Reforming Federal Land Laws, Too Difficult to Attempt?: Reflections on CU 2010 Land Law Conference

Rich J. noted yesterday that public land laws are antiquated, which reminded me of this CU Law School conference at the 40th Review of the Land Law Review.   At that time, the thoughtful and talented planner John Rupe and I helped our Regional Forester,  Rick Cables with this presentation.  This was during the period of the 2005-2008 Planning Rule. Many thanks to CU Law for keeping all this posted on their website.

John Rupe posted an excellent summary of the conference at TSW  here.

Here’s one paragraph from John’s post:

The 1970 report led to the 1976 Federal Land Policy and Management Act (FLPMA).  According to Charles Wilkinson, FLPMA was a textbook example of Congress taking the long view – carefully studying the problem through a commission, and then crafting a bill which addressed those concerns.  He noted that the National Forest Management Act (NFMA) was very different – it went through Congress in less than a year because of a timber cutting crisis.

The speakers at the conference generally concluded that today’s political environment makes it difficult to repeat a 1970-type commission.  Congress is too polarized.  We may be too impatient to repeat the process that took six years from 1964 to 1970.  There may not be a political sponsor like Wayne Aspinall, the Congressman from Colorado who pushed for the formation of the Commission as part of a 1964 compromise legislative package which enabled the package of the Wilderness Act.  In addition, the problems today with public land management may not be grabbing the attention of the public, more concerned with the economy and other pressing matters.

Hmm… “too polarized” 14 years ago.  I wonder (certainly I run in less political circles) if the idea of “we are too polarized” keeps us from taking steps, perhaps incremental, to hash out and perhaps heal disagreements.  Words themselves have power, I believe, to lay tracks in our consciousness.  I’d instead ask “how can we design a system to get away from polarization?”.   If we had started with a small effort in 2010, where might we be today?

We could start with “what behaviors would we like to see in the next Admin that could help with that? or “what would be a tiny step that could be taken to develop a bipartisan process to remove the most problematic aspects of the current “mess o’ statutes”.

Anyway here’s a link to the conference, it’s full of interesting powerpoints and videos.  Reflecting from 14 years on, we seem to have all the same issues.

Well, David Bernhardt (he of the Trump Admin) talked about oil shale, you don’t hear about that anymore.  But not much about renewable and transmission buildout, and minerals were not strategic at the time.

Particularly with the current pressure toward Monumentizing, including what seems to be a massive media campaign, I’d like to draw your attention to the thoughtful presentation on Monumentizing by Jim Rasband: The Moral and Ethical Dimensions of Decision-Making on Public Lands: National Monuments and Beyond.

There’s also a set of slides of that presentation, with some quotes people might want to borrow for their own presentations.  Note how the Solum quote is related a bit to our discussion earlier this week of litigation as policy setting.. rights talk rather than justice talk.  Anyway, take a look at anything at the conference that interests you and we can discuss below.

More Colt Summit Than You Can Possibly Imagine

This is a pain in the patootie, but I noticed that we had run out of “replies” in our previous discussion of why Matthew is underpaid.
So to give him a chance to reply (and if we run out of other Colt Summit space)
Below is my comment # 16 restated so folks can respond. Here it is in its place in the prior discussion.

Your comment is very interesting. I said you were underpaid compared to these other folks. To which your answer was that they are underpaid compared to Plum Creek or DOJ.

But is Plum Creek or DOJ actually relevant in this case? Do you really think that someone is making a lot of bucks off 600 acres of commercial thinning?

I used WELC and thought it was relevant, because they claimed on their website that they had given their services to support FOWS and AWR on the Colt Summit project and claimed “Victory.”

Now suppose there was a group called “Friends of the Wild Collaboratives” who wanted to support Colt Summit. But they don’t have access to WELC or other “free” groups that donate their services. Yet FWC, our group of an equal number of equally legitimate citizens, compared to FOWS or AWR, does not have a seat at the table, because they can’t afford a lawyer.

That’s why WELC is relevant.

As to NRDC, I don’t see the relevant world of “highly paid” versus “no lawyers” simply related to timber sales.
I’m sure others could help, but a simple Google search on NRDC forest service cases yielded this project (no, not a timber sale, but still a project)

PS Matthew, in my culture it’s a compliment to say you are underpaid. Just sayin’

National Institute for the Elimination of Catastrophic Wildfire

Thanks to one of our readers for this.

The National Institute for the Elimination of Catastrophic Wildfire 11236 N. Highway 3, Fort Jones, California 96032 – (530) 468-2888 – [email protected] “The mission of the National Institute for the Elimination of Catastrophic Wildfire is to educate, collaborate and motivate decision makers at all levels to take the necessary steps to eliminate catastrophic wildfire.”
Attached Invitation[1] is information about the Institute and a two day workshop to be held in Sacramento,CA July 17-18, 2012 to launch the Initiative.

Something of Value: The National Forest System
Congressional Action is Needed for the Revitalization of the National Forest System.
March 12, 2012


America’s 193 million-acre National Forest System is in serious decline. The United States Forest Service (USFS) was created to be the congressional designated manager of the forests and to be the leader of professional forestry in the United States. As much through designed neglect as benign neglect, the national forests are being allowed to change from productive forests to fire-prone, insect-infested, and disease-wracked lands of declining value to the public, and the USFS that manages them for their citizen-owners is declining in its ability to carry out its mission of “caring for the land and serving people.” Congress must act immediately to save the National Forest System and its invaluable commodity and amenity resources, and to restore and revitalize the beleaguered USFS charged with their management.

During the past decade, the natural resources on over 12 million acres (an area larger than the State of Maryland) of National Forest System lands have been damaged or destroyed by catastrophic wildfires, insects, and disease. This devastation is a consequence primarily of improper and inadequate management in a time of rapidly changing environmental conditions caused by climate change. Science-based resource management by Forest Service professionals has been preempted by those with ideological agendas and the political power to impose them. Congress’s statutory direction for management of the national forests on a sustained yield-multiple use basis has been subverted by special interest groups. This situation will only get worse without immediate congressional intervention.

Congress must act now to charter a comprehensive review of the legislated mission and physical status of the forests and their resources, and then reverse and remedy the situations in those forests and their administration that threaten the nation’s economical and ecological well-being. If it does not, and current trends continues, the nation’s needs for vital economic goods and ecosystem services provided by the National Forest System will not be met (such as water), and Forest Service capabilities to manage the national forests will decline with the decline of its corps of professional resource managers and other specialists.

We believe the necessary review would best be led by a new public land law review commission, or Congress’s investigative arm, the Government Accountability Office (GAO), with input by members of the Forest Service along with representatives of state and local governments directly concerned with national forest issues, citizen dependent on the forests, resource management experts, and user group members. This review should focus on: (1) the biological and physical condition of the National Forest System; (2) the management needs and challenges which must be met to restore those lands and resources through active management, as well as restore public confidence in the process; and (3) The indicators of needed service and products being delivered to American citizens. As a result of this review, Congress should: (1) revise the often-conflicting statutes governing National Forest System management and stewardship; and (2) revise, restore and reaffirm the mission of the Forest Service to manage those lands to produce “the greatest good for the greatest number in the long run” that was its original charge, as well as provide for accomplishment of that mission.

Note from Sharon:Reminds me of a couple summers ago when University of Colorado Law School summer conference was on the need for a new land law review commission. Here’s a link to one of the posts on that by John Rupe.

Recovering $600 Billion by Collecting the Rent on our Public Lands

Thanks to Matthew Koehler for finding this…

Here’s the link. This is the project of the “Council of Elders” of the Resource Renewal Institute here.

Here is the description of the idea:

Council of Elders
The Council of Elders, a project of the Resource Renewal Institute, is comprised of retired and active resource managers, scientists, and environmentalists. The purpose of the Council is to improve today’s resource and environmental management through the lineage of Aldo Leopold, David Brower, John Muir, and other environmental elders of the past. We believe that to address today’s global climate challenges, environmental and resource management must adhere to strict professional standards that have been eroded since their peak in the environmental gains of the 1970’s. By assembling a new council for each chosen area of study, the Council of Elders concept benefits from professional expertise gained over decades on a single environmental challenge. Utilizing retirees greatly reduces costs while protecting and stewarding America’s natural resources with the wisdom of elders.

The Council of Elders aims to:

Document and improve the practices of resource and environmental management agencies
Serve as a non-partisan watchdog of American resource management
Advocate for and create increased transparency and universality of information used in political and resource management decision making
Work to unite state and federal agencies, non-profits, educational institutions, industry, and the public in responsible management of America’s natural resources
Bridge existing organizations with a membership composed of elder experts from a variety of professional fields including academia, government, and the private sector
Mentor active resource managers through regional support network of elder experts
Provide assistance to whistle-blowers

As an elder myself, interested in some of the same topics, I wonder who exactly these folks are.

Yet the document does not mention whom these people are who helped write it. The name on it is Lynn Alexander who is

Lynn M. Alexander, AICP

Lynn is an environmental planner and principal of LMA Consulting. She has worked with a wide range of federal, state and local agencies, special districts, consulting firms and non-profits. Lynn is a long-time member of the American Planning Association (APA) and a certified planner since 1992. She has served on the Association of Environmental Professionals (AEP) board of directors and conference committees and has coordinated several conferences and workshops. Recent projects have involved analyses of renewable and natural gas energy projects for state licensing. Lynn holds a B.A. in Environmental Studies from California State University and an M.S. in Environmental Management from the University of San Francisco. She is currently working on a second Council of Elders’ project for RRI that focuses on U.S. government subsidy reform.

By Lynn Alexander, for Resource Renewal Institute

This paper initiates Resource Renewal Institute‟s second “Council of Elders” project: Recovering $600 Billion by Collecting the Rent. The Council of Elders aims to improve today‟s resource and environmental management through the combined expertise of retired resource management professionals. The paper is organized into five sections: oil and gas, mining, grazing, water subsidies and the Public Trust.

Resource Renewal Institute (RRI) believes the Council of Elders can help bring antiquated land management laws into the 21st century. The Council will examine federal land management policies and identify how governmental support of resource extraction on public land affects the Nation‟s public land resources and U.S. economic well-being.

As a group of experienced former resource management professionals, the Council of Elders has a window of opportunity to contribute our knowledge towards the goal of reforming outdated public land use laws. The articles collected here show that the historic and current practice of subsidizing the development of public resources and land is not only unbalanced, but extremely damaging to our environment and economy – and requires scrutiny.

The Issue: $600 Billion Uncollected Income from Public Land and Resources

The current U.S. fiscal policy governing the lease of public lands for resource exploitation is unsustainable, immoral and a drain on taxpayers. RRI has compiled this reader to show examples of how U.S. economic policies regarding resource management are skewed and need reform. Included is information from a variety of independent sources to illustrate how U.S. energy subsidies benefit wealthy companies and private entities rather than assisting those who need it most.

Despite a record national deficit of $1.47 trillion, our Congress continues to hand out generous subsidies and tax breaks to a wide range of favored interests. We estimate that these federal resource subsidies could amount to approximately $600 billion in federal giveaways.

Note from Sharon.. I am an elder, albeit not yet retired. What’s not a “subsidy”? What would be the basics for federal lands, above which everything else is subsidizing people’s interests? I would submit lands and law enforcement as essential.. all else is subsidizing one interest or another. Other ideas?

The subsidized would then include grazing, campgrounds, hospital water pipelines, trails, microwave towers, fuel treatments, etc. But of course, if they are from Mill Valley, there are “subsidies” for earthquake rebuilding, highways, etc. Where do we start? Where does it end? And most important of all, who gets to judge whose subsidies are simply undesirable and which are “immoral?”

From Forest Planning to Adaptive Governance

“If planning is everything, maybe it’s nothing.” Aaron Wildavsky

[Author’s note: This is a lengthy (for a blog), partisan, historical view rant on the road from NFMA “forest planning” to “adaptive governance.”]

Let’s face it, the “forest land and resource management plan” is an anachronism—an artifact of a bygone era. That era was in its heyday when the Office of Management and Budget (OMB) reigned supreme after President Richard M. Nixon consolidated rule-making and other powers in the OMB via executive order in 1970. Economics-based, comprehensive rational planning was the rage. It is no surprise that The Renewable Resources Planning Act was passed in 1974, just after Nixon consolidated power under the banner of rationally planned and carefully audited governmental process. Twenty years later Henry Mintzberg penned The Rise and Fall of Strategic Planning (1994). Mintzerberg’s classic pretty much laid a tombstone atop rational planning exercises. Or at least it should have.

The Forest Planning Era
Following passage of the National Forest Management Act of 1976 as an amendment to the Renewable Resources Planning Act of 1974, it was thought that forest program management decisions could be adequately fit into a forest plan “decision container”—that somehow each forest could develop a forest-wide plan that would integrate programs now and into the future in a such a way as to allow disclosure of environmental consequences that might flow from said decisions. Project level National Environmental Policy Act (NEPA) disclosure would disappear with proper forest planning and environmental disclosure at the forest level.

Allowance was made for FS administrative region plans, and for a national RPA Program plan. Given the upper two tiers, it was believed that decisions would be integrated vertically, and cumulative effects—according to NEPA standards—could be adequately disclosed.

It was a relatively innocent era, when viewed through the “green-eyeshaded accounting lenses” of OMB over-see-ers. The innocence collapsed relative soon in the forest arena as litigation proved that the three-level administratively-bounded review was not going to pass muster in the courts. Not only were projects not going to be shielded from NEPA review by a forest plan, there was increasing evidence that at least one level of planning/disclosure might be needed between project and forest.

An initial remedy to the seemingly endless process gridlock brought about by too many levels of planning was to eliminate regional plans. I referred to this then as the Texas two-step solution (forests/projects), since at that time the Forest Service’s National Planning Director was from Texas. But that was a solution looking for a problem, or better still a “non solution” not looking for anything but an easy way out. The problem between forest and project remained. Another problem was to be found elsewhere, framed larger than forest plans but not fitting into regional plan containers.

Spotted Owls, Roadless, and more
Much time and effort was now spent in the 1970s, 80s, 90s on above-forest policy making, brought about by actors and actions taken either against the Forest Service or from within the Forest Service responding to the Endangered Species Act of 1973. They were, “Spotted Owl Management Plans,” “The Roadless Rule,” “The Northwest Forest Plan,” and more. These decision containers were bounded as regions, not FS administrative regions but geographical regions more appropriately suited to the issues and the actors petitioning for problem resolution. Note that the policy-level decision making was largely about curtailing timbering and roading, but the Forest Service chose to name the efforts after the initiating issues, not the federal actions being considered.

Forest Planning Proves Resilient, if not useful
The forest planning paradigm still captured much attention, but the three-level planning process swirling around the forest plan—projects/mid-scale/forest—was felt by forest planners and the Forest Service generally to be too cumbersome. Something else needed to be done. While the rest of the world was waking up to complex systems, wicked problems, and adaptive management, as was part of the Forest Service via the Northwest Forest Plan, the Forest Service via the NFMA rule was still stuck in the wonderful, if overly complex and somewhat bizarre world of capital P “Planning.” And the Forest Service was always trying to force-fit things into forest-level and project-level decision containers. But times were changing by 1990 and at least for a time, the Forest Service seemed to be ready to catch up to the rest of the world.

Adaptive Governance: Emergence in the Clinton Era
Adaptive management seems to be evolving in name to Adaptive Governance, following a path laid down early on by Kai Lee in Compass and Gyroscope: Integrating Science and Politics for the Environment (1993). For a time the Forest Service seemed inclined to follow. [Note: Today, the “adaptive governance” path seems already well-discussed, if not well traveled. That is if my “adaptive governance” Google search is an indication. But my Wikipedia search didn’t give me much. Recognizing that the only viable adaptive management for dealing with public lands management has to deal with both Kai Lee’s Adaptive management compass and his civic-engagement gyroscope. I’ll go ahead and use the term “adaptive governance” hereafter.]

In what we might call Clinton era management, Chief Michael Dombeck sought to bring about a Leopoldian awakening (see, e.g. here, here) to Forest Service thinking. That “awakening,” as per Leopold’s earlier thinking, was about adaptive governance. But the largely Republican-dominated Forest Service resisted. Chief Dombeck was never accepted by Forest Service managers since he was from the BLM and appointed by an environmentally left-leaning Clinton administration. Things didn’t get better under Chief Jack Ward Thomas, himself a huge fan of Leopold. The road from Pinchot to Leopold was not going to be an easy one. Adaptive governance thinking was soon on the chopping block along with pretty much all else from “new forestry” to “new perspectives,” etc. following the election of George W. Bush as a new Administration came to Washington.

Adaptive Governance: Bush/Cheney Backlash
The Bush/Cheney public lands legacy can be viewed as a legacy of war—war on the environment and war on anything the previous Clinton Administration had built under the rubric of “ecosystem management” (See generally Bob Keiter’s Breaking Faith with Nature: The Bush Administration and Public Land Policy). Under Mark Rey as Undersecretary of Agriculture, the Forest Service moved into its “Healthy Forests Initiative,” followed soon thereafter by the “Healthy Forest Restoration Act of 2003.” As Bob Keiter notes, the names could be viewed as cynical, as part of a well-orchestrated backlash against Clinton era reforms. To Keiter:

By using the Healthy Forests Initiative to expand the scope of NEPA categorical exclusions and to alter the ESA consultation process, the Forest Service has further enhanced its authority and reduced the potential for judicial review of its decisions, which is also what the [Aquatic Conservation Strategy] and species inventory revisions to the Northwest Forest Plan would have done. Congress has abetted this de-legalization effort by including NEPA provisions in the HFRA and the Energy Policy Act that either eliminate or reduce environmental analysis requirements for timber thinning and energy exploration projects.279 Add to this the Bush administration’s approach to its ESA responsibilities—which include an overt hostility to new listings, a rush to delist species, and contemplated revisions to the section 7 consultation process and critical habitat designation and critical habitat designation criteria—and the land management agencies could well be relieved from meaningful regulatory oversight. Related efforts to eliminate administrative appeal opportunities are plainly designed to further insulate management decisions from review. The net effect is to minimize opportunities to enforce environmental standards and procedures, and thus shield criteria—and the land management agencies could well be relieved from meaningful regulatory oversight. Related efforts to eliminate administrative appeal opportunities are plainly designed to further insulate management decisions from review. The net effect is to minimize opportunities to enforce environmental standards and procedures, and thus shield the agencies from any meaningful accountability. It is a return to an era when discretion reigned supreme. [Footnote in original]

All good things come to an end. So do all bad things. The Bush/Cheney regime and its war on the environment ended in January 2009, although effects (and federal judges) linger. [Personal aside: My friend from the early “planning days,” Dale Bosworth served as Forest Service Chief early in the Bush/Cheney Administration. I believe Dale did what he could to curb the worst of the what might have been done to the Forest Service during that era, but didn’t take my advice the be take a firm stand and be the first Chief since Gifford Pinchot to be fired for standing up against the powers that be. Had I been in his shoes I might not have taken that advice either. Who knows? But it wasn’t in Dale’s nature to work that way. I don’t find fault with Bosworth’s leadership/management during that era.]

Adaptive Governance: Obama’s ‘Audacity of Hope’
Unfortunately for Leopoldian dreamers, incoming President Barrack Obama’s audacious plans have not yet been focused on matters environmental, other than green energy. Nor will they likely anytime soon, even if Obama or anyone in his Administration were prone to do so—which itself is in question. Obama is too distracted with two wars, emergent unrest in the Mideast and Middle America following Tea Party elections in statehouses and the US Congress. Not to mention continued after-shocks from the near-disaster of the financial meltdown that arrived coincidentally (or not) right as Obama was entering the White House.

Obama cut his political teeth on community organizing, and that is in a sense Kai Lee’s gyroscope to accompany his adaptive management compass. So we can at least hope for endorsement from Obama if planning is replaced with adaptive governance. Whether or not it will be a good thing depends largely on whether or not untoward devolution happens—or is perceived to likely happen—under adaptive governance schemes. Time will tell. But I get ahead of our story. The Forest Service hasn’t yet embraced adaptive governance, although I hear they are flirting with it. Instead they are still wedded to capital P “Planning.” As Andy Stahl noted, the recent Draft NFMA “planning rule” (pdf) (as the Forest Service likes to call it), stages up a rational planning exercise. The difference is that this time it is driven by ecological rationality instead of the earlier economic rationality from the OMB era.

Adaptive Governance: Absent in the NFMA Draft Planning Rule
I suspect it was because the Bush/Cheney era NFMA rule was thrown away by the courts, but for whatever reason the Obama Administration chose to rewrite the “NFMA rule.” There has been a flurry of commentary on this blog and elsewhere about the rule and associated planning. But does anyone really care about this type planning anymore? What decisions are really contained by a forest-level plan? Despite the language of the draft rule, I find no “ecological resilience” decisions, neither “ecological or social sustainability” decisions, nor any “species viability” decisions, nor … that can be contained in a forest-level plan. All such considerations will well-up at scales different from forest boundaries.

As I’ve argued before, these are wicked problems. Wicked problems are not amenable to rational planning resolutions. Part of the “wicked problem” problem is that they are shape-shifters, they vary in problem identification and resolution across both time and space. They just won’t stand still, and will not be force-fit into predetermined “decision containers.”

In addressing wicked problems, I believe that scale-dependent futuring, and/or puzzle solving, is in order alongside scale-dependent assessments and monitoring. We ought to add in scale-dependent standard setting. They all fit under a header “puzzle solving.” Where scale-dependent is really the stuff of framing decisions/actions according to a “Garbage Can Model” wherein issues, actors, and arenas self-organize across the landscape into various and sundry decision containers. We all need to think hard about wicked problems and, e.g. Cohen, March, and Olsen’s garbage can decision model. Here’s a pdf of CMO’s 1972 article: “A Garbage Can Theory of Organizational Choice.”

See too Pritchard and Sanderson’s chapter in Panarchy: Understanding Transformations in Human and Natural Systems (2002), “The Dynamics of Political Discourse in Seeking Sustainability.” After setting stage for adaptive governance, complete with “wicked problem identification” and “garbage can” resolution mechanisms, Pritchard and Sanderson conclude:

[Testing hypotheses and applying lessons learned] to the thorny puzzles of environmental management and governance are [noble] goals. The greatest promise lies in addressing political issues directly, rather than in avoiding or submerging them. The fondest hope might be that individuals, communities, and formal organizations engage the spirit of adaptation and experimentation, by allowing a set of contingent ideas to shape “the gamble” of democratic resource management, and citizen experts to report on the results. Of course, for such a profoundly disorganized and multiscale approach to thrive, government, market, and citizen must share a common vision—that all must address these puzzles in order that they might be engaged and worked on—not solved forever; that “expertise,” popular voice, and power are separable, and none holds the dice [from a “floating crap game” model of politics] for more than a pass.

A Few Questions Linger
Is an ecologically framed rational planning rule what we need to resolve controversy?
Or is it time to embrace adaptive management, even adaptive governance in an attempt to tame wicked problems? Yes, I know that the preamble to the Draft NFMA rule claims that forest planning will be driven by adaptive management. But, really? Read the rule and explain to me how the draft rule stages for more than rational planning.

The Forest Service as a Learning Challenged Organization, Iverson, 1999
US Forest Service Deeply Flawed Planning Culture, Iverson, 2004

Dreaming about Reforming Public Land Laws

It has been 40 years since public land laws have been systematically reviewed by a land law commission, the longest period ever separating their use.  Much of the gridlock in how public lands are managed can be traced back to statutory language. 

Lawyers and policy-makers met at the University of Colorado Law Center in early June to celebrate the 40th anniversary of the Public Land Law Review Commission’s Report “One Third of the Nation’s Land“, and to reflect on the need for a new Commission and a new report to address the challenges for public lands in the 21st century. 

The 1970 report led to the 1976 Federal Land Policy and Management Act (FLPMA).  According to Charles Wilkinson, FLPMA was a textbook example of Congress taking the long view – carefully studying the problem through a commission, and then crafting a bill which addressed those concerns.  He noted that the National Forest Management Act (NFMA) was very different – it went through Congress in less than a year because of a timber cutting crisis.

The speakers at the conference generally concluded that today’s political environment makes it difficult to repeat a 1970-type commission.  Congress is too polarized.  We may be too impatient to repeat the process that took six years from 1964 to 1970.  There may not be a political sponsor like Wayne Aspinall, the Congressman from Colorado who pushed for the formation of the Commission as part of a 1964 compromise legislative package which enabled the package of the Wilderness Act.  In addition, the problems today with public land management may not be grabbing the attention of the public, more concerned with the economy and other pressing matters.

Much has changed since 1970. 

Norman James, a Phoenix attorney, observed that the review commission did not anticipate that wildlife preservation would often dominate public land management after the passage of the 1973 Endangered Species Act.  He gave an example of the dominant role played by management of the Mexican spotted owl in Arizona and New Mexico, which led to dramatic reductions in timber sale volumes, essentially destroying the region’s forest products industry.

Todd True, an attorney with Earthjustice, noted that the commission hinted about “fish and wildlife values”, although the idea that public lands play a critical role in fish and wildlife protection may not have been fully developed or its implications well understood in 1970.

Undersecretary of Agriculture Harris Sherman, the keynote speaker at the conference who oversees the Forest Service, explained that 110 million acres of National Forest System land are in need of restoration.  Historically there has been 5 million acres a year of fire, but we could be approaching 10 million acres a year of fire.  Fire is a threat to water quality.  Sherman also said that there are 17 million acres across the West dying from bark beetles.  In Colorado, he said that 10,000 trees a day will fall down over the next 10 years.  Sherman said that he wants to emphasize an “all lands” approach, working across sister agencies, other federal agencies, state agencies, and private landowners.  He wants to focus more on water, thinking about ecosystem services, and responding to climate change. 

Rebecca Watson, former Department of Interior assistant secretary in charge of the BLM and MMS under the Bush administration, explained that the 1970 report was written before the shock of the 1973 Arab Embargo hit our country and underscored the depth of our dependence on imported oil.  Like today, however, the report was written in the wake of a terrible offshore oil spill that came to dominate the management of the Outer Continental Shore.

BYU law school dean Jim Rasband said that the February 2010 leak of an Interior Department memorandum listing potential candidates for national monument proclamations reignited a debate about the Antiquities Act and the president’s power to proclaim monuments without notice or any form of public participation.  His presentation asked if there should be an ethical dimension to the political “trophy hunting” of monument designation, or do “only losers care about process?”

Indiana law professor Rob Fischman observed that the two major issues facing public land planning are funding and climate change, two topics with little or no treatment in the 1970 Report.  Climate change has undermined historic benchmarks for ecosystem management.  Climate change is now the principal rationale for better federal interagency coordination.  Regarding funding decisions, Fischman said that current laws are good at managing between conflicting uses, but not good at managing between competing uses.

Adjunct Colorado law professor Joe Feller explained that public lands livestock grazing provides a difficult challenge to the application of any theory of, or prescription for, public land planning and management.  On the mostly arid or semi-arid lands of the West, grazing’s adverse impacts are manifold and its administrative costs often exceed its economic benefit.  Former Interior solicitor Bill Myers countered by mentioning the environmental ethic of Western ranchers, and the dangers of the loss of ranches adjacent to National Forests to subdivision and development.

Utah environmentalist Scott Groene concluded that federal land management agencies have not been effectively addressing recreation-related problems, including impacts of motorized recreation activities.  Blue Ribbon Coalition president Greg Mumm said that motorized recreation is extremely popular, and one in five Americans 16 and older participate in some form of off-highway vehicle recreation each year.  Moreover, virtually every public land user is motorized at some point – it’s more a question of if or when they park their vehicles.

Summaries of the presentations are posted here on the University of Colorado Natural Resource Law Center website.

The Power of Precedence- Recreation Residences

One fundamental principle in public lands policy that I would propose is that it is much more difficult to remove or reduce an existing use, than to never have allowed it in the first place.

At the “One Third of the Nation’s Land” Conference today at University of Colorado, the planning panel was asked to look at Chapter 13 of the report (1970) which recommended phasing out recreation residences. They did not spend any time on it as the time was taken up by other intriguing ideas, including planning and a new FS planning rule. However, the “One Third of the Nation’s Land” report did have this recommendation.

Vacation Homesites
Recommendation 95; Public lands should not hereafter be made available under lease
or permit for private residential and vacation purposes, and such existing uses should be
phased out.p 223

This recommendation was made by a bipartisan commission in 1970, and this issue is as fresh as today’s headlines..”Real Estate Debate Rages In America’s Federal Forests.” I attribute this to the power of precedence… other thoughts?

Next Week: Land Law Review Conference

Next week is the summer June 2-4, 2010 Martz Summer Conference 2010
The Past, Present, and Future of Our Public Lands.
University of Colorado Law School
It sounds like John Rupe, Martin and I will all be there. Martin is the moderator of the timber session, and Rick Cables is speaking about Forest Service planning. Scott Fitzwilliams, the White River Forest Supervisor, is speaking on recreation, and Harris Sherman the Undersecretary for Natural Resources is a keynote speaker. With the variety of speakers, I am looking forward to some stimulating discussions to carry forward to this blog.

Question for consideration…

John and I have been talking about using ecosystem services as a broadening of consideration of different uses in forest plans- rather than “desired conditions” talk about desired services provided. Not to quantify them or cost them out, just to talk about what we want from a piece of ground and how those desires interrelate. John and I think that might be an easier shift from multiple uses to ecosystem services. I think he’s going to post in the near future on some of the problems we’ve experienced with the use of desired conditions.

As to sustainability- great concept, but it is difficult to prove anything is sustainable and balancing the three kinds of sustainability just led to analytical and conceptual problems, in my view.

What do you think about using ecosystem services as a framework for forest planning?
Pros, cons, and watch-outs?

Energy and Federal Lands: Sympathy, and Conflicting Laws

Energy opportunities for all forms of energy occur on public lands: oil and gas, geothermal, solar, coal, and wind. Each has environmental impacts.They seem to have different policies attached to them with regard to siting on federal lands.

This week we had an interesting decision by Judge Matsch on San Juan Mountains Coalbed Methane. John Rupe tells me that some of the findings about NFMA were of interest and may be different than some 9th Circuit Cases- so don’t be surprised if you see something along those lines.

But what I wanted to draw your attention to is this quote:

The project area is within two of those counties where producing wells with collection and transmission facilities exist. The plaintiffs’ challenges must be considered from this perspective. This not an opening up of a virgin wilderness. The proposal made to the agencies was to authorize increased production from known gas reserves to meet the demands for energy to support the amenities provided by urbanization.
The extraction of non-renewable resources is an anathema to many in our society. Gas production is the antithesis of environmental protection. The national policies expressed in NEPA and in energy legislation are in direct conflict. The agencies are confronted with the dilemma that they cannot meet both goals. They must attempt to achieve a balance between them that is a reasonable accommodation between harms done to either of them.

And a note of sympathy from Patty Limerick of the University of Colorado in an article in today’s Denver Post, to our sister agency the BLM on the same topic:

“Given our energy habits, and given our inability to change them, we have to go forward with this,” said Patty Limerick, director of the University of Colorado’s Center of the American West, who recently hosted BLM leaders at a forum and is preparing a report to guide conservation initiatives.

“It’s time to hold the mirror up to ourselves,” Limerick said. “Simply taking a sharp stick, and poking it at the BLM, is not really much of a social policy.”

For those of you not familiar with her work, here is a link to the Center of the American West. In my view, they do a lot of thoughtful work on many of the topics that interest us on this blog.

I once engaged in a discussion with a colleague on needing ringside seats for “Spirit of the Energy Policy Act” vs “Spirit of NEPA” bout. This is based on the “productive harmony between humans and the environment” of Section 101,

National Environmental Policy Act of 1969 (NEPA), Section 101:

…environmental decisions and actions shall be made in ways that “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

Question: Do you think they are in conflict (other environmental laws and the Energy Policy Act), and, if so, should that be considered by a future land law review?