225 Years of Land Management in the United States
Robert W. Foster
Land Management Defined
Land management may be defined as the operation and regulation of the use of land for the
public benefit. Government applies both passive and purposive management over publicly- and
privately-owned land according to appropriate legislation.
Historic Management of United States Public Lands
The first significant land management measure in the United States was the U.S. Congress
Land Ordinance of 1785. In anticipation of the conveyance of public lands into private
ownership the lands westerly of the original colonial territories would be measured and
laid out in six-mile square townships that were further divided into thirty-six sections
of 640 acres each.
President Thomas Jefferson negotiated with the nation of France for a tract of land
stretching from the Gulf of Mexico north to British North America (now Canada) and west
from the Mississippi River to the Rocky Mountains. The Louisiana Purchase, completed in
1803 with a sale price of $23 million, added roughly 530 million acres (214 million ha.)
of land to the 236+ million acres of the Atlantic seacoast states. Before the end of the
19th century an additional one billion seventy-one million acres would be added to the
territory of the new nation through a succession of treaties and purchases. The Public
Land System created by the 1785 act of Congress and subsequent amendments would be
applied in the privatization of lands through these new territories.
In successive congressional acts of land management, grants of land were provided for
individual ownership. Eventually, in 1862, a free homestead bill was passed by the House
and Senate and signed into law by President Lincoln. The resultant Homestead Act provided
that “… any person who is head of a family or who has arrived at the age of twenty-one
years, and is a citizen of the United States, or who shall have filed his declaration to
become such, … shall … be entitled to enter one quarter-section or a less quantity of
unappropriated public lands…”
In the years following enactment of the Homestead Act over 1.5 million people in 17
western states took title to more than 270 million acres (109 million ha.) of virtually
free land. This deliberate government policy both attracted and provided for thousands of
immigrants to the United States while expanding the settled continental territory of the
country. As an example, in a single day in April of 1889 approximately 20,000 men
gathered for a kind of land lottery at the boundary of the so-called Indian Territory in
what is today the state of Oklahoma. At a signal they dispersed in a rush to make their
claims. By nightfall settlement had taken place on nearly 2 million acres of land. By the
end of the 19th century these “homesteaders” had produced one of the greatest
agricultural centers in the world.
Access to these vast lands, and the movement of produce from the West to markets in the
East, were provided by the railroads. In 1850 Congress had promoted the expansion of
railroads like the Illinois Central through federal land grants in which millions of
acres of land were made available for expansion and development. Later a 20 million-acre
(8 million ha.) grant was made to the Northern Pacific Railroad. In fact more than 90
million acres of land grants were made to some 70 railway systems in subsequent years.
The Homestead Act and the grants to the railroads were a deliberate, purposive exercise
of land management by the United States government for a public benefit. By these
policies the American wilderness became the scene for entrepreneurial effort and private
enterprise throughout the West; there was little investment required by government in the
development of those lands that, in turn, created immense wealth for the country and its
citizens, and, eventually, a huge source of tax revenue for the federal government and
the states.
Modern Management of United States Public Lands
The United States Department of the Interior (DOI) was established as an executive
department of the U.S. government by an act of Congress on March 3, 1849.
The responsibilities of DOI are land and natural resources management; Native American
affairs; wildlife conservation and territorial affairs.
The operating units of DOI are the
Bureau of Indian Affairs;
Bureau of Land Management;
Bureau of Ocean Energy Management, Regulation and Enforcement;
Bureau of Reclamation;
Federal Executive Boards;
Interior Museum;
National Park Service;
Office of Insular Affairs;
Office of Surface Mining;
U.S. Fish and Wildlife Service; and
U.S. Geological Survey.
As of 2004 DOI managed 507 million acres (205 million ha.) of surface land, i.e., onefifth the land area of the United States.
DOI manages 476 dams and 348 reservoirs through the Bureau of Reclamation;
388 national parks, monuments, etc. through the National Park Service; and
544 national wildlife refuges through the Fish and Wildlife Service.
As an example of the purposive management of public lands by DOI the department
announced, on October 25, 2010, a “record of decision” authorizing the largest solar
energy project ever to be built on U.S. public lands. The Blythe Solar Power Project, to
be located on 7,025 acres (2,845 ha.) of public lands in Riverside County, California,
will produce 1,000 megawatts of solar power.
The Bureau of Land Management will make a 30-year right-of-way grant to Solar Millenium
with a $1.9 billion loan guarantee from the U.S. government.
As an element of its land management responsibilities BLM will require Solar Millenium to
provide funding to support an 8,000 acre (3240 ha.) mitigation site for the protection of
wildlife such as the desert tortoise, the western burrowing owl, bighorn sheep, etc.
Land Management of Privately-Owned Land
The use of privately owned land is regulated by government primarily through the
permitting process in a form of passive land management.
In each of the 50 states of the United States land management regulatory responsibility
is delegated by state statutory edict. Accordingly, there are 50 different systems of
land use regulatory power in the United States.
The typical elements of land use regulation in one state, the Commonwealth of
Massachusetts, are as follows:
Zoning; The Zoning Act, Massachusetts General Laws, Chapter 40A
Provides for both use and dimensional controls
Low and moderate income housing; MGL 40B.
Provides for mandatory reduction in zoning and planning requirements in
order to provide affordable housing.
Planning; The Subdivision Control Law, M.G.L, Ch. 41
Provides for adoption of design and construction standards for roads and
infrastructure in land development,
Wetlands protection; The Wetlands Protection Act, M.G.L, Ch. 131, Section 40.
Protects wetlands for purposes of flood control, water quality and habitat
protection.
Land owners/developers propose projects of land development with private capital
according to permissive zoning bylaws exercised by local zoning enforcement officers and
within the constraints of planning regulations exercised by local planning boards or
commissions. Projects are regulated to limit or prohibit the disturbance or alteration of
wetlands by regulations imposed by local conservation commissions. Review and permitting
agencies are local (town and city) and their actions are appealable at various levels of
judicial review through the trial court system of the Commonwealth.
The initiative for most housing-related land development and other commercial projects in
the United States comes from the private sector, financed by private capital. An
exception is public housing and some low and moderate income housing projects that are
often conceived and developed by government entities.
Real Estate Gridlock and Land Management
Land ownership often becomes fragmented over time. Large parcels are divided into small
parcels that are in turn further subdivided according to the influences of the markets.
This is a condition common to urban areas and is similar to the fragmentation of
agricultural lands in many countries through inheritance. The result may be many small
parcels owned separately with value to the individual owners but arguably underused from
the point of view of a public benefit, a condition of real estate gridlock. Reassembling
many small parcels into a site suitable for a project of greater value than the sum of
the individual parts can be difficult or impossible for the would-be private capital
investor. A solution may be intrusion by government through the exercise of its power of
eminent domain (expropriation) on behalf of the private entity
An example of the application of the eminent domain process to assist a private interest
occurred in New York City in the 1990s. Applying the eminent domain process the city took
land and buildings, compensated the fourteen individual owners of the real estate in the
amount of $85 million, the sum of the appraised values, then sold the assembled site for
that amount to the New York Times newspaper company for a new headquarters building. The
value of the assembled site and the new building has been estimated at $250 million,
demonstrating the advantage to the city (the public) by the up-grading of the site.
The New York Times case and others like it have been labeled “eminent domain abuse.” The
public has generally accepted eminent domain as an acceptable power of government when
highways, schools and other direct public benefits are the objectives, but exercising the
power in support of commercial interests has been vigorously opposed in America by
libertarian groups such as The Institute for Justice, AARP and the Cato Institute.
Another example is the case of Kelo v. City of New London (Connecticut), 545 U.S., 469,
489 (2005), a Supreme Court decision in favor of the City following the taking by eminent
domain of a house that was subsequently transferred to a private developer. Part of the
rationale for the Court’s decision was on the Constitutional principle that how the power
of eminent domain is to be used should be left to the individual states to decide in
relieving gridlock for the general public benefit.
Michael Heller in The Gridlock Economy (page 18) has coined the expression “anticommons”
meaning “too many people blocking each other from creating or using a scarce resource.”
The use of the eminent domain power is an example of purposive government land management
in support of private development interests for a public benefit.
Conclusion
Land management in the United States is practiced at several levels in different
jurisdictions for the public benefit. Identifying those “benefits” is accomplished
through legislation and may be tested through the judicial process. The management of
public lands may be active and purposive, as in the grant of unappropriated territories
for the western expansion of the country in the 19th century or the grant of rights to
use public land for commercial purposes as with the Blythe Solar Power Project; or
passive as in the management of the national parks and forests. The control of private
development of land is subject to the passive management of government through regulation
and the permitting process and the purposive land management device of eminent domain in
support of development.
References
McEntyre, John G., Land Survey Systems, 1985, Landmark Enterprises
Thomson, Don W., Men and Meridians, 1967, Queens Printer, Ottawa
Heller, Michael, The Gridlock Economy, 2008, Basic Books
Crossfield, James K., “Township – The Board Game”, Surveying and Land Information
Science, 70 (2)