Access to Public Lands During a Pandemic

This essay explores the legal implications of decisions by local governments to limit access to federal public lands within their boundaries (such as national forests and BLM lands) during the early months of the Covid-19 pandemic in 2020. Some local governments utilized indirect and legally permissible approaches to limit non-resident access, such as using emergency powers to prohibit short-term accommodations within localities near federal public lands, or relying on home rule authority to limit travel on county roads used to access federal lands. Other local governments, however, went further and attempted to assert direct authority over federal public lands, by purporting to prohibit non-residents access to federal public lands within their boundaries while continuing to allow local residents access. This essay contends that such efforts not only raise constitutional concerns—since only the federal government, not states or local governments—has authority over federal public lands under the Property Clause, but also policy concerns about the very meaning of “public lands” and who qualifies as the “public.” While it is understandable that local governments would seek to temporarily limit access to federal public lands within their boundaries during the early months of the pandemic when there were so many unknowns, failing to question the authority of local governments 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