Role of Local Communities in Federal Management

Federal Lands Litigation – Bulletin: Utah seeks to declare the BLM unconstitutional

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Grand Staircase – “Visit Utah” (Larry C. Price)

On August 20, the State of Utah asked the U. S. Supreme Court to consider its claim that parts of the Federal Land Policy and Management Act (FLPMA) that allow it to retain and manage lands as federal property are unconstitutional.  (The State’s “news advisory” includes a link to the court documents.)  It will ask the Court to:

Order the United States to begin the process of disposing of its unappropriated federal lands within Utah, consistent with existing rights and state law.

Utah argues that the Constitution does not give the federal government the authority to retain lands that it has not designated for a federal purpose.  The key language at issue in the Constitution, which has been traditionally viewed as establishing such federal authority, is the Property Clause of Article IV, which provides:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States

Which plaintiffs interpret this way:

By its terms, that Clause empowers the federal government to regulate and “dispose of” land belonging to the United States—not to retain such land indefinitely, without regard to whether it is needed to carry out any enumerated federal function.

They read this language as requiring the federal government to dispose of such lands.  Maybe that’s ambiguous, but even it were to now be reinterpreted it this way, there is a counter-argument that any such authority was supplanted by western state enabling acts:

University of Colorado environmental law professor Mark Squillace said the lawsuit was unlikely to succeed and was “more a political stunt than anything else.”  The Utah Enabling Act of 1894 that governed Utah’s designation as a state included a promise that it wouldn’t make any claim on federal land, Squillace said.

If the court accepts the case, it will be interesting to see how many other states want to join in this “stunt.”  Utah has been preparing for this case for years, and challenges to other federal lands had been considered.  If this lawsuit is successful, would the Forest Service be immune to something similar?  This should all make the “local control” fans ecstatic.

 

 

 

House of Representatives v. BLM – monuments and the public lands rule

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Grand Staircase – “visitutah.com” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?

 

 

Coordination with Counties – Lincoln National Forest Plan Revision

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Since Sharon has invoked my name twice recently, and not particularly correctly, with regard to the role of local interests in national forest management, I thought I would refocus that discussion on how this is supposed to work for local governments during forest planning using a current example that came along.  It involves the participation (or lack thereof) by a county in New Mexico in the forest plan revision process for the Lincoln National Forest (where a final revised plan is expected soon).

The 2012 Planning Rule §219.4 requires “coordination with other public planning efforts.”  It requires a review of “the planning and land use policies of … local governments, where relevant to the plan area,” which must be displayed in the EIS for the revised forest plan.  It concludes, “(3) Nothing in this section should be read to indicate that the responsible official will seek to direct or control management of lands outside of the plan area, nor will the responsible official conform management to meet non-Forest Service objectives or policies.”

On March 1, the Eddy County Board of County Commissioners approved a resolution opposing the revised plan.  They stated that, “it is clear that the USFS failed to review, consider and identify planning conflicts between Eddy County and the proposed plan.”  Those alleged conflicts include:

  • would increase restrictions for cattle ranchers with reduced cattle grazing levels and increased financial burdens on cattle producers
  • “creates large areas restricted and potentially inaccessible to the County to fulfill its public health and safety duties”
  • “creates areas that will no longer allow proper wildlife management control increasing the danger to Eddy County citizen’s lives and property”

Eddy County’s resolution asked for a “coordination agreement” between the County and the Forest Service, “To establish roles and responsibilities for both parties, ensuring the citizens of Eddy County are still provided with the necessary services they depend on.”

I would agree that these are all arguably things that should be considered by the Forest Service, depending on what the specific plans or policies of the County say regarding these issues.  (Unlike some earlier attempts at county “coordination,” they do not attempt to claim they have their own plans for national forest lands.)  There is also nothing wrong with a “coordination agreement” to establish roles and responsibilities for “planning efforts,” but this is not something recognized by the Planning Rule, and is not a requirement.  Moreover, the roles and responsibilities for national forest management are established in federal law and regulations; what local residents “depend on” does not dictate national forest management (as indicated by the highlighted language above from the Rule).

In this case, it appears that the County is also trying to close the barn door too late.  According to the Forest, “In 2019 we reached out to Eddy County, inviting them to become a cooperating agency (in accordance with NEPA), which would have allowed them to be more deeply involved in the process of developing the plan, however we received no response from the county. Additionally, Eddy County did not provide any official comments on the forest plan to us.”  (Failure to comment on the plan about the omissions they claim here would disqualify them from filing an objection and probably from suing.)

 

 

National Forest State Park

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Sweetwater Lake, located in remote northeastern Garfield County in the Flat Tops Wilderness Area, is set to become Colorado’s first state park on federal land after it was acquired by the U.S. Forest Service in August 2021.

“Colorado’s first state park on federal land.”  This came across as an oxymoron, but why not?

This land acquisition followed a common pattern, where a non-profit conservancy (The Conservation Fund) acquired private property until the federal government had the funds (Land and Water Conservation Fund) to purchase it and add it to a national forest (White River).  (From Colorado Parks & Wildlife, linked below.)

This Land and Water Conservation Fund purchase followed the acquisition of the property in 2020 by The Conservation Fund, which was made possible by a loan from Great Outdoors Colorado and local fundraising efforts such as the “Save the Lake” Campaign organized by Eagle Valley Land Trust.

A little less common (to me any way), the Conservation Fund is also continuing to fund management, according the Eagle Valley Land Trust:

“We’re also excited to announce our Sweetwater Lake Stewardship and Equity Fund, which will assist the Eagle Valley Land Trust and our agency partners in activating the property for public use and enhancing opportunities for underserved communities to enjoy the space for years to come.”

There is an existing Forest Service campground on adjacent land.  The Forest Service had this to say in the formal announcement from Governor Polis:

“Sweetwater Lake has tremendous ecological and cultural values and outstanding opportunities for recreation.  This partnership allows the White River National Forest to incorporate the local expertise of the Eagle Valley Land Trust and the recreation management and wildlife expertise of Colorado Parks and Wildlife to best serve visitors to the area,” said Rocky Mountain Regional Forester Frank Beum.

Colorado Parks and Wildlife added:

“Colorado Parks and Wildlife is excited to modernize facilities and provide updated and sustainable recreational services through this partnership. Our main priority is to conserve the unique character of the area while improving access to this incredible property,” said Colorado Parks and Wildlife Director Dan Prenzlow.

None of this said much about the State’s authority and responsibility, but I don’t know why they couldn’t lease the site and manage it as a permittee.  I don’t know if any other states have done anything like this, but as questions continue to come up about how to manage growing outdoor recreation this might be an option in some other places.

Dr. Taylor’s Definition of Internal Colonialism and its Application to the Interior West: Does Partisan Politics Distract Us From Justice?

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Yesterday, the Colorado Springs Gazette ran an essay by Vince Bzdek. It was about Governor Polis disagreeing with Biden Admin policies on Covid and agreeing with (some previous) Trump Admin policies. I really liked one quote which I think it particularly relevant to TSW topics:

Not all problems have a left and a right. Some problems are just problems, and the minute we Velcro ideology onto some problems, they often become bigger, uglier, less solvable problems.

It will be interesting to look through that lens at various topics. One that comes to mind is the question of what we might call domestic imperialism (I think I first heard that from Matt Carroll at WSU, a rural sociologist). Another related topic was raised by Patrick McKay in this comment. I see actually two levels here: (1) justice (social and environmental) implications of distant folks making decisions with impacts on local communities, and (2) given that this is our current political/legal system, to what extent are the “on the ground” decisions made by the personal predilections of local officials? I see the first as more of a political science question, and the latter as more of a “how does this work in practice?” question. Both are worth reflection and discussion, I think. For this post, I’ll stick to #1.

In Dr. Dorceta Taylor’s, of Yale School of the Environment, book “The Rise of the American Conservation Movement: Power, Privilege, and Environmental Protection“, she traces the history of race, gender and class

Let’s look at what she calls “internal colonialism”.

In addition to colonial expansion, countries seek to bring their hinterlands or peripheral regions under the control of the central government. Such moves toward internal colonization result in tensions or conflict between the country’s core or center and its periphery. The core develops exploitive relationships with the periphery, using the hinterland’s natural resources and cheap labor to enhance or sustain the development or expansion of the core. If the periphery has indigenous or culturally distinct people, the core often discriminates against them. The core monopolizes trade and commerce, thus forcing the peripheral region to develop as a complementary economy of the core. The economy of the core typically relies on one or a few exports. The movement of laborers in the periphery is determined by forces outside of the region. Economic dependence of the internal colony is reinforced by legal, political and military measures. The periphery is often characterized by lower levels of service and low standards of living than the core (Blauner 1969, 1972, 1982; Hechter 1994; Horvath 1972; Taylor 2014.

While Taylor focuses on the role of peripheral regions in providing natural resources, it may be just as IC (internal colonialist) to require peripherals to provide certain kinds of recreation by limiting land uses.

Which reminds me of a personal story:

When we started the journey that would become Colorado Roadless, Senator Hickenlooper was Mayor Hickenlooper of Denver. We had a public meeting in Denver and Hick spoke about how important it was to protect recreational opportunities because those opportunities attract businesses and people to Denver. I was standing next to our Regional Forester and said something like “he seems to be forgetting that rural people have their own agency.. sounds colonialist to me!”. Of course, that was Hick’s job as Mayor, to make sure his own folks’ interests were taken into account. Still, this can easily be the modus operandi for any state with urban and rural populations. That not only are urban interests prioritized, but their views on what should occur on rural lands imposed via having the majority of voters.

Circling back to Bzdek’s comment, here’s a question: if the Interior West were not occupied by people who vote Republican, would ENGO’s, the media and other opinion leaders be more sensitive to their quest for (we can disagree about how much) autonomy and political power over the lands they inhabit?

New Forest Service plan revision strategy – not doing it

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Speaking of the Salmon-Challis and its forest supervisor, I was also reminded by this article of his novel approach to revising the Salmon and Challis national forest plans, which could mean not revising them.  Now it appears that the regional forester (Farnsworth) is actually considering that option.

Given the choice between full revision, amended revision or no revision of the two plans, commissioners Butts and Smith said full revision is the least desirable option.

 

Butts and Smith said they’re concerned a full revision won’t prioritize local stakeholders’ perspectives or address their specific needs. Fearing pressure from environmental groups who don’t live near the forest using lawsuits against the Forest Service to control what happens to it, the commissioners said they worry the most about losing multi-use land stewardship in the forest to wilderness and scenic river designations.

 

Reaffirming the revision process is about getting the national forest in line with current policies, not the Forest Service caving to legal pressures, Farnsworth told the commissioners she will look at the letters they have sent before rendering a decision. “I’ll make this call, one way or another, because we have to stop the bantering,” Farnsworth said.

My understanding is that the Forest Service is not given that choice, and there is only one call that can be made, and it is misleading the public to suggest otherwise.  NFMA requires that forest plans be revised at least every 15 years.  These forests should have revised their plans by 2002.  Congress has given the Forest Service extensions through appropriations riders as long as they are making reasonable progress.  There is no legal option of amending plans instead of revising them, or just keeping them in place forever.  Even further delay can’t be justified at this point, especially where these are the kinds of reasons.  While the requirement for plan revision doesn’t necessarily mean a plan has to be changed, it does require going through the revision process to readopt the existing plan, with full public involvement.  Maybe that’s what they have in mind …

What Do You Think About?: This Forest Supervisor’s Wildfire Comments

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This article in High Country News seemed to fit with Sharon’s post yesterday, but also seemed worth a separate post.

In the view of this forest supervisor, the solution is more landscape-scale decisions (which we have discussed a few times, like here), and more categorical exclusions (which we have discussed a few times, like here.)  But his deliberate effort to cut corners with the public is getting pushback from all sides.

All sides agreed that more details were needed to assess the impacts and justifications for the proposals. They wanted to know where projects would occur, and how and when they would be carried out. In short, they felt like Mark was going about this the wrong way.

After receiving that community feedback — and seeing other national forests get sued for similar landscape-level categorical exclusions — Mark put a pause on the proposals. “Some people are uncomfortable, and I knew that coming in,” he said. “But I guarantee you get another (fire) that’s threatening this ridge with a smoke cloud that’s 30,000 feet in the air, I know you’re going to be uncomfortable.”

(To me, that feels a little bit like extortion.)

And then there is this – what I think of as the “bake sale” approach to forest management:

As part of the process, the Forest Service often offers large, fire-resistant trees — which are more valuable because of their size and tight grain — as an incentive for companies to bid on the thinning that, in many cases, is a sale’s true objective. “Something’s got to carry the load,” Mark said. “Otherwise, you’re not going to be able to sell the sale and you won’t get anything done.”

I suppose there is authority somewhere for the Forest Service to cut down trees because they are the most valuable, but I don’t think I’ve ever seen a forest plan say this (and it’s sure contrary to pursuing ecological integrity).

Some interesting commentary on competing collaboration efforts in the article, too.

 

 

Budd Falen: Standing Up for Rural Constituents

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Salon

Karen Budd Falen was the Deputy Solicitor for Parks and Wildlife in the Department of Interior for three years, and she left with the rest of the Trump administration, capping off a notable career in opposing public lands.  She appears to come by that view honestly, being raised on a Wyoming ranch and representing ranchers as an attorney (including the Bundys).  She reflects in this short piece on her legacy of changing the Endangered Species Act regulations and National Environmental a Policy Act regulations to promote more “local control” (as well as with the Land and Water Conservation Fund).

I take issue with her arguments in both cases that the laws the regulations implement (ESA and NEPA) were intended to allow social and economic considerations to play the role she has provided for them.  These statutes are both clearly aimed at the “natural environment,” and not local “custom and culture.”  Remarkably, she appears to admit that, “the listing of a species should be based only on science,” but then she has made it harder to do that with various changes in the ESA implementing regulations (which go beyond those she describes here in relation to critical habitat).

My fundamental disagreement with her and those she represents concerns this statement (and I suspect it may be a reason for differing opinions on this blog):

In my view, local elected officials should have more sway on issues directly affecting them than someone from midtown New York who has never faced the realities of making a living from the land.

The major gloss-over here is that endangered wildlife and federal lands don’t belong more to local people and their elected officials.  Her view that local interests should have more influence is not supported by either of these laws, and it is not the view held by most of the people that these resources do belong to.  Should the Biden administration not reverse these regulations, courts will have another opportunity to slap down the misinformation from her, and organizations she has worked for like the Mountain States Legal Foundation, that has led to ideas like “county supremacy” limiting how national forests are managed.

(Here is a little background from just before Trump decided she could not get confirmed as BLM Director.)

Forest plans and legislation – Blackfoot-Clearwater wilderness proposal

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Blackfoot-Clearwater Stewardship Project map, Feb. 2018.

Wilderness designation has always been controversial in Montana.  No new wilderness areas have been established by Congress since I believe 1977, and unlike most states there has never been statewide wilderness legislation.  The Blackfoot-Clearwater proposal to designate 90,000 acres on the Lolo National Forest was locally developed and has been pending in Congress for several years.  Its development included addressing issues related to motorized and mechanized recreation that we have been discussing here, and designates areas for both.  This article provides some background, and includes a link to the written statement from the Forest Service regarding the proposed legislation.

The statement relates to forest planning in a couple of ways.  First, the Forest Service uses the Lolo National Forest forest plan as the foundation for its position on the legislation.

We also have concerns about implementing section 202, which establishes the Spread Mountain Recreation Area for the apparent purpose of enhancing mountain biking opportunities. The Lolo’s current land and resource management plan identifies this area as recommended wilderness. This area is characterized generally by steep topography, sensitive soils, and contains sensitive fish and wildlife habitat. Trail 166 is the main access into this area. This trail is not maintained, not passable by riders on horseback, and becomes difficult to locate after the first mile. While we acknowledge the interest in expanding opportunities for mountain biking on the Lolo, we are concerned that the site designated for the Spread Mountain Recreation Area is not well-suited for this use, and that this designation could create conflicts with wildlife and other recreation uses.

Two of the three wilderness designations in Title III are consistent with the recommendations made in the existing Lolo National Forest land and resource management plan. The third designation (West Fork Clearwater) was not recommended in the management plan to be Wilderness, it was allocated to be managed to optimize recovery of the Grizzly Bear.

One might argue that the 1986 forest plan is outdated, and recent local efforts should be given greater consideration.  However, those efforts have not been through any formal public process, so I commend the Forest Service for using its forest plan.  I’m not sure whether NFMA’s consistency requirement applies to taking positions on legislation, but it is probably the right place to start.  The proposal is also interesting in its legislative designation of two “recreation areas,” taking these decisions out of the forest planning process.

The Lolo is scheduled to begin its forest plan revision process in 2023, and the Forest Service is also concerned about the interaction between the revision process and this legislation.  It sounds like mostly a budgetary concern:

Our primary concerns pertain to Title II. Section 203 which would require the Forest Service to prepare a National Environmental Policy Act analysis for any collaboratively developed proposal to improve motorized and non-motorized recreational trail opportunities within the Ranger District within three years of receipt of the proposal… If passed in its current form, this bill could require recreation use allocation planning for site-specific portions of the Seeley Lake Ranger District ahead of the broader plan revision process, which would forestall the Lolo’s ability to broadly inform land use allocations across the forest through the plan revision process… If enacted, the explicit timeframes currently contained in the bill could result in prioritizing the analysis of a collaboratively developed proposal to expand the trail system over other emergent work.

But they might also be suggesting that the site-specific recreation planning would benefit from waiting until the forest plan is revised.  (Or maybe they just don’t like deadlines.)

It’s National Forest Week – so let’s think about forest planning for tribal areas

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But we all knew that, right?  Here’s the National Forest Foundation link.

But here’s the rest of the story:

It’s National Forest Week, and members of the Crow Tribe are celebrating recognition of a special place in Montana.

In the U.S. Forest Service’s final draft of its Custer Gallatin National Forest plan released last week, the agency recognized the cultural and spiritual significance of the Crazy Mountains, designating it an “Area of Tribal Interest.”

The Custer Gallatin plan recognizes only the southern part of the Crazies. The Forest Service did not include the cultural significance of the northern part in its Helena-Lewis and Clark National Forest plan from May.

Ideally, Doyle (a Crow tribal member) said, the tribe would like to see both sections recognized, but he noted that the region in the Custer Gallatin National Forest is most significant.

Why?  If there was one thing that everyone involved in developing planning regulations agreed on, it was that management direction should not change just because of an administrative boundary with a different staff member in charge.  And now this.  Two adjacent forest plan revisions, on roughly the same schedule, and different ideas about what?  Maybe there’s some legitimate resource reasons, but here’s the extent of the plan components for this area (and they don’t require much):

Desired Conditions (BC-DC-TRIBAL)

01 The Crazy Mountains embody a tribal cultural landscape significant to ongoing traditional cultural practices of the Crow Tribe.

02 Research, education, and interpretation of the Crazy Mountain tribal cultural landscape provides public benefits and enhances the understanding and appreciation of Crazy Mountain’s natural environment, precontact, contact, and Crow traditional cultural values.

Goals (BC-GO-TRIBAL)

01 The Custer Gallatin National Forest protects and honors Crow treaty obligations, sacred land and traditional use in the Crazy Mountains through continued consultation with the Crow Tribe.

This is not the only “area of tribal interest” on the Custer-Gallatin.  The Helena-Lewis and Clark plan has plan components for “areas of tribal importance,” but does not identify them (other than the Badger-Two Medicine area).  The plan dedicates one descriptive sentence to the tribal history in the Crazy Mountains.  So, again, how does the Forest Service explain the line they have drawn here?

(Related to the consistency idea, there was a lot of debate about whether plan decisions should be made by forest supervisors or regional foresters.  The Forest Service went with the former (I was told so the Chief wouldn’t be involved in objections), and this is the kind of problem they created.)