Draft Omnibus Bill: North Fork Flathead protections in, Tester’s mandated logging bill out
by: Matthew Koehler
Wed Dec 08, 2010 at 12:57:22 PM MST
The folks at Politico have obtained a draft copy of the “Omnibus Public Land Management Act of 2010“, which is currently being circulated by Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-N.M.).
A quick search of the 327 page draft turned up good news for clean water and wildlife habitat for Montana’s North Fork of the Flathead region:
Title XXXI – North Fork Flathead River Watershed Protection (page 115-116)
“Subject to valid existing rights, the eligible Federal land is withdrawn from – 1) all forms of location, entry, and patent under the mining laws: and 2) disposition under all laws relating to mineral leasing and geothermal leasing.
Perhaps equally important is what’s missing from the draft Public Lands Omnibus Bill: Senator Tester’s “Forest Jobs and Recreation Act.” Since my views regarding the FJRA have been well-stated over the past two years here at LiTW and elsewhere, I won’t bore anyone – or annoy anyone – with too many additional thoughts on the matter, except to repeat this.
I’d encourage Wilderness supporters in Montana to consider the fact that if Senator Tester and the collaborators (Montana Wilderness Association, National Wildlife Federation, Montana Trout Unlimited and few timber mill owners) would have accepted the US Senate Energy and Natural Resources Committee’s draft revisions back in May 2010, Montanans would have seen about 660,000 acres of new Wilderness designations – and some important watershed restoration provisions – included in this draft Omnibus bill.
However, what transpired was actually what we predicted all along. The bull-headed insistence from Senator Tester, MWA, NWF, Montana TU and the timber mills that any Montana Wilderness bill must include mandated logging of over a minimum of 100,000 acres cost all of us the opportunity to see over 660,000 acres of world-class wildands in Montana designated as Wilderness.
Hopefully in the next session of Congress, Senator Tester and his collaborators won’t hold Montana Wilderness protection hostage in order to get their wish for mandated logging. Then again, all indications are that Senator Tester will simply reintroduce FJRA as is.
Ironically, Senator Tester’s bill might find a warmer reception in the new Congress, where Republican members might actually like the idea of politicians by-passing science and the established open, inclusive and transparent processes which currently govern the Forest Service and other public lands agencies, in favor of mandating logging, drilling, mining and grazing on federal public lands in their own states. Stay tuned….
Next week the Forest Service plans to explode some trees. With dynamite. In a wilderness. To protect hikers.
The 150 large, dead or dying hemlocks lie along the Joyce Kilmer trail that snakes through the 17,394-acre Joyce Kilmer-Slickrock Wilderness in North Carolina. The trees are victims of the hemlock woolly adelgid, a non-native insect. The Forest Service proposes to blast the tops out of the trees, lessening their chance of falling on someone, while preserving the appearance that the trees were snapped by wind and not cut by saw.
The Wilderness Act requires the Forest Service to preserve wilderness character. The Act also bans certain uses (e.g., roads, commercial enterprises, motor vehicles, motorized equipment or motorboats, landing of aircraft, mechanical transport, and structures) “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area).”
Removing trees does not fall within any of the prohibitions for which the “emergencies involving health and safety” apply. But, even if the safety allowance was relevant, i.e., tree detonation is one of the prohibited uses that has an emergency safety allowance, the case law would not support the agency’s view that this is the kind of emergency Congress had in mind. In a safety case involving structures (and thus relevant to the emergency safety allowance), the court quoted from the National Park Service’s environmental assessment:
The Wilderness Act and current NPS Management Policies encourage wilderness users to prepare for, and encounter the wilderness on its own terms, striving to provide “primitive and unconfined” recreation opportunities, complete with the risks that arise from wildlife, weather conditions, etc. NPS wilderness management policies do not support the provision of facilities in wilderness specifically to eliminate these risks.
Olympic Park Assocs. v. Mainella, 2005 U.S. Dist. LEXIS 44230 (W.D. Wash. July 29, 2005).
Tree falling is precisely the kind of danger that inheres in primitive recreation; it is a risk that arises from an act of Nature.
What makes the Forest Service decision to blow up these trees particularly ironic is that the agency took precisely the opposite position in litigation brought by hikers injured in this same wilderness when a “huge rotten tree” fell on them. In that case, the Forest Service argued that “the wilderness objectives of ‘solitude, physical and mental challenge, spirit of adventure and self-reliance,’ mean ‘that any trees — including rotten ones — should not be tampered with whatsoever.'” Wright v. United States, 868 F. Supp. 930, 931 (E.D. Tenn. 1994). The plaintiffs’ tort case for damages was dismissed on other grounds.
Why has the Forest Service reversed course 180 degrees to conclude that dead trees must now be dynamited to make the wilderness safe for hikers?
The former Solicitor of the Interior, John Leshy, says there exists in wilderness politics a tension between idealism and pragmatism. This tension is evident in the 1964 Wilderness Act and subsequent wilderness laws, for each is generally the product of some negotiation and compromise. Though too simplistic, this split is helpful to understanding the past, present, and possible future of wilderness politics.
At one end of the continuum are idealists who rightfully worry that too many deals are being made in order to secure wilderness areas that are too compromised and too small, among other deficiencies. Their concerns are heightened when economic development, in whatever guise, is being traded for wilderness designation. At the other end are pragmatists who rightfully point out that wilderness has always been about compromise and that concessions have to be made in order to move the agenda forward. It is a debate that has been going on for some time. Instead of Yankees v. Red Sox, think of George Nickas of Wilderness Watch versus Doug Scott of Campaign for America’s Wilderness (no pay-per-view for the latter).
Compromise has always been part and parcel of wilderness politics. This most often entailed the size of an area, the drawing of lines on maps, the releasing of lands to multiple use management, the use of alternative protected land designations, and fights over non-conforming uses and special provisions related to such things as grazing, access, and water management.
Important to point out is the significance of precedent in these historic debates. Special provisions are often replicated in wilderness laws. Once used, provisions related to such matters as water rights and buffer areas are regularly stamped onto future wilderness bills as a matter of course.
This history helps explain why some groups are so concerned about incorporating more explicit economic development provisions into wilderness legislation. These concerns were sharpened with passage of Nevada wilderness bills beginning in 2002 that controversially included various federal land sales and other economic development goodies in exchange for wilderness.
And these concerns continue to manifest in recent debates. Take, for example, the proposed Boulder-White Clouds wilderness bill—the Central Idaho Economic Development and Recreation Act. This bill includes wilderness designation, land conveyances to Idaho counties and a city, and Congressional appropriations designed to assist adjacent counties. (And at this point, all of these sweeteners have yet to win over key political representatives in Idaho or the county government-focused Tea Party in the state).
To no surprise, wilderness legislation is a product of its time and political context. So many of the wilderness battles of the past pitted traditional gladiators against one another; wilderness advocates versus the timber or mining industries for example. That was a relatively simple dichotomy.
Also relatively simple was the fact that many wilderness battles of the past were about protecting rocks and ice—alpine and subalpine environments having relatively less economic value and pre-existing uses than lower-elevation lands. Many current wilderness proposals, however, now aim to protect lower elevation landscapes—and thus landscapes with more historic uses and entrenched interests. I suspect that the issue of political compromise and wilderness will become only more pronounced in the future because of the character of the lands being debated. (The recent designation of the Owyhee Canyonlands comes to mind for example).
So What’s Changed? What is newsworthy, perhaps, is to consider how the contemporary political context is changing the wilderness debate…again. Let me offer a few examples:
First, consider the widespread interest in forest restoration. At a general level, the forest restoration agenda has the potential of rearranging traditional political alliances. Restoration has certainly shaped a large part of Senator Tester’s controversial wilderness bill (see related posts on our blog). Its proponents are seeking a balance between roadless area protection, various forest restoration goals, and a steadier and more predictable flow of timber. Restoration is changing the terms of the debate in other places as well, with various “place-based” groups drawing new lines on maps, including areas to be prioritized for wilderness, restoration, and more active forest management.
Or take motorized recreation. This constituency is important for obvious reasons, and related concessions are made in several wilderness bills. But motorized recreation has changed the wilderness debate in other ways as well. There seem to be differences of opinion as to how great of threat motorized recreation is to future wilderness designation. Some people believe that there is an urgency to designating lands as wilderness because of the growing threat of motorized recreation. Some fear that motorized interests will increasingly use roadless areas and other protected lands and in doing so will establish historic use and diminish the characteristics that make these lands suitable for wilderness designation. This perspective believes that we don’t have the time or luxury of waiting for the perfect large-scale unblemished wilderness law. Those stars are unlikely to align, they say, so we must get on with more politically feasible protection strategies.
Energy law and policy provides my last example. This sprawling field will likely touch upon all of our federal land systems, wilderness included. Take, for example, the proposed California Desert Protection Act of 2010 (click and read only if you have nothing to do for the next two days). This gargantuan bill, in a nutshell (it wouldn’t fit), would designate wilderness areas, national monuments, and other protected lands and thus take roughly 1 million acres of the Mohave desert off-limits to renewable energy development. But 119 pages later, that same bill encourages solar power production on other federal lands, including those managed by the BLM, USFS, and Defense Department. Worked into the legislation is a hodgepodge of various provisions designed to expedite renewable energy—including its permitting and transmission—in California and other Western states.
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To conclude, I don’t want to overstate this trend because there are lots of old-fashioned wilderness bills and recently passed wilderness laws that are straightforward and uncomplicated. The last Omnibus Conservation Law passed in 2009 includes several examples. So there is nothing preordained about more compromise and economic development in future wilderness designation.
Nonetheless, issues like restoration, motorized recreation, and energy development, among others, will continue to change the way in which wilderness politics is debated in the future. They also bring to the fore a number of important questions.
For now, consider two. First, is wilderness law the appropriate vehicle to address related (and not-so-related) conservation issues such as energy development and forest restoration? And second, is the split between idealists and pragmatists a healthy one, a tension to be balanced? Or are these viewpoints working at cross-purposes to the disadvantage of wilderness and conservation?
Thursday there was this curious op-ed in the New York Times about the management of wilderness in general and the presence of trail signs in particular.
First, I don’t believe much of what I see in the press without independent verification, and certainly not op-ed pages, but I wonder if it’s true about the signs in Boundary Waters or other wilderness areas.
Does anyone out there know? A brief internet search did not yield any substantiation of this claim.
The below comments are only relevant if Mr. Stroll’s assertions are correct.
Second, having seen signs in wilderness (and been always glad to see them) I wondered how my personal experience squared with the above observation (if true). I found this policy. I wonder if this is just a variation in interpretation of “minimal.”
Third, if that’s the case, then I wonder if the policy should be more consistent.. or whether there is an opportunity for the public to weigh in on the development of these policies.
The Salmon-Challis forest supervisor, Frank Guzman, is coming under attack from the Idaho Conservation League and Governor Butch Otter for up-holding the letter of the Wilderness Act. Guzman denied a public television station’s request to film a documentary in a wilderness area. Guzman explained to the Idaho press that the Wilderness Act bars commercial enterprises; the filming is a commercial enterprise; and, thus, the filming is not permitted.
ICL and Otter argue that public television is non-commercial; a claim readily dismissed by anyone who has ever listened to public television’s sponsorship credits. More problematic still is ICL’s argument that the television station’s record of supporting pro-environment programming justifies the wilderness filming. Content-based speech regulation is a slippery slope that ICL should know better than to be encouraging.
Supervisor Guzman is no great friend of wilderness or forest preservation. He’s likely tickled that public television gave him a chance to offend free speech purists, environmentalists, and wilderness advocates who downplay the Wilderness Act’s restrictions as they seek to add wilderness areas to the system. Nonetheless, I’m happy to commend Guzman for obeying the law.
