Last week, the House of Representatives passed the National Defense Authorization Act (NDAA), sending it on to the Senate and then to Obama for approval. Imbedded in this $585 billion dollar defense bill is a 451 page rider titled Natural Resources Related General Provisions. This political maneuver of attaching rider bills is frowned upon across the board. In this case, as an attachment to a must-pass spending bill, the rider was intended to face less scrutiny. This isn’t the first time this has happened, in 1997, Clinton passed a bill with a similar rider, and the reason this practice persists is that it works. Politicians who have bills that are near and dear to their constituents can finally find a way to get the legislation moving along. For this reason, conglomerate riders like this one are full of good and bad no matter what side of politics you find yourself on. There are sections that benefit natural resource extraction and there are sections that strengthen resource protection.
Reading through the news and opinion pieces that have come out discussing NDAA and the natural resource rider, it has struck me how challenging it is for us, news consumers, to sort out what is really going on. We rely heavily on our trusted sources to distill complicated and lengthy political news into something we can understand and formulate opinions about. However, as we turn more and more to blogs, filtered mailings, and the postings of our beloved friends on social media, it becomes all too easy to forget to apply a discerning eye to what our media outlets provide for us.
With 96 separate sections affecting natural resources across the entire country, I think it is safe to say that it is far from clear whether this rider is wholly good or bad. I for one have not read every one of the 96 sections, researched each local context, or statistically analyzed across the board the cumulative natural resource benefit or cost. So, let me be clear, I am not here to write an opinion on whether this rider should pass or not. What I am here to contribute is a clarification on some of the pervasive opinions that are out there regarding just a few of the issues that I do know about.
Here is a link to the bill in case you are interested. I have included page number references as the .pdf is a bear to navigate. Also, please read Matthew Koehler’s article as well to see some of what I am commenting on and for a quick synopsis, NPR reported a short piece on the topic today.
MONTANA – WILDERNESS, RELEASE OF WILDERNESS STUDY AREAS, NORTHERN CHEYENNE TRUST
The Rocky Mountain Front Conservation Management Area (RMFCMA) is actually pretty neat (Section 3065, p. 1379). It includes 195,073 acres of USFS land and 13,087 acres of BLM land, a total of 208,160 acres within the management area. To put that into perspective, Zion National Park is about 147,000 acres. The purposes of this management zone “are to conserve, protect, and enhance for the benefit and enjoyment of present and future generations the recreational, scenic, historical, cultural, fish, wildlife, roadless, and ecological values of the Conservation Management Area” (p. 1383). For land managers, this alone is huge. Every decision made within the RMFCMA must now be looked at against this purpose. This may seem small, but our public lands are multiple use. This draws a boundary around these 208,160 acres and says that they are to be managed differently.
The language explicitly limits motorized routes to the current conditions. So, no new permanent roads may be constructed and no further motorized access. Furthermore, there is an explicit statement that the existing motorized routes may be closed in the future to further conservation purposes (p. 1384).
Existing grazing is preserved, but, it is subject to all the rules and regulations in place. That means that according to the regular rules and regulations, grazing leases may be reauthorized or not reauthorized. This is a given, as policy makers really can’t go making bills that kick users off of the land overnight (see Ivan Doig’s This House of Sky for an enjoyable historical perspective of this). However, there is nothing that requires grazing to persist as a use into the future.
This section also includes some wilderness changes. It places 50,401 acres of new Wilderness into the Bob Marshall and 16,711 acres into the Scapegoat. These are the first new Wilderness designations in Montana in 31 years. What the bill doesn’t tell us is why these areas. What is special about them over other areas? I am guessing there is something, but I cannot attest to what that is.
Unfortunately, there appears to be a compromise. Zook and Buffalo Creek Wilderness Study Areas (WSA) are to be released, a combined 14,088 acres. Additionally, an oil and gas potential report has been mandated for the Bridge Coulee and Musselshell Breaks WSAs (p. 1393). The hope is always that WSAs stay as is until they are given full Wilderness protection. Again, without being familiar with these particular areas, it is hard to know why these two were chosen. As for the oil and gas report within five years, this could go either way. I don’t have too much heartburn over it, except, for the fact that the BLM or USFS now must fund such work, whether they found it to be a high priority or not.
The Northern Cheyenne and Great Northern Properties exchange is under Section 3077, titled “Land taken into trust for benefit of the Northern Cheyenne Tribe”. What this amounts to is an exchange of mineral interests with the BLM as a third party assisting the tribe. This is pretty far outside of my wheelhouse, and as such, I am not going to try too hard to interpret it for you. It starts at p. 1425 and has a number of provisions. Without knowing the back story or the sentiment of the tribe through this process, it seems hardly fair to comment. However, there are sections that lead a reader to believe that this was to some extent worked out with the tribe’s participation. For example, inclusions such as “(A) IN GENERAL— At the request of the Tribe, the Secretary shall take into trust for the benefit of the Tribe the mineral interests conveyed to the Tribe under paragraph (1)(A)(i)” (p.1429). Again, I have no solid footing for an opinion here.
PUBLIC LANDS GRAZING
This one is really fun. If you are following along, go to Section 3023 at p. 1187. Now, get out your copy of the Federal Land Policy and Management Act (FLPMA) and copy and paste the substitutions in language so that you can get a full picture. Really? I think I may be part of the .01% of the population who happens to have a print copy of FLPMA by my side and then again part of the .001% who cares enough to do the collage work required to keep up with this section. All that is included in the bill itself is the language that is to be “substituted” into the current form of FLPMA. Without comparing the two, it would make no sense as a stand-alone read.
However, having done this, if I didn’t have experience working within the USFS system, there would still be no context to fully understand what this section means for managers. It is no secret that our federal land management agencies are crippled by process. However, if any of you have been lucky enough to have avoided the necessity of working with a federal agency for a permit or easement, than you are not aware that what seems like a simple task can take years. Exchanging equal value road easements, which should take a matter of months, can literally take ten years. As I read this section, it appears to be an attempt to ease process NOT environmental restrictions.
Offered are two key changes to the “Grazing Leases and Permits” section of FLMPA. The first proposes that when current permits expire (ten year permits generally), an interim permit for the same use may be applied during the time that it takes the agency to complete the required NEPA process (p. 1187-1188). This is an acknowledgement that the federal process is a burden to the public and an effort to see that this burden does not adversely affect permit holders. This also attempts to close an issue brought up in the Western Watersheds Project v. Jewell, 08-435-BLW, D. Id. case, in which it was determined that the BLM failed to comply with FLPMA.
Additionally, this section provides for the categorical exclusion of new grazing permits and leases ONLY if they meet standards such as “continues current grazing management” and “meets current land health standards” (p. 1189). Categorical exclusions are an important part of NEPA and they may only ever be used if the action will have no significant impact and there are no extraordinary circumstances. Thus, enter something like the sage grouse, exit the categorical exclusion.
This entire section is a mere four pages. I have read stories of how its enactment will result in the listing of the greater sage grouse which I can find no support for. For example, from Todd C. Tucci with Advocates for the West, quoted in The Wildlife News, “…the NDAA requires automatic renewal of all grazing within sage grouse habitat – even grazing that is known to harm sage grouse…”. In fact, there is no requirement of automatic renewal as the section clearly states that at the end of the NEPA process, the permit can be “canceled, suspended, or modified in whole or in part.” Moreover, ANY permit can be canceled at ANY time “pursuant to the terms and conditions” of the permit or for “any violation of a grazing regulation or of any term or condition of such permit or lease” [43 U.S.C 1752](a).
From the same article, Steve Holmer from the American Bird Society says, “Under this bill, the allotments could be renewed without any consideration for the harm they are causing to imperiled grouse, clean water, and the recreational use of public lands”. This is 100% false. We are talking permits, not allotments. The only renewal this authorizes is for the duration of the re-consideration of the effect of each permit.
Mr. Tucci represented Western Watersheds Project in a recent case that was decided on September 29th of this this year by Judge B. Lynn Winmill in Idaho (mentioned and cited earlier). He knows more about this subject than nearly everyone in the country. However, my point here is that statements like the one above, when excerpted without a larger story, obfuscate the truth and mislead readers. Without a broader context (and there nearly always is one), they amount to nothing more than hype.
Finally, there has been a lot of talk saying that this bill will change the permits from 10 year permits to 20 year permits. This is also, 100% false. This was likely an inclusion in earlier iterations and was dropped off before the bill was finalized for House review.
What is clear is that many of the 96 individual and unique inclusions to this rider deserve their own full story. There are some that are appalling in terms of natural resource protection. The SE Arizona Land Exchange is one of them (Section 3003, p. 1103), and the Alaska land conveyance another (Section 3001-2, p. 1067). And yet, there are some that are encouraging. There is the expansion of the Harriet Tubman Historical Park (Section 3035, p. 1229) and the expansion of the Oregon Caves National Monument and Preserve which would lead to the first underground Wild and Scenic River (Section 3041, p. 1258).
Each of these sections, with both big and little impacts, should be aired openly with accurate explanations so that policy makers and constituents alike can formulate informed opinions. Unfortunately, as a rider, they were quietly added. Also, unfortunately, politics are often conducted this way. Constituents with full time jobs don’t have time to read 451 pages of policy legalese. That is why we rely on our media. And, that is why it is imperative that media contributors get it right.