Would Use of the CRA on RMP’s “Destabilize Land Management”? “Open Pandora’s Box?”

It seems like there are folks out there who are trying to get people worried about things.  I hesitate to call it “fear-mongering” after last time (when I said the land sales dog wasn’t going to hunt), but I think we need to dive in to some of the more histrionic claims.  We disagree and always will about how federal lands should be managed. I just think we need to be honest about the processes and how each Admin deals with getting its own way.  We can also favor a consistent application of process across Admins, and advocate for stopping  the partisanization spiral of doom wherever we see it.

BLM sources tell me that prior to Trump 1, BLM line folks mostly decided on preferred alternatives in RMPs but Trump 1 changed that and politicals made the calls.. This may not be true, so people who know, have at it in the comments.  Then, in the Biden Admin, the local folks were told by phone call by the then-Director and another individual exactly what to do.  I don’t know why those politicals didn’t write it down, as it seems likely we would find out anyway. Perhaps it’s a legal thing? Certainly elections have consequences, so they are entitled to do that, but that’s not the traditional way.  Picking a side might help politicals get their next job, but it’s heck on the career folks and the communities.

Then there’s this comment in Outdoor Life, which is kind of funny given what we have observed with at least the Rock Springs RMP:

“These RMPs aren’t political documents,” they say, speaking only on condition of anonymity. “They’re developed from the ground up, with people who live on and around these public lands helping direct the priorities of the agency. In my view, having a top-down, politically motivated decision like this is absolutely contrary to the local control that most conservatives say they want.”

Here’s a quote from a fellow at the Sierra Club:

Today’s votes set a dangerous precedent for the management of our public lands,” says Athan Manuel, director of the lands protection program at the Sierra Club. “RMPs are carefully crafted plans developed with robust input from local communities, Tribes, and local stakeholders—they’re examples of how our system should work. It’s concerning that House Republicans without expertise or local connections would inject themselves into this process, overrule the people most affected by the plans, and introduce chaos into the management of millions of acres of our most treasured public landscapes.”

Perhaps it was the last Admin’s RMP phone pals who didn’t have expertise or local connections.. just a guess. Maybe some of the House reps are from those districts..  It sounds like someone is saying that the Biden Admin never did what we know they did.  It would have been helpful if the source had not been anonymous; it’s a “former BLM staffer” so conceivably not speaking out of turn.  By the way, here’s the representatives of the Governor’s Task Force who gave recommendations on the Rock Springs RMP:.

And here’s a story on Governor Gordon’s appeal:

Kimberlee Foster, BLM Rock Springs field manager, said Gordon’s appeal will be handled by BLM Director Tracy Stone-Manning. It will be Stone-Manning’s call to decide if more modifications are made to the plan based on the governor’s recommendations, or to keep it as is.

What was that about “overruling”  “the people most affected by the plans” again?

**********

“House members just effectively joined the administration’s efforts to dismantle and undermine federal agencies like the BLM by voting to undo decades’ worth of local planning,” says Justin Meuse, government relations director at The Wilderness Society. “Overturning land management plans in this unprecedented way could throw our public lands into chaos, threatening to expose thousands of permits, leases and rights of way to legal challenge.”

My question is… if the new plans took effect early this year, wouldn’t they just go back to the old plans?  And how many new permits and leases have been issued since then? Also if I remember that once a lease is issued, it has a certain legal standing.

Now, we can imagine that certain members of Congress may take issue with the decisions of several recently-decided RMPs. Perhaps especially those with ROD’s issued after the election.  It was not easy to find them, but it looks like the Rock Springs RMP (discussed here), the Central Yukon Planning Area (11/12/2024). AI generated these:

December 19, 2024 Approved Resource Management Plan Amendments for Utility-Scale Solar Energy Development
January 8, 2025 North Dakota Resource Management Plan/Environmental Impact Statement

and the Outdoor Life article included Miles City (12/03/24).

Now the hoopla seems to be about Congress using CRA.  CRA has timelines- which maybe someone can explain because it seems kind of opaque.

So taking this at face value, we have to ask the question:

Why doesn’t Congress just ask the Admin to withdraw the decision and pick another alternative?  After all, that’s what the Biden Admin did with Alaska Roadless, and of all those recent RMP’s it seems likely that the Admin would agree with withdrawing them.

Back to CWP- I still don’t understand how this would affect “every management plan”; and there are valid existing rights.. this seems like quite a stretch.  What am I missing?

As Center for Western Priorities Deputy Director Aaron Weiss explains in a new blog post, if courts interpret this action broadly, every management plan written since 1996 could be challenged in court—potentially invalidating oil and gas leases, grazing permits, and threatening public access to trails and campgrounds.

This regulatory limbo threatens not just energy and ranching, but the entire recreation industry that fuels local economies across the West. Without modern management plans, land managers would be forced to revert to outdated frameworks from decades ago, written before today’s recreation economy took off. Outfitters, guides, and businesses that depend on reliable access for rafting, off-roading, and other outdoor activities could face years of uncertainty, permit delays, and costly litigation.

The Senate’s vote could mark the start of a new era of instability for public lands. For a closer look at the potential legal and economic ripple effects, read the full analysis on CWP’s Westwise blog.

It seems to me that those newer plans tend to be more restrictive about (certain forms of) recreation, so I’m not sure about “outdated frameworks.” I can’t say about RMP’s but I’m having a great time recreating on a National Forest with a 1984 plan (and a travel management decision in litigation, I think) so there’s that.

6 thoughts on “Would Use of the CRA on RMP’s “Destabilize Land Management”? “Open Pandora’s Box?””

  1. CRS has a pretty good 2-pager on the CRA:

    https://www.congress.gov/crs_external_products/IF/PDF/IF10023/IF10023.11.pdf

    As far as I know, FS and BLM continue to maintain that land management plans are not rules for CRA purposes. Neither has ever submitted a plan to Congress under that law. CWP argues that every plan issued since the enactment of the CRA could now be struck down using the “joint resolultions of disapproval” the statute authorizes, an assertion I initially greeted with skepticism.

    But CRS says this:

    Although the CRA states that a joint resolution of
    disapproval can be introduced only after Congress receives
    a rule, Members have sometimes used these GAO opinions
    to trigger the CRA’s special procedures, even if the agency
    never submitted the rule to Congress. Specifically, the
    Senate has developed a practice in which the publication in
    the Congressional Record of a GAO opinion classifying an
    agency action as a rule can trigger the CRA’s special
    procedures for a joint resolution of disapproval.

    CRS 2-pager at 1. So CWP might have a point, although I’m straining to see a legal rationale for this Senate-developed practice. The problem is that the CRA has a (well, at least one) hole: it never occurred to the statute’s drafters that agencies might simply refuse to submit their documents to Congress, thereby preventing the rest of the law’s provisions from having any effect. The Senate workaround closes that loophole, but does so by going well beyond the statutory text. Jon mentioned elsewhere that it is exceedingly difficult to get a CRA case into court, but I would imagine many judges, if given the chance, would reject a joint resolution of disapproval based on the Senate practice.

    I’ve mentioned before that I think subjecting land management plans to the CRA is bad policy because it means in theory nearly every one of the hundreds of land management plans in existence could be thrown out every four years. Under NFMA and FLPMA plans are supposed to be good for 10-15 years. As a practical matter, the CRA whipsaw would probably only affect a subset of those plans that are the most controversial, but it’s still a poor outcome at odds with the planning laws as well as common land management sense.

    There are other limiting factors. The CRA only works when one party controls the House, Senate, and White House. Legislative calendars are crowded; even passing regular appropriations bills is now largely beyond Congress’ capacity. But counting on legislative gridlock to save land management plans is obviously suboptimal.

    Reply
    • Thanks Rich J. for looking into this. It seems like using a Rube Goldberg- like legislato-judicial jungle to do something that could simply be done by withdrawing the decision and reverting to the previous plan or picking another alternative from the same EIS.
      The latter would probably be litigated .. and if a judge found it to be too far from what was considered in the previous EIS, the unit could do a new one.

      Reply
  2. Thanks for this interesting analysis.This is an area that has become very muddled by a wide variety of interests all hoping to be seen as the honorable side and IMHO my experience tells me no one can claim to be totally pure. Quite the conundrum as we move forward!

    Reply
  3. The language you highlighted from CWP doesn’t make sense since plans can always be challenged “in court” (subject to some ambiguous application of the 6-year statute of limitations), and since with the Congressional Review Act we’re talking about a precedent for Congress. The bigger question of whether Congress should be in the business of making plan decisions, well, that’s their call. They tried to give that authority to the agencies via NFMA and FLPMA. The agencies tried to distribute that authority through their regulations, but when the politics gets hot enough it can get called back to higher levels. It would be nice if both sides would just be more transparent about that.

    However, the CRA is not a shortcut to picking a different alternative. “Why doesn’t Congress just ask the Admin to withdraw the decision and pick another alternative?” I believe that an agency would have to follow its planning procedures to adopt a new plan if it wanted to revert to a prior plan. Your Alaska example was a regulation, with different procedures. In fact, as pointed out in a letter from “30 professors and practitioners in the fields of administrative, environmental, and natural resource law,” FLPMA regulations prescribe a specialized, participatory planning model distinct from federal agency rulemaking under the Administrative Procedures Act.
    https://www.gjsentinel.com/opinion/editorials/public-lands-plans-at-risk-in-congress/article_e72196e9-5b30-4890-8d60-3e43ea9724a8.html

    The real Pandora’s Box is that once a joint resolution of disapproval is enacted, it not only invalidates the rule in question; it also bars the agency from issuing another rule in “substantially the same form” as the disapproved rule unless Congress authorizes the agency to do so in a subsequent law. How in the world would someone decide if another plan is “in substantially the same form?” Why wouldn’t the previous plan be considered “substantially the same” – leaving the agency with no plan at all. (This is something that would likely be litigated by someone who didn’t like that plan.)

    Reply
    • I agree that rulemaking and planning are different. But for example the Rock Springs analyzed four alternatives, conceivably they could withdraw the decision (going back to prior plan), select another one and put it out for comment, and finalize via some process.

      Reply
      • I think it muddles things to say “withdraw the decision.” They would just be making a new decision, which could probably utilize some of the prior planning/NEPA process.

        Reply

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