Abstract
Wildfires pose an immense and escalating threat to national forests. In addition to rising temperatures and accumulating fuels, rapid development of the wildland-urban interface (WUI) has exacerbated wildfire risk by putting more people and property in harm’s way and increasing the likelihood of human-caused fires. While restrictions on WUI development would reduce wildfire risk, varying political and economic pressures have caused substantial variation in how local governments regulate the WUI. Some governments have implemented stringent regulations, while others have permitted unbridled expansion. Such disjointed regulation acutely impacts national forests because WUI homes and communities are often clustered around them. Thus, to effectively protect the nation’s forests from wildfire, a more uniform approach to WUI regulation is necessary. This Comment contends that the Property Clause provides Congress authority to take such an approach.
Specifically, this Comment argues the Property Clause grants Congress authority to regulate WUI development on state and private land adjacent to national forests because—by increasing wildfire risk—such development interferes with the purposes for which Congress established those forests. Most importantly, WUI development and the concurrent rise in wildfire risk interfere with national forests’ timber supply and watershed protection functions—the forests’ original and primary purposes.
While the Property Clause grants Congress immense authority to regulate federal land—and in some cases, nonfederal land—how far that power goes is an open question. The Supreme Court has yet to define the “furthest reaches” of the Property Clause, but its cases suggest useful principles that may help discern those limits. Building on these cases, this Comment proposes a rule to clarify the limits of the Property Clause as it relates to Congress’s ability to regulate activities on nonfederal land. Specifically, the rule proposed here provides that Congress may use its Property Clause authority to regulate activities on state and private land if the regulated land is adjacent to the federal land Congress seeks to protect, and the regulated activity substantially interferes with the federal land’s primary purpose. If so, then the regulation should be considered a “needful rule respecting public lands” and therefore a lawful exercise of Congress’s Property Clause power.
Recommended Citation
Brett Lingle,
Fire and Federal Power: Defining the “Furthest Reaches” of the Property Clause,
73
Emory L. J.
1453
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol73/iss6/3