As part of our series Perspectives on Public Space, Sara Ivry speaks with John Leshy, emeritus professor of Law at the University of California, San Francisco and former Solicitor (General Counsel) of the US Department of the Interior. Links to some of the research mentioned in the conversation can be found at the bottom of the page.
Transcript
Sara Ivry: Hi everybody, I’m Sara Ivry, the features editor at JSTOR Daily. I’ve got a question. What does the phrase “public space” mean to you? I bet for most people, public space means a place open to everyone, a place you don’t have to pay to enter or be a member of a club to get into. Where did the idea of public space come from and how do we see it in action today? Is everyone really welcome in a public space?
We at JSTOR Daily have been thinking a lot about public space and about how, particularly right now, it seems like an important concept to embrace. So, we made a podcast series about it. One facet of public space is, of course, public lands, a notion that calls to mind wide open expanses in the American West where buffalo roam and rivers run. They’re ferocious, they’re magnificent.
For now, let’s leave aside that romantic imagery and get down to what public lands in the United States really are and how they came to be. We’re doing that with the help of John Leshy, an expert on the topic. John Leshy is an emeritus professor of law at the University of California, San Francisco. He’s the author of many books and articles on public lands, including Our Common Ground: A History of America’s Public Lands from Yale University Press. He also served as General Counsel in the Department of the Interior under President Bill Clinton. John Leshy, welcome to JSTOR Daily. It’s such a pleasure to speak with you today.
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John Leshy: It’s a pleasure being here, Sarah. Thank you for having me.
Ivry: So, I want to kick this off by having you define what public lands are. What are the different meanings that public lands might have?
Leshy: Well, it’s a good question. Public lands don’t have a really, really fixed meaning, but I take it, and I think many people take it to mean, lands that the United States government, the national government, owns and manages. There are public lands owned by states and local governments, but when most Americans think of public lands, I think they’re thinking of the public lands that the US manages. And it manages them through four different agencies, which also makes it a little complicated to talk about. There’s the National Park Service, which I think everybody knows; the Forest Service; the Fish and Wildlife Service; and the Bureau of Land Management. And they each manage tens and tens of millions of acres of land.
Ivry: So there’s not one overseeing body.
Leshy: That’s right. And then make it even more complicated, three of those agencies are in the Department of the Interior—that is, the Bureau of Land Management, the Park Service, and the Fish and Wildlife Service—and the US Forest Service is in the Department of Agriculture, and that creates some complications.
Ivry: You make the point that in the history of public lands in the United States there’s a rather sharp divide between two distinct eras. There is the pre-1890 era and then what comes after 1890. What happened in 1890? What accounts for that divide?
Leshy: Well, what happened in 1890 was the Progressive movement started and began to take hold. And this was a reaction to really what was widely regarded as the kind of plunder and pillaging and corruption of the so-called Gilded Age that dominated through the middle part of the ninteenth century and first couple of decades after the Civil War. And there was gradually, as all this was going on, as the public lands were sort of thrown wide open to settlers, to industrial interests like railroads and to miners and the like, there was gradually—opinion changed and people, particularly people in the West, where most of these lands were found—gradually realized that if trend continued, all these lands were going to end up in private ownership and we’re not going to like it. We want to preserve some of these lands, particularly an important initial impetus was protecting watersheds, because the people who lived in the West understood that the water they depended upon in their cities and in industries and alike were coming from these mountains, and they wanted to preserve those watersheds to preserve the water supply.
So, that’s what happened in 1890, was the beginning of this idea that we should hang on to a lot of these lands because they’re important to our overall quality of life. Now, around the same time this was happening, there was a movement in the eastern United States, largely triggered by the same sort of thing, except in the eastern United States, there was no federal land to speak of. The upper reaches of these watersheds were all private, and they had been, most of them, intensively logged. And so what Congress did in 1911, was it launched a major program to start acquiring those upper reaches of the watersheds to restore the environmental benefits, and particularly the forests and the water supply that the forest produced. And so almost all of the lands east of the Rockies that are in federal hands—and it’s quite a lot, 50 million acres maybe—was acquired in cash with local consent, because the Congress said we’re not going to buy lands that the locals don’t want us to buy.
And that reflects a kind of general principle that is also not well appreciated, which is all of this came about largely through grassroots movements. This was not a federal land grab from the top down. This was grassroots movements of people saying, “We want to hold those lands up there in national ownership for these broad purposes, both in the East and the West that operates.”
Ivry: Tell me, how did you get into this whole field of public lands? What was your route to this area?
Leshy: Well, I really just looked into an interesting job fifty-three years ago, when I was hired by a fledgling environmental organization called NRDC, which has since become quite big, to help open their West Coast office. They had only operated in New York and Washington. They were looking to open a West Coast office, and they hired me to come in. And my portfolio was basically protect public lands. Well, I knew a little bit about public lands, but not very much. I’d spent a lot of time outdoors as a kid, Boy Scout and all that, in rural Appalachia, so I was very comfortable in the outdoors. And, so, learning about the public lands really did kind of push all my buttons. It was my interest in the outdoors, my interest in environmental protection, and my interest in history because the history of these lands is tremendously interesting. So, once I got involved in that field, I just said, “This is something I really want to continue to do,” and I’ve been doing it ever since, and I’ve been, again, lucky to be able to go into some really interesting government jobs in the executive branch, in the Interior Department, and I worked on Capitol Hill and the committee staff for a while, and then I taught, but all related to public land.
Ivry: This is a bit of a digression, which just occurred to me. But as a lawyer, I wonder, could somebody make the case on behalf of public lands and say, “We represent Mother Earth, so to speak, and you can’t drill here because we are an entity just as, you know, it was found that corporations are not people, or are people, or what have, you know, could you make the case legally, and would it have standing to prosecute case on behalf of public lands?
Leshy: Yes and no, and again, I gotta go into the weeds here a little bit as a lawyer. There is something called the Rights of Nature movement that a lot of people have talked and written about the last couple of decades, you know, does a stream or a mountain range have an ability to go into court and advocate to protect itself? And the general answer in the US law is no. But, in 1971 or two, just about the time I got into this area, the Supreme Court in the United States decided a very interesting case called Sierra Club vs. Morton, where the Sierra Club had brought a lawsuit to protect a valley in the Sierra Nevada mountains called Mineral King Valley from development. And they brought it on behalf of the valley. The Supreme Court of the United States, in a very interesting decision, 1971 or two, said, “The valley cannot bring the lawsuit, but the members of the Sierra Club who use that valley can bring the lawsuit in the name of the Sierra Club to protect it.” And that really opened the door to federal courts being able to hear these cases by environmental groups and other protection groups who have members who use the area. So, you’ve got to use the area. That’s the kind of, you got to have a physical connection to it. And that opened the door for a lot of environmental litigation, which in the early days I was involved in.
But, let me also make clear that there is nothing in the US Constitution that says we have to have public lands and that says how they’re to be managed. That’s all up to Congress. It’s all a political process. So, if Congress doesn’t pass a law that says we want to protect area X, there’s nothing really that people can do about it if it’s federal land. That’s entirely up to Congress. Congress can get rid of all the federal lands if it wants to by simply passing an act. It could do it tomorrow.
So, that’s a very important reason why people who care about public land need to stay engaged and active in the political process because it’s the political process which determines ultimately what happens.
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Ivry: That’s so fascinating because, of course, I mean, speaking for myself, I take it for granted that these things have always been here and will be here in perpetuity like Yosemite or Everglades or Acadia.
Leshy: One would like to think that, but it’s entirely up to the political process. Now, is Congress about to sell off or give away Yosemite? Of course not, because it’s so widely revered by the people, it’s so tremendously popular. And in fact, just about all of the public lands today are tremendously popular across the political spectrum. And there’s not a big movement to sell off these lands or to get rid of them. And we saw an example of that, you know, recently, in late June, when Senator Lee of Utah proposed to amend this big bill going through Congress to include a provision that required the Interior Department to sell off millions and millions of acres of land. And he made that proposal, and there was this huge reaction to it, all over the West, all over the country. People saying, “No, no, no, no, don’t, don’t, we love these lands.” And I think it was a surprise to Senator Lee, and it was quickly brought.
Ivry: I think that a lot of us have come to the understanding that the expansion of the American West, and with it the creation of public lands, came at the expense of Indigenous communities. So, in your research, you’ve argued that that’s not exactly what happened. Can you walk us through a little bit? What did happen? What is the truth, and how does it depart from this conception, this popular conception that we all have?
Leshy: Yeah, I think that, you know, the fiction is that the Park Service came along and snatched away all the lands from the Native Americans to create national parks. And that’s basically not how it happened. The sequence is wrong. And the sequence is wrong in this way. The dispossession of the Native Americans, it started with Columbus, obviously, and proceeded across the country for the next several hundred years, but was largely finished not long after the Civil War. In other words, by that point, almost all Indigenous peoples had been exterminated by disease or whatever, or pushed out of the way, and to some extent given smaller reservations to inhabit and the like.
That process, which went on for a long time, was largely over by the 1870s. And it wasn’t until after that that the United States really started to hold on to the remaining lands. And so, put simply, the Park Service is not the villain of the story of dispossession. The possession happened for a lot of reasons, and there were a lot of villains in that story, but it wasn’t the defenders of the public lands we see today. They were not, their ancestors were not the villains in that story.
And it’s important for this reason, because I think you make the Park Service and the Forest Service, et cetera, out to be the villains, you make it harder for those agencies and the Indigenous governments to cooperate in how those lands are managed. And in fact, the cooperation among those interests, the Native Americans trying to hang on to as much as they can of their ancestral heritage in these lands and the federal agencies which manage them, their cooperation is an important modern development that has actually advanced very much the cause of conservation because their interests are largely the same, and adding the Native American political power to that has really helped I think the cause of conservation and protection.
Ivry: John, who are some of the major players in public land history and why were they so influential?
So, there were a lot of people involved in the political process in 1890 on who’ve had a big influence, including people you never heard of, John Lacey, who ever heard of John Lacey? Well, he was a Civil War veteran who was a congressman from Iowa of all places, which has very little federal land, and he became a champion of federal land preservation. He was the author of the Antiquities Act of 1906, which is a very influential statute that has led to the creation of more than 100 million acres of national monuments. Of course, Theodore Roosevelt is the one everybody thinks of because he was responsible for much, not by no means all, but much of the national forest system through his aggressive use of congressional power to create forest reserves. And then there are people who are kind of heroes to the environmental movement generally, but people don’t think of much in connection to public lands per se.
A couple I’ll mention, Aldo Leopold, who wrote some wonderful books that have been very influential, he spent the early part of his career in the Forest Service in New Mexico and had a huge influence on how he regarded lands and protecting lands and that sort of thing. Rachel Carson, who wrote, was responsible for a lot of the modern clean air, clean water, kind of statutes, she spent a lot of her early career in the Fish and Wildlife Service. So, the public lands she was exposed to there had a huge impact I think on her views. So, there are many heroes. And I should emphasize there are as many Republicans as Democrats. This is very, very much a bipartisan movement. Herbert Hoover, who we don’t think of as particularly green, actually issued orders that protected quite a lot of federal lands. Dwight Eisenhower, his Secretary of the Interior was responsible for protecting the Arctic National Wildlife Refuge on Northern Alaska, which is one of the iconic open space areas. So, I think the history is really informative in that sense.
Ivry: What’s interesting is that now in 2025 we see so much polarization over everything. So the idea that people across the political spectrum are all for this. It must be one of the only unifying institutions that we have in this country.
Leshy: Well, it is a unifying institution, and it’s worth hammering on that just because, as you said, we are in this tremendously polarized age. We’re in this age where everything is labeled red or blue and Republican or Democrat. And we are also in an age, sadly, where a lot of people think the government can’t do a damn thing right. And it just, you know kind of poisons everything it comes in contact with.
Well, the public lands are a huge exception to that right and shows the political system working like it’s supposed to, you know, where the Congress listens to people and then says, “We’re gonna do what you want.” People want to have these lands held in national ownership held open to everybody, protected largely for open space and outdoor recreation and the like.
And so it’s a success story, and we need success stories, and we need to be reminded that the government can do things right. And as I said earlier, a very powerful message that comes out of this is: if you want to continue this trend of holding and protecting lands, you’ve got to engage in the political process because if you don’t, it can all go away, pretty quickly. And so, engagement and involvement in politics is, especially for younger people because they’re gonna have to live with the consequences, right, this is what you have to do.
And let me draw a larger, a larger message here. You know, we’re all aware of a changing climate. I mean, there’s some people who deny it, but you know, I think most of us understand carbon emissions are a big part of the problem. Well, how do we deal with this? Well, we have to deal with this by people deciding that the longer-term future, the interests of protecting things for our children and grandchildren to enjoy, is more important than shorter-term, narrower self-interests. If you look at America’s public lands, that’s exactly what that represented. That was people in the 1890s telling Congress, “Look, we need to hold on to or acquire these lands in the upper reaches of the watersheds if our grandchildren are going to have clean water.” So, we made those decisions, those longer-term decisions, in the public lands context, and we need to make similar ones in order to get a hold of the climate problem, which is a worldwide problem, not just ours.
Ivry: So, what do you think is the greatest threat currently to public lands?
Leshy: Well, the public lands are kind of on the table now in a way that they haven’t been on the table in the last twenty or thirty years. We had this effort to sell off a few million acres of public land that was proposed to be put in this piece of legislation that President Trump signed in early July. It was stripped out of that legislation after the proposal triggered this very hostile reaction across the political spectrum. It did not make it into the bill. But, and this is my central point, but a lot of things made it into the bill which could change public land management fairly significantly over the next twenty years or so.
Congress mandated, for example, leasing millions and millions of acres in northern Alaska and in the lower 48 for oil and gas develop on very generous terms, so the oil companies don’t have to pay much in terms of revenue, and they can hold on to these lands for a long time. These were mandated in the legislation. Similarly, mandating timber sales at an accelerating rate to log a lot of National Forest land, that was in the bill as well. So, those are troubling things that I think didn’t get much notice because they were…the notice was all on Senator Lee’s proposal to sell off public lands. This is a form of privatization, but it’s not outright transfer of total title. It’s just a transfer of leasing interest, partial privatization, you could call it.
The other thing that’s going on is the effort by the Trump administration to what I would call “hollow out” the management of these lands by slashing the budgets of the four agencies that manage them and by stripping those agencies of expertise and personnel to manage them. Now, why is the Trump administration doing this and will Congress go along with it? That’s a big question. My own view is that there are people in the administration who, really, ultimately want these lands privatized, know that they can’t simply propose to privatize them, because it’s too unpopular, but are pursuing a kind of an end-run strategy of saying, “Let’s make these management of these lands so bad that the people will say, ‘Well, God, it turns out the federal government can’t manage these lands. We’ve got to give them to somebody who can!’” and therefore promote to transfer to states or to private interest. I think that’s the strategy of some, and it needs to be fought by those who are believe in holding on to and protecting these lands.
So, there are forces at work which I think are troublesome and require more and more engagement by people who really want to hold on to and protect these lands.
Ivry: What advice can you give to young people about being stewards of public lands. How can they go about that?
Leshy: There are several different ways. As I mentioned, a very important part of this is to engage in the political system. It’s not like a vote, but to talk with your friends and neighbors and contemporaries about what’s going on and to get active. You can also have great influence by focusing on particular areas of public lands or your local backyard, you know, National Forest or whatever. And there’s…something that has sprung up over the last few decades that is tremendously influential are these so-called “friends” groups. So, you’ll have a Friends of the Inyo National Forest or a Friends of This National Monument or whatever. And these are local groups that are advocating on behalf of protecting these areas and are engaging people in them by leading trips and doing volunteer work and all that kind of stuff. This has proved to be tremendously important and influential.
So, my advice to people is, get involved in the political process and get involved in friends groups and do that kind of thing because that will make you a better person, it will give you a lot of good, and it will also do a lot of good for the system and help make sure your children and grandchildren will have something like that.
Ivry: John Leshy, thank you so much for joining us.
Leshy: Thank you very much. It’s a pleasure to be here.
Ivry: John Leshy is the author of Our Common Ground: A History of America’s Public Lands, published by Yale University Press. Today’s podcast is part of a series from JSTOR Daily on public space, and you can find other episodes in this series on our website daily.jstor.org. We talk about community gardens, the role public space plays in maintaining democracy, and much more. We’ve also got a lot of terrific material more generally, and you can find articles, for instance, on the Hellenistic origins of the Showtime drama Yellowjackets, on cave exploration, and on the biblical taboo against tattoos. This podcast is produced by Julie Subrin and me, Sarah Ivry, with help from my wonderful colleagues, JR Johnson-Roehr and Jonathan Aprea. JSTOR Daily is a project of JSTOR and the non-profit ITHAKA. Thanks for joining us.
Editor’s Note: When this conversation was recorded, Sara Ivry served as Features Editor at JSTOR Daily. She has since moved on from the publication. We’re grateful for her thoughtful work and the care she brought to this series.
