Federal Land Policy and Management Act

Posted: Apr 6, 2010

The Federal Land Policy Management Act of 1976 (FLPMA) is the principal law governing how the Bureau of Land Management (BLM) manages public lands. It guides the BLM in management, protection, development, and enhancement of the public lands. FLPMA specifically requires the agency to manage for the multiple use and sustained yield of public land resources for both present and future generations Federal Land Policy and Management Act

Key Concepts

Public Lands or the Public Domain

"Public lands" or "the public domain" mean different things to different people. Many people refer to all lands managed by the Forest Service and other federal agencies as public lands, since these lands are owned by the public. In the context of FLPMA, however, the public domain, often simply known as the public lands, refers to all those lands that the United States acquired from other nations or from Indian tribes, and which have not been sold off or set aside as national forests, national parks, military reservations, and so on. Today, these lands, which total over 260 million acres, comprise 12 percent of the United States, nearly 20 percent of the land between the Rocky Mountains and the Pacific Ocean, and nearly 40 percent of all federally owned land. They are managed by the Bureau of Land Management (BLM).

Bureau of Land Management (BLM)

The BLM is an agency within the Department of the Interior (DOI), formed in 1946 through consolidation of the General Land Office and theGrazing Service. The Secretary of the Interior and Assistant Secretary of Land and Minerals Management provide program oversight and guidance to the agency. The BLM Director manages the agency from the Washington office along with a staff of assistant directors. BLM state directors in Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and Wyoming, who report to the BLM Director, manage public lands in these states and minor areas in adjacent states. There is also a state director for all of the eastern states based in Virginia. States are subdivided into local field offices. Local field managers have primary responsibility for day-to-day management. In addition to managing surface uses of over 260 million acres of land, the BLM manages the mineral resources underlying an additional 440 million acres.

map.flpma.gif

Map courtesy of the Bureau of Land Management

For additional information on the BLM and its management of the public lands, see Links: BLM General Information at the end of the FLPMA section.

For other BLM officials and their contact information, see the BLM Organizational Chart. To find contact information for state directors or field managers,see our state directories.

DOI's Government Performance and Results Act (GPRA) Plan
Interior's GPRA Plan sets out specific goals for its four mission responsibilities:

  • Resource Protection,
  • Resource Use,
  • Recreation, and
  • Serving Communities.

It establishes measurable performance targets in each area, along with targets for Departmental 
management initiatives.During 2007-2011, DOI will pay particular attention to issues with 
far-reaching consequences to the Nation's natural resources, economic well being, and management capabilities:

  • wildland fires,
  • water use,
  • energy availability,
  • health of species,
  • trust services and accountability,
  • homeland security,
  • emergency management,
  • law enforcement,
  • information technology, and
  • human resources.

DOI will also work to:

  • expand its conservation partnerships
  • build collaborative skills that enhance dispute resolution,
  • strengthen its relationships with its large network of volunteers, and
  • create alliances across intra- and interagency boundaries to address critical issues.

 

FLPMA Policy

For many years, the BLM managed public lands under a number of different, and sometimes conflicting, statutes. Passage of the FLPMA in1976 was very important because it created a single, unified statutory scheme for management of these lands. FLPMA guides BLM management of the public lands with several statements of general policy.

Federal Ownership

After a century or more of disposing of public lands to promote everything from homesteading to the construction of railroads, FLPMA established a policy that for the most part, the remaining public lands would be retained in federal ownership. FLPMA still allows for land exchanges and even for the sale of discrete tracts of land, but the overarching policy is to retain lands in federal ownership.

Federal Land Transaction Facilitation Act of 2000

FLPMA also allows for acquisition of in holdings, but in 2000, Title 2 of Public Law 106-248 linked public land sales and acquisitions by making the money from sales available to BLM for land acquisitions.

Through 2010, P.L. 106-248 allows BLM to sell lands classified for disposal under resource management plans and keep the proceeds in a special fund. BLM can then use fund proceeds to purchase inholdings and other lands from willing sellers.

In 2006, the Bush administration pushed a controversial proposal to amend this act to shift 70 percent of the proceeds of these sales to the Treasury to reduce the federal deficit. 

For a detailed analysis of the federal government's exercise of its land exchange authority, see U.S. GAO, "Federal Land Management: BLM and the Forest Service have improved oversight of the land exchange process, but additional actions are needed," 6/12/09.

The Western Land Project monitors federal land exchanges and advocates against privatizing the public lands, and has issued several downloadable reports on the subject. 

Beware of promises in agency land use plans:
The U.S. Supreme Court held in Norton v. SUWA (June 2004), that a land use plan is generally a statement of priorities; it guides and restrains actions, but does not prescribe them. Implementation of plans is subject to available appropriations and citizens can only compel an agency to take a discrete action that it is required to take. People cannot generally compel the agency to implement discretionary actions or pursue its stated goals.

Planning for Multiple use—Sustained Yield

FLPMA directed the BLM to establish a planning process that resembles  that used by other federal agencies. Under FLPMA, the BLM must periodically inventory public lands and their resources and develop resource management plans (RMPs). In doing so, FLPMA requires the BLM to manage the public lands using the same principles of multiple use and sustained yield that the Forest Service applies to national forests and grasslands. This means that resources must be used in a combination that will best meet the needs of the American people, taking into account the long-term needs of future generations. In managing its lands, BLM must consider the relative value of resources without necessarily promoting the uses with the greatest economic return or greatest unit output, and must not permanently impair the productivity of the land. In managing for multiple use, the BLM does not need to accommodate every use on every parcel of land.

For more information, see Process Essentials: Public Participation.

UUD and Other Standards

The basic standard for managing public lands is called "UUD." FLPMA requires BLM to take any actions that are necessary to prevent "unnecessary or undue degradation" of the public lands. However, the statute does not define "unnecessary and undue degradation," and interpretation of this requirement has been very controversial, especially with respect to mining. Beyond UUD, FLPMA requires the BLM to manage some public lands in a more restrictive way when Congress dedicates those lands to specific uses under other laws. For example, BLM must manage its wilderness areas and wilderness study areas so as not to impair the wilderness characteristics of these lands.

Process Essentials: Public Land Uses and Values

In managing for multiple uses, the BLM takes into account three major categories of use: commercial activities, public recreation, and conservation. Livestock grazing and minerals extraction are the principal commercial uses, although the BLM issues permits for everything from beehives to electrical transmission lines. Public lands also provide a wide range of recreation opportunities, including fishing, boating, hunting, hiking, biking, and off-highway vehicle (OHV) travel. Conservation of biological, archaeological, historical, and cultural resources is the third important use of the public lands.

For more information on any of these topics, see Links: BLM General Information at the end of the FLPMA section.

Grazing

ph.flpma3.gif Click to download the GAO report

The BLM's management of the public lands is rooted in the old Grazing Service of the Department of the Interior and the Taylor Grazing Act, and grazing on public lands is still important today. BLM lands support livestock on 137.7 million acres in 11 western states (2004 data does not include Alaska). In these states, BLM authorized 12.7 million animal unit months (AUMs)—the standard measure of grazing use—through about 18,000 permits and leases. BLM currently charges grazing fees of $1.35 per AUM, while critics argue it should be at least $6 per AUM. A lawsuit over the agency's fee program is currently pending in federal court; environmentalists claim that the current fee structure violates the Taylor Grazing Act, FLPMA, and the Public Rangelands Improvement Act. (Parties announced a "tentative settlement" in January 2011, with details to follow in court filings.)

Prior to FLPMA, there was considerable national concern over declining productivity of the public rangelands. Although FLPMA includes a subchapter on range management, it made relatively few changes to grazing management. FLPMA required BLM and the U.S. Forest Service to do a joint study on the value of grazing with an eye towards revising the fee structure for federal land grazing, but the cost to permittees or lessees of an AUM has not changed much.

The BLM and the Forest Service announced on January 31, 2012 that grazing fees on public lands would remain the same for the year 2012 as in the previous year. The Obama administration proposed a $1/AUM increase in the FY2013 budget. In June 2012, congressional Republicans rejected this proposal in a committee vote. At the same time, Sen. Ben Nelson (D-Neb.) introduced an amendment to Farm Bill legislation that would link public land grazing fees to private rangeland market values, pointing out that public land grazing management costs the government, by lost income, $144 million a year.

Both FLPMA and the Public Rangelands Improvement Act (PRIA), which modified FLPMA in 1978, did enhance BLM's authority to control grazing to protect rangelands.

FLPMA sets the basic term of grazing permits and leases to 10 years, subject to terms and conditions set by the BLM. Recent court cases have confirmed that:

  • Grazing leases do not establish a property right in the lessee or permittee;
  • BLM can cancel, suspend, or modify grazing permits or leases; and
  • NEPA requires a site-specific evaluation of the impacts of grazing before BLM issues permits that might have significant environmental consequences.

ph.flpma2.jpg
Cattle near Price, Utah
BLM/PHOTO BY JERRY SINTZ

 

The agency's power to cancel a permit is, however, limited. BLM cannot cancel a permit or lease, except in an emergency, without two years' prior notice. When leases are cancelled, the permittee or lessee must be compensated for his or her interest in the value of range improvements, and ranchers holding permits or leases have first priority for new permits or permit renewals. In addition, Congress has repeatedly circumvented the requirement for NEPA analysis through appropriation bill riders that automatically renew expiring permits when the BLM has been unable to complete the required environmental analysis before the permit expires. Conservationists object to this "renewal subject to later analysis," contending that Congress should give the BLM sufficient funds to do the necessary environmental analyses, rather than renew permits first and analyze impacts later.

Increasingly, environmental groups are acquiring grazing leases in their effort to reduce the impact of cattle on fragile landscapes. The BLM issued grazing permits to the Grand Canyon Trust and the Canyonlands Grazing Corporation in 2006 for allotments in the Grand Staircase-Escalante National Monument in southern Utah. Kane and Garfield counties challenged the lease sale, arguing that they would suffer economic harm from the reduction in cattle grazing, but they have been denied legal standing to assert these claims. See "Two Utah Counties Lose Again in Monument Grazing Fight," Salt Lake Tribune, 2/2/09.

For additional information on the proposed grazing regulations, see the link for BLM Grazing or Controversies: New Grazing Regulations.

Energy and Minerals

The BLM manages commercial energy and mineral resources of both the public lands and other federal lands. The BLM is responsible for leasing federal oil and gas and geothermal energy resources, and for supervising the exploration, development, and production operations of these resources on both federal and Indian lands. The BLM is also responsible for solid mineral resources, including coal and non-energy leasable minerals (like potash), hardrock minerals, sometimes called "locatable minerals" (like gold, copper, and molybdenum), and salable minerals (like sand and gravel).

ph.flpma3.jpg

View of a gold leach pad in the Little Boulder Basin, Nevada.
BLM/PHOTO BY SWEET LIGHT PHOTOGRAPHY

The BLM's responsibility for energy and mineral resource development includes all minerals on the public lands, certain resources on other federal lands (such as the leasing of oil and gas resources or development of hardrock minerals on national forests), and energy resources (such as oil, gas and coal) on split estate lands (which are defined as privately owned lands where the federal government owns the underlying subsurface minerals).

For additional information on oil and gas development, see Oil and Gas Resource Development.

Recreation 

Comprehensive Travel and Transportation Management
BLM is responsible for providing reasonable and varied transportation routes for a variety of motorized and non-motorized recreation as well as the many other multiple uses of the public lands.  Details of the BLM's Travel Management Program, including plans, laws and regulations, are available on BLM's website.

In its statement of national policy in FLPMA, Congress specified that the BLM manage the public lands to provide for outdoor recreation. In addition, FLPMA specifically mentions recreation as one of the "multiple uses" for the public lands. The public lands provide an array of recreational opportunities, including hunting, fishing, camping, hiking, boating, off-highway vehicle driving, mountain biking, birding, and visiting natural and cultural heritage sites. The BLM administers hundreds of thousands of miles of fishable streams, and acres of lakes and reservoirs, as well as thousands of miles of floatable rivers and scenic, historical, and recreational trails. Over the past several decades, recreation has become one of the most significant uses of the public lands as indicated by the estimated 54 million visits during fiscal year 2000. A 2011 Interior Department report estimated that recreation on BLM lands produces more jobs than hard-rock mining, timber harvests, and grazing combined.

For more information on public land recreational opportunities or specific BLM-managed areas, see Links: BLM General Information at the end of the FLPMA section.

Conservation

ph.flpma4.jpgmap.flpma.nlcs.jpg

Click here to access the NLCS map.Wilson Arch south of Moab, Utah. BLM/PHOTO BY KELLY RIGBY

 

The public lands support a wealth of biological and cultural resources, including: a wide variety of species and habitats; over 300 species listed as either threatened or endangered; more fossil sites than are managed by any other federal or state agency; as well as significant Native American sacred sites, historic sites, and archaeological sites. Congress recognized these important resources in FLPMA and specified that the public lands be managed to protect scientific, scenic, historical, ecological, environmental, water resource, archaeological and other values, and that certain public lands be preserved in their natural condition. BLM considers conservation of these resources in its management plans and management activities. In 2000, Secretary of the Interior Bruce Babbitt established the National Landscape Conservation System (NLCS) to help protect some of the nation's most remarkable and rugged landscapes. The 26 million acres included within the NLCS  include National Monuments, National Conservation Areas, Wilderness and Wilderness Study Areas, Wild and Scenic Rivers, andNational Scenic and Historic Trails. Unlike the BLM's overall multiple-use mandate, NLCS areas are to be managed foremost for resource conservation

Conservationists, including the Conservation System Alliance, argue that the NLCS has failed to reach its potential due to lack of funding and enforcement. Federal legislation (HR 146) enacted by the 111th Congress in March, 2009, raised the stature of the NLCS from administrative to statutory, which advocates hope will result in better protection and funding. In the meantime, environmentalists objecting to the amount of off-highway vehicle travel and grazing permitted in several NLCS areas in Arizona sued the agency in January, 2009, arguing for tighter regulations to protect the resources in the Vermilion Cliffs and Grand Canyon-Parashant national monuments. 

A report published by the Sonoran Institute highlights threats to National Landscape Conservation System areas adjacent to fast-growing urban areas in the Southwest. See "The Disappearance of the West's Frontier," New West, 7/28/09. And, in October 2010, The Wilderness issued its second assessment of the NLCS, concluding that the BLM has earned a "C" grade for managing these lands. For reflections on the tenth anniversary of the NLCS, see "BLM's conservation experiment," High Country News, 1/4/11.

On Sep. 21, 2009, the BLM issued guidance for resource management planning in protected areas such as national monuments and conservation areas, clarifying that the language in the legislation or presidential proclamation establishing the area trumps contradictory management mandates in FLPMA. Secretary Salazar issued an Order on Nov. 15, 2010 establishing a new directorate called the National Landscape Conservation System and Community Partnerships. He also called for the agency to manage the NLCS lands "to protect the values for which they were designated," and specified that science should be the foundation of all management decisions.  The BLM unveiled its 15-year plan for managing the National Landscape Conservation System in October 2011, emphasizing collaboration and partnerships to achieve conservation objectives.

Many western Republicans object to the nature of monument designation through executive order. In February 2010, a partial memo leaked from the White House indicated that the administration was considering numerous areas in western states for designation. In May, the Department of the Interior released part of a longer document outlining internal discussions at the Bureau of Land Management, but this did not satisfy House Republicans, who proposed several pieces of legislation (most recently H. Res. 1406), which calls on the Interior Department to release the entire memo listing potential sites where the president could declare national monuments via executive order. The resolution does not mandate the release of documents, as that is within the discretion of the agency.

In a related BLM memo released in the fall of 2010, agency offcials reflected on three strategies for obtaining the protection afforded by national monuments: (1) legislation from Congress; (2) monument designation under the Antiquities Act; and (3) land use planning processes, including mineral withdrawals. These options were presented as stratgic approaches to achieve the goals of Secretary Salazar's "Treasured Landscapes" program.

The Wilderness Society in October 2010 published "A Conservation Vision for BLM Lands in the Year 2025," calling for an increase in national monuments and conservation areas on BLM lands from 11.6 to 34 million acres.

 

Wilderness

As part of its conservation mandate, FLPMA made the Wilderness Act of1964 applicable to the public lands. FLPMA required the BLM to review roadless areas of more than 5,000 acres for the presence of wilderness characteristics and to make recommendations to the president for areas to be designated as wilderness areas under the Wilderness Act. Wilderness characteristics include having a natural or primeval character without permanent improvements or human habitation, and having outstanding opportunities for solitude or for primitive and unconfined recreation. The president can then make recommendations to Congress for wilderness area designation, but only Congress can formally establish a wilderness area. While an area is under review and until Congress acts, the BLM must manage such areas, termed wilderness study areas (WSAs), so as to protect their wilderness values. Mining, grazing, and mineral leasing is allowed to continue in WSAs to the degree that it existed prior to passage of FLPMA, provided such uses can be carried out without undue or unnecessary degradation of the lands and resources. As of July 2005, BLM manages 610 WSAs encompassing 14.3 million acres and 175 wilderness areas encompassing 7.2 million acres.

For information on wilderness, see the Wilderness Act summary. For recent changes in Department of the Interior policies on protection of wild lands, see the Controversies section below.

Withdrawal Authority

Prior to enactment of FLPMA, the president often withdrew public lands from specific uses or from sale, for example, to:

  • prevent speculation in oil and gas development or
  • protect them for specific uses, such as military bases or conservation areas.

Withdrawal makes certain federal laws -- like the hardrock mining law, mineral leasing act or land disposal laws -- inapplicable to those lands so that they are protected from the uses permitted by those laws. Prior to FLPMA, the president used various federal statutes or even relied on his own implied power to make withdrawals. In framing FLPMA, Congress wanted to preserve the executive authority to make withdrawals, but it also wanted to narrow it. So FLPMA delegates to the Secretary of the Interior authority to withdraw public lands (BLM-managed lands). The Secretary of the Interior can also withdraw other federal lands, for example national forest lands, with the consent of the appropriate department head.

FLPMA provides detailed procedures for:

  • small withdrawals (less than 5,000 acres),
  • large withdrawals, and
  • three-year emergency withdrawals to preserve values that would otherwise be lost.

 Most withdrawals are limited to 20 years, which means that Congress or the president must eventually act to permanently protect withdrawn lands. For withdrawals over 5,000 acres, the Department of the Interior must provide both the House of Representatives and the Senate with extensive information on the withdrawal, including information on hearings and other public involvement concerning the withdrawal.

On Dec. 5, 2008, BLM declared illegal a provision of the Federal Land Policy and Management Act of 1976 that allows a single Congressional committee to order an emergency withdrawal. This was a response to an order by the House Natural Resources Committee to block uranium mining near the Grand Canyon. Rep. Grijalva of Arizona pursued legislation to withdraw these lands from mining, but this was not successful in the 111th Congress.

Process Essentials: Public Participation

There are a number of ways in which FLPMA provides for the public to participate in management of the public lands.

Planning

The BLM uses its land use planning process to designate uses of the public lands and plan for development of some resources while protecting others. Prior to FLPMA, BLM prepared Management Framework Plans (MFPs). While a few of these are still in use, post-FLPMA planning documents are called Resource Management Plans (RMPs). The agency currently has 162 RMPs and is in the process of updating several of the plans. 
The planning process is critical to ensuring a coordinated, consistent approach to managing the land. In developing and revising plans, FLPMA requires the BLM to do many things, including these:

  • Apply principles of multiple use and sustained yield management;
  • Give priority to the designation and protection of areas of critical environmental concern;
  • Develop and use an inventory of the public lands, their resources, and other values;
  • Consider present and potential uses of the public lands;
  • Weigh long-term benefits to the public against short-term benefits; and
  • Provide for compliance with state and federal pollution control law.

It all sounds good, but...

  • The U.S. Supreme Court held in Norton v. SUWA (June 2004), that a land use plan is only a statement of priorities. Citizens cannot generally compel the agency to implement discretionary actions or pursue goals in their plans.
  • Handbooks and manuals are generally only internal guidelines for the agency - the public cannot force the agency to follow its own guidelines (see TWS v. Norton).

In particular, FLPMA requires the BLM to give state and local governments and the public opportunities to participate in planning. Requirements for planning are outlined in FLPMA, detailed in BLM's planning regulations (43 CFR 1600), and guided by the BLM Manual and Land Use Planning Handbook, which provide detailed guidance for preparing and amending plans.

To view a schedule and obtain documents for current planning processes, go to the BLM Planning webpage and choose your state of interest.

NEPA

FLPMA does not say much about the National Environmental Policy Act (NEPA), but NEPA itself requires that BLM evaluate and disclose the environmental impacts of every major action with significant impacts on the human environment. Depending on the action it intends to take, BLM may:

  • Prepare an environmental impact statement (EIS), requiring significant public participation;
  • Prepare an environmental assessment (EA), without any requirement for public participation - although the agency often requests and considers public comments; or
  • Declare a categorical exclusion and proceed with the project without public participation.

BLM Actions Normally Requiring an EIS:

  1. Approval of Resource Management Plans.
  2. Wilderness, Wild and Scenic Rivers, and National Historic Scenic Trails proposals.
  3. Approval of regional coal lease sales.
  4. Decision to issue a coal preference right lease.
  5. Approval of major industrial activities and rights-of-way applications.
  6. Projects liberating radioactive tracer materials or involving nuclear stimulation.
  7. Approval of large mining operations (640 acres).

BLM has Categorical Exclusions for:

  • Fish and Wildlife
  • Fluid Minerals
  • Forestry
  • Rangeland Management
  • Realty
  • Solid Minerals
  • Transportation signs
  • Miscellaneous

For more details, see Part 516, Chapter 11 of the Department of Interior Manual.

In early 2008, the Department of the Interior proposed major changes to its NEPA regulations.  The proposed regulations would change the definition of "cumulative effects" to limit what Interior agencies need to consider in a NEPA analysis and would formalize the use of adaptive management. The preamble to the proposed rule provides a summary of Interior Department NEPA revisions over the past several years and discusses the Department's reasons for incorporating their proposal into new regulations (43 CFR Part 46) rather than amending the Departmental Manual.

In a decision published in November 2009, the Ninth Circuit Court of Appeals affirmed in part and reversed in part a lower court decision that the BLM violated NEPA and FLPMA when it agreed to a land exchange with a developer for several parcels of BLM land surrounding a former mining site near Joshua Tree National Park. Among its findings, the court ruled that the agency should have taken the reasonably probable use of public lands for a landfill into consideration as part of its "highest and best use" analysis under FLPMA. See National Parks & Conservation Assoc. v. Bureau of Land Management, Nos. 05-56814 et al., (9th Cir. Nov. 10, 2009).

For more information on EISs, EAs and categorical exclusions, see the NEPA section.

Advisory Councils and Boards

FLPMA originally provided for formal public participation in public land management through two types of committees operated in accordance with the Federal Advisory Committee Act (FACA). Advisory councils were to furnish advice on a wide range of issues, including land use planning, management, and disposal of the public lands. Grazing advisory boards were to provide advice and make recommendations on grazing allotment management plans and other grazing-related issues. The grazing advisory boards, which were limited in membership to grazing lessees and permittees, were only authorized through 1985 and no longer operate.

In 1995, Secretary of the Interior Bruce Babbitt rejuvenated the advisory councils though the creation of Resource Advisory Councils (RACs) that provide advice and recommendations to the BLM and the Department of Interior on management of the public lands. Twenty-three RACs are currently active in the western states. Each RAC includes local residents who represent three major stakeholder groups:

  • commercial/commodity interests;
  • environmental/historical organizations; and
  • state and local government, Native American tribes, and the public at large.

The Secretary of the Interior appoints RAC members on advice from the appropriate governor and BLM state director. While community members might have an opportunity to serve as members of an  advisory council, this opportunity is necessarily limited by the size of the group and the number of stakeholders that must be represented. However, FLPMA does provide for public participation through public hearings and other means.

map.flpma.rac.gif
Click on the map for more information on an individual RAC.

For more information on existing RACs, see Links: BLM Resource Advisory Councils at the end of the FLPMA section.

Appeals Processes

FLPMA says almost nothing about appeals of agency decisions, but the Department of the Interior (DOI) has detailed rules for appealing a wide array of agency decisions. There are several possible steps to an appeal, depending on the issue being appealed. Some appeals, like grazing appeals, start in the agency office that made the decision and are forwarded to Interior's Office of Hearings and Appeals (OHA), which represents the Secretary of the Interior in most appeals. A few appeals, for example for oil and gas projects, are reviewed by the state director before going to the OHA. When BLM sends an appeal to the OHA, it can request that the OHA immediately dismiss the appeal. If the appeal is not immediately dismissed, an administrative law judge (ALJ) typically holds a hearing and renders a decision. The ALJ's decision can then be appealed to one of several boards of law judges. The best known of these is the Interior Board of Land Appeals (IBLA), which hears appeals related to the use and disposition of public lands and their resources. Certain decisions, for example those related to mining, can be appealed directly to the IBLA.

IBLA decisions are considered "final agency actions," unless the Secretary of the Interior chooses to become directly involved. IBLA decisions are not binding on the Secretary, and he or she has the authority to preempt the IBLA and render a final decision or to reverse IBLA decisions. The Secretary's final decision is ordinarily binding on his or her successors and ordinarily cannot be reversed or reopened by the department. But regardless of whether the "final" decision is made by the IBLA or the Secretary, a dissatisfied party can still take the issue to federal court for judicial review.

To access DOI appeals regulations, see Links: BLM Appeals Regulations at the end of the FLPMA section. To see a discussion of the Department's recent update to appeals procedures, see 75 Fed. Reg. 64655 (10/20/10).

Controversies

Wilderness Management

In April 2003, the Department of the Interior (DOI) entered into a controversial settlement agreement with the State of Utah after Utah and others challenged the BLM's authority to conduct wilderness inventories on an ongoing basis. Until this agreement, Utah and other state BLM offices had continued to designate areas as wilderness study areas (WSAs) in their land use plans. Often these designations were based on recommendations of citizen groups. 

In the 2003 agreement, the DOI concluded that the BLM's authority to review areas for wilderness expired in 1993. After that time, the agreement states, the BLM no longer has the legal authority to designate lands as WSAs in its planning process—or to manage them according to the "non-impairment" standard required for existing WSAs. In the agreement, the DOI recognized that it still has authority to inventory public land resources and values, and can accord special management protection for special values through the land-use planning process. Lands with wilderness characteristics may be managed to protect those characteristics. This may include preserving certain lands in their natural condition or providing opportunities for solitude, or primitive and unconfined types of recreation. The settlement agreement does not affect management of existing wilderness areas, nor does it immediately affect management of existing WSAs. It does, however, prevent new areas from being designated WSAs and it increases the potential for removing WSA status and the protection that it provides. 

Following the settlement agreement, DOI issued guidelines reminding BLM state offices that they can make a variety of land use plan decisions to protect wilderness characteristics, such as adjusting the placement of roads, trails, and other facilities; attaching conditions to permits, leases, and other authorizations in order to protect resources; and designating lands as open, closed, or limited to Off Highway Vehicles (OHVs.) The DOI also reminded BLM state directors that they have authority to designate Areas of Critical Environmental Concern (ACEC) where special management attention is required to protect important cultural, historic, or scenic values; fish and wildlife resources; or other natural systems or processes. 

Conservationists worked to overturn the settlement agreement through litigation and won a small victory in 2005 when the U.S. District Court Judge in charge of the case withdrew his approval of the settlement. While the judge's action did not change DOI policy, it cleared the way for future policy changes.

On December 23, 2010, Secretary of the Interior Salazar issued an executive order that reversed the Bush administration's policy on non-congressionally designated wild lands. Under the new policy, BLM managers were to designate lands with wilderness characteristics for protection through the agency's land use planning process, authorized by FLPMA. Sec. Salazar also ordered that all lands already inventoried as potential wilderness be afforded protection to maintain their wilderness characteristics. The BLM issued guidance to its field staff for implementing the new policy in February 2011. BLM Director Bob Abbey told a House panel in early March 2011 that the new policy would not prevent limited development in areas designated for wilderness protection, including rangeland improvements, wildlife habitat enhancements, and mountain biking. 

The new policy sparked strong opposition from some in the affected areas. See "'Wild lands' policy stokes flames of dissent in Utah county," New York Times, 1/6/11. House Natural Resources Committee Chairman Bud Hastings (R-Wash.) questioned the legality of the secretarial order, western governors spoke out against it, and environmental groups argued that the policy should provide stronger protections for wild areas. County officials from Utah and Wyoming met to discuss possible litigation to challenge the policy on February 20, 2011, and in March the Utah Association of Counties and Uintah County jointly filed a complaint in federal district court, arguing that the Secretary's new policy exceeds his auhority by establishing wilderness without congressional consent. The state of Alaska sought to join the countie's suit as amicus curiae, and the state of Utah filed its own lawsuit challenging the policy on April 29, 2011. Also in April 2011, congressional Republicans inserted a rider into the FY 2011 continuing resolution that stripped funding from the BLM's "wild lands" inventory process.

At the same time, environmental advocates relied on the new policy to oppose oil and gas development in northwest Wyoming's McCullough Peaks, arguing that the BLM's approval of test wells will compromise the wilderness characteristics of the area. The BLM responded that its orginal approval predated the new policy and thus should not be subject to its restrictions.

On June 1, 2011, six months after announcing the new policy, Secretary Salazar reversed course and released a memo to the BLM in which he promised to work with Congress to designate wilderness areas with local support. He did not withdraw his earlier Executive Order, but he said that the BLM would refrain from designating wild lands in compliance with the congressional rider described above. Click here for the DOI press release announcing the policy shift, and here for a NewWest commentary about the politics of wilderness management on BLM lands. The policy shift was not enough to convince any of the state or county litigants to drop their lawsuits.

On June 10, 2011 Sec. Salazar sent a letter to members of Congress, explaining the process he intended to follow and soliciting their recommendations for wilderness area designations. He announced his intention to submit a complete list of recommended wilderness areas by October 15, 2011. As described in this story, the state of Wyoming submitted no recommended wilderness designations by the deadline at the end of August 2011, so the Interior Department will not include any BLM lands in its proposal to Congress.

New Grazing Regulations

Proposed Regulations On-Hold Pending Further Agency Analysis
In June 2007, the federal District Court in Idaho issued an injunction to prevent implementation of the regulations until the BLM consults with the U.S. Fish and Wildlife Service on potential impacts under the Endangered Species Act and takes a hard look at all potential impacts of the regulations as required by the National Environmental Policy Act. The Ninth Cirsuit Court of Appeals upheld this decision in September 2010, and the U.S. Supreme Court refused to review the decision in October 2011.

The Department of the Interior issued the first set of grazing regulations in order to implement the Taylor Grazing Act of 1934, and has periodically revised and updated them. Secretary of the Interior Babbitt issued major revisions in 1995. In early 2003, the Bush administration announced its"Sustaining Working Landscapes" initiative to give grazing permittees the conservation latitude and incentives to help the BLM meet its conservation responsibilities. That initiative, with a goal of economically sound and ecologically healthy landscapes, included proposals to:

  • Revise the grazing regulations to promote "citizen-based stewardship of the public lands."
  • Develop a new kind of grazing allotment called a "reserve common allotment" for use by permittees while their regular allotments undergo range improvements;
  • Develop "conservation partnerships," performance-based contracts intended to promote range health by restoring stream banks, and wetlands, improving wildlife habitat, and supporting endangered species recovery; and
  • Develop conservation easements on private property in exchange for acquisitions of BLM lands.

Some of the more controversial provisions of the proposed regulations would have:

  • Required phase-in of changes in grazing use (decreases or increases) of more than 10% over a 5-year period.
  • Provided for joint ownership of range improvements, such as a fence, well, or pipeline, if they are constructed under a Cooperative Range Improvement Agreement.
  • Removed the 3-consecutive-year limit on temporary nonuse of a grazing permit, but allow livestock operators to apply for an unlimited number of one-year duration nonuse authorizations.
  • Modified the procedures and timing for enforcing rangeland health standards.
  • Eliminated "conservation use" permits.
  • Modified the definition of "interested public" to ensure that only those individuals and organizations who actually participate in a process are maintained on the list of interested publics.
  • Reduced the types of occasions in which BLM is required to involve the interested public.
  • Removed the requirement that the BLM acquire and administer water rights in the name of the United States.

ph.flpma5.jpg
Click to download the final EIS on the proposed rules.

BLM released a final EIS on the proposed rules (dated October 2004, but issued June 2005) and almost finalized the rules in August 2005. However, a lawsuit filed in late July  prompted BLM to delay issuing final rules. In March 2006, BLM issued an addendum to the EIS. For text of the proposed regulations, final EIS and information on status of the supplemental EIS and final regulations, see BLM's grazing web page

For criticism of the proposed regulations and EIS, see text of the Western Watershed Project complaint.

For details of Judge Winmill's ruling, including summaries of the proposed changes in the new regulations and criticism of their limitations on public participation in grazing issues, see the District Court decision. For a summary of the 2010 Ninth Circuit decision upholding this decision, see "Appeals court upholds block of BLM rules," Magic Valley Times-News, 9/3/10.

 

RS 2477 Roads

 "And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

The words "RS 2477" raise blood pressure and hackles on conservationists, county commissioners, and public land users alike. Revised Statute 2477 was a simple provision in an 1866 mining law designed to promote settlement of the West. The provision authorized rights of way for construction of roads over public lands. While the statute itself was repealed by FLPMA in 1976, FLPMA preserved those rights of way that had already been established. Today the main controversy is over what constitutes "construction of a highway" and what local governments can do to maintain or improve them. 

The provision was relatively uncontroversial through most of the 1970s and 1980s, but became very contentious in the 1990s as conservationists pushed for protection of more public lands as roadless wilderness and western counties and states pushed for greater vehicle access and local control of public lands. In the last few years, the Department of the Interior has published regulations on RS 2477 roads, Congress has thwarted their implementation, and the BLM has issued new guidance for circumventing Congress and processing road claims by"disclaiming interest" in them. 

In September 2005, the 10th Circuit Court of Appeals decided some of the major RS 2477 issues in SUWA v. BLM. The key aspects of the ruling are summarized here:

"Construction" activities which require consultation with the agency, include:
  • widening,
  • horizontal or vertical realignment,
  • installation (as distinguished from cleaning, repair, or replacement in kind) of bridges, culverts and other drainage structures,
  • significant change in the surface composition, or
  • any improvement, betterment, or change in the nature of the road that may significantly impacts lands, resources, or values.
  • In deciding whether there is a pre-1976 right of way in Utah, the court found that:

    • Federal law governs the decision, but federal law "borrows" from long-established principles of state law.
    • Mechanical construction is neither necessary nor sufficient to prove an RS 2477 claim; rather, the route must have been in "continuous use" for a certain period of time to be considered a highway.
    • The parties claiming an RS 2477 right of way bear the burden of proving the claim.

    Regarding operation and maintenance of such a road, the court found that:

    • The holder of an RS 2477 right of way—usually a county—must consult with the appropriate federal land management agency—usually BLM—before it undertakes any improvements to the right of way beyond routine maintenance.
    • BLM makes the initial determination of whether a proposed activity is reasonable and necessary in light of the historic uses of the right of way.
    • If BLM disagrees with the county's proposal, the county can appeal to the courts.

    In a May, 2008 ruling, U.S. District Judge Campbell ordered Kane County to remove signs it had posted on 39 roads on public land. The county had posted signs indicating that the areas were open to off-highway vehicle travel, despite bans on OHV use by the BLM. Kane County subsequently removed the signs, and then refused to do further maintenance on any roads across BLM lands, not just the disputed areas. The 10th Circuit Court of Appeals confirmed Judge Campbell's ruling on Sep. 1, 2009. See "Kane County loses dispute over roads," Deseret News, 9/2/09. Early in 2010, several environmental groups renewed a petition to intervene in the case, arguing that the U.S. has not adequately defended its property rights, but their request was denied by both the district court and the appellate panel, which said that only claimants to property rights (in this case, the county and the federal government) may file such lawsuits. See "Appeals court rules against wilderness groups in road fight," Salt Lake Tribune, 1/11/11. In January, the state of Utah indicated its intention to step into the RS 2477 road dispute, and in November 2011 the state joined Garfield and Kane counties in their lawsuit. See "State, counties file for control of Southern Utah roads," Salt Lake Tribune, 11/15/11.  In December, the state announced plans to file additional lawsuits against the U.S. Department of Interior, asserting ownership of nearly 19,000 roads throughout the state.  See "Utah plans to sue feds over thousands of roads," Salt Lake Tribune, 12/15/11. In May 2012, the state announced that this number would be reduced to 12,000.

    In August 2010, the U.S. Department of the Interior announced a new process to resolve RS 2477 road disputes. Agency officials will join state and county officials, environmental groups and other stakeholders in a pilot program in Iron County, Utah, aimed at resolving as many conflicts as possible through consensus rather than litigation.

    In March 2013, the Kane County dispute made headlines again, as a federal judge ruled in two decisions that he had jurisdiction to hear the county's roads claim, provided parameters for what constitutes "reasonable" rights of way for disputed roads, and found that 12 of the 15 roads at issue in Kane County qualified as roads and thus are accessible by the public. See "Judge rules largely in favor of Utah on rural roads dispute," Salt Lake Tribune, 3/21/13. The two decisions are available here and here.

    Collaboration in Action

    Public lands of the West have a wide variety of resource values and, consequently, resource conflicts. Collaboratives dealing with these BLM managed lands are grappling with their unique problems and situations in some innovative ways.

    In southern Arizona, the Sonoita Valley Planning Partnership (SVPP) works to protect both public and private open spaces near an urban area while allowing sustainable grazing and recreational use on public lands. In the late 1980s, BLM acquired 35,000 acres of a former ranch that had been slated for development (in the 1960s) in exchange for scattered federal lands closer to Tucson. Early agency management planning efforts were contentious, but in the mid-1990s, the SVPP formed to promote community-wide participation in area public land management. The adjunct Sonoita Crossroads Community Forum (SCFF) also brought stakeholders together to consider management of the private lands in the Sonoita Valley. Hard work of the collaborative and designation of the valley as a National Conservation Area in 2000 eventually culminated in a comprehensive landscape-scale planning process covering the entire valley. The challenge continues today in seeing the plan implemented to the satisfaction of both those that participated in the collaboration and those that did not.

    A much newer effort involving BLM—with similarly contentious issues—is the Northwest Colorado Stewardship (NWCOS). The agency has recently partnered with Moffat County to encourage the participation of a wide range of stakeholders and empower them to identify federal land stewardship priorities and methods to implement identified priorities. Issues that the group is just beginning to tackle include fire, wilderness and grazing.

    A new twist on collaborative groups is exemplified in the Eastern Nevada Landscape Coalition (ENLC), based in Ely, Nevada. The coalition, working to restore the dynamic and diverse landscapes of the Great Basin, includes BLM, environmentalists, ranchers, miners, local business leaders, university scientists, and tribal representatives. ENLC rose from the ashes of the catastrophic wildfires that scorched more than three million acres of sagebrush and pinon-juniper forest in 1999. The coalition operates under an "assistance agreement" with BLM, which formally allows the group to help with agency projects and raise funds to support restoration efforts on public lands. The group also works with private landowners interested in enhancing ecological values on their lands. In an unusual move among collaborative groups, the coalition has set up a science committee, comprised of university-based, BLM and private sector scientists. Every proposed project must pass muster with the science committee, which may make suggestions for improvement or recommend against it. 

    Pending Legislation of the 113th Congress

    In February 2013, Rep. Raúl Labrador (R-Idaho) introduced H.R. 657, which would would double the length of grazing permits and instruct the BLM and the Forest Service to issue routine grazing permits more quickly. This is a companion to Sen. John Barasso's (R-Wyo) "Grazing Improvement Act" (S. 258). A similar bill in the 112th Congress did not pass and faced opposition from the Obama Administration.

     

    rpt.nationalforest.nab.jpg
    A report released shortly after President
    Obama's inauguration suggests priorities 
    for action by the new administration.
    Click here for full copy of report in pdf.

    Links

    Public Laws

    Federal Land Policy and Management Act of 1976
    Public Law 94-579, 43 U.S.C. sections 1701 to 1785
    The text of FLPMA, as it appears in the U.S. Code, can be viewed on the Cornell University Web site (constantly updated)
    READ MORE >>
     
    The text of the act, as amended through October 2001, can be viewed in a user-friendlier .pdf format on the BLM Web site
    READ MORE >>
     
    Taylor Grazing Act of 1934
    Public Law 73-482, 43 U.S.C. sections 315, 315a-315r.
    READ MORE >>

    Regulations

    BLM Grazing Regulations
    The text of existing BLM grazing regulations is available on the GPO Access Web site.
    READ MORE >>
     
    The text of the proposed regulations is available from the Federal Register Online via GPO Access.
    READ MORE >>
     
    BLM Appeals Regulations
    43 C.F.R. part 4, Department Hearings and Appeals Procedures. Regulations governing appeal of BLM decisions are available through the GPO Access Web site. Click here for a notice about a 2010 update to appeals and hearings procedures.
    READ MORE >>

    Bureau of Land Management

    BLM General Information
    The BLM Web site includes brief summaries of its many activities related to managing public lands, as well as links to more extensive descriptions and agency documents.
    READ MORE >>
     
    BLM Grazing
    The BLM Web site includes information on its "Sustaining Working Landscapes" initiative, including the proposed grazing regulations.
    READ MORE >>
     
    BLM Land Use Planning
    Access this Web site for an overview of BLM planning and information on the agency's "Time Sensitive Plans" initiative.
    READ MORE >>
     
    BLM Resource Advisory Councils
    This Web page provides a map of RACs and links to information on each.
    READ MORE >>

    Nongovernmental Organizations Focused on the BLM

    Public Lands Foundation 
    The Public Lands Foundation advocates and works for the retention of America's Public Lands in public hands, professionally and sustainably managed for responsible common use and enjoyment.

    Copyright © 2014 Red Lodge Clearinghouse. All rights reserved.