Secretary Salazar: Lost in the Wilderness New Secretarial Order provides another formal designation; “Wild Lands,” to lock the public out of public lands.
One day before Christmas Eve, Interior Secretary Ken Salazar announced he had given the Wilderness activists one of the best Christmas presents they could have asked for: A Secretarial Order purporting to mandate new Bureau of Land Management (BLM) Wilderness inventories. The Order seems to suggest that for the BLM, Wilderness is now top priority.
The Order: What it does Secretarial Order No. 3310, titled "Protecting Wilderness Characteristics on Lands Managed by the Bureau of Land Management" signed by Interior Secretary Ken Salazar on December 22, 2010 sets out a broad mandate that will attempt to elevate Wilderness over all other multiple use management on BLM lands. The order is available here.
This Order is as complex and convoluted as many regulations and "environmental" laws. If you are wondering why something like this is adopted with a whisk of a pen in the governmental doldrums of Christmas without any public input, you are not alone. Even Al Gore knew better, when he tried to change agency policy or create new law.
We are not going to attempt a definitive analysis at this time. It is important to know what the Order says. It appears likely this Order will be the source of interest, confusion, and, likely, litigation. Our effort at damage control cannot start too early.
Following is a concise summary of what appears to be some of the key elements of the Order.
Sec 1 - Purpose- mostly a general summary, but notably references BLM's "obligation to maintain wilderness resource inventories on a regular and continuing basis...." Mark that phrase, you'll see it in a protest or complaint when the anti-access forces complain about the sufficiency of the inventory in your riding area.
Sec 3 - Background- unrestrained preaching to the Wilderness faithful, updated to include phrases like "carbon sequestration." And a new iteration of the ridiculous mantra that Wilderness is some magical designation that maximizes all things potentially good about any land - that such lands exemplify an "open and productive natural state" which should make it a "high priority" to protect.
Sec 4 - Policy- This is where it gets tricky. A professor's dream of an analytical checklist, that in many instances potentially changing established law or agency practice or even creating new law. The Section starts off by claiming Federal Land Policy and Management Act (FLPMA) Section 201 is the legal foundation for what follows. We'll note this section does refer to a continuing inventory, but for "all public lands and their resource and other values...." The statute also commands that "the preparation and maintenance of such inventory or the identification of such areas shall not, of itself, change or prevent change of the management or use of public lands." What follows appears to be a MENSA-level exercise to maneuver around that last phrase. Lets try to break it down (our numbering added for organization):
(1) "BLM shall maintain a current inventory of land under its jurisdiction and identify within that inventory lands with wilderness characteristics that are (a) outside of the areas designated as Wilderness Study Areas and that are pending before Congress or" (b) already designated Wilderness;
(2) "BLM shall describe such inventoried lands as "Lands with Wilderness Characteristics";
(3) BLM shall "share this information with the public, and integrate this information into its land management decisions."
(4) "All BLM offices shall protect these inventoried wilderness characteristics (WC) when undertaking land use planning and when making project-level decisions by (a) avoiding impairment of WC (b) unless the BLM determines that impairment of WC is appropriate....(c) Where BLM concludes authorization of uses that may impair WC is appropriate (i) BLM shall document the reasons for its determination and (ii) consider measures to minimize impacts on those WC. (d) Where BLM concludes that protection of WC is appropriate, the BLM shall designate these lands as "Wild Lands" through land use planning."
(5) "BLM should develop recommendations, with public involvement, regarding possible Congressional delegation of lands" as Wilderness;
(6) "BLM shall ensure that all lands with WC (not already Wilderness or WSAs pending) are managed in accordance with this Order and applicable law."
Price Field Office - Approved Resource Management Plan (RMP) Map R-11 Non-WSA Land with Wilderness Characteristics Approved RMP
Any of you reading this far know enough about the minds of agency bureaucrats and activist lawyers to spot multiple new excuses for agency paralysis and/or protest points in that language. In short, it appears a classic "protect as quasi-Wilderness, announce and do nothing - authorize placement of a new water trough, perform detailed analysis, support with multi-volume NEPA document, and weather possible storm of controversy, appeals, litigation." Put yourself in the shoes of a salaried government employee attracted to the prospect of working for an agency with offices in places like Vernal and Tonopah and tell me which path looks easier to you.
Sec. 5 - Implementation- Essentially creates the tools that will carry out the above-described new direction of "inventory-announce-protect-impair only if appropriate and minimized." The details are largely to be contained in new Manual or Handbook guidance issued "within 60 days of this Order...." With a few "poison pills" thrown in, like the statement that for lands not fully inventoried/analyzed "BLM shall preserve its discretion to protect WC through subsequent land use planning, unless BLM determines otherwise as set forth below." Long-time supporters might conclude that language sounds strangely like the Montana Wilderness Study Act that has bred numerous lawsuits as a result of its two-pronged "maintain WC and potential for inclusion Wilderness system" requirement. Finally, in subsection (3)(e), the Order directs BLM to submit a report to the Secretary within six (6) months outlining BLM's plan for complying with the Order. That noise was your local trail project going "thunk" at the bottom of your BLM office's list of priorities.
The Manual: Salazar's plan in action As noted, the Order instructs the agency to develop a Manual and/or Handbook within 60 days that "defines and clarifies" the process for inventory and management of Lands with Wilderness Characteristics (LWC). The Order was conveniently accompanied by a draft Wilderness Inventory Manual. The Department of Interior, in a noteworthy act of efficiency in governance, has ordered its subservient agency, BLM, to prepare "policy guidance" while simultaneously offering a helpful suggestion as to the specific content that said guidance might contain. The draft Manual is available here.
The draft Manual gives BLM State Directors direction to fully fund and implement the policy and in addition direction to review decisions made under the new policy. It directs BLM Field Office Managers to maintain a Wilderness inventory on a "continuing basis" regardless of how many past Wilderness inventories have been completed. It also directs each Field Office to update its Wilderness inventory whenever it updates its Land Use Plans (Resource Management Plan, or "RMP"), acquires additional lands or whenever a project has the potential to impair Wilderness characteristics. It directs managers to update the Wilderness inventory when "[t]he public or the BLM identifies wilderness characteristics as an issue during the scoping in a National Environmental Policy Act analysis."
The draft Manual defines the Wilderness Inventory Procedures that guide how BLM employees determine if lands posses wilderness characteristics, and what criteria to use in making key decisions in that review. It also includes definitions of key terms as well as sample forms and documentation that will be included in the "permanent documentation file" for each "LWC" or Wild Lands area.
The process will result in the identification of "Lands with Wilderness Characteristics" (LWC) that will be incorporated into all land use decision making. The decision to designate them as "Wild Lands," and focus management on Wilderness protection, will be made via the land use planning process.
The Order leaves some discretion to the State Director and to Field Offices, who may elect to go with the existing Land Use Plan, assuming it contains a Wilderness inventory and review, or they may opt to conduct a separate, additional review.
The Manual errs on the side of duplicate inventories, allowing or directing Wilderness review in every step of the planning process. The Manual allows "new information" to be submitted to the agency when a project is proposed and mandates that the agency take more than just a cursory look at any information that is submitted. There can be no doubt that this will be used by Wilderness activists who will insist their "new information" be acted upon, regardless of how many times the lands have been reviewed for Wilderness characteristics.
There is no justification, no mandate in FLPMA and no process requirement for engaging in an ongoing wilderness inventory and review. Once the “603 Process” was completed, the agency is done. The question of which lands should be included in the National Wilderness Preservation System is now between Congress and the American People. Other than the management of existing WSAs, the BLM should have no part in this issue. To do so is a tragic loss of management resources.
There are a couple of details in the draft Manual that are worth noting here. One of the most worrisome is in the route evaluation form included in the Manual. The "Route Analysis Form" has a section for the BLM staff to list the purpose of the route and mentions livestock uses, mining, camping, utilities and administrative purposes, but does not mention any recreational use whatsoever. It also asks if the route has a road right-of-way associated with it. This is dangerous because the BLM refuses to acknowledge asserted rights-of-ways and will only acknowledge rights-of-ways that have been formally adjudicated by a court in a specific Quiet Title action.
Additional Analysis: Executive Summary Environmental fundraisers have been outwardly disappointed with the Obama Administration's record on public lands and particularly on the issue of Wilderness designation. There can be no doubt that this new Secretarial Order gives a powerful tool to litigious activist groups. It will be used in the attempt to stop any and all projects or proposals the radical environmental groups don't like, based on merely a claim that the project might, perhaps, in some way, diminish "wilderness characteristics."
The "Order" is the latest in a seemingly endless parade of quasi-designations associated with Wilderness that began under the Clinton Administration by former Interior Secretary Bruce Babbitt. Until Babbitt, the BLM had recognized Congress had specifically prohibited it from conducting a never-ending, ongoing Wilderness inventory. Babbitt changed all that, but Salazar's Order raises the bar significantly, not only establishing a mandate for an ongoing Wilderness inventory but raising protection of Wilderness characteristics over all other multiple use mandates for lands designated as "Wild Lands," and providing a method to, on an ongoing basis, formally recommend to Congress lands be designated Wilderness.
The Manual includes specific guidance and instruction for BLM employees to use when conducting the Wilderness review. In the guidance, the Manual continues to "dumb down" the definition of Wilderness characteristics and ensures that any lands that "appear to have" even the slightest remote character qualify as "Lands with Wilderness Characteristics," and could ultimately qualify as "Wild Lands." It also departs from previous criteria to allow "supplemental values" to be included as Wilderness characteristics. Supplemental are defined as "[e]cological, geological, or other features of scientific, educational, scenic or historical value."
It is important to note that when Congress was establishing the mission of the BLM, the people living in the Western US, where most BLM lands lies, weren't too happy with the prospect of a never-ending Wilderness inventory and management scheme. Even in the late 1970s the term "Wilderness creep" had been coined to describe how Recommended Wilderness grows ever larger on US Forest Service lands. Legislators from states with large areas of BLM lands wanted to specifically preclude the agency from doing the same thing on those lands. Thus was born Section 603 in the Federal Land Policy and Management Act (FLPMA). Section 603 was inserted specifically to prevent what Secretary Salazar is now doing.
Congress gave very specific instructions to the BLM regarding Wilderness. Those instructions are contained in Section 603 of FLPMA. Congress instructed the agency to inventory all of their lands, identify which were definitely not of wilderness quality and then to begin an intensive inventory and analysis to determine which of the remaining lands would be recommended for inclusion into the National Wilderness Preservation System.
Section 603 instructs the BLM to conduct a Wilderness inventory and to make formal recommendations on which, if any, of its lands should be included in the National Wilderness Preservation System. Those lands were to be formally designated Wilderness Study Areas (WSA) and only Congress could remove that designation. Congress was very specific that the inventory should take place one time and one time only. After the recommendations were made, BLM was to manage the WSAs allowing existing uses, but not to the extent that those uses prevent Congress from designating the lands Wilderness.
Salazar is claiming authority for the new policy comes from Section 201 of FLPMA, which instructs the BLM to keep an inventory of the various multiple uses existing on public lands. Naturally, Wilderness is one of those uses, as per Section 603 of the Act. It is important to note, however, that in Section 201 Congress did not authorize an inventory for a single resource use, rather, it mandated that ALL resources be inventoried. Salazar's Order twists the mention of Wilderness as one of the multiple use resources in order to construct a policy that supersedes the Congressional mandate under Section 603.
It is an affront to the intent of Congress to use Section 201 as a justification for an ongoing Wilderness inventory process. Section 201 directs the Secretary to:
"prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern."
It is clear from this language that ALL resource and other values on the public lands were to be part of a single inventory. There is no authorization for the agency to engage in inventories for a small segment (Wilderness) of only part of the spectrum of "resources and other values" (recreation). It is clear from the parenthetical phrase inserted in this section by Congress that the intent is to include the broadest range of resources and values considered and listed specifically two among the many which were to be included.
Some Important History In 1996, then Secretary Bruce Babbitt initiated a re-inventory of BLM lands in Utah and attempted to nearly double the amount of WSAs. That process was challenged in federal court by the State of Utah and several Utah Counties. Years later, the BLM, under Interior Secretary Gale Norton, agreed that Section 603 precluded the agency from formally establishing WSAs outside of the process mandated in Section 603. The Utah lawsuit was suspended upon the signing of a settlement agreement, sometimes referred to "Norton-Leavitt Settlement." BLM then suspended its effort to designate new WSAs in Utah.
What the BLM did then was to simply change the name of the new WSAs it wanted to designate and continued on its merry way. Under guidance issued for its Land Use Planning process, it simply substituted Wilderness Study Area with "Lands with Wilderness Characteristics." The existing guidance (prior to the Salazar Order) directs BLM land managers to continue to conduct Wilderness inventories, but does so through the land use planning process, and although uses the term LWC, does not formally establish a "designation."
Recent BLM Resource Management Plans (RMP) finalized in Utah, Arizona and other states have incorporated the Wilderness inventory process into new RMPs. Management of the LWC lands in the new RMP focuses on protecting Wilderness character, which has resulted in the highly ironic situation where LWC lands are actually managed much more restrictively than the original WSAs.
It is important to note, given the spin the media is placing on Salazar's Order, that all of this occurred under the Bush Administration. It is also important to note that some counties in Utah are challenging the LWC areas as an unlawful "de facto Wilderness" management, although those challenges have not yet reached the federal courts.
Bottom Line: Salazar's order doubles down on the Bush Administration planning guidance, elevating it to a Secretarial Order, and mandating that Wilderness inventory be ongoing. The draft Manual dumbs down the definition of Wilderness so the maximum acreage will qualify as having "wilderness characteristics." The Order mandates Wilderness analysis occur during any site-specific NEPA (National Environmental Policy Act) process takes place within LWC lands. It also appears to mandate a Wilderness review for lands that may be identified as potential LWC lands in a future RMP. Finally, the Order mandates a Wilderness review and analysis on ANY project if a Wilderness activist group, or a BLM staff member, identifies Wilderness as a "significant issue" in the NEPA process.
Eyes Wide Shut: Ignoring "Non Conforming" Recreation (mountain bike and OHV use) From the perspective of a person who chooses a recreational modality that is not allowed in Wilderness, you are probably wondering how Salazar's Manual treats "non-confirming" recreational uses, e.g. mountain bike and OHV recreation. It is unfortunate for us that such inconveniences are ignored so that the maximum acreage will be considered as having wilderness characteristics. Consideration of "non-conforming" uses will be left to the land use planning process.
This situation will place an additional burden on mountain bike and OHV recreationists and upon organizations like BRC. Special attention to the land use planning process will be required and it is likely that non-conforming recreational users will be placed into the position of challenging decisions made based on an inventory that purposefully ignored our activities.
The Gift: Dumbing down the definition of wilderness Salazar's media materials are full of what we view as cynical references to public involvement and the BLM giving deference to the concerns of state and local governments. The reality is totally the opposite.
The policy itself, and the detailed Manual that purports to implement the policy, will not have any public involvement whatsoever. Salazar claims the public will be involved, but the involvement comes after all of the key decisions are made.
The process, completed in 1991, was a open and public process, with opportunity to review and comment on every detail of BLM's inventory. All stakeholders (including Wilderness Advocacy Groups) had the opportunity to comment as well as protest and appeal the final decision.
There is one exception, of course, in that Salazar's Order mandates BLM employees give a "hard look" at any proposal any Wilderness activist group sends their way!
Naturally, the lack of public involvement means the agency had adopted the Wilderness Activist playbook almost verbatim.
It wasn't always this way. There was a time when the Department of Interior and the BLM both embraced open public involvement in anything involving the controversial subject of Wilderness. In fact, the original Wilderness Inventory Handbook not only acknowledged the importance of public involvement when inventorying for Wilderness characteristics, the BLM went out of their way to include the concerns of the widest range of public opinion.
The original Wilderness Inventory Handbook (The Wilderness Inventory Handbook formulated for the inventory pursuant to FLPMA § 603) on page 5 notes that:
"The wilderness inventory process requires full public involvement." This public involvement "is particularly important because the criteria in the wilderness inventory process call for judgments that can be highly subjective. In recognition of that fact, the BLM wilderness inventory process will be conducted as openly as possible with the broadest opportunity for input from all concerned, in order to arrive at a sound decision."
Unlike Salazar's Manual, the original Wilderness Inventory Handbook (WIH) understood that, unlike inventories for plant and animal species, or oil and gas potential, qualities that make up "wilderness characteristics" are extremely subjective.
Salazar's policy assumes that because the authority for all this comes from FLPMA Section 201, and therefore important public involvement provisions do not apply, is clearly wrong. Numerous sections of FLPMA and NEPA require full public involvement and participation of State, Local and Tribal officials, in the inventory process.
One serious concern with Salazar's Order has to do with the lack of public involvement in the development of wilderness inventory criteria. Salazar's reference to public involvement are cynical and misleading. The public is allowed to comment only after inventory is complete.
Dumbing Down Wilderness: A long history Dumbing down the Congressional intent of the Wilderness Act of 1964 has a long history. Congressional intent was diluted almost immediately after the Act became law, when federal agencies developed "Organic Act Directives," (OAD) guidance to be used when implementing the Act's mandate for a Wilderness inventory. The OAD misapplied the Wilderness Act by giving emphasis to appearing natural as opposed to being natural, which was the prerequisite condition in the Wilderness Act. In determining naturalness and other qualities associated with Wilderness, even the FLPMA adopted the criteria of "appearing," as opposed to "being."
The Wilderness Act defined Naturalness as lands that generally appear to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; the OAD direct that: "Major imprints of man which are substantially noticeable should not be carried forward as part of an inventory unit receiving further Wilderness review."
Salazar's inventory criteria dumbs down the definition of Naturalness even further:
a. Affected Primarily by the Forces of Nature. Determine if the area appears to be in a natural condition.
(1) It must appear to have been affected primarily by the forces of nature, and any work of human beings must be substantially unnoticeable. Examples of human-made features that may be considered substantially unnoticeable in certain cases are: trails, trail signs, bridges, fire towers, fire breaks, fire pre-suppression facilities, pit toilets, fisheries enhancement facilities, fire rings, hitching posts, snow gauges, water quantity and quality measuring devices, research monitoring markers and devices, radio repeater sites, air quality monitoring devices, fencing, spring developments, overgrown and barely visible two-track ways, and small reservoirs.
b. Describing Human Impacts. Document significant human impacts within the area. If several minor impacts exist, summarize their cumulative effect on the area's degree of apparent naturalness.
(1) The review of human impacts will assess the presence or absence of apparent naturalness (i.e., do the works of humans appear to be substantially unnoticeable to the average visitor?). There is an important difference between an area's natural integrity and its apparent naturalness as explained below.
(a) Natural integrity refers to the presence or absence of ecosystems that are relatively unaffected by modern human activities.
(b) Apparent naturalness refers to whether or not an area looks natural to the average visitor who is not familiar with the biological composition of natural ecosystems versus human-affected ecosystems.
(2) Caution should be used in assessing the effect of relatively minor human impacts on naturalness. Some human works are acceptable so long as they are substantially unnoticeable. Avoid an overly strict approach to assessing naturalness. For example, the presence of a water trough is a relatively minor human impact on naturalness, and may be considered substantially unnoticeable.
The subjective problems with determining "naturalness" pale beside those the BLM inventory procedures create for determining whether an area has the required "outstanding opportunities for solitude or a primitive and unconfined type of recreation" as the Wilderness Act requires.
By its nature, the determination of "outstanding" requires some type of comparison. The WIH defines the term "outstanding" as "standing out among others of its kind; conspicuous; prominent; superior to others of its kind; distinguished; excellent."
Yet Salazar's Manual document specifically prohibits comparing areas, or even portions of the same area:
Each review unit must be assessed on its own merits as to whether an outstanding opportunity exists; there must be no comparison among units. It is not permissible to use any type of rating system or scale--whether numerical, alphabetical, or qualitative (i.e., high-medium-low)--in making the assessment. Good judgment must be used in determining that outstanding opportunities either do or do not exist in each unit. This is a subjective determination and should be made only after a careful assessment of a unit.
So, in total contradiction of the clear intent of the Wilderness Act, which defines Wilderness as "an area of undeveloped federal land...which...has outstanding opportunities for solitude or a primitive and unconfined type of recreation," the BLM manuals specifically prohibit the comparisons which are the only way to determine if an area truly does offer outstanding opportunities!
The result: Intent of Congress in writing the Wilderness Act is tossed and entirely new subjective criteria, taken virtually verbatim from the Wilderness activists, ensures this policy will result in maximum acreage will qualify as having "wilderness characteristics.