Andrew Mergen, faculty director of Harvard Law School’s Emmett Environmental Law and Policy Clinic and a 33-year veteran of public lands litigation at the Department of Justice, and Justin Pidot, a University of Arizona law professor and former general counsel of the White House Council on Environmental Quality, join Bill Hodge and Anders Reynolds to debate whether public lands are becoming more public or less. They discuss reforming the 1872 Mining Law’s claim system, chartering a new Public Land Law Review Commission modeled on the 1964 commission that helped produce the Federal Land Policy and Management Act, and expanding federal land through tools like the Weeks Act and monuments such as Katahdin Woods and Waters. The conversation also covers tribal co-management models at Kasha-Katuwe Tent Rocks and Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon, and closes with a lightning round on the administration’s rescission of the Endangered Species Act’s habitat protections and its renewed effort to shrink Bears Ears and Grand Staircase-Escalante National Monuments. Both breaking-news items were unfolding as the episode was recorded.

The current moment, however bleak, is also an opening to imagine a public lands system built for the century ahead

Andrew Mergen spent 33 years litigating public lands cases, first for the Bureau of Land Management in Wyoming and then for three decades at the Department of Justice, before becoming faculty director of Harvard Law School’s Emmett Environmental Law and Policy Clinic. Justin Pidot teaches environmental and natural resources law at the University of Arizona and served as general counsel of the White House Council on Environmental Quality during the Biden administration. Bill and Anders bring the two together around a question Mergen posed before the recording even started: how do we make public lands more public, not less?

The conversation moves from the 1872 Mining Law, which still lets private claimants decide where and how to develop federal minerals, to a broader argument that public lands function as the open space of democracy, meaning they rise and fall with the health of American democracy itself. Mergen and Pidot trace how decades of underfunded, project-by-project land management have replaced the landscape-scale planning envisioned by the Federal Land Policy and Management Act and the National Forest Management Act, and they lay out ideas for reversing the trend: reacquiring land in the spirit of the century-old Weeks Act, as happened at Maine’s Katahdin Woods and Waters National Monument; building tribal co-management models like the temporary closures Cochiti Pueblo enforces at Kasha-Katuwe Tent Rocks National Monument; and chartering a new Public Land Law Review Commission, the first since Wayne Aspinall’s 1964 commission helped produce the Federal Land Policy and Management Act. Pidot pushes back on how long a new commission could take, arguing for front-loaded reform instead of another multi-year study.

The two close with a lightning round on news breaking as they recorded: the administration’s move to delete the Endangered Species Act’s regulatory definition of habitat “harm,” which Pidot ties to a broader legal movement built on a narrow reading from a Justice Scalia dissent, and a fresh round of cuts to Bears Ears and Grand Staircase-Escalante National Monuments. Both call the monument fight less about acreage than about who gets to decide what public lands are for, and argue the current moment, however bleak, is also an opening to imagine a public lands system built for the century ahead instead of the one behind it.

In this episode:

• “More public, not less” Mergen’s framing question for the whole conversation: what would it take to expand, rather than shrink, the public in public lands?
• The 1872 Mining Law Why a claim system dating to the Grant administration still lets private locators decide where mining happens on federal land, and how switching to a leasing system, as other countries do, could change that.
• Public lands as “the open space of democracy” Mergen’s case that the health of public lands tracks the health of American democracy itself, and that privatization and neglect both reflect deeper democratic erosion.
• What “public” really means Mergen and Pidot compare the fee-based, curated experience of a national park to an unmarked stretch of BLM land, and discuss efforts like Interior’s “Every Kid in a Park” initiative to make public lands feel welcoming to more communities.
• The Weeks Act and land reacquisition Using federal purchase power, as with Katahdin Woods and Waters National Monument in Maine, and clearing overlapping private rights like mining claims and oil and gas leases, to bring more land under public, durable protection.
• Corner crossing and checkerboard access A brief discussion of litigation over stepping between public land parcels at their shared corners, and what it means for access across the West’s checkerboarded landscape.
• Tribal co-management and dispossession Temporary monument closures for cultural practices, as at Kasha-Katuwe Tent Rocks, and tribal consultation built into monument proclamations like Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon.
• “Primary purpose” land-use planning Pidot’s proposal, drawn from his writing for Ground Shift, to designate a lead use for specific landscapes rather than relying on the failed, decades-old multi-use planning model.
• Reviving the Public Land Law Review Commission A debate over whether a new congressional commission, modeled on the 1964 original, can generate real bipartisan momentum, or whether it takes too long to matter given how fast conditions on public lands are changing.
• Lightning round: the ESA “harm” rule and the monuments The administration’s deletion of the Endangered Species Act’s regulatory definition of habitat “harm,” and a new round of cuts to Bears Ears and Grand Staircase-Escalante National Monuments, both breaking as the episode was recorded.

Links & Resources

Organizations & Initiatives:

• Emmett Environmental Law and Policy Clinic — The Harvard Law School clinic Andrew Mergen leads as faculty director. 
• Ground Shift — The public lands policy initiative, previously featured in Episode 71, where Justin Pidot’s essay on “primary purpose” land-use planning was published. 

Places & Landscapes:

• Katahdin Woods and Waters National Monument — Maine monument created after a private donor acquired former timberlands and donated them to the federal government, discussed as a model for land reacquisition. 
• Kasha-Katuwe Tent Rocks National Monument — New Mexico BLM monument whose access road crosses Cochiti Pueblo land; the tribe can close the monument for a period of time to conduct cultural practices. 
• Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon National Monument — Arizona monument established through a proclamation that foregrounded tribal requests for protection of sacred sites. 
• Bears Ears and Grand Staircase-Escalante National Monuments — Southern Utah monuments the administration is again moving to shrink, discussed in the closing lightning round.

Government & Policy:

• Mining Law of 1872 — The federal law still governing hardrock mineral claims on public land, central to the discussion of private versus public control.
• Weeks Act (1911) — Authorized federal purchase of cutover private land, enabling the creation of national forests in the East; discussed as a historical model for renewed land acquisition. 
• Federal Land Policy and Management Act (1976) — Governs the BLM’s multiple-use, land-use planning mandate; discussed as the outcome of the original 1964 Public Land Law Review Commission. 
• Public Land Law Review Commission (1964-1970) — The congressionally chartered commission, urged by Rep. Wayne Aspinall, whose work fed into FLPMA; Mergen and Pidot debate whether to revive it.
• Endangered Species Act “harm” rule rescission — The administration’s July 2026 removal of the regulatory definition of “harm” to include habitat destruction, discussed in the lightning round. 
• Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) — Supreme Court case containing the Justice Scalia dissent that argued “take” under the ESA should mean only intentional killing, not habitat destruction.
• Loper Bright Enterprises v. Raimondo (2024) — Supreme Court decision overturning Chevron deference, part of the broader legal shift Pidot ties to the ESA rollback.
• Migratory Bird Treaty Act — Referenced as an earlier target of the same narrow-interpretation legal approach during the first Trump administration.
• Iron Bar Holdings, LLC v. Cape — Tenth Circuit “corner crossing” case referenced in the discussion of checkerboarded public land access.
• Fix Our Forests Act (H.R. 471) — Congressional wildfire and forest management bill Mergen cites as an example of recycled ideas rather than new legislative thinking.
• Antiquities Act (1906) — The law under which national monuments are designated, discussed in relation to Bears Ears and Grand Staircase-Escalante.

People Mentioned:

• Terry Tempest Williams — Author whose framing of public lands as “the open space of democracy” Mergen paraphrases in the conversation. Catch our conversation with Terry in Episode 51.
• Wayne Aspinall — Former U.S. Representative from Colorado who urged Congress to charter the original 1964 Public Land Law Review Commission.
• John Leshy — Former Solicitor of the Interior Department, referenced by Mergen in discussing outside-of-Congress models for generating public lands policy ideas. Catch our conversation with John in Episode 61.
• Sally Jewell — Former Secretary of the Interior under President Obama, referenced for launching the “Every Kid in a Park” initiative.
• Leon Billings — Former Senate staffer to Edmund Muskie, referenced as an example of durable environmental lawmaking from a more functional Congress.
• Jonathan Thompson — Director of Harvard Forest, referenced for research documenting old-growth forest on private land in Maine.

Andrew Mergen practiced law at the US Department of Justice for 33 years during which time he worked on matters involving public lands and water, forests and endangered species. He has defended National Monuments as well as the constitutionality of the ESA. He has also defended federal water rights for Tribes and Forests in state courts. He has taught Natural Resources Law at the University of Michigan Law School as well as Harvard Law School where he currently directs the Environmental Law & Policy Clinic.

More from Andrew:

• American Exceptionalism and Our Public Lands: The Case for a New Public Lands Law Review Commission
• An Endangered Species Act Exemption Reveals Distrust of Process, Congress, and Courts

Justin Pidot is the Ashby Lohse Chair in Water & Natural Resources and co-director of the environmental law program at the University of Arizona James E. Rogers College of Law. He has written more than a dozen law review articles and co-authors a textbook on environmental law. He previously served as General Counsel for the White House Council on Environmental Quality, Deputy Solicitor for Land Resources at the U.S. Department of the Interior, an appellate lawyer at the Environmental and Natural Resources Division of the U.S. Department of Justice, and a law clerk for Judge Judith Rogers of the U.S. Court of Appeals for the District of Columbia Circuit. He received his J.D. with distinction from Stanford Law School and his B.A. with high honors at Wesleyan University.

More from Justin:

• Justin’s Scholarly Papers
• Rethinking Multiple Use Management of America’s Public Lands

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