The George W. Bush Administration's approach to federal public land management was suspect from the outset. With its Secretary of the Interior a former James Watt disciple and its Secretary of Agriculture from agribusiness, the new Administration signaled a sharp break from the conservationist policies of the Clinton Administration. That such a sea change should occur as a consequence of an election in which many still doubt the results provide clear evidence that the claim of the Green Party candidate (who no doubt swung the election)--that there was no practical difference between the Republican and Democratic alternatives--was a bald-faced lie. In retrospect, never has so much public land policy changed on such a small margin of the electorate.

The means of effectuating this revolution in public land policy are the subject of this Article, for the Bush Administration hardly accomplished its policy reversals in a straightforward manner. Instead, the Administration changed the course of public land law by responding (or not responding) to a series of lawsuits brought by commodity interest groups against Clinton Administration policies. Instead of defending its predecessor's policy initiatives, the Bush Administration often settled the lawsuits, promising to adopt reforms advocated by the commodity interest litigators. This "get sued and supply a sweetheart settlement" policy was complemented in one case, discussed below, by a closely related strategy of virtually failing to litigate at all. Indeed, it seemed as if the Administration was pursuing a "Trojan Horse" approach to changing public land policy: first inviting litigation from industry; then, once a case was filed, avoiding a court decision on the merits through settlement agreements that gave the industry everything it could have hoped for through litigation, while undermining environmental controls in the process. This sweetheart settlement process was accomplished behind closed doors without public participation or any change in legislation. This use of litigation without judicial decision would surprise those who, in an earlier generation, advocated litigation to advance environmental and civil rights issues in order to overcome legislative inertia. A generation later, the use of public law litigation in the service of rolling back environmental protection, in large measure through governmental acquiescence, must be viewed by its early advocates as a cruel irony.