Regulation Without Representation

The Dynamic Reallocation of Western Lands

Regulation without Representation

By Stephen L. Wilmeth

    From 1964 until 1968, the United States Forest Service attempted to install a standards protocol in recommending lands worthy of Wilderness designation.  That approach to designating Wilderness was an attempt to control the onslaught of demands from environmental groups to add more landscape to the wilderness system.  The Forest Service called the protocol the “Sights and Sounds Doctrine”. 

     The Wilderness Act of 1964 set out the general guidelines for designated Wilderness.  Among them were the well known generalization of “lands untrammeled by man”, the contiguous 5000 acres of such lands, and the disallowance of mechanical devices.  What the Forest Service faced was deviation from those guidelines in the new proposals. 

     As a result, the agency attempted to elevate original Leopold vision criteria of non-impact into the process.  Man made characteristics like city lights, sonic booms, highway noise, and urban viewscapes all combined to render many lands unworthy of Wilderness consideration.

    In actions taken in the 1968 Colorado Wilderness Act, Congress stripped the Forest Service of its Sights and Sounds Doctrine.  One former official says that it sent the Forest Service tumbling into a managerial abyss from which it has never recovered.  An indicator is the linear rise in the agency’s budget dedicated to legal expenses.

     Environmental groups used the court room to push their expanding agenda that had been dampened by agency policies and procedures.  The vacuum was made worse by the passage of the mega environmental acts that followed.  The Forest Service was no longer the agency most impacted.  All federal land agencies became victims of the disruption.

     There are modern indicators that the results were cataclysmic.  Two examples are the continental shifts in the cattle industry and in the timber business.  Both industries have been displaced eastward across an imaginary axis drawn north through Texas.  As a result, the historic industries of the West have experienced a capital investment drought that has been devastating to rural communities.

"With no Congressional authority to add to the inventory of WSAs after 1991, broader agency and administration interpretation of the law was started.  The era of expanding the Wilderness system through regulatory interpretation began." 

     In 1976, the Federal Lands Policy and Management Act promised the western states that, if they would agree to allow the federal government to alter federal land policy from a matter of disposal to a matter of retention, certain actions would take place.  The states agreed based upon the expectation the feds would manage the lands under multiple use/ sustained yield principles, protect existing valid rights, limit wilderness reviews, and consider the needs and concerns of adjacent communities in any actions taken. 

     In regards to wilderness, the BLM was instructed to embark on a defined survey that would identify those remaining lands that had wilderness characteristics.  The Act outlined the time schedule for the survey and the final conclusions would then be sent to the President for his recommendations to Congress. 

     The Record of Decision was signed by then Secretary of Interior, Manuel Lujan, in 1991.  The land units elevated into the study, termed Wilderness Study Areas (WSA), had been inventoried, reviewed, and classified for wilderness characteristics.  With the process completed and signed, the next step was then up to the President and the American people.

     The problem was the President and Congress failed to act timely and the environmental movement found cause to expand the universe of wilderness characteristics.  With no Congressional authority to add to the inventory of WSAs after 1991, broader agency and administration interpretation of the law was started.  The era of expanding the Wilderness system through regulatory interpretation began.

     In 2003, the state of Utah thought it had curtailed the regulatory expansion of Wilderness inventory in a settlement that required the BLM to terminate any further surveys without Congressional action.  That decision appeared to be binding until after the adjournment of the 111^th Congress when two days before Christmas, 2010, the Department of Interior announced its new “wild lands” policy.  It served notice that Wilderness surveys were likely a permanent feature of agency duties.    

     Governors Mead and Herbert, of Wyoming and Utah, respectively, blasted the actions of Secretary of Interior, Ken Salazar.  Governor Mead said, “A wild lands designation will further drag out (if not permanently halt) the permitting process while local economies suffer.”

     “When is enough (Wilderness), enough?” Herbert asked.  The question is best answered from the recesses of the real agenda and was summed up in the words of a progressive state senator from southern New Mexico in 2008.  That new resident said, “Wilderness need not be lands as described in the Wilderness Act of 1964.  Wilderness is characterized in the eye of the beholder and it can mean many things.” 

     That is exactly what the ‘wild lands’ policy implies.

The Regulatory Creep

     The Interior “wild lands” Christmas bombshell of 2010 was not a last minute thought.  If it is reviewed, complete with its two direction manuals, it is obvious that the body of work was not done in haste.  It was orchestrated.  It was the result of a painstakingly and extensive conceptual and drafting process.  It is a plan that allows the expansion of the environmental agenda through the regulatory process.  As such, it is . . . Regulation without Representation.

     America has long been the victim of regulatory creep and regulation without representation.  It is not limited to any single geographic area or issue.  It is widespread and pervasive.  It is time to restate the pending schedule of crises that Americans face. 

     We can agree on the need to reduce spending.  We can agree on the need to open portals of economic opportunities rather than the closure of those same opportunities, and there is one greater.  It is the removal of the agency ability to expand regulations that stand in sharp contrast to the will of the American people . . .  Regulation without Representation has been recognized and it is not acceptable.

Stephen L. Wilmeth is a rancher from southern New Mexico.  “The actions of the federal government in the destruction of the historic industries of the West are emerging from the shadows.  There is a growing concern that the federal government is not capable of altering that course.  Perhaps the only avenue of change is through the actions of the states.  It is there that the shortest distance from the people to the government exists.  It is also there that the founders intended the greatest powers.”  

EDITOR'S NOTE

Wayne Crews Jr. at the Competitive Enterprise Institute has been documenting “Regulation Without Representation” for many years with his annual report “Ten Thousand Commandments”.  He has shown the regulatory state has become a “Tyranny of the Unelected.” For instance, in 2009 Congress passed 125 laws, but the bureaucrats issued 3,503 regulations.

The Code of Federal Regulations is now over 157,000 pages long. The cost of these regulations are not evenly distributed either. For businesses with 20 or fewer employees the cost of compliance is $10, 585 per employee per year, while for firms with over 500 employees the annual cost is $7,755 per employee. Total cost is $1.75 TRILLION per year, equivalent to more than half of the federal budget.

Since Congress has delegated this rulemaking authority, regulatory reform to be meaningful must actually be Congressional reform. To this end the REINS Act (Regulations from the Executive In Need of Scrutiny) has been introduced which is a good start. 

Wilmeth has done an excellent job of applying this issue to natural resource policy and describing the impact on our rural citizens. Until something is done however, its as Crews writes:

So much for the constitutional injunction, "All legislative Powers ... shall be vested in a Congress of the United States."