The Smokey Wire : National Forest News and Views

I promise that this will be the last post on the BLM Proposed Rule for awhile. 

Here’s a comment letter I’m submitting.. feel free to use any parts you’d like.  Apologies for the formatting. 
Today is the last day for comments.

Here’s the link to post your comment.

Comment Letter- Proposed BLM Rule

I am (give your background). Here are my comments:

1. Process

This Proposed Rule would work better as an ANPR than a proposal.  Similar to the Forest Service ANPR related to mature and old-growth, this effort works better as an information-gathering exercise than a rule-making.

Public

1. Coordination with States has been lacking. States are key to the success of conservation.
2. Public meetings in restricted areas
3. Supposed outreach via field managers not transparent
4. Tribal consultation not clear.

Agencies

1. Other federal agencies need to weight in, OIRA review recommended. DOE and USDA have key intersecting responsibilities.

NEPA

1. This effort requires more than a CatEx, preferably an EIS, when the alternatives are more fully fleshed out.

1. Terms That Should Be Clarified and Harmonized With Partner Agencies

Definitions From the Proposed Rule:

Conservation means maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions.

Protection is the act or process of conservation by preserving the existence of resources while keeping resources safe from degradation, damage, or destruction.

Restoration means the process or act of conservation by assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed.

If conservation means only protecting and restoring, that does not fit with definitions such as that of USDA Natural Resource Conservation Service.

“The protection, preservation, management, or restoration of natural environments and the ecological communities that inhabit them. Conservation is generally held to include the management of human use of natural resources for current public benefit and sustainable social and economic utilization.”

Now, recreation is one of the traditional multiple uses, so might not be included in the new term of conservation.  Conceivably a trail used by humans on foot, horseback, bicycles, e-bikes, or motorized vehicles would not fit into the new term “conservation”.

Intactness

  The claim is made that areas can be identified and “protected”- although it is not clear from what they are to be protected; since they are currently unprotected and are qualifying as intact.  Presumably from oil and gas, and not from renewable energy, strategic minerals, new recreation projects, invasive species, wildfires, nor climate change.  Intactness is a word that is not used by the Forest Service and would be new to them and to other partners.  Plus the idea of mapping it would be more work for BLM employees.  If it’s intact now, it must have been adequately “protected” in the past.

It seems to me also that the BLM should clarify its priorities by identifying renewable and strategic minerals sites before any intactness analysis is done. Otherwise employees will be analyzing at potential cross-purposes and industry partners may be wasting their time and delaying the energy transition.

1. III Conservation Leases

The case has not been made for conservation leases over current BLM authorities.  The Center for American Progress and Public Lands Foundation comment letters have excellent examples of existing mitigation agreements.  Perhaps a better approach would be, instead of complicating this for all concerned, industry and the BLM, would be to disseminate training on “Best Mitigation Agreement Practices”. I hope that in any future proposals, the need would be made clear.

There is also a need for flexibility in these kinds of mitigation agreements.  As in one comment letter, what if the mitigation habitat area burns up two years into the lease?  A more flexible mitigation agreement (possibly with RAC or other public input) would allow changes at any time as needs change. Keeping the mitigation efforts as a benefit to the local environment and to local communities (with their input) would also be desirable.

1. Land Health

My experience in the Forest Service is that seldom do new abstractions and analyses lead to any difference in the disagreements that individuals have over what should be done on Federal lands.  It does divert time and funding from doing restoration and protection work on the ground; for both employees and partners. The idea that more analysis will lead to “wise decisions” is fairly demeaning to those civil servants who are making decisions today.  If there is a need for more information, then a logical step would be coordinate with partner agencies to avoid duplication and obtain better information across landscapes.  The effort to get more information does not need to be in regulation.

1. Capacity, Capacity, Capacity

Finally, as climate changes stresses systems and as people respond to changing conditions in the environment and economically, such as the shortage of housing for employees and housing costs, we should be careful about imposing new requirements on the already-overburdened employees. Congress is asking them to expedite renewables and strategic minerals, suppress wildfires and develop fuel breaks and wildfire mitigation, and handle expanding recreation growth and impacts with current under staffing and the difficulty of hiring more employees.  These are the things they are already required to do.  It would be preferable to engage employees and others in an effort, instead , to ask “what could be taken off your plate?” “what could be streamlined?” “what could be coordinated with the Forest Service and/or other Interior Agencies to reduce the total workload?”

Thank you for the opportunity to comment, please feel free to contact me if you have questions.

In looking around the comment letters, I ran across one by the Center for American Progress.  Now this is a “big deal” political think tank, and one, who in the past I don’t remember engaging in our federal lands issues. They are notably anti-oil and gas and pro- 30 x 30 (e.g photo above; presumably roads for oil and gas on ridgetops, bad, roads for wind turbines on ridgetops, good.   So when I said “to not involve state elected leaders, someone big must be involved” CAP sounds like a likely candidate.  CAP claims to be nonpartisan, but isn’t, and clearly has a seat at the table (perhaps an entire sectional sofa).

CAP’s tagline for this article is:

A proposed tool included in the Bureau of Land Management’s Public Lands Rule would allow more efficient and responsible deployment of clean energy projects while benefiting U.S. lands, waters, and wildlife.

…………………

With this proposal, the BLM is giving clean energy and other project developers another way to meet their mitigation requirements and minimize natural resource conflicts. At the same time, the agency is unlocking a powerful tool to help restore and conserve U.S. public lands that perennially suffer from inadequate federal funding.

…………………

As proposed, these leases are essentially legal agreements that would allow a private entity or Tribe to conduct compensatory mitigation on BLM-managed public lands over a period of time that matches the time frame of anticipated project impacts.

Of course, project impacts for wind and solar are forever, unlike oil and gas projects.  This is a very neat solution, as it could give legal rights for much greater chunks of land off the footprint of the installations themselves to corporate (or other entities) essentially forever.  It seems to me a bit like “privatization of public lands” which used to be a bad thing, but..

Since the desires of some ENGO’s are for “permanent protections”, this makes a lot of sense for them. I’m not so sure that it makes sense for the developers, though, who need to do the improvement projects and also pay for the leases.  But heck, renewables are getting an 80% rate cut in another proposed rule, so maybe they’ll have plenty of money for leases.  And not so sure it’s a great deal for BLM employees nor for the rest of us who have another not yet litigated complexity set down in the morass of existing regulations.

The CAP article has two very nice examples of how the BLM does mitigation on federal land without apparently needing conservation leasing.

In June 2022, the BLM and California authorities announced the first restoration project that puts this agreement into action. To address impacts of solar development occurring on private lands, state-required mitigation is funding ecosystem restoration on 158,000 acres in the California Desert Conservation Area located in Kern County.¹⁴ Restoration projects, including rehabilitation of unauthorized trails, will help improve habitat for the desert tortoise, Mohave ground squirrel, burrowing owl, and American badger, while also improving overall ecosystem health and function. Subsequently, another solar company, Avantus, announced an agreement to offset impacts of its development through a 215,000-acre mitigation project on BLM lands in this same region.¹⁵

In other states, the BLM has identified specific degraded public lands that are good candidates for mitigation projects to offset anticipated impacts from solar energy projects in designated leasing areas, known as solar energy zones. For example, the agency’s regional mitigation strategies for solar energy zones in Arizona¹⁶ and Nevada¹⁷ identify certain designated “areas of critical environmental concern” on BLM lands as ideal places for mitigation projects to offset anticipated impacts of solar development on nearby public lands. Such projects could become good options for conservation leasing agreements in the future.

Like the letter from the Public Lands Foundation, I must ask, if the BLM can already do on-federal land mitigation without leases, why does it need leases?  After all, we’re supposed to interested in “saving companies time and resources” see bullet below. and hopefully BLM folks and the rest of us as well.   I’ve definitely got a vibe of hornswoggling here.

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I thought that this was a cheerful thought by CAP but .. not very realistic.  I could be wrong.. time will tell.  Reduced concerns are not alleviated concerns, and unalleviated concerns in the right hands lead to litigation.

• Better natural resource outcomes reduce the risk of conflict and litigation. More effectively offsetting a project’s unavoidable impacts should also benefit the developers and timelines of those projects. Responsible companies want to reduce the net impacts of their projects, but more effective offsets can also reduce concerns from local conservationists, community members, and other land users, saving companies time and resources and allowing them to avoid conflicts and potentially even litigation.

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CAP also doesn’t want to wait for RMP’s.. because they’re… too slow, and possibly, involve people who disagree with them. Maybe the Biden Admin should propose a new efficient process for RMPs instead?

BLM should finalize a strengthened Public Lands Rule that provides additional clarity and direction to ensure agency staff implement the vision outlined in the proposal efficiently and
transparently. Recognizing that the process for updating RMPs has historically been slow and that this pace doesn’t match the urgent need to conserve vulnerable public resources, BLM should also evaluate opportunities to accelerate action to achieve the Public Lands Rule’s goals.
This should include considering mechanisms to act promptly on ACEC proposals and to move as rapidly as possible to identify priority intact landscapes and priority ecosystem resilience areas for conservation.

It’s OK to want what you want to happen on federal lands. And politicals notably want to reward their friends, punish their enemies, and keep both those in place long after they’ve been elected.

I just wish there were a way to do it that didn’t involve abstraction word-salads and a lot more work for the beleaguered BLM employees, partners, and industries; and possibly litigation for the next ten years at least.  And one that was built collaboratively with States, who, after all,  themselves have a great deal of responsibility for conservation.  As per the Sage Grouse efforts.

Let’s take a look at the Montana Governor’s comments.  I’d like to have a beer with the folks who wrote this letter.

Some of my fave quotes..

The Rule’s otiose terminology and subjective criteria are breeding grounds for agency overreach.

And, if I may add, a full-employment program for legal professionals in the fields of natural resources and environment? Feature or bug?

Finally, to alleviate existing “confusion” in 43 C.F.R. § 1610.7-2, the Rule would replace the term “value” with the phrase “resources, values, systems, processes, or hazards.” Id. at 19593. The Rule’s rationale is head-scratching, given that the “confusing” term continues on in the new rule’s phrasing, just accompanied by more “confusing” words, like “systems” and “processes.” Id. at 19596 (see, 43 C.F.R. § 1610.7-2(c)(l)).

I also liked the idea of flipping FLPMA. “In addition to flipping FLPMA’s multiple use paradigm on its head.”

This sounds like it could have been from a Forest Service MOG ANPR comment:

I would ask that the BLM refocus its efforts away from drafting definitions and instead work to address degraded forest conditions so that Montana will have stands left to classify into old-growth.

It confuses me that the Biden Admin touts the BIL and IRA when they send out money (e.g. “Delivering Results from President Biden’s Bipartisan Infrastructure Law), but also propose regulations that tie up employees’ and partners’ time in abstractions and analysis-  instead of doing the work on the ground that the Bipartisan Congress funded in those bills.  Someone really important must want this stuff.

Anyway.. there’s much legal stuff and legal history in the letter, which I don’t have the background to comment on.

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While I’m not necessarily a fan of large planning processes, people understand them and randomly (or is it arbitrary and capricious?) placing decisions outside them, and changing management based on a nomination without any public process  seems like a bad idea.

Involve the Public Before You Change Management pre ACEC Designation

The Rule eliminates this public notice and comment requirement for ACEC identification on the basis that the “general public involvement” processes associated with land use planning are sufficient. 88 Fed. Reg. at 19593. However, the Rule creates new provisions that allow for ACEC designation outside the land use planning process and, by extension, the “general public involvement” processes associated therewith. Id. at 19596-19597 (see, 43 C.F.R. § 1610.7-2(c)(3)) (“If nominations are received outside the planning process, interim management may be evaluated, considered, and implemented to protect relevant and important values until the BLM completes a planning process to determine whether to designate the area as an ACEC, in conformance with the current Resource Management Plan.”) In other words, upon nomination (which, problematically, can come from any entity), this Rule allows the BLM to treat an area as an ACEC without any formal land use planning, stakeholder engagement, or public process.
Aside from being legally rife, such an impenetrable, dictatorial procedure is just bad policy.

Not Appropriate for CatX

The import of this Rule requires the BLM to put its best foot forward with regard to NEPA, and the agency’s attempts to institute a rule of this magnitude, sans public participation and analysis, is disingenuous at best. The unforthcoming nature of such a move is only underscored by the fact that the BLM has undertaken NEPA review on other priority rulemakings, specifically the agency’s revision of its grazing regulations (43 C.F.R. Part 4100). While that rulemaking similarly deals with “administrative, financial, legal, technical, or procedural” regulations, the agency has waived CatEx in that rulemaking, recognizing that future decision-making under that regulatory paradigm may affect the quality of the human environment.

Extensions of Conservation Leases Semi-Automatic

The special consideration afforded “conservation leases” is pervasive throughout the Rule. For example, 43 C.F.R. § 6102.4(a)(3)(iii) removes an authorizing officer’s discretion in the issuance of conservation lease extensions, mandating that such extensions “shall” issue “if necessary to serve the purpose for which the lease was first issued.” 88 Fed. Reg. at 19600. Such singular treatment is not supported by statute.

Who remembers the 1995 Conservation Rule?

This Rule is nothing more than a revival of the 1995 conservation use rule, already stricken by the courts as unlawful. While the code section may have changed, this Rule would still provide an avenue for the issuance of “conservation” authorizations to the exclusion of public lands grazing. This Rule should be withdrawn as it suffers from the same fatal flaws as the 1995 prov1s1on.

How Were States and Tribes Involved in the Development of the Proposed Rule?

The final sentence says:

I ask that the BLM reconsider its inconsistent position here, withdraw the rule, and engage with States and stakeholders in a transparent and inclusive NEPA process they deserve.

The tone of these comments is a little cranky.  I guess I would be kind of cranky too,  if I were a Gov and our State had not been consulted on a federal regulation that fundamentally affects the lives of my constituents.

I’m tracking how different groups are agreeing on certain points about the Rule. Please send any letters you run across or link them below. It’s kind of mind-boggling to search the comment website for names of groups.

Anyway, a TSW reader pointed me to the PEER comment letter, the press release was noted in this outlet.

Some groups that disagree on ends agree that this is not a particularly desirable means. And there are similar concerns about conservation leasing and selling carbon credits.

Some groups tend to agree that the BLM already has what it needs to do conservation work, and this may be an unnecessary addition from the employee capacity perspective. Conceivably, employee capacity and morale are still of concern, even when the potential source of the issue is a D administration.

Now PEER clearly sees “drilling, mining, logging, and grazing” as the bad guys.

So to them, one problem is that the Proposed Rule

• Would allow oil and mining interests to lease vacant land as an “offset” against adverse climate and other damage they are wreaking on their original holdings.

But don’t wind and solar also “wreak damage” to habitat? Especially considering their (much) larger footprint.

And some mining (strategic minerals) is actually good for climate, right?  The old order of good guys and bad guys seems to be breaking down before our eyes.

And “Giving BLM more regulatory discretion to issue more leases may, especially under future administrations, simply trigger a new corporate land grab, leaving little to ensure they are managed to provide real conservation value or public benefit.”

So in a sense they share my and others’ concerns about NGOs and corporations sitting around the table and divvying up the federal estate. Maybe it’s  also about trust in the sense that setting up something new to help one Admin’s buddies could be used by the next Admin’s buddies.

And while I think “BLM is doing a pretty good job but this is just extra paperwork that confuses everyone and is unlikely to help” PEER thinks “BLM is doing a really bad job and this will make more work for employees and be unlikely to help.”

PEER wrote a very thoughtful comment letter and here’s part of the section on capacity. I recommend reading the whole section if you are interested, in the interest of space I left parts out.

I. BLM Lacks the Capacity to Implement the Proposed Rule
We believe BLM lacks the staff and resources to implement the proposed rule. Specifically, we are concerned that without a significant addition of resources and the development of staff expertise, BLM will be unable to:
1. Conduct meaningful and scientifically defensible land health assessments;
2. Accurately assess the environmental impacts of land use decisions, including those in the conservation and restoration leases proposed in this rule; and,
3. Adequately engage the public in its decision-making processes.
Therefore, we recommend that BLM conduct a workforce analysis to specifically address the staffing and resource needs to implement this rule and share the information publicly. This will help BLM prioritize the agency’s conservation programs based on those that will deliver the most cost-effective results.
Without addressing workforce issues and agency priorities, we are concerned that:

1. Existing programs will suffer;
2. BLM will be unable to provide adequate oversight for the innovative programs in this proposed rule: and,
3. BLM will outsource important government functions to contractors and non-governmental organizations resulting in further capture of BLM by special interest groups that have an interest in obtaining leases.

Understaffing is already a genuine issue at BLM. …

They also agree with me on offsets, although they expressed it much better.  Again, this is only a part, so those interested should read the whole section.

III. The Rule Should Expressly Prohibit the Use of Conservation Leases to Generate Carbon Offset Credits

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We also question whether offsets generated on BLM lands can be real, additional, permanent, and verifiable. One problem with carbon offsets on BLM lands is that BLM should already be managing these lands for conservation purposes if they are not being used for grazing or resource extraction, such as mining. The problems of additionality would be significant on the land management by BLM. If BLM decides to allow the generation of carbon credits on the lands it manages, BLM must first propose a separate rulemaking that specifically addresses the legal, environmental and compliance issues associated with the offset program it is proposing.

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This concept (conservation leasing) certainly makes for strange bedfellows.  Let’s start with our libertarian friends at PERC.

PERC believes that creating markets for conservation on public lands would allow resources to be managed for their highest-valued uses, whether that means consumption or conservation. Open markets that give everyone a seat at the table would be a cooperative way to make trade-offs in land use decisions and reduce conflict through voluntary exchange.

To my mind, managing for the public is not exactly the same as the richest people sitting around a table in a bidding war.  I wouldn’t be comfortable with goals for federal lands being determined by the highest bidder, for example. And that’s not the way I read the federal lands statutes; but we can talk about the legal arguments in a later post.  I think it’s safe to say that when the Biden Admin and PERC are on the same side..and many current public land users are not.. it deserves a deeper dive.

Not to pick on these folks, as a possible example, but they do have a nice website.

An Admin can put their fingers on the scale of protectionism, renewable energy, strategic minerals or whatever.. Right now, the Biden Admin is doing exactly that with Monumentizing and reducing fees (by 80%) for renewable energy. Both of which are likely to last beyond their term. It’s not really clear to me why they need another mechanism.. so let’s look at what they say in the Proposed Reg.

Section 6102.4(a)(3) would specify that conservation leases may be issued either for “restoration or land enhancement” or “mitigation.” The proposed rule would only authorize issuance of conservation leases for ecosystem protection where that protection is related to a restoration or land enhancement project or to support mitigation for a particular action. For example, as part of authorizing a renewable energy project on public lands, the BLM and the project proponent may agree to compensate for loss of wildlife habitat by restoring or enhancing other habitat areas. A conservation lease could be used to protect those areas. Similarly, the BLM may require compensatory mitigation for residual impacts that cannot be avoided. A conservation lease could be used to put compensatory mitigation dollars to work restoring compromised landscapes.

At the Denver public meeting, they told us that conservation leasing was requested by “industry partners.” Now oil and gas folks seem to be doing fine with the current processes, so what partners exactly? Perhaps the wind and solar folks. Based on the BLM’s fact sheet

Carrying out compensatory mitigation on public lands has faced many challenges due to questions about durability – whether mitigation will be effective for the duration of the impacts resulting from the associated public land use. Conservation leases provide a reliable approach to facilitate development, responding to feedback from state, local, and industry partners, by ensuring that compensatory mitigation carried out on public lands would be a viable option.

So I’m imagining a sage grouse habitat improvement project as mitigation for some renewable energy development.  Who exactly is concerned about the duration and why?  It’s BLM’s to manage the mitigation, so if something would interfere with it, wouldn’t it make more sense for BLM to stop the interfering thing/people that to issue a lease to a third party?

Apparently folks of all kinds (States, feds, NGO’s, locals) are, in fact,  restoring things without leases with rather large chunks of change from the feds.
For example, today in the Center for Western Priorities monthly:

The Biden administration announced plans to direct $161 million into ecosystem restoration projects on public lands as part of President Joe Biden’s Investing in America agenda, which funds job creation in industries that boost U.S. competitiveness, rebuild infrastructure, strengthen supply chains, and help build a clean energy economy. The Bureau of Land Management will use the funds on 21 “restoration landscapes” across 11 Western states, for ecosystem restoration in the sagebrush-steppe, wetland meadows, and watersheds on former industrial timberlands. These landscapes were chosen based on ecological need as well as importance to local communities.

Let’s turn our attention to mitigation. Apparently right now the BLM does require mitigation in places and has processes to require it.

In the FAQs here the question “Has BLM Ever Used Conservation Leasing Before?”

While the name conservation leasing is new, the tool and the goals it achieves are not. In the Desert Renewable Energy Conservation Plan, the BLM allows use of its National Conservation Lands to satisfy California Department of Fish and Wildlife compensatory mitigation requirements.

This is a bit puzzling. If the BLM can already do it, why does it need a new “tool”?

We can think about mitigation in terms of who and what.

Now, to understand better, let’s go back to the Public Lands Foundation letter and check and see what BLM already has done:.

Other examples of conservation instruments being used to accomplish mitigation and restoration work include Pathfinder Ranches in Wyoming; Department of Transportation in South Dakota; Kuukpik Corporation in Alaska; and Las Cienegas Conservation Area in Arizona. There are four circumstances in which we think it makes sense for the Bureau to consider using such conservation “instruments”:
1. Where an entity is interested in leasing the public lands to sell mitigation credits generated on the public lands,
2. Where an entity is interested in investing mitigation funds to restore degraded areas on the public lands,
3. Where an entity is interested in investing non-mitigation funds in restoring degraded areas on the public lands, and
4. Where an entity is interested in investing funds to help manage a specific tract of public land by, for example, designing and implementing a systematic monitoring program for a specific tract of land

I’m not a fan of leasing federal lands for entities to sell mitigation credits.  That’s just too weird to think about.. when we think of carbon credits we think of the difference between how acres would have been managed versus how they will now be managed- that’s the difference that’s the credit.  If you change the management from the RMP, then..that’s not the RMP. Plus plants have a habit of dying in fires or due to other causes that all the paperwork in the world can’t influence.  .

As to 2, 3 and 4, I don’t see that a lease is needed to invest money or restore degraded areas. The only reason would be if you thought that other people doing things might mess your restoration work up, and so you want to keep them out. The proposed reg kind of says that..

A conservation lease could be used to protect those areas.

But you can’t keep out people with existing rights (some would say that’s how they got degraded in the first place…) then who are you keeping out? Other renewable energy folks? I guess recreation is not a valid existing right, though.  Hence, perhaps, the clause about recreation.

So people want to restore or are required to mitigate.  According to this proposed reg, instead of just restoring or mitigating, they pay a tidy sum to the US Treasury for the lease, and on top of that get an opportunity to restore or mitigate. It sounds a bit like “privatizing federal lands”? Way beyond the actual footprint of any developed area.

I’m not saying that conservation leasing might not be a good idea… but I don’t think the case made so far is very compelling.  Imagine that you’re a wind energy company and need to make up some sage grouse habitat.  Can’t there simply be an agreement to do whatever on a particular other piece of land to increase habitat?  What about paying a private entity for habitat as is currently being done?  What does getting a lease do for you, other than costing you the lease fees and causing more work for BLM employees? I’m scratching my head a bit on this one.

I’ve been thinking about the BLM Public Lands Rule, and why the coverage in the press has been so superficial. Stepping way back, I’ve noticed this dynamic.

A D Administration proposes something for federal lands that may have outsize impacts on parts of the West.  Republican elected officials from those areas respond negatively.   Discussion in media focuses on this as a political dispute (generally Red folks bad, Blue folks good, and hey, did we mention the Bundys?).    All the people in the middle who have concerns don’t seem to be included in the coverage. So those of us who want to dig into it deeper, say for our comment letter, don’t really get to hear from any of the other people who have concerns. Again, as I posted earlier, I’m looking for an example of coverage in which the reporter digs deeper on this topic.

Again, so far the only outlier on this I’ve seen  has been Sammy Roth’s coverage of the solar industry’s comments, with posts about it here and here. Sammy is fairly unique among reporters as he’s been following the tension between environmental protection and build-out of renewable energy infrastructure on federal lands for some time.

But today let’s turn our attention to another comment letter, that of the Public Lands Foundation, an organization of mostly current and former BLM employees.  Their letter is very thoughtful and quite comprehensive- they even answered each specific question.  They have a unique perspective based on their experiences of work that is already going on, and how a new regulation could contribute to, confuse or possibly hamper existing efforts. I recommend reading the entire letter, but will try to highlight some of their points here. Note: the folks at PLF have not reviewed my interpretation of their letter nor my choice of what to highlight. Their conservation leasing/mitigation comments will be in another post.

If I were to summarize their letter, I’d say:

1. BLM works with a variety of partners, within a very complex context of statutes that everyone more or less understands. Why mess around with terminology and confuse the public?

As a final but important point, when engaging in such complex collaborative efforts, it is important that all parties understand and agree on the terms being used to describe conservation goals and outcomes. In a few places, changes in terminology might be considered. For example, Section 6102 of the Proposed Rule describes and relies upon the conservation values which the FLPMA identifies for protection (Section 102(a)(8)). Then the Proposed Rule introduces scientific terms such as “intactness” and “resilience” that, while common and consistent with scientific methods and measures for assessing and protecting those same values, may cause confusion because they are not in general public use in relation to public lands. It may be helpful to:

o Replace “ecosystem resilience” with “achieving sustainability,” a concept long accepted as an outcome or measure of resilience and landscape health. With this shift in wording, the Proposed Rule would be substantively similar. It would state achieving sustainability requires that “ecosystems… have the capacity to maintain and regain their fundamental structure, processes, and function when altered by environmental stressors such as drought, wildfire, nonnative invasive species, insects, and other disturbances.”

o Similarly, the “intactness” concept might be replaced with “proper functioning” terminology which represents the state of physical processes that include interactions among hydrology, vegetation, and geomorphology (soils and landform). The use of more broadly understood terminology might avoid some unnecessary arguments over semantics already in evidence in media coverage of the Proposed Rule

Sharon’s take:

Since BLM is not an island, but rather part of a complex ecosystem of Tribes, federal and state agencies, local folks, visitors, permittees and NGOs of all shapes, sizes, and inclinations, and wants to be a good partner (presumably) they should try to make things simpler rather than adding more abstractions that complexify things with the public. Someone more cynical than I might harken to these words of George Orwell:

The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.

I’ve been thinking of Orwell quite a bit while considering this rule, since it started with the concept of “non-use is use.”  Actually,  I think the declared aim.. to put a permanent finger on the scale for non-use, is pretty clear.  But the additional  language around “you current (and future potential) users have nothing to worry about” appears to be a word-swamp conducive to  mistrust-breeding.

2. ACECs- this is a paperwork reduction concern, but capacity is important...

The ACEC section would also benefit from more clarity concerning treatment of proposals in the NEPA portion of the planning process. The requirement that planning documents include one alternative “that analyzes in detail all proposed ACECs” should be modified to state that BLM would have an alternative that “lists all ACEC proposals and identifies that they will be analyzed in detail or discloses the rationale why any proposal is not carried forward for further analysis.” Such a change would protect the principle “to provide for informed decision-making on the tradeoffs associated with ACEC designation.” Most proposals would be analyzed while the time and expense of carrying clearly unreasonable proposals through the analysis process, could be avoided. With disclosure, BLM could also be held accountable for any determination not to carry a proposal forward.

3. They already have lots of data to make “wise decisions” and if they need more, should work with partners to get it.

Recognize that extensive regional data sets and assessments already exist. The BLM should build on this existing work. Where these data sets and assessments need to be augmented with more fine-grained, local information, the BLM should work with its partners to pull together the required information as efficiently as possible. In many instances, the Ecological Site Inventories of the 1980s were conducted by crews that operated across Districts or regions within a state. Current available technology, including remote sensing, can also greatly expedite this work.

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Given the way the Proposed Rule is written, it would be easy to assume that the identification of intact ecosystems, the identification of restoration priorities, and the application of land health fundamentals are discrete “activities” and that these activities can or should be conducted field office by field office. From PLF’s perspective, both of these assumptions would be wrong. The identification of resilient ecosystems and restoration priorities are interconnected activities as is the application of the land health fundamentals, especially at larger landscape or geographic scales. Given the fact that multiple spatial scales are involved, it would be counterproductive to approach all parts of this work field office by field office. Significant improvements in the efficiency, quality and usefulness of these activities can be achieved by designing processes that involve multiple levels of the agency and cooperating with other agencies as this work is conducted. Integrating and focusing these inventories, assessments and planning activities will better facilitate implementation of the rule, while also enabling the BLM to make more efficient use of its limited resources.

 

Sharon’s take: It doesn’t take a regulation to collect more info.  Some people think collecting more info will make decisions go their way more. I don’t know how it works in practice.. it certainly makes more work for employees, and maybe some contracting opportunities for favored info sources.

4. Potential for More Public Involvement in Implementation

The BLM treat implementation steps as another opportunity for further public engagement. This approach would give the agency access to a broad set of practical ideas, based on the forty-plus years of experience since conservation standards were established in FLPMA, that could work well in various regions, states, and localities. The same approach might also help identify what has not worked and steps to avoid unnecessary controversy. There is precedent. In the late 1980’s, on the advice of the Solicitor’s Office, the BLM provided the public with an opportunity to comment on the “draft” land use planning manuals. In 2015 the BLM also provided the public with an opportunity to comment on the “draft” Instruction Memoranda implementing the Greater Sage-grouse land use plan amendments.

Sharon’s take:

If the proposal goes forward, as seems likely, this looks like a potential peace-making gesture, and could help make up for the relatively restricted current public involvement compared to the FS MOG ANPR. Being gracious in winning is a thing, except perhaps not in politics.

5. Capacity Issues.

Sharon’s take: The PLF is not the only source to bring this up.  Folks at our Denver public meeting did as well.  Much of this might be extra work for employees, who are currently hard-pressed to do what is currently required by law. Not to speak of funding that might be used to conduct restoration activities directly instead of more analysis and developing more complex permitting processes.  I bet that each Field Office has a list of restoration needs to be met..  plus more solar and wind permitting, plus recreation and wildfire mitigation projects.. why not just shovel a bunch of that IRA and BIL $ directly into a jointly prioritized- with the public- list of activities?

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Next stop: Digging into Conservation Leases and Mitigation