Kammer on Railroard Land Grants and the Right of Exclusion

Sean M. Kammer, University of South Dakota School of Law, has posted "No Trespassing": Railroad Land Grants, the Right of Exclusion, and the Origins of Federal Forest Conservation, which appeared in the North Dakota Law Review 90 (2014): 87-120.

The Forest Management Act of 1897 established a management model for public lands that, for the most part, remains intact. It embodies a balancing of control and conservation of forest resources such as timber, minerals, and forage with provisions for the exploitation of those resources for private gain. This article explores the historical context in which this landmark legislation arose. It examines the role of large railroad companies, particularly those that received extensive land subsidies, in first challenging the long-standing custom of timber as an open-access resource in the American West. By enforcing their right of exclusion against timber trespassers in the court system, these railroad companies—while simply acting in their own pecuniary interest—helped effect a shift in natural resources policy from one emphasizing privatization and rapid development to one incorporating government ownership and centralized management. This article, however, illustrates the extent to which the allocation of resources can operate as a one-way ratchet. It is all too easy to give nature away; it is not so easy to get it back.