Claiming While Complaining on the Federal Public Lands: A Problem for Public Property or a Special Case?

Abstract

A Comment on Bruce R. Huber, The Durability of Private Claims to Public Property, 102 GEO. L.J. 991 (2014) Bruce Huber's thoughtful article, "The Durability of Private Claims to Public Property, " is an excellent demonstration of the ways that older uses of the federal public lands continue long past the times they should be expected to expire. But the federal public lands are not necessarily a stand-in for public property in general; most other kinds of public property have far fewer and less intense problems with durable private claims, or indeed with private claims at all. The federal public lands, on the other hand, have a set of particular characteristics that lend themselves to a pattern in which private users first assert and then overstay their entitlements. The problem of durable claims on the public lands is in some ways an instance of the problem of regulatory change, made more acute by the special characteristics of the federal public lands. This commentary flags one of these characteristics in particular: the echoes of a very old concern about the potential linkage between a federal "endowment" of large public lands and autocratic government-a concern that, to some degree, still animates opponents to federal assertions of control over the public lands.