed to skirt both the plain language of the controlling Forest Service Organic Act, and the congressional intent behind it.

None of these cases made sense in law or in fact. Yet, emerging from reading them one is struck by how uncomprehending they are of the science of resource management, and often how biased these opinions were. the final analysis, this is for the reader to say.