Wild Lands: Talking to Congress about the new order

Posted: Dec 9, 2019

Last week I testified in front of the U.S. House of Representatives' Committee on Natural Resources on "The Impact of the Administration’s Wild Lands Order on Jobs and Economic Growth."

This is just some of what I had to say. To watch a video of the meeting in its entirety, click here.

Dear Mr. Chairman:

My name is Mark Squillace. I am a professor of law and the Director of the Natural Resources Law Center at the University of Colorado Law School. I am pleased to appear today before the House Committee on Natural Resources to offer my support for Secretarial Order No. 3310, signed by Secretary of the Interior Ken Salazar, which addresses the issue of protecting the wilderness characteristics of lands managed by the Bureau of Land Management. Before getting to the merits of the Order itself, let me briefly review the legal context in which this Order was issued.

Section 201(a) of the Federal Land Policy and Management Act requires the Secretary of the Interior to “prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values....” The Secretary is required to use this inventory in the development and revision of the land use plans that are required by Section 202 of FLPMA.

A separate requirement in FLPMA – Section 603 – required the Secretary to identify roadless areas of at least 5,000 acres with wilderness characteristics, and to report to the President by October 21, 1991, on the suitability of such areas for wilderness. Pending congressional action on these lands, the Secretary must manage them so as not to impair their suitability for wilderness.

At the heart of this controversy is a question about whether Congress intended this 15-year review to be static or whether the Secretary should revise this report as new or better information became available, or alternatively, whether the Secretary should simply identify other areas with wilderness characteristics in accordance with the multiple use and land-use planning provisions of FLPMA. The language of FLPMA plainly suggests that Congress intended an ongoing, dynamic process where new information would be used to correct erroneous findings from the initial inventory. In particular, the inventory requirement of Section 201 is supposed to be “maintain[ed] on a continuing basis” and to be “kept current.”

Furthermore, while FLPMA imposes a general mandate to manage public lands “under principles of multiple use and sustained yield,” FLPMA, Section 302(a), it defines “multiple use” explicitly to recognize that some lands should be managed “for less than all of the resources.” FLPMA, Section 103(c).

Given this language it is not surprising that successive Presidents from Carter to Reagan to George H.W. Bush to Clinton all recognized a continuing responsibility under Section 202 of FLPMA to identify and set aside new areas with wilderness characteristics that might have been missed during the initial Section 603 inventory. (See, for example, the attached Memorandum from the Associate Solicitor for Energy and Minerals to the Bob Burford, the Director of the Bureau of Land Management during the Reagan Administration.)

More than 100 additional wilderness study areas, beyond those designated under Section 603, have been set aside under Section 202. This policy is not only consistent with the letter and spirit of the law; it also makes good practical sense. Our BLM public lands encompass 240 million acres of land. No effort to catalog and identify roadless areas from among all of these lands could possibly be perfect or complete. When Congress required the Secretary of the Interior to identify and protect areas with wilderness characteristics it surely did not intend that such areas should be sacrificed simply because they might have been inadvertently or mistakenly missed during the initial inventory.

In 2003, however, in response to a lawsuit filed by the State of Utah, the Department of the Interior abandoned its longstanding interpretation of FLPMA and entered a private settlement disavowing its authority to designate new wilderness study areas beyond those included in the recommendations submitted to Congress in 1993. This private, out-of-court settlement agreement is neither enforceable nor binding on the current Administration.

Nonetheless, in May, 2009, the Interior Department sent a letter to former Utah Senator Bennett indicating that the Department did not intend to claim the authority to designate new wilderness study areas or apply the non-impairment standard to any new areas, as previous Administrations had done under Section 202 of FLPMA.

This brings us to Secretarial Order No. 3310. Since sending the May, 2009 letter to Senator Bennett, the Department has been under substantial pressure to return to the long-standing policy that successive Administrations had followed until the George W. Bush Administration entered the private, out-of-court settlement in 2003. That pressure included a letter sent to Secretary Salazar by 55 law professors from around the country, including me.

Under this new Secretarial Order, the BLM is required to identify lands with wilderness characteristics that are outside of those areas previously designated under Section 603 of FLPMA. The Order then requires the BLM to protect these areas from impairment unless the BLM determines that impairment of these lands is appropriate, documents the reasons for these decisions, and takes measures to minimize the impacts to wilderness characteristics. If the BLM determines that protecting the wilderness characteristics of these lands is appropriate then it will designate these lands as “wild lands.”

Secretarial Order No. 3310 is simply and unequivocally a good government measure. Lands with wilderness characteristics are a diminishing resource. Their destruction is irrevocable and it would be irresponsible for the BLM to allow their destruction either because it was ignorant of their wilderness characteristics or because it had failed to make a considered judgment regarding the relative value of other uses. That is all that this new Secretarial Order requires.

As our population grows, the wild lands that remain a part of our public lands grow ever more precious. Future generations will rightly praise us for those wild lands that we have chosen to protect. I am skeptical that they will be so grateful for a decision to open these lands for private mineral development that primarily benefits a few members of the present generation. For all of these reasons, I am pleased to endorse Secretarial Order No. 3310, and I urge this Committee to recognize that it is well grounded in the law, and worthy of their support.

What do you think of this issue? What would you have said to Congress? Please take a few minutes to leave a comment below.
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