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83 University of Colorado Law Review 101 (2011)


The story of Kleppe v. New Mexico dramatizes how assertion of federal power advancing national conservation objectives collided with traditional, local economic interests on public lands in the 1970s. This article connects that history with current approaches to natural resources federalism. New Mexico challenged the Wild Free-Roaming Horses and Burros Act, which diminished both state jurisdiction and rancher influence over public rangelands. In response, the Supreme Court resoundingly approved federal authority to reprioritize uses of the public resources, including wildlife, and spurred a lasting backlash in the West. Further legislation passed in the wake of Kleppe transformed this unrest into a political movement, the Sagebrush Rebellion. Though Kleppe failed to undermine Congress’ public land reform agenda, the Sagebrush Rebellion lived to fight another day. Adjudicated rights do not necessarily translate into social facts. This article argues that a strictly legal evaluation of Kleppe fails to measure its true significance as a galvanizing event for opposition to public land management reform. The ill-fated litigation became a “successful failure,” prompting ranchers and states to employ effective non-judicial means of shaping implementation of rangeland reform. Even as Congress invited states to influence public land management through “cooperative federalism,” the Kleppe legacy of “un-cooperative federalism” remains a common, useful response.