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Wednesday, August 1, 2007

Rasband and Garrett on Public Land Policy

James R. Rasband and Megan Garrett (BYU) have posted A New Era in Public Land Policy? The Shift Toward Reacquisition of Land and Natural Resources on SSRN. Here's the abstract:

Traditionally, the history of public land law has been divided into periods of acquisition, disposition, a shift to retention, and then a period of management. The paper reviews these historical demarcations of public land law and then asks whether we have entered a new period of public land policy that might be termed a period of reacquisition. The paper considers the 19.8 million acre increase in the public land base (outside Alaska) since the 1964 passage of the Land and Water Conservation Fund and the Wilderness Act. It details this federal acquisition under the Land and Water Conservation Fund, by way of land exchanges, and under a variety of other statutes. The paper also suggests that the 37 million acres of land protected under the land trust and conservation easement movement can also be understood as part of this shift to reacquisition because of substantial federal tax expenditures in the form of deductions for conservation easements. Finally, the paper considers whether federal regulation can be characterized as a form of public reacquisition, even if the underlying fee is retained in private ownership, because the regulation shifts control over land and natural resources away from private parties and to the public. The paper, for example, considers whether Section 404 of the Clean Water Act might be understood as akin to a reverse of the federal Swamp Lands Grant Acts of the Nineteenth Century.

Ben Barros

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http://lawprofessors.typepad.com/property/2007/08/rasband-and-gar.html

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