In an effort to reduce the risk of transmission of COVID-19, federal, state, and local governments have acted to limit or entirely close off access to public outdoor spaces, such as local playgrounds and state and national parks. As the country begins to reopen, governments have sought to balance the need for public access to these outdoor spaces with the risks posed by such access. Where the risks are too high—whether because of the challenge of ensuring compliance with social distancing, risks to park staff, or potential pressures on first responders and healthcare systems in local communities—decisions have been made to limit public access.
When a decision to limit or close access is made by the governmental entity with jurisdiction over a particular public space—such as a city with a municipal park, a state with a state park, or the federal government with a national park, national forest, or other federally managed public lands—and the closure applies broadly to all members of the public, the legal authority for those decisions is generally clear cut. As sovereign entities, the federal government has jurisdiction over federally-owned public lands and states have jurisdiction over state-owned public lands. The four federal public land management agencies or state agencies manage these lands accordingly. Local governments, while not sovereign, are typically delegated authority by their states to control municipal public property.
In the case of federal public lands, these decisions have often been made in cooperation with local governments. Such local consultations are part of the reason why different national parks have taken different approaches to public access during the pandemic. However, the ultimate decisions about whether to close, limit, or reopen access to federal public lands like national parks are the responsibility of the federal agency with jurisdiction over the particular public lands, which have legal authority under federal law to issue such orders. Thus, over the past few months, the National Park Service (NPS) and U.S. Forest Service have issued numerous orders closing national forests and national parks, while state park agencies and local park departments have issued similar orders regarding state and municipal parks.
While many national parks have been closed—completely or partially—during the pandemic, other federal public lands—particularly national forests and Bureau of Land Management (BLM) lands—have remained open to the public throughout the crisis. In part, this is because of the physical attributes of these types of public lands. Unlike local, state, or national parks, national forests and BLM lands have many points of entry via multiple trailheads, waterways, and unfenced boundaries. Furthermore, even under normal circumstances, the federal agencies that manage these public lands have limited personnel to monitor the vast expanses under their jurisdiction.
In light of these limitations, some local governments have attempted to control public access to national forests and BLM lands within their boundaries. In particular, a number of local governments have taken actions that prohibit non-local residents—directly or indirectly—from accessing federal public lands, while continuing to allow local residents access. Do local governments have the legal authority to do this?
The answer depends on the precise method local governments utilize to deter non-local residents from accessing federal public lands within their boundaries, with some methods on firmer legal footing than others. Local government actions that indirectly limit the ability of non-locals to access federal public land without directly asserting control over it are on the surest legal footing. For example, earlier this spring, Grand County, Utah (where Moab is located) temporarily banned new bookings at all local hotels, bed and breakfasts, private campgrounds, and short-term rental housing such as Airbnb, with limited exceptions. As long as a local government has home rule authority or emergency powers pursuant to state law, eliminating short-term accommodations options is a legally valid method for local governments to (indirectly) limit non-residents’ access to federal public lands within their jurisdiction.
Short-term accommodation closures may not effectively deter non-residents seeking to access federal public lands, however. For example, non-county residents within the same state may be able to make a day trip from their place of residence. To address this concern, some local governments have exercised more robust assertions of local control over access to federal public lands. For example, in March 2020, San Juan County, Colorado, issued a notice that law enforcement would ticket or tow vehicles with out-of-county registrations parked on roads used to access National Forest or BLM trailheads.
Ticketing non-local versus local vehicles may implicate constitutional concerns about equal protection, the right to travel, or interstate commerce. However, in light of the emergency powers in pursuant to which the local government is acting, the county’s actions would arguably satisfy the applicable standard of review, whether strict scrutiny or a lesser standard. And as long as the local government has been delegated home rule authority (or another specific source of authority from their states to control vehicular activity along county roads), this would be a legally permissible way for localities to indirectly control access to federal public lands.
Finally, some local governments have gone beyond indirect actions and have asserted direct local control over who is permitted on federal public lands within their boundaries. These scenarios raise the most significant questions about the source of local governments’ legal authority. In Gunnison County, Colorado, for example, the county declared that non-residents were not permitted on public lands within the county. The county’s social media feed referred to the federal public lands as “Gunnison County public lands,” and indicated that they were open to “residents of Gunnison County only.” The authority for this proclamation appeared to be a county public health order issued pursuant to the county’s emergency powers.
The home rule authority of local governments is arguably at its most expansive during a state of emergency. However, even at its most expansive, that authority does not allow a local government to directly control activities occurring in another jurisdiction, whether a neighboring county, state, or federal public lands. And while there are existing models in public land law of collaborative federal-local governance, the actions undertaken by Gunnison County occurred in the absence of any such authorized collaborative land management.
While Gunnison County can take indirect actions to deter non-residents from accessing federal public lands within its boundaries, the federal government, not states or local governments, has legal authority over those lands. As the Supreme Court has repeatedly recognized, Congress’s power under the Property Clause to manage federal public lands is “without limitation.” Congress has vested that power in the four federal public land management agencies: the Forest Service, NPS, Fish and Wildlife Service, and BLM. While those agencies work with local, state, and tribal governments in making land management decisions, how federal public lands are used—including decisions about who can use them and when—is ultimately the federal government’s decision. (As an aside, whether its COVID-19 related actions were legally valid or not, Gunnison County may be drawing on its experience during the Spanish flu pandemic in 1918, when it sealed itself off from the outside world and successfully averted an outbreak.)
When discussing the implications of local attempts to control access to federal public lands during the COVID-19 pandemic, it is also worth considering more well-known assertions of local control of federal public lands, such as the county supremacy movement and the Sagebrush Rebellion. Those efforts typically involve local attempts to allow activities on federal public lands—such as off-road vehicle access, more permissive grazing rights, or oil and gas exploration—that would benefit the local population, but which would not necessarily benefit the broader public in whose interests federal public lands are supposed to be managed. In contrast, in the local control scenarios associated with the COVID-19 pandemic, assertions of local control over federal public lands arguably serve to benefit both the local community and the broader public health interest.
Yet whenever local governments attempt to control access to federal public lands, and, in particular, when they attempt to allow their own residents access to federal public lands while denying access to all other members of the public, it raises concerns not only about legal authority, but also about the very meaning of “public lands” and who qualifies as the “public.” As Professor Michael Blumm and James Fraser have noted, “[t]he ‘public’ in public land law has generally implicitly favored the local as opposed to the regional or national publics.” While it is understandable that Gunnison County would seek to temporarily limit access to “Gunnison County public lands” during the current pandemic, failing to question its authority to do so may create an opening for other local governments, under other circumstances, to control decisions about our federal public lands in ways that may be far more troubling.
Kellen Zale is an Associate Professor at the University of Houston Law Center.