Red Lodge Clearinghouse

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.

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.

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.

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 (OH&A), 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 OH&A. When BLM sends an appeal to the OH&A, it can request that the OH&A 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.

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 are trying 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 does not change DOI policy, it clears the way for future policy changes.

New Grazing Regulations

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:

• Require phase-in of changes in grazing use (decreases or increases) of more than 10% over a 5-year period.
• Provide for joint ownership of range improvements, such as a fence, well, or pipeline, if they are constructed under a Cooperative Range Improvement Agreement.
• Remove 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.
• Modify the procedures and timing for enforcing rangeland health standards.
• Eliminate "conservation use" permits.
• Modify 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.
• Reduce the types of occasions in which BLM is required to involve the interested public.
• Remove the requirement that the BLM acquire and administer water rights in the name of the United States.

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 apparently prompted BLM to delay issuing final rules. In March 2006, BLM issued an addendum to the EIS

For more details on Sustaining Working Landscapes, click here.

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 the Judge'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.

RS 2477 Roads

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.

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 in March 2010.

For a timeline on the RS 2477 controversy, see the NPLNews RS 2477 web page.

For discussion of RS 2477 issues and for a variety of documents related to these road claims, see The Wilderness Society RS 2477 web page.

For information on BLM processing of road claims, see their Disclaimer of Interest Rulemaking or the GAO opinion on this and other issues.

For a guidance memo explaining the appeals court decision and its implications for BLM, see the Secretary of the Interior's March 22, 2006 order.

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 111th Congress

The bills listed here are al sampling of high-profile public lands legislation in the 111th Congress. For a more complete list of forestry-related public laws and House and Senate bills, see American Forests’ Legislation Tracker.

One of the first pieces of legislation presented to Congress in January of 2009 was the Omnibus Public Land Management Act (S. 22), a carryover from the 110th Congress. This massive bill includes many provisions related to public land protection and management, including statutory codification of the National Landscape Conservation System and designation of additional areas for protection. The bill passed through the Senate easily in January, but was rejected by the House on March 11, 2009. The Senate passed the bill again on March 19, 2009, and the House enacted it as H.R. 146 on March 25, 2009, and President Obama signed it into law on March 30, 2009. For a summary of the bill and commentary on the significance of its bipartisan support, see "A ghost of the 1970s," HIgh Country News, 4/13/09.

S. 1122 (the "Good Neighbor Forestry Act") would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into cooperative agreements and contracts with state foresters to provide the forest, rangeland, and watershed restoration and protection services on National Forest System and Bureau of Land Management lands. The legislation requires that such authorized services include: (1) activities to treat insect infected trees; (2) activities to reduce hazardous fuels; and (3) any other activities to restore or improve forest, rangeland, and watershed health, including fish and wildlife habitat. It permits state foresters to enter into subcontracts to provide the restoration and protection services authorized under the Act. In October 2009, as the bill was under consideration, the Obama Administration expressed concerns that it would nullify federal labor standards for state workers working on federal lands. See "White House lends tepid support to forest contracting, ski slope bills," E&E Daily, 10/30/09.

The "America's Heritage Wildlife Act" (H.R. 2807), introduced on June 10, 2009, would mandate that wildlife habitat preservation "should guide the stewardship of America's public lands." The bill, sponsored by Reps. Ron Kind (D-Wis.) and Walter Jones (R-N.C.), would steer development away from sensitive wildlife areas on lands managed under the multiple-use mandate by the Bureau of Land Management and Forest Service.

In an effort to provide relief to timber companies impacted by the depressed housing market, Rep. DeFazio (D-Ore.) introduced H.R. 3759, which would authorize the Secretary of the Interior to grant market-related contract extensions of certain timber contracts between the Secretary of the Interior and timber purchasers. The House passed the bill on 1/19/10.

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)
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The text of the act, as amended through October 2001, can be viewed in a user-friendlier .pdf format on the BLM Web site
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Taylor Grazing Act of 1934
Public Law 73-482, 43 U.S.C. sections 315, 315a-315r.
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Regulations

BLM Grazing Regulations
The text of existing BLM grazing regulations is available on the GPO Access Web site.
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The text of the proposed regulations is available from the Federal Register Online via GPO Access.
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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.
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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.
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BLM Grazing
The BLM Web site includes information on its "Sustaining Working Landscapes" initiative, including the proposed grazing regulations.
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BLM Land Use Planning
Access this Web site for an overview of BLM planning and information on the agency's "Time Sensitive Plans" initiative.
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BLM Resource Advisory Councils
This Web page provides a map of RACs and links to information on each.
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