Eagle Cap Wilderness Area
He first encountered Joseph Sax in 1981 at the University of Michigan as he released his then new book “Mountains without Handrails”, in which he directs his argument to Congress and agency in favor of the preservation ethic. Sax offers the following policy statement (in summary):
The parks are places where recreation reflects the aspirations of a free and independent people. The parks are an object lesson for a world of limited resources. The parks are great laboratories of successful natural communities. The parks are living memorials of human history on the American continent.
However, considering most of his experiences involve water use, it is his article on the Public Trust Doctrine that is most applicable here. The States, as professor Sax explains, are considered trustees and in fact hold title to certain submerged lands in trust for the citizens or beneficiaries. As the Colorado flowed naturally (pre dam), citizens of each state had use of the water as it crossed over invisible boundaries. Though not regulated beyond the application of prior appropriation (first in time, first in right), the value of the resource, the common good, was dictated by geography and often the power of the volume user (private or commercial). However, the public’s rights to the resource over commercial uses are protected by the trust doctrine and supported by court decisions.
Therefore, the common good must be determined based on the values that the citizens apply to an individual resource.
Through the Property Clause (giving Congress power without limitation), the federal government gained authority over public lands. Here the purposes of improving and protecting the forests, securing favorable water flows and to furnish a continuous supply of timber were supplemented by an additional purpose of the forests as so valued by the American people. Consideration was now given to the enjoyment of these public lands for recreation and preservation, with attention to wildlife proliferation.
Although the preservationist ethic holds high regard with this writer, it is easy to understand the utilitarian approach which regulates the majority of our public lands. In national forests and Bureau of Land Management’s lands, timber harvesting, mining, and cattle grazing share the resources with a simple citizen user such as himself.
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