The Emerging Law of Outdoor Recreation on the Public Lands

Abstract

Outdoor recreation is assuming a prominent role across the public lands, presenting the responsible federal agencies with difficult, new management challenges. Since World War II, recreational uses of public lands have been on a steady upward trajectory, which has only accelerated during this century. Today, an increasingly diverse array of outdoor activities, each pressing for greater access to the public domain, is spawning considerable controversy while raising corresponding environmental concerns. The outdoor recreation industry is now an economic powerhouse and, together with recreation participants, is becoming a notable political force. Curiously, prevailing law says very little about recreation on the public lands, unlike the laws governing timber, mining, and other resource uses. Instead, Congress has broadly delegated management authority to the responsible agencies and otherwise primarily relied upon special protective designations—national parks, wildlife refuges, and wilderness areas—and various funding mechanisms to meet recreation demands. As a result, the agencies, presidents, and courts are piecemeal developing what amounts to a common law of outdoor recreation. This Article explains how that is occurring and what it portends for recreation policy on the public lands, while also suggesting additions to the governing law.

Keywords: outdoor recreation, public lands, outdoor recreation industry, recreation policy