Tuesday, December 13, 2016
Local Governments Sue to Stop BLM’s New Resource Planning Rules
Today, counties in six western states and a soil and water conservation district filed suit in federal district court in Utah challenging new resource planning rules adopted by the Bureau of Land Management (BLM). The group maintains these new rules will severely impair their ability to work with the BLM on future planning and management issues, while changing the way public lands are managed to the detriment of their citizens.
The petitioners in the suit are Kane County, Utah, Big Horn County, Wyoming, Chaves County, New Mexico, Custer County, Idaho, Garfield County, Colorado, Modoc County, California and the Dona Ana Soil and Water Conservation District in New Mexico.
The BLM’s new rules were published in the Federal register today, and will govern how resource management plans will be prepared and implemented for more than 175 million acres of public lands in 11 western states (excluding Alaska). These plans determine the level of resource use, including grazing, mineral exploration and development, rights-of-way, timber production, and outdoor recreation. They also designate areas for special restrictions and control access to the public lands.
The impetus for the BLM’s new resource planning rules are two Obama administration programs, the Climate Change Adaptation Program and the Landscape-scale Mitigation Program. These programs were created by secretarial order and directed the BLM and other Interior Department agencies to change the way they manage federal lands. The suit also alleges that these programs were adopted and are being implemented in violation of federal law.
One of the primary reasons for the lawsuit is the new rules violate the coordination requirements imposed in the Federal Land Policy and Management Act (FLPMA). This law requires the BLM to coordinate with local governments on land use inventory, planning, and management activities and to consider and resolve inconsistencies with local land use plans. The public lands are the backbone of many rural economies in the West, which is why Congress mandated that the BLM to coordinate with local governments during the resource planning process.
Most counties in the West have more than 50% of their land base owned by the federal government. For example, 97% of Custer County, Idaho, is owned by state and federal governments. FLPMA ensures that local governments are involved in the planning for and management of these lands, protecting local citizens and ensuring strong western economies. Coordination with local governments is essential to ensure that the people most affected by the BLM’s management decisions have the strongest voice.
The BLM’s new rules, however, allow only limited local government involvement, effectively treating western counties and districts like members of the public. There is no coordination process for local governments that would allow them to effectively discuss and, if necessary, challenge the BLM’s plans in an open forum. By contrast, there are specific coordination requirements for states as well as government-to-government consultation with Indian tribes. What is missing is the statutorily required coordination process for local governments.
Additionally, counties and other local governments have state-delegated land use planning and management authority. For example, most counties have adopted comprehensive land use plans that consider not only the BLM’s plans, but also those of cities, fire, school and hospital districts, state lands, and police and emergency services. The BLM’s plans are only one part of a larger, comprehensive land use program that must work in a coordinated fashion. Congress requires coordination to ensure that local plans are carefully considered and incorporated into federal planning efforts to ensure consistency and protect the people most affected by the BLM’s planning and management activities.
“The new rules fail to recognize that we are authorized by law to represent the public in our County,” commented Commissioner Tom Jankovsky from Garfield County, Colorado. “We are charged with protecting the health, safety and welfare of the people in our community. We should not be relegated to commenting on BLM plans or asked to violate open meeting laws and have discussions about planning conflicts behind closed doors. The public should be allowed to hear our concerns and the BLM should not be afraid to answer our questions and defend its position in the public view.”
The BLM has taken the position that they will coordinate with local governments during the cooperating agency process under a different federal law, the National Environmental Policy Act (NEPA). NEPA requires federal agencies to consider the effects on the human environment in making decisions. However, the NEPA process is not intended to resolve conflicts with local land use plans and programs. Moreover, the rules governing NEAP require that the local governments sign agreements with the BLM and keep all discussions and materials confidential.
Section 202(c)(9) of FLPMA, in contrast, places specific requirements on the BLM to resolve conflicts with local plans during its inventory, planning and management activities. It also requires the BLM’s land use plans be consistent with local plans to the extent practical as necessary to comply with federal law. While the new rules recognize this responsibility, they fail to provide a path for meaningful coordination throughout the process. The rules place the responsibility on local governments to identify the inconsistencies between plans at the end of the process, instead of considering local needs and planning constraints at the beginning of the process.
Commissioner Jim Matson of Kane County, Utah, explained: “While we recognize the BLM is charged with managing the public lands, we are charged with protecting the people and the resources within our county. We have the institutional knowledge of how the resources should be managed and what our communities need, which often times means we are the agency’s strongest critic. It is easier for them to plan if they can keep local governments on the sidelines where we are unable to hold them accountable.”
The group is also concerned with other parts of the new rules, which shift decision-making authority to Washington, D.C., and eliminate the requirement that the impact on local economies be considered during the planning process. The new rules also emphasize controversial concepts such as “ecosystem management,” “areas of ecological importance” and “ecosystem services,” while downplaying the principal public land uses identified in FLPMA.
The BLM’s new planning rules have been adopted to implement the Department of Interior’s Climate Change Adaptation and Landscape-scale Mitigation Programs. The Climate Change Adaptation Program was created by a secretarial order that directed Interior Department bureaus and agencies, including the BLM, to develop landscape-scale strategies for responding to future climate change. The Landscape-scale Mitigation Program was also created by secretarial order, and requires that “landscape-scale approaches” be incorporated into all facets of development and conservation planning. These new programs, which were not authorized by Congress, will dramatically change how the public lands are managed.
Despite the significance of these resource planning and management changes, the BLM made no effort to comply with NEPA. It did not prepare an environmental impact statement or even an environmental assessment, which would have delayed the adoption of the new rules. Instead, the BLM declared the new rules to be “categorically exempt” from NEPA. In contrast, the BLM’s sister agency, the U.S. Forest Service, issued a programmatic environmental impact statement prior to adopting its current planning rules for the National Forest System in 2012.
“The BLM requires that a 300-plus page EIS be prepared to renew a livestock grazing permit, but then exempt itself from the same level of scrutiny when making sweeping changes to the planning process on 175 million acres of America’s land,” commented Chairman Robert Corn with Chaves County, New Mexico.
The lawsuit also points out that the Interior Department’s Climate Change Adaptation Program and the Landscape-scale Mitigation Program were not subject to an environmental analysis as required by NEPA, nor were these programs subject to public review and comment. If the lawsuit is successful, these programs may also be revoked.
The coalition of local governments is represented by Norman James of Fennemore Craig in Phoenix and Shawn Welch of Holland and Hart in Salt Lake City.
The American Stewards of Liberty, a private property rights organization that trains and helps local governments coordinate with federal agencies, is managing the litigation effort.
For more information go to www.americanstewards.us.
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