Note that the BLM is working on an amendment, at least for the Rock Springs RMP.
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Rich J.’s Points.
Rich J. brought up a couple of points here last Friday, I thought worthy of note. Again, it seems like a major kerfuffle about a few RMPs where the decision was made that the Governors did not support, and, as I recall, were even considering litigating.
“(A)Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—
(i)a copy of the rule;
(ii)a concise general statement relating to the rule, including whether it is a major rule; and
(iii)the proposed effective date of the rule.To my (perhaps excessively picayune) mind this not “very specific” at all. The argument turns on the phrase “submit to.” Does it mean presenting the plan (er – rule) to Congressional leaders on a velvet pillow with trumpets and drums? Or does it mean something less?
The bigger question, as previously discussed on this blog, is whether there is any time limit on the CRA, or whether a Congress 10,000 years from now could invoke this law to reject some executive branch action from the benighted 21st century. I understand the arguments of the people who say the CRA will apply until the sun devours our sad planet. I simply reject those arguments as inconsistent with the administration of a rational polity.
That said, I think this complaint is awesome – it is, as the chess folks say, a forking check, and (whether intentionally or not) illustrates the absurdity of this ridiculous statute.”
2. Bit’o’History re Rock Springs RMP
It appears that, at least for the Rock Springs RMP, the BLM is also pursuing an amendment. See the link above.
There was a certain amount of what I call “sharp stick in the eye” with the Rock Springs RMP decision, which is the one I followed most closely. I haven’t been following the others affected by the CRA.
How do I define “sharp stick in the eye”? In this case there are at least two factors:
a. Decision made after election of different party (in this case, decision released December 20, 2024).
b. Blowing off states and Governors. We’ve all been there, there’s a variety of choices an Admin and Gov can work out, or not, but this appears to be an intentional “sharp stick in the eye.” Decided by folks in DC calling the BLM manager, as with some other of these end of term decisions.
“As expected, the BLM dismissed the governor’s consistency review as well as his (appeal),” West said. “We stand firm that this ROD will have detrimental effects to the economy of Sweetwater County and the state of Wyoming. Anyone who thinks the opposite clearly (hasn’t) read through the entirety of the plan.”
West noted there wasn’t much change, if any, from the draft to the final Environmental Impact Statement.
“We’ve worked hard to offer input and factual data as a cooperator for many years, but political agenda has become more important than the people with the boots on the ground, and as such, we’re all left paying the price,” he said.
West expressed hope for the new administration’s desire to listen to the local control in the months ahead, whether that be through litigation, the Congressional Review Act, or an amendment to the newly established RMP.
“It’s evident in the meantime that getting this out before January 20 was a bigger priority than working with those closest to the people.”
Another question would be that the Wilderness Society announced that the Director of BLM was joining them as president on Feb. 24, 2025. Of course, she must have recused herself from the Rock Springs RMP discussions.
I can imagine that if the situations were reversed, that the Trump Admin approved an RMP, that say, did not take into account comments of, say Gov. Newsom, and the BLM Director took a position with the oil and gas industry right before the decision came out, it would be considered a shockingly bad thing and any method to overturn it would be OK, in fact, noble. I’m thinking that the CRA (never done!) can be a distraction from the “sharp stick in the eye” issue.
I don’t know what case law says about requirements in FLPMA for interaction with states on plans. There is a process for a consistency review, and perhaps the legislators assumed that the State and the Feds could work things out in one way or another.
Why use the CRA instead of litigation or an amendment? I would have chosen an amendment. I don’t know what they were thinking, but here are some guesses. Litigation is a crapshoot as a notable FS planning director once said, so there’s that. The amendment would probably be litigated, and the next Admin might not defend it, when The Wilderness Society birds flock back into political positions. But I’m not a lawyer so can’t guess. There’s plenty of work for them (lawyers) via CRA, litigation, or amendment.
3. Pandora’s Box Redux
Folks like the Center for Western Priorities call using the CRA “opening Pandora’s box.” As readers know, that’s how I think of the NFMA plan revision process. “Need for change” somehow devolved to “assess everything.” So, of course, I was curious about whether the 2012 Planning Rule had been reviewed by Congress. Here’s what Chat-GPT said:
The short answer is that the Congressional Review Act (CRA) provides only a limited time window for Congress to disapprove a rule. Once that window closes without a joint resolution of disapproval becoming law, the CRA can no longer be used against that rule.
Here’s how it works:
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The agency submits the rule.The USDA submitted the 2012 Forest Service Planning Rule to Congress and the Government Accountability Office, as required by the CRA.
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A review period begins.Members of Congress have a limited number of legislative (session) days—not calendar days—to introduce and act on a joint resolution of disapproval. The period is generally described as 60 legislative days in the House and 60 session days in the Senate after Congress receives the rule.
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Congress did not enact a resolution of disapproval.Although members could have introduced a CRA resolution, none was enacted into law before the review period expired.
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The opportunity expires.Once the CRA review period closes, Congress cannot later use the CRA to invalidate that same rule.
And the look-back used..
The CRA has a “lookback” provision for rules submitted near the end of a congressional session. In those cases, the next Congress gets a fresh review period. That provision does not apply to the 2012 Planning Rule because it was issued and submitted early in 2012, well before the end of the 112th Congress. By the time the 113th Congress convened in January 2013, the CRA review period for the rule had already expired.
Of course, Chat GPT could be wrong. Hopefully legal folks here will let us know.
4. Forest Service Divination Strikes Out
My experience with going back in time legally was with the so-called “Gap Leases”, which had been issued in IRAs during the time period that the 2001 Rule was enjoined (by Judge Brimmer, in Wyoming). Many people thought that they were illegitimate- or at least said so quite loudly, as if the FS had some kind of divinatory powers. How handy that would be..the National Divination Service Center! But if plans didn’t count as rules in times prior, and rules must go through the review process.. well, you can see the problem as Rich J. pointed out above.
5. Why Litigate?
In my view, this is a standard “disagreement over plan content” with a “sharp-stick in the eye” overlay. I wonder what the purpose is of this litigation. Are groups really that attached to these specific RMPs? Is it really worth all the effort and resources? Hopefully, again, someone can explain.
6. Ongoing Amendment Process
Seems like there is also an ongoing amendment process.
Looking again at the potential national monument plan revocation (the clock ran out, so what started it?) –
https://www.sltrib.com/news/environment/2026/06/12/effort-by-mike-lee-celeste-maloy/
I ran across this
https://www.acus.gov/recommendation/technical-reform-congressional-review-act
“Absent statutory text addressing the subject, Congress has adopted a process through which it initiates review of such agency actions by requesting an opinion from the GAO. That process begins when members of Congress or committees request a GAO opinion on whether an agency action qualifies as a “rule” under the CRA. If GAO concludes that it does, a member or a committee provides for publication of the GAO opinion in the Congressional Record. Publication in the Congressional Record is then deemed to be the date that triggers the time periods for CRA review of the agency action.
Although that process has worked tolerably well as a response to the problem of unreported rules, it lacks a clear basis in the CRA’s text.”
Also,
“The CRA says nothing about how agencies must deliver 801(a) reports to Congress or the Comptroller General. Congressional rules, however, currently require that 801(a) reports be hand-delivered to both chambers of Congress.”