Bureau of Land Management

Career Feds Gone Wild: BLM and APD Approvals?

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From the Farmington Daily Times- part of a good article outlining the approval process

As I predicted, when Republicans are in power, things some ENGO’s (or perhaps PENGOs, for Partisanly inclined ENGOs) don’t like are blamed on evil Republicans.  And folks are very concerned about impacts to career feds, the innocuous victims of bad political appointees. But when D’s are in power, the identical activities can be blamed on the career feds. These two concepts seem to conflict a bit, but perhaps I’m the only person who notices?  An interesting example is this piece by Jonathan Thompson who runs the “Land Desk”- lots of interesting and valuable articles there, but perhaps not this one.

Stepping back, we at TSW investigated on our own the reason for increased approved APD’s during the Biden Admin (held up by some as “Biden isn’t doing enough.”)

Rebecca Watson had some ideas in this comment here , and here’s what a BLM person from State X told me: “there was a big surge in State X and I think there were a variety of reasons for that including the election results, companies getting pre-positioned for any resultant post pandemic oil price increase and finally, companies catching up on activities that have a big field work component that were impacted by folks minimizing group interactions, working from home, etc..”

What I find interesting about stories I’ve read that mention this is that the increase is used as a talking point to make the case “not doing enough” (a political push toward COP26) and the other side of the story is not being told. So much of what I read is not “news” in the traditional sense of 1) telling what’s happening and 2) trying to understand why (note, this article is not news, but it’s becoming increasingly difficult to tell what is and should be held to those standards).

And even while leasing was paused, the BLM continued to hand out drilling permits at a feverish pace. Since Biden’s inauguration, the agency has issued the following tally of approvals:

  • California: 56 (all by the Bakersfield Field Office)
  • Alaska: 6
  • Colorado: 15 (Royal Gorge, Tres Rios, and White River Field Offices)
  • New Mexico: 1,372 (1,275 in the Carlsbad Field Office, or Permian Basin; 94 in the Farmington Field Office, or San Juan Basin)
  • Utah: 183 (170 in Vernal Field Office with the rest in Moab and Price)
  • Wyoming: 693 (376 in Buffalo Field Office; 198 in Casper Field Office; 74 in the Pinedale Field Office)

That’s a lot of drilling permits, making Trump’s energy dominance look a little flaccid, at best. I had a conversation with a colleague about this phenomenon recently. He argued that the BLM had no choice but to issue the permits, since the oil and gas companies were vested with private property rights when they acquired the leases. Both industry and field office managers make the same argument, parroting the ideology of the Wise Use movement of the 1990s, but it’s mostly bogus. Grazing leases and oil and gas leases are on public land, and they do not confer private property rights to anyone. If that was the case, then why bother with the permitting process? Why not just offer the drilling permits with the lease?

At the same time, it’s not Biden himself, or even Haaland, who is handing out the drilling permits. It’s the field office managers, who tend to operate how they choose, regardless of who’s in the Oval Office.

(My bold) Mr.Thompson thinks the validity of lease sales is “bogus” but having sat through innumerable meetings with Interior Solicitors and USDA OGC on exactly this issue, enthusiatically trying to get the USG out of leases on the Thompson Divide, I’d say.. not. I don’t know if Mr. Thompson believes this about BLM managers, or whether this is another polemical throw-away line.

Potential Non-Career Fed Candidates for BLM Director

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One more thing before I go.. last week, I posted this piece on potential career folks who could be selected for BLM Director. I was also given the name of one non-fed, Dave Johnson, Director of Fisheries at the Nez Perce, as being very good at working with all kinds of people, stakeholders and government officials of all parties, on natural resource issues. He could be (possibly) the first Native American BLM Director, which could help with the Biden Administration’s goals of working better with Tribes. With all the press around different Tribes and their members’ views of Bears Ears expansion and contraction, his background as a Tribal member could help. His background is “in the west” and “on the ground” and as a fisheries biologist is likely to a strong science background- and the Biden Administration has stated and expressed through other selections, that they are interested in elevating science.

Anyway, my point isn’t to promote a specific person- in my case, this is hearsay, after all; but to leave a place for people to promote their own candidates, should they wish to do so, in the comments below.

“Career Person for BLM Director” Op-ed in Colorado Springs Gazette

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For those interested, here’s my op-ed on the topic from the Colorado Springs Gazette. I won’t belabor it here as some of its the same as the “open letter” yesterday. I encourage folks who feel the same to submit their views to their own outlets. In case there’s a paywall I can’t see (being a subscriber), I copied it below.

Select a seasoned, career employee for BLM director

This summer has challenged wildland firefighters due to megafires, dealing with COVID, fuel shortages and a host of other difficulties. Unfortunately, one of the main agencies involved in wildland firefighting is without a director. The Biden administration nominated Tracy Stone-manning, who comes with long-term ideological questions (her role in tree-spiking) and more recent ethical questions (her misstatements before Congress and questionable loans while serving as a Senate staffer). Hence her confirmation has been delayed.

Due to these issues, the promised “early summer” review of the oil and gas program has not materialized, leaving states like Colorado, oil and gas workers, and probably federal court judges wondering what’s up and what’s next.

There’s also the need for political horse-trading to get the nomination through. The current stalemate makes no sense to many current employees and retirees. On Secretary Deb Haaland‘s recent trip to Colorado, as reported by Colorado Politics, she said “My first priority is to avoid doing any more harm to the BLM’S dedicated employees. We owe them that.” To accomplish that goal, there’s a simple solution: pick another nominee, preferably a tested career employee and allow them to get to work.

Just because a BLM director can be a political appointee from outside the agency doesn’t mean that they have to be. Successful directors in the past have come from the ranks.

Indeed, because of the challenges of COVID, wildfires and climate change, it might be time to turn the partisan dial down and the workhorse dial up. I suggest taking a page out of the Forest Service book and immediately nominating a seasoned and respected career natural resource professional as director.

At the Forest Service, just such a transition quietly occurred in the midst of a global pandemic and this catastrophic summer of wildfire. There were absolutely no internal or external ripples; it was a quiet handoff from one seasoned and admired career chief to another.

There are several high-quality career candidates in the wings who could be nominated as BLM director and would be likely to be immediately approved. A list could be developed in a matter of days, including candidates who would add to the diversity of the Interior leadership team. These individuals have worked in a variety of states, states with a greater BLM presence and diversity of programs and issues than Montana. They will have worked directly with wildfire and restoration.

Such a person would sail through confirmation, leaving political capital on the table for more important administration priorities. The employees could breathe a sigh of relief, and soon administration work would be churned out in a timely way with a minimum of “new appointee” tension. That would benefit all of us.

It’s the administration’s choice: choose someone seen as experienced and capable to an array of pols and employees, simply moving on to do the work — or engaging in needless political drama for an unknown period, to no imaginably better ultimate end. I think it’s an easy call.

Sharon Friedman is a Forest service retiree and the editor of the smokey Wire. the smokey Wire is a community sourced and supported news and opinion site that fosters civil discussion and mutual learning among people with different views on federal lands and forest policy.

I suspect the unique capitalization of The Smokey Wire is due to some editing algorithm.

Open Letter to Interior Secretary Haaland- Please Pick a Career Person for BLM Director- ASAP

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Some of you may remember a while back I posted that to reduce political drama, the Admin could pick an experienced, respected (and possible diverse in desirable categories) career person for BLM Director and sail through confirmation hearings. Well, I collected submitted names of specific people, hence this open letter.

Dear Secretary Haaland,

People are talking about your promised “early summer” oil and gas leasing review being held up due to concerns about the nomination hearings for Tracy Stone-Manning. Others have heard that some political horse-trading is going on with Republicans in exchange for their support on the nomination.

For the sake of our public lands and the employees, for the workers in the oil and gas industry, and for the people of the States like your native New Mexico, I ask that you select a different person for BLM Director. This will both expedite getting the review out and directly moving forward with Administration goals for our federal lands. When you recently visited my home state, Colorado, you expressed concern for BLM employees; Colorado Politics quoted you as saying “My first priority is to avoid doing any more harm to the BLM’s dedicated employees. We owe them that.”

As a former federal employee, I am less concerned with Ms. Stone-Manning’s ideologies of the past and more concerned with her ethics of the present. Specifically, my concerns are her recent statement to Congress on whether she had ever been investigated, and possible ethics violations on a loan to her during her time on a Senate staff. Making misstatements to Congress, and not checking carefully on ethics rules, are not the kinds of actions I’d like to see in an agency Director. It doesn’t build confidence among stakeholders nor employees.

Instead, I suggest taking a page out of the Forest Service book and immediately nominating a seasoned and respected career natural resource professional as Director. At the Forest Service, a transition just quietly occurred in the midst of a global pandemic and yet another catastrophic summer of wildfire. There were absolutely no internal or external ripples; it was a quiet handoff from one seasoned and admired career Chief to another. It was also a first in terms of diversity; Chief Moore is the first Black Forest Service Chief.

There are several high-quality career candidates in the wings who could be nominated as BLM Director and would be likely to be immediately approved. The below potential nominees are only a small sample of people who are out there. While I do not know their diversity status, it is likely that some could also add to the diversity of your leadership team. I know that that is an important consideration for the Biden Administration.

All four of these candidates came up through the field ranks in both the BLM and Forest Service, are successful and respected leaders, and have Washington, D.C. headquarters experience. All but one served in Congressional Fellow assignments on Capitol Hill. All four have extensive wildfire and landscape restoration experience, across the diverse states with large BLM presence and programs. Without a professional background check, as you are able to do, I can’t be sure, but as far as I can tell they are ethically spotless.

1. Kristin Bail, Former BLM Assistant Director and current Forest Supervisor of the Okanogan-Wenatchee National Forest. Her educational background is in hydrology.
2, Jerry Perez, former BLM State Director in Oregon and California. Currently Forest Supervisor on the Angeles National Forest. Jerry has a B.S. in Forestry and a Law Degree.
3. Jose Linares, recently retired and served as acting Oregon/Washington BLM State Director and Siuslaw National Forest Supervisor. Jose’s educational background is in Forest engineering.
4. Jon Raby, current Nevada State BLM Director and former Montana State Director. He is a fish and wildlife biologist by training.

Secretary Haaland, please consider a pathway to bipartisan peace and goodwill, support for your employees, conservation of political capital, and the real ability to hit the ground running for your Administration goals by nominating a career professional for BLM Director!

Respectfully,

Sharon Friedman,
Editor, The Smokey Wire
Forest Service Retiree

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TSW readers: if you agree with this point of view, I also have an “op-ed” form of the same ideas without the specific names, but it’s available to you as background for any you might write for your own op-eds. Just email me for a copy.. it’s in submission right now.

Retired Law Enforcement FS Employee Quoted in Wall Street Journal, and the Non-Partisan Table of Past Indiscretions

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I try to stay away from Partisan Political Drama, especially Department of the Interior Political Drama, but had to share this editorial board piece in the Wall Street Journal about a Forest Service law enforcement retiree. I had to sign up for the Wall Street Journal to access it so I thought I’d share the FS retiree part of the article so you all don’t have to.

In responses to the Senate Energy and Natural Resources Committee, Ms. Stone-Manning attested she was never “a target” of the investigation. She says she knew nothing of the plot and does not recall “ever discussing tree spiking” with the perpetrators. Her excuse for not immediately turning them in to authorities was that she “did not actually know if they had done what the letter described.”

Public documents have cast suspicion on this version of events, but now the former lead investigator of the 1989 crime has come forward with evidence suggesting Ms. Stone-Manning’s testimony is false. Michael Merkley, a retired special agent for the Forest Service, in a four-page letter to the committee says Ms. Stone-Manning was “not an innocent bystander.” After an investigation led his team to search the Missoula residence where Ms. Stone-Manning and other Earth First! members had lived, he says, a grand jury served subpoenas “on persons suspected of having knowledge of the incident, including Ms. Tracy Stone-Manning.”

Mr. Merkley reports that Ms. Stone-Manning through his investigation was “vulgar, antagonistic, and extremely anti-government” and refused to provide the hair, handwriting and fingerprint samples ordered by the grand jury until threatened with arrest. She refused to answer questions, leaving investigators in the dark for years about the suspects.

Mr. Merkley says that in 1992 he made contact with another woman in the group, who exposed the spikers and Ms. Stone-Manning’s involvement. But this woman also “recounted a conversation she had overheard wherein Ms. Stone-Manning along with other co-conspirators planned the tree spiking and discussed whether to use metal or ceramic spikes in the trees.” This testimony, he says, inspired the grand jury to send Ms. Stone-Manning “a ‘target letter’ which meant she was going to be indicted on criminal charges.” She negotiated a deal “to gain immunity in exchange for her testimony.”

Meanwhile, backing up Mr. Merkley is a new interview in E&E news with John Blount, a ringleader of the operation, who went to jail for 17 months. While Ms. Stone-Manning was not “heavily involved in the planning,” he says she “knew about it far in advance, a couple of months before we headed out.” He provided details of the plan, saying Ms. Stone-Manning was supposed to mail the letter from Billings, in order to throw off investigators.

Anyway, we have seen various problems with high level appointees of various kinds.. and the press tends to be remarkably partisan in their ways of reporting.

So.. I think we need to develop a “Non-Partisan Table of Past Indiscretions” so we can apply the same criteria to appointees from different groups.

1. What was it?
2. How long ago?
3. Was it a one-off or continuing?
4. What kind of evidence is there?
5. Was law enforcement involved, if so how?
6. What job is it exactly? Should we be more careful about a Supreme Court Justice than a BLM Director?

Feel free to add other criteria to the Table.

Finally, it seems a bit odd that the Admin knew about it and nominated her anyway. Because President Biden said he was trying to unify the country, and this doesn’t seem like the way to do it. IMHO. Perhaps it’s intended to be a sharp stick in the eye to someone.. but who and why? Certainly not Montana loggers?

Many sources state that BLM morale has been bad since the Trump Administration. If I worked there, both this nomination and the level of “sticking by” that’s occurring wouldn’t help my morale. I’d prefer a retired diverse career person who was widely respected by the rank and file. You?

BLM apparently leaderless

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Speaking of “politicals” making decisions, here is the latest on one of them, following the announcement that BLM’s acting director would not be nominated for the position.

The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.

But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled.

Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.

That runs afoul of the Federal Vacancies Reform Act and allegedly the Appointments Clause of the Constitution.  This law limits temporary appointments to 210 days.  Not mentioned in this article is the consequence of such an illegal appointment, which is  – (Congressional Research Report, citing 5 U.S.C. § 3348(d)):

Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect.

The most direct means to enforce the Vacancies Act is through private suits in which courts may nullify noncompliant agency actions…  The Vacancies Act renders noncompliant actions “void ab initio,” meaning that they were “null from the beginning,” by providing that such actions have “no force or effect.”

Do you suppose anyone might sue to void any of Pendley’s illegal political decisions?

WGA Webinar Today on Covid-19 Impacts to Natural Resource Management

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Sounds interesting.. would anyone like to watch and share highlights/your thoughts? If so, please add in the comments below.

The Western Governors’ Association will host the webinar, COVID-19 Impacts to Natural Resource Management, from 10-11 a.m. MT on May 22.

The webinar will examine emerging challenges facing natural resource management professionals as a result of the COVID-19 pandemic. Panelists will discuss impacts to wildfire mitigation and suppression, invasive species management, wildlife management and more. Beyond immediate challenges, panelists will discuss potential long-term implications of COVID-19 to cross-boundary natural resource management.

This webinar is part of a series produced under the WGA Working Lands Roundtable. The Roundtable continues implementation of WGA’s natural resource-focused initiatives and serves as vehicle for discussion on cross-boundary working lands management.

Moderator: Kristen Averyt, Climate Policy Coordinator, Nevada Department of Conservation and Natural Resources.

Panelists: Dan Prenzlow, Director, Colorado Parks and Wildlife; Grant Beebe, Assistant Director, BLM Fire and Aviation; Lloyd B. Knight, Administrator, Division of Plant Industries, Idaho State Department of Agriculture.

Register for webinar

BLM Great Basin fuel break EIS

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The BLM has released its final decision to implement 11,000 miles of fuel breaks in six states.  The figure is in miles because the fuel breaks would be constructed along roads and right-of-ways.  Given our discussion of the Forest Service trend towards large landscape “condition based” management decisions, this language from an article quoting the BLM piqued my curiosity (my emphasis added):

According to Jennifer Jones, a spokeswoman for the BLM, the program will help streamline the implementation process by reducing or eliminating the need for environmental analysis. Once the plan is finalized and funding available, said Jones, “offices will be able to use it immediately and for many years to come.”

The timeline for implementation and the location of fuel breaks will depend on what offices develop plans and apply for funding.

The BLM’s notice of availability added:

… these potential treatment areas cover approximately 38 million acres within the project area boundary.

The goal of these Programmatic EISs is to significantly minimize the subsequent National Environmental Policy Act (NEPA) work required to approve on-the-ground projects.

(A second EIS will address “fuel reduction and restoration” over the same area.)

These statements sound like the more conventional approach to programmatic NEPA analysis (such as has been done for the use of herbicides).  They are intended to provide context for subsequent site-specific analysis that will produce overall savings in planning efficiency.  They make no pretense that this large scale analysis would necessarily be a substitute for site-specific analysis as some Forest Service proposals have stated. This kind of “merely programmatic” analysis has sometimes been given more leeway by the courts because a subsequent site-specific analysis would follow that would address site-specific issues and effects that have not been addressed.

The BLM decided also to do an EIS, unlike some of the Forest Service efforts that used an EA.  This analysis of effects of fuel breaks is also probably more site-specific than area-wide, “condition-based” Forest Service proposals because they know where the candidate corridors are, and they know the area of BLM lands where no action would be taken (away from these corridors).   (The scientific validity of fuel breaks is also discussed.)

Trump Administration takes on BLM planning

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An internal BLM document (linked below) may be the first step in revising the agency’s planning regulations (Planning 3.0?).  The proposal to remove NEPA requirements for land management plans is getting some attention.

The BLM may propose a land use planning rule that will “remove NEPA requirements from the planning regulations,” referring to the National Environmental Policy Act, according to the document on possible changes to such rules that was shared with states and former BLM officials.

The U.S. Forest Service similarly attempted to exempt national forest plans from NEPA during the George W. Bush administration, but a federal court struck down that effort in Citizens for Better Forestry v. USDA in 2007 because it violated NEPA and other federal laws.

“If the BLM proceed with this proposal, it will certainly be challenged, and I suspect that, like the FS [Forest Service], the BLM will lose,” Mark Squillace, a natural resources law professor at the University of Colorado, Boulder, said.

But it looks good to try, I guess. Current BLM regulations require an EIS for its plans, and the Forest Service explicitly required an EIS for forest plan revisions in its 2012 Planning Rule after its earlier rules were struck down for trying to avoid NEPA compliance.  This effort by BLM is in addition to the recent proposed changes in the CEQ NEPA regulations discussed here.

Here’s a little background on BLM planning requirements:

Dec. 12, 2016 BLM publishes its Planning 2.0 Rule, which updates land use planning procedures.

Feb. 7, 2017 The House of Representatives passes a resolution to repeal the rule under the Congressional Review Act (CRA).

March 7, 2017 The Senate passes a resolution to repeal the rule under the CRA.

March 28, 2017 President Trump signs the resolution disapproving the rule. Under the CRA, BLM may not promulgate a rule that is “substantially the same.”

(Maybe we’ll get to see lawsuits about what “substantially the same” means.)

O&C and Monumentizing: Dueling Rulings

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From the SF Chronicle

I’m following up on Jon’s idea that laws help us figure out what are “right” decisions. I think the O&C story is a illustration of how the laws’ interpretation by the courts can be not particularly helpful if a decision has to be made in real time (that is, before the end of litigation, appeals and so on.) I know many TSW readers know a great deal about this..so hopefully can give us additional information and perspective. Here’s a link to this op-ed in the Mail-Tribune (from Medford? Hard to tell from website).

A federal judge’s ruling that 40,000 acres of former Oregon & California Railroad lands in the Cascade-Siskiyou National Monument must remain in timber production is far from the last word on this question, and even if it is eventually upheld, it would affect only a portion of monument land and perhaps much less than the 40,000 acres in the ruling.

Judge Richard Leon of the U.S. District Court in Washington, D.C., ruled in a case filed by the American Forest Resource Council, a timber industry group. The AFRC argued that the expansion of the monument declared by President Barack Obama in 2017 improperly overturned the intent of Congress when it passed the O&C Act in 1937, designating more than 2 million acres of forest in 18 Western Oregon counties for sustainable timber production. Congress had granted title to the lands in 1866 to the railroad company as incentive to complete the Oregon portion of the Portland to San Francisco railroad. When the company failed to sell the land to settlers as required, Congress took it back in 1916, and added more acres from a similar land grant in 1919. The O&C Act placed all those lands under the jurisdiction of the Interior Department to be managed by the Bureau of Land Management for permanent forest production.

This E&E News story is also interesting with more legal details..

Here’s AFRC’s side of the story (from their newsletter):
In late 2019, the U.S. District Court in Washington D.C. issued favorable rulings in two major cases enforcing the O&C Act. (October and November 2019 newsletters). The Swanson III case seeks to
require BLM to offer its declared allowable sale quantity (ASQ) each year, which is one of the mandates of the O&C Act. The other case involves challenges led by AFRC and the Association of O&C Counties to the 2016 Resource Management Plans (RMPs) for western Oregon BLM lands.

Judge Leon ruled in September, “Every year, BLM is required to sell or offer for sale an amount of timber that is not less than the declared annual sustained yield capacity of the timberland subject to the O&C Act.” He also found that “the record establishes that BLM has repeatedly failed to comply with the O&C Act’s timber sale mandate.” In November, he ruled that the 2016 RMPs violated the O&C Act’s mandate that all O&C timberlands “shall be managed” for “permanent forest production” under sustained yield principles. This is because the RMPs set aside 80% of the land base into “reserves” where harvest is severely curtailed.

The court instructed the parties to file proposals in these cases as to the appropriate remedy, which were submitted on January 27. The plaintiffs’ proposal, incorporating both Swanson III and the RMP challenges, involves preparation of an amended or revised plan, an ongoing requirement to sell the ASQ, and interim direction on volume while the plan is being reviewed. The government’s proposals ask in large part for the Court to return BLM to an open-ended administrative process while keeping the existing plans in place. Response briefs will be filed in late February and a final order could be issued any time after that.

In the November ruling, Judge Leon also invalidated President Obama’s expansion of the Cascade Siskiyou National Monument that encompassed about 40,000 acres of O&C lands. Both the government
and intervening environmental groups have appealed the ruling to the U.S. Court of Appeals for the District of Columbia Circuit, also called the “D.C. Circuit.” Resolution of the appeal is likely to take at least 12-15 months.

Does anyone know why the “government” chose to appeal the decision?