W6: Federal Land Policy and Management Act
University of Arkansas
System Division of Agriculture NatAgLaw@uark.edu | (479) 575-7646
An Agricultural Law Research Article Residents at Risk: Wildlife and the Bureau of
Land Management’s Planning Process
by Kelly Nolen
Originally published in ENVIRONMENTAL LAW 26 ENVTL. L. 771 (1996)
www.NationalAgLawCenter.org
ARTICLES
RESIDENTS AT RISK: WILDLIFE AND THE BUREAU OF LAND MANAGEMENT'S PLANNING PROCESS
By KELLY NOLEN*
In the 1976 Federal Land Policy and Management Act (FLPMA), Congress attempted to usher in a new era ofpublic lands management. Congress hoped to reverse the past land management approach Of the Bureau of Land Man agement (BLM) , which historically favored consumptive interests, such as ranching and mining industries, over wildlife. To achieve this goal, Congress directed BLM to prepare comprehensive plans for the lands it oversees. AU resources, including wildlife, were to be given equal priority in the planning process. This Article evaluates BLM's implementation of FLPMA's mandate and concludes that the planning process has not yet resulted in equal consid eration for wildlife on the public lands.
I. INTRODUCTION •••••••..•..••••.' .......•••••..•.•....•............ 773 II. WILDLIFE AND THE PLANNING PROCESS •••..•......•.••........••... 778
A. Why Wildlife Is Important 778 B. Why the BLM Planning Process Is Important to Wildlife
Preservation 780 m. HISTORY OF PuBuc LANDS MANAGEMENT AND PLANNING •.•.....•••.. 783
A. Nature of BLM Lands 783 B. The Taylor Grazing Act 784 C. The Multiple Use Mandate 786 D. Pre-FLPMA Planning Process 788
1. Planning Under the CMU Act 788 2. The National Environmental Policy Act 789
IV. PuBUC LANDS MANAGEMENT AND PLANNING UNDER FLPMA •.••.•.... 793 A. Impetus for Public Lands Law Refonn 794
• Il...M. 1995, Northwestern School of Law of Lewis & Clark College; J.D. 1990, Univer sity of Texas School of Law; BA 1987, Rice University. Ms. Nolen is a former associate attorney with the Sierra Club Legal Defense Fund, and now practices law in Spokane, Wash ington. The author would like to thank Professor Michael Blumm for his comments and suggestions, and Professors Janet Neuman and Daniel Rohlf for reviewing earlier drafts of this Article.
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B. The FLPMA Planning Process 1. Statutory Requirements for Plan Content and
Preparation 795 2. BLM Planning Regulations and Guidance 797 3. Sujficiency of Incremental Planning 798
a. Decentralized Planning Process 799 b. Plan Substance 800 c. BLM's Nine-Step Planning Process 801
(1) Issue Identincation 801 (2) Planning Criteria 802 (3) Inventory Data and Information 802 (4) Management Situation 802 (5) Formulate Alternatives 804 (6) Evaluate Alternatives 805 (7) Select Preferred Alternative " .. '" 805 (8) Approving the RMP 806 (9) Evaluating the RMP 806
C. The Effect of the "Top Tier" on the Planning Process 806 1. The Endangered Species Act 807 2. The Sikes Act Extension 809 3. Public Rangelands Improvement Act 809 4. Fish and Wildlife 2000 810 5. Riparian-Wetland Initiativefor the 1990s 812
V. EFFECTS OF THE PLANNING PROCESS ON WILDLIFE 814 A. BLM Progress in Planning 814
1. RMP Completion : 815 2. Designation and Protection of ACECs 816
a. The Designation Process 817 b. Progress in ACEC Designation 818 c. Impacts of Designation on Wildlife and Habitat 819
B. Consideration of Wildlife and Habitat in the Planning Process-A Case Study 820 1. Background 821 2. Planning Issues and, Management Concerns 822 3. Alternative Land Use Plans 824 4. Comparison of Alternatives 824
a. Access to Public Lands 824 b. Areas of Critical Environmental Concern 825 c. Off-Highway Vehicles 826 d. Riparian Areas 827 e. Wildlife Habitat Management 828 f Energy and Minerals 830
5. The Final RMP 830 6. Conclusions 832
VI. OBSTACLES TO BALANCED CONSIDERATION OF WILDLIFE IN THE BLM PLANNING PROCESS •.•.•.......•.......•••.•.•.........•......... 832 A. Overly Broad Statutory and Regulatory Mandate 833 B. Planning Is Not Truly Comprehensive 834 C. Excessive Decentralization 835 D. Lack of Funding and Personnel 836 E. Historic Deference to Consumptive Users 836
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VII. SUGGESTIONS FOR CHANGE ...•••.•••••.••••••••••••••••••••••••••• 837 A. Amend FLPMA 837 B. Improve National Oversight 839 C. Increase Funding for BLM Planning and Wildlife Programs .. 839 D. Promote a New Vision 840
I. INTRODUCTION
We are talking about Bureau of Land Management lands. We are not talking about Forest Service. We are not talking about wilderness. . . . These are low production lands. These are not national parks. These are very low rainfall, low moisture content areas, so they are very unproductive.
-Senator Craig Thomas (R-Wyo.), introducing legislation to transfer Bureau of Land Management lands to the states. 1
How important to society is this species? What is the biological significance of the species? Is it the last of its kind? Will it provide a cure for a deadly disease?
-Senator Slade Gorton (R-Wash.), introducing legislation to weaken the Endangered Species Act2
Times are tough for wildlife on the public domain. It is now fashion able for elected officials to attack the nation's environmental and natural resources laws. Politicians speak of restoring balance, putting people back into the equation, and curbing federal agencies that have spun out of con troP The new Republican majority in Washington is backing its rhetoric with action. They have introduced a host of bills designed to accomplish these goals by dramatically weakening existing environmental and natural resources laws4 even though polls show that most Americans support cur rent levels of environmental regulation. 5
1 141 CONGo REC. S9913 (daily ed. July 13, 1995). 2 141 CONGo REC. S6339 (daily ed. May 9, 1995). 3 See, e.g., Young Maps Priorities As Natural Resource Chairman, Daily Envtl. Rep.
(BNA) No. 248, at D-13 (Dec. 30, 1994), available in WESTLAW, BNA-DEN. 4 For example, bills have been introduced that weaken the protections afforded by the
Endangered Species Act, S. 768, 104th Cong., 1st Sess. (1995) and H.R. 2275, 104th Cong., 1st Sess. (1995), transfer Bureau of Land Management lands to the states, S. 1031, 104th Congo 1st Sess. (1995), "reform" grazing practices on federal lands, S. 852, 104th Cong., 1st Sess. (1995) and H.R. 1713, 104th Cong., 1st Sess. (1995), and mandate the management of the country's largest national forest for the sole benefit of the timber industry, S. 1054, 104th Cong., 1st Sess. (1995). Legislation authorizing salvage logging with few environmental pro tections has already been enacted. Pub. L. No. 104-19, § 2001, 109 Stat. 194 (1995). Appropri ations and budget reconciliation bills for fiscal year 1996 also contain numerous substantive provisions that will, among other things, open the Arctic National Wildlife Refuge to oil drilling, dramatically limit the Environmental Protection Agency's ability to enforce environ mental laws, and cap the Bonneville Power Authority's obligation to spend funds to restore the Columbia Basin's salmon runs. H.R. 1977, 104th Cong., 1st Sess. (1995) (Department of Interior Appropriations Bill); H.R. 1814, 104th Cong., 1st Sess. (1995) (Environmental Protec tion Agency Appropriations Bill).
5 For example, a September 1995 nationwide poll conducted by Yankelovich Partners for llme/CNN found that only 29% of Americans supported reduced protection for endan gered species. Fifty-nine percent of Americans opposed expanded logging, mining, and
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In this political climate, both wildlife and the Bureau of Land Manage ment (BLM) have come under fire. The "wise use" movement, which bat tles both federal land ownership and environmentalists, has gained visibility and clout. 6 Some federal lawmakers have followed the wise use lead and proposed legislation that will gut the Endangered Species Act7 and transfer BLM lands to the states.8 According to the sponsors of these bills, the pendulum that historically swung toward development and ex ploitation of our public land resources has now swung completely the other way, and correction is necessary.9 Unfortunately for the wildlife liv ing on BLM lands, the pendulum actually never traveled far from the his toric orientation toward consumptive resource use. These residents of the public domain have not been adequately considered in BLM's land and resource planning process, and now face ever-increasing risks.
As reflected by Senator Craig Thomas's statement above, the approxi mately 270 million acres of land managed by BLMIO have often been called "the lands no one wanted. "11 BLM lands went unclaimed during the federal government's disposition of the public domain and unreserved by the gov ernment for any special purpose,12 and many viewed them as a vast arid wasteland of little use to anyone. 13 However, the public lands overseen by BLM are in fact incredibly diverse, encompassing grasslands, forests, high mountains, arctic tundra, and deserts. 14 Far from being unwanted, these lands are used today by numerous groups for many different purposes. Ranchers, hardrock miners, oil and gas companies, timber interests, and
ranching on public lands. Richard Lacayo, This Land Is Whose Land?, TIMF;, Oct. 23, 1995, at 70.
6 Andrea L. Hungerford, "Custom and Culture" Ordinances: Not a Wise Move for the Wise Use Movement, 8 TUL. ENVTL. L.J. 457, 458-59 (1995). The Wise Use movement had its roots in the Sagebrush Rebellion of the late 1970s, during which a number of western states passed laws claiming ownership of federal lands within their borders. See generally John Leshy, Unraveling the Sagebrush Rebellion, 14 U.C. DAVIS L. REV. 317 (1980). This strategy, which had no legal support, was unsuccessful and has faltered in recent years. See John Leshy, Natural Resources Policy in the Clinton Administration: A Mid-Course Evaluation from Inside, 25 ENVTL. L. 679, 682 (1995). However, the spirit of the Sagebrush rebels is now embodied in the "wise user's" attempts to weaken federal natural resources and environ mental laws.
7 16 U.S.C. §§ 1531-1544 (1994). 8 Endangered Species Reform Act of 1995, S. 6339, 104th Cong., 1st Sess. (1995); Lands
Administered by the Bureau of Land Management, Transfer, S. 1031, 104th Cong., 1st Sess. (1995).
9 See 141 CONGo REC. S6423 (daily ed. May 10, 1995) (statement of former Sen. Robert Packwood (R-Or.)).
10 U.S. DEP'T OF TIlE INTERIOR, PuBLIC LAND STATISTICS 6 (1993) [hereinafter PUBLIC LAND STATISTICS]. Lands managed by BLM are often referred to as the "public domain," or simply "public lands." Most BLM lands are in western states: Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. Id. at 5.
11 See DYAN ZAsLOWSKY, THESE AMERICAN LANDS 113 (1986). 12 See generally GEORGE CAMERON COGGINS ET AL., FEDERAL PuBLIC LAND AND RESOURCES
LAw 55-106 (3d ed. 1993). 13 ZASLOWSKY, supra note II, at 138. 14 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, PuBLIC REWARDS FROM PUB.
LIC LANDS (1995) [hereinafter PUBLIC REWARDS].
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recreational- users all seek their piece of the public lands pie and often disagree over the proper allocation of resources on BLM lands.
The wildlife residing on BLM lands form a user group whose interests have historically been ignored. Over three thousand species of mammals, birds, fish, reptiles, and amphibians depend on the public lands for their last strongholds of habitat. 15 At least 216 of these are listed as threatened or endangered species under the Endangered Species Act,16 with several hundred additional species being considered for listing. 17 Human activities on the public lands, including both consumptive and nonconsumptive uses, often disturb or destroy the habitat on which these species rely and leave future prospects for survival uncertain. 18 Because the best way to ensure healthy wildlife populations is to protect and restore prime habitat, species preservation requires effective land use planning and manage ment. 19 BLM's management of wildlife habitat on the public domain, which comprises approximately one-eighth of the land in the United States, clearly has a significant impact on the nation's wildlife. 2o
As a "multiple use" management agency, BLM must administer the public lands for the benefit of numerous values, including wildlife. 21 In developing and implementing land use plans, BLM must balance compet ing demands for both consumptive and nonconsumptive uses and arrive at a combination of uses that will best meet present and future public needs. 22 Observers have often criticized the manner in which BLM has carried out this difficult task. 23 Chief among these criticisms is that when BLM attempts to arrive at a balanced mix of uses, it gives greater weight
15 PUBUC LAND STATISTICS, supra note 10, at 37. 16 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, MANAGING THE NATION'S
PUBUC LANDS-ANNUAL REPORT OF THE DEPARTMENT OF THE INTERIOR'S BUREAU OF LAND MAN AGEMENT FISCAL YEAR 1992, at 7 (1993) [hereinafter 1992 BLM ANNUAL REPORT].
17 U.S. GEN. ACCOUNTING OFfiCE, PUBUC LAND MANAGEMENT-ATTENTION TO WILDUFE Is LiMITED 9 (1991) [hereinafter ATTENTION TO WILDUFE).
18 Human modification or destruction of habitat is the main cause of most extinctions. RICHARD B. PRIMACK, ESSENTIALS OF CONSERVATION BIOLOGY 3, 111-66 (1993).
19 See COGGINS ET ~., supra note 12, at 784 (quoting ALDO LEOPOLD, GAME MANAGEMENT (1933)).
20 Generally, federal agencies such as BLM are responsible for habitat management on federal lands, while states take responsibility for mllJlaging wildlife through such measures as regulating hunting and fishing practices on federal lands. See, e.g., Federal Land Policy and Management Act, 43 U.S.C. §§1701-1784, 1732(b) (1994) (FLPMA in no way diminishes .the states' responsibility and authority for management of fish and wildlife).
21Id. § 1702(c). 22Id. 23 See, e.g., U.S. GEN. ACCOUNTING OFF1CE, CHANGE IN APPROACH NEEDED TO IMPROVE THE
BUREAU OF LAND MANAGEMENT'S OVERSIGHT OF PuBUC LANDS (Apr. 11, 1989) (statement of James Duffus III, Director of Natural Resources Management Issues, U.S. Gen. Accounting Office, Testimony Before the Subcornrn. on National Parks and Public Lands of the House Cornrn. on Interior and Insular Affairs) [hereinafter CHANGE IN APPROACH NEEDED); NATIONAL WILDUFE FED'N, GRAZING TO EXTINCTION: ENDANGERED, THREATENED, AND CANDIDATE SPECIES IMPERILED BY LIvESTOCK GRAZING ON WESTERN PuaUC LANDS (1994) [hereinafter GRAZING TO EXTINCTION); PuBUC EMPLOYEES FOR ENVIRONMENTAL RESPONSmILITY, PUBUC TRUST BETRAYED: EMPLOYEE CRITIQUE OF BUREAU OF LAND MANAGEMENT RANGELAND MANAGEMENT (1994); Michael C. Blurnrn, Public Choice Theory and the Public Lands: Why Multiple Use Failed,
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to the demands of consumptive interests such as grazing and mining than the needs of wildlife. 2~
The root cause of BLM's historic orientation toward the interests of ranchers and other commercial users of the public lands is difficult to identify. Some point to BLM's identification with the grazing and mining industries, arguing that the agency was in the past "captured" by these interests. 25 This "capture" was facilitated by BLM's reliance on local, state, and national advisory boards whose members were elected by ranchers26 and whose influence affected the agency at alllevels.27 Local grazing advi sory boards were especially influential because BLM created them in or der to emphasize the importance of the agency's local constituents. 28 These boards reinforced the relationships between BLM field staff and lo cal individuals and groups, and created an agency orientation toward sat isfying local needs and ensuring community stability that continues today.29 BLM thus fu1.ds itself susceptible to local pressure to favor extrac tive industries that are perceived as providing steady sources of jobs and money for the community.30 This local influence is especially powerful in light of BLM's decentralized approach to decision making, which allows local agency employees a great deal of power to make key decisions. 3l In addition, the agency's traditional constituents, the livestock and mining industries, have long been successful at staving off legal and management reforms that would result in equal consideration of all public lands re sources. 32 These industries have benefitted from a well-organized and well-funded lobbying capacity that historically was not matched by advo cates for wildlife and other nonconsumptive resources. 33 BLM's vague mandate to manage lands for multiple uses also provides the agency with a great deal of discretion in making management decisions and leaves it
18 HARV. ENVTL. L. REV. 405 (1994); George Cameron Coggins, Some Directions for Reform of Public Natural Resources Law, 3 ENVTL. L. & LITIG. 67 (1988).
24 Blunun, supra note 23, at 407; ATIENTION TO WILDUFE, supra note 17, at 17, 38-39. 25 CHANGE IN A ApPROACH NEEDED, supra note 23; PAUL J. CULHANE, PUBUC LANDS POU
TICS: INTEREST GROUP INFLUENCE ON THE FOREST SERVICE AND THE BUREAU OF LAND MANAGE. MENT 17-19 (1981); Rod Greeno, Who Controls the Bureau of Land Management, 11 J. ENERGY NAT. RESOURCES & ENVTL. L. 51, 52-53 (1990).
26 43 U.S.C. § 315h (1994); see irifra notes 103-11 and accompanying text. 27 Greeno, supra note 25, at 52. 28 CULHANE, supra note 25, at 85. 29 See 43 C.F.R. § 161O.4-4(g) (1995) (during planning process, BLM may consider local
dependence on public lands resources); BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE . INTERIOR, BLM MANUAL § 1612.27 (1986) (planning decisions may be based upon the need to stabilize communities).
30 See Raymond Rasker, A New Look at Old Vistas: The Economic Role of Environmen tal Quality in Western Public Lands, 65 U. COLO. L. REV. 369, 369-370 (1994) (arguing that BLM's policy of "community stability" is outdated and ineffective).
31 See infra notes 251-62 and accompanying text. 32 See CHARLES F. WILJaNSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE Fu
TURE OF THE WEST 33, 110-11 (1992) (arguing that federal range policy is dictated by the highly organized, historically entrenched cattle industIy).
33 Id. at 33, 106, 110-11; Greeno, supra note 25, at 55-56. This is changing, however, as environmental groups have dramatically increased their lobbying and media capabilities in recent years.
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vulnerable to pressure from consumptive users who want the agency to favor their preferred use.34
Dissatisfied with BLM's past efforts at land planning and administra tion, and desiring to provide BLM with comprehensive authority to man age public lands, Congress enacted the Federal Land Policy and Management Act (FLPMA)35 in 1976. FLPMA directs BLM to develop re source management plans (RMPs) containing comprehensive long-range guidance for the use of the public lands. 36 RMPs are the middle tier in BLM's three-tier planning system. The top tier is national policy, including statutes, executive and court orders, guidance from the BLM director, the ELM Manual, and nationwide programs for the management of the public lands. 37 The bottom tier involves the more detailed activity planning nec essary to implement completed RMPs, such as the preparation of individ ual habitat management plans, grazing allotment management plans, or plans for areas of critical environrnentalconcern.38
RMPs must 1) be prepared in conjunction with an environmental im pact statement, 2) reflect public involvement and participation, and 3) deal specifically with resource conflicts.39 RMPs must also give priority to the designation and protection of "areas of critical environmental concern, "40 which include areas where special management attention is required to protect and prevent irreparable damage to fish and wildlife resources. 41
Unfortunately, Congress's high hopes for the planning process have not been fully realized. Commentators have criticized BLM for its continuing inability to truly balance multiple resources through planning and its in consistent treatment of areas of critical environmental concern in com pleted RMPs.42 While agency biases toward consumptive interests may have been reduced, they are still present. 43 Observers have also argued that the planning process itself is a major contributor to polarization and gridlock over the proper approach to public lands management. 44 In addi tion, BLM has completed RMPs at a very slow pace-the agency must
34 CULHANE, supra note 25, at 18-19. 35 Pub. L. No. 94-579, 90 Stat. 2745 (1976) (codified as amended at 43 U.S.C. §§ 1701-1784
(1994)). 36 43 U.S.C. § 1712 (1994). • 37 David C. Williams, Public Land Management: Planning, Problems, and Opportuni
ties, in THE PuBlJC LANDS DURING THE REMAINDER OF THE 20TH CENTURY: PLANNING, LAw, AND POlJCY IN THE FEDERAL LAND AGENCIES 7, (Natural Resources Law Center, University of Colo rado School of Law ed., 1987).
38 Id. 39 43 U.S.C. § 1712 (1994). 40 43 C.F.R. § 1610.7-2 (1995). 41 43 U.S.C. § 1702(a) (1994). 42 See generaUy FAITH T. CAMPBELL & JOHANNA H. WALD, AREAS OF CRmCAL ENVIRONMEN
TAL CONCERN: PROMISE VERSUS REAlJTY (1989); Joseph M. Feller, What is Wrong with the BLM's Management of Livestock Grazing on the Public Lands?, 30 IDAHO L. REV. 555 (1993 94).
43 See, e.g., Feller, supra note 42, at 555-56 (arguing that BLM gives livestock grazing higher priority than other uses).
44 See HOUSE COMM. ON INTERIOR & INSULAR AFFAlRS, MULTIPLE USE AND SUSTAINED YIELD: CHANGING PHILOSOPHlES FOR FEDERAL LAND MANAGEMENT?, 102d Cong., 2d Sess. 274, 313
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prepare approximately 144 RMPS, of which only 79 were finalized as of 1993.45 For these reasons, some commentators have concluded that the planning process has failed. 46
This Article examines BLM's consideration of wildlife in the resource management planning process and concludes that the agency has failed to give this resource the attention it is due under FLPMA. Part II explains why it remains critical to ensure the survival of wildlife residing on BLM lands and why the planning process must play an integral role in achieving this goal. Part III provides a brief history of BLM's management of its pub lic lands and its past approach to planning. Part IV summarizes the re source management planning process required by FLPMA. Part V analyzes BLM's efforts to fulfill FLPMA's mandate and evaluates an RMP from the perspective of an advocate for balanced consideration of all public land resources, including wildlife. Part VI explores several legal and practical obstacles to full consideration of wildlife needs under the present plan ning system. The final section suggests changes in the existing statutory and regulatory scheme that would better equip BLM to ful:fill FLPMA's mandate to plan for a balance of values, including resident wildlife.
II. WILDLIFE AND THE PLANNING PROCESS
An increasingly vocal segment of the population is attempting to weaken statutes and policies designed to protect wildlife. In the face of arguments that "people are more important than animals," a variety of rea sons make it crucial that society continue to preserve species other than Homo sapiens. Although BLM's planning process is flawed, with improve ment it could be an important tool for achieving this goal.
A. Why Wildlife Is Important
Wildlife merits protection for both its extrinsic and intrinsic values. Even from an anthropocentric perspective, wildlife is a valuable resource that provides economic, ecological,and psychic benefits. In fiscal year 1994, wildlife-associated recreation on BLM lands alone pumped over $680 million into the economy.47 Hunting trips on these same lands generated another $1.7 billion. 48 Each year, fishers harvest over 58 million pounds of anadromous fish that spawn in BLM-managed streams, at an estimated
(Corom. Print 1992); Robert H. Nelson, Government as Theater: Toward a New Paradigm for the Public Lands, 65 U. Cow. 1. REV. 335, 335-36 (1994).
45 BUREAU' OF LAND MANAGEMENT, U.S. DEP'T OF TIlE INTERIOR, SUMMARY OF RMP BACK GROUND INFORMATION AND CURRENT PLANNING STATUS (June 2, 1993) [hereinafter RMP SUM MARY]; see also U.S. GEN. ACCOUNTING OFFICE, PuBIJC LANDS: LIMITED PROGRESS IN RESOURCE MANAGEMENT PLANNING 3-5 (1990) [hereinafter LiMITED PROGRESS].
46 George Cameron Coggins, Commentary: Overcoming the Unfortunate Legacies of Western Public Land Law, 29 LAND & WATER 1. REV. 381, 393 n.127 (1993) (stating that John Leshy, Solicitor of the Department of the Interior, has concluded that federal land planning programs have failed). .
47 PuBIJC REWARDS, supra note 14. 48 Id.
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market value of $40 million.49 Wildlife contributed about $59 billion to the nation's economy in 1991. 50 Figures such as these show to local communi ties that wildlife is an asset that can produce economic benefits, just like minerals or timber, and can do so on a sustainable basis. 51 Engaging in activities that destroy this resource would be akin to killing the goose that laid the golden egg.
Each wildlife species also contributes to the stability of the ecosys tem in which it resides. 52 AIdo Leopold's early recognition of the impor tance of each "cog and wheel" in the natural system has been confirmed by recent scientific advances. 53 Animals and plants within an ecosystem are intricately interrelated, and the decline of anyone species may have serious effects on the balance of the entire system, with unexpected con sequences for humans. 54 This linkage between species, which is not read ily apparent to a casual observer, illustrates the importance of maintaining species diversity within each ecosystem. 55
Stable ecosystems benefit humans in numerous ways. "Ecosystem services" include maintenance of atmospheric quality, climate control, soil generation and preservation, waste disposal, pest and disease control, and crop pollination.56 Ensuring ecosystem health also preserves future oppor tunities to derive benefits from the land. The spotted owl controversy in the Pacific Northwest illustrates the danger of exploiting resources at such a rapid pace that species are left at risk. 57 Such resource use that
49 U.S. DEP'T OF THE INTERIOR, BUDGET JUSTIFICATIONS, F.Y. 1996: BUREAU OF LAND MAN AGEMENT 3-48 (1995) [hereinafter BUDGET JUSTIFICATIONS].
50 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, FISH AND WILDUFE 2000: ANNUAL REPORT OF ACCOMPUSHMENTS FISCAL YEAR 1994 5 (1994) [hereinafter FISH AND WILD UFE 2000].
51 See Rasker, supra note 30. 52 DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITs PROTECTIONS AND IM
PLEMENTATION 16 (1989). 53 Robert B. Keiter, Beyond the Boundary Line: Constructing a Law ofEcosystem Man
agement, 65 U. COLO. L. REV 293, 298 (1994); see also PRIMACK, supra note 18, at 34-43 (describing biological communities and ecosystems).
54 See PRIMACK, supra note 18, at 36-37. 55 The relationship between sea otters and kelp forests illustrates this principle. Kelp
forests supply food and shelter for large nwnbers of ocean fish and shellfish. [d. In recent years, however, kelp forests have declined. Id. at 37. This "deforestation" is due in part to local extinctions of sea otters, which prey on sea urchins that feed on kelp. Id. In a stahle ecosystem, sea otters control sea urchin populations, kelp flourishes, and fish and shellfish populations increase. Id. Where otters are not present, sea urchins feed heavily on kelp, and contribute to the decline of kelp forests that are important to fish and shellfish populations. [d.
56 REED F. Noss & ALLEN Y. COOPERRIDER, SAVING NATURE'S LEGACY: PROTECTING AND RE STORING BIODIVERSITY 21 (1994); John C. Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 ENVTL. L. 501, 523-24 (1994); ROHLF, supra note 52, at 16.
57 For an overview of the ongoing controversy over management of the old-growth for ests that are horne to the spotted owl, see Michael C. Blumm, Ancient Forests, Spotted Owls, and Modern Public Land Law, 18 B.C. ENVTL. AFF. L. REV. 605 (1991); AndreaL. Hungerford, Changing the Management of the Public Land Forests: The Role of the Spotted Owl Injunc tions, 24 ENVTL. L. 1395 (1994); Victor M. Sher, Travels with Strix: The Spotted Owl's Jour ney Through the Federal Courts, 14 PuB. LAND L. REV. 41 (1993).
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threatens individual species is likely occurring at an unsustainable rate. 58 Declines in wildlife species thus should be taken seriously, as they may signal a deeper weakness in the ecosystem as a whole. 59 In contrast, a stable, biologically diverse ecosystem functions at its highest potential and provides the most productive habitat for people as well as animals. 60
Wildlife also provides what may be termed "psychic" benefits. Many species, such as the panda and the tiger, occupy a special place in people's hearts and minds. Although one may never come face to face with these charismatic creatures, one may derive pleasure from knowing they exist. 61 Other creatures, such as the bald eagle, serve as symbols for nations, states, and schools, or represent ideals and qualities like freedom, cour age, or power. 62 A community's proximity to wildlife can also increase the quality of life its residents enjoy.63
Conserving wildlife can also be justified on ethical grounds unrelated to species' extrinsic value to humans. A moral duty to protect and care for the animals that share the land with us can be drawn from many of the world's religions. 64 For example, the prophet Muhammed, founder of Is lam, emphasized the human responsibility for nature with the following words: "The world is green and beautiful and God has appointed you His stewards over it. He sees how you acquit yourselves."65 The Biblical story of Noah and his ark gives an early example of a species preservation pro ject.66 Many view wildlife as having intrinsic value, with a right to exist equal to humans. 67 Additionally, people may feel an ethical obligation to minimize their impacts on resources and ecosystems and preserve species for the benefit of future generations. 68
B. Why the BLM Planning Process Is Important to Wildlife Preservation
Most people would agree with at least one of the above arguments in favor of wildlife preservation. The difficulty arises when efforts to con serve species conflict with other goals, which on BLM lands might include cutting timber, mining gold, grazing cattle, or driving off-road vehicles for recreation. Congress intended the resource management planning process
58 See Keiter, supra note 53, at 298-99. 59 PRIMACK, supra note 18, at 228-29. 60 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, RANGELAND REFORM '94:
DRAFT ENVIRONMENTAL IMPACT STATEMENT 27 (1994) [hereinafter RANGELAND REFORM]. 61 [d. at 233; Christopher A. Cole, Species Conservation in the United States: The Ulti
mate Failure of the Endangered Species Act and Other Land Use Laws, 72 B. U. L. REV. 343, 348 n.22 (1992).
62 Kunich, supra note 56, at 527. 63 See Rasker, supra note 30. 64 PRIMACK, supra note 18, at 7-9. 65 [d. at 9. 66 [d.
67 This is the basic premise of the Deep Ecology movement. BlLL DEVALL & GEORGE SES SlONS, DEEP ECOLOGY: 1IvING AS IF NATURE MATTERED 67 (1985).
68 PRIMACK, supra note 18, at 244-45; Kunich, supra note 56, at 528.
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under the Federal Land Policy and Management Act (FLPMA)69 to resolve these types of conflicts and produce a prescription for future management of an area that balances all resource needs. 70 However, many observers see failure when they look back at the nearly twenty years of planning under FLPMA.71
Some commentators characterize public lands planning as a meaning less exercise in paper pushing. 72 To these observers, planning has meant an explosion of procedure that has not led to the resolution of any of the difficult issues facing today's public lands managers. 73 In fact, some com mentators assert that BLM uses the planning process to postpone difficult decisions such as whether to reduce grazing levels in response to new data regarding rangeland conditions. 74 Instead, the agency often merely adopts plans that require further monitoring to determine if changes are needed. 75 FLPMA's vague and imprecise language, which gives BLM little guidance and leaves agency decision makers with a great deal of discre tion in the pl3.nning process, made this problem inevitable. 76 Others argue that existing processes for federal land planning and decision making are ineffective because they encourage divisiveness, separate different inter est groups into warring camps, and discourage efforts to reach compro mise solutions that are acceptable to all parties. 77 Finally, many contend that federal lands planning processes fail to provide opportunities for meaningful public participation, resulting in little more than "formalized nose counting" of views expressed by various segments of the public. 78
Each of these criticisms has some validity, and the BLM planning pro cess can certainly be improved to address these and other concerns. How ever, none of the alleged weaknesses of the planning process justifies abandonment of the effort. Although planning will not remedy all of the agency's perceived ills, the advantages of the planning process clearly out weigh the disadvantages, especially with respect to wildlife.
69 43 U.S.C. §§ 1701-1784 (1994). 70 H.R. Rep. No. 1163, 94th Cong., 2d Sess. 2-3 (1976), reprinted in 1976 u.S.C.C.A.N.
6175,6176-77. 71 See supra notes 42-46 and accompanying text. 72 See Nelson, supra note 44, at 335-36 (observing that public lands management is
highly ineffective); Leshy, supra note 6, at 685 (stating that agency decision making is some times jammed with processes whose value is not readily discernible, and calling for a reex amination of agency planning and environmental impact evaluation).
73 Nelson, supra note 44, at 335-36; Leshy, supra note 6, at 685. 74 See, e.g., JOHN LOOMIS, INTEGRATED PuBUC LANDS MANAGEMENT: PRINCIPLES AND APpu-
CATIONS TO NATIONAL FORESTS, PARKS, WILDUFE REFUGES, AND B1M LANDS 330 (1993). 75 Id. 76 See 2 GEORGE CAMERON COGGINS, PUBUC NATURAL RESOURCES LAw § 13.04[3][d] (1990). 77 See JUUA WONDOLLECK, PUBUC LANDS CONFIJCT AND RESOLUTION: MANAGING NATIONAL
FOREST DISPUTES 87-105 (1988); Mary Lou Franzese, National Forest Planning: Looking for Harmony, in MANAGING PUBuc LANDS IN THE PuBUC INTEREST 47,57-58 (BeI\iamin C. Dysart III & Marion Clawson eds., 1988). Although these authors were analyzing the national forest planning process, their criticisms are equally applicable to B1M planning.
78 See, e.g., Rick Applegate, The Multiple Use Planning Process: Descent Into the Mael strom?, 8 ENVTL. L. 427, 446-51 (1978); Franzese, supra note 77, at 58.
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Resource management planning remains valuable for several reasons. First, the process itself helps "democratize" federal land management. 79 Affected members of the local and national public have an opportunity to scrutinize proposed BLM decisions and influence final plans by making their views known to the agency. Agency efforts to work with a variety of public lands users and accommodate all values can build a base of support for the final plan.8o Absent a formal and public planning process, BLM personnel would be more susceptible to pressure from resource user groups that wield the most clout, such as the livestock and mining indus tries. Thus, BLM personnel would be more likely to make resource man agement decisions that favor those groups to the detriment of other public lands users. Second, the planning effort requires systematic data collec tion and analysis of existing resources and uses. 81 This enables agency personnel to make more informed decisions, both in the planning process and in the course of on-the-ground management. Third, plans that contain specific direction for future land and resource administration provide all users with some degree of certainty regarding prospective management direction. Once a plan is completed, subsequent BLM decisions will not be unduly influenced by changing administrations and personnel.82
Finally, comprehensive planning requires BLM to take a proactive ap proach to resource management by setting goals and strategies, both for today and the future. 83 Such an approach is surely preferable to a reactive management style, in which BLM merely resolves issues as they arise, without coordination or long-range vision. Forward-looking planning is also the best way to avoid future endangered species "train wrecks," such as that initiated by the listing of the spotted owl in the Pacific North west. 84 Considering wildlife in the planning process enables BLM to take steps to preserve individual species before they are on the brink of extinc tion. The Endangered Species Act (ESA),85 which takes effect only when a species is on its "deathbed," should not be relied upon to save all crea tures. 86 By using the planning process to formulate strategies that will keep wildlife species from becoming endangered, BLM can more success fully prevent extinction crises and avoid the strict mandates and loss of
79 John Leshy, Planning as a Tool of Public Land Management, 'in THE PuBUC LANDS DURING THE REMAINDER OF THE 20TH CENTURY: PLANNING, LAw, AND POUCY IN THE FEDERAL LAND AGENCIES 7, (Natural Resources Law Center, University of Colorado School of Law ed., 1987).
80 See WONDOLLECK, supra note 77, at 181-85. 81 Leshy, supra note 79, at 2. 82 Scott W. Hardt, Federal Land Management in the Twenty-First Century: From Wise
Use to Wise Stewardship, 18 HARV. ENVrL. L. REV. 345, 400-01 (1994). 83 See George Cameron Coggins & Parthenia B. Evans, Multiple Use, Sustained Yield
Planning on the Public Lands, 53 U. COLO. L. REV. 411, 413 (1982) (defining public lands planning).
84 50 C.F.R. § 17.11 (1995); see supra note 57. 85 16 U.S.C. §§ 1531-1544 (1994). 86 See generally Kunich, supra note 56 (criticizing the ESA for delaying intervention un
til species are either threatened or endangered).
783 1996] BLM'S PLANNING PROCESS
agency discretion that accompany ESA listings.87 As BLM has acknowl edged, protecting species prior to listing is the most effective approach and is in the public interest.88
For the above reasons, the remainder of this Article is based on two _propositions. The first is that wildlife residing on BLM lands merits atten
tion equaling that given to other resources. The .. second is that although BLM's planning process has not yet resulted in this balanced considera tion, the process can and should be improved to ensure that wildlife re ceives the attention it is due.
III. HISTORY OF PUBLIC LANDS MANAGEMENT AND PLANNING
An understanding of today's conflicts over the public lands requires some knowledge of historical events. BLM lands are still governed in large part by what Professor Charles Wilkinson described as "the lords of yes terday"-laws, policies, and ideas from the past.89 These outdated princi ples of land management encouraged consumptive uses of public lands, including grazing, mining, and logging. Nonconsurnptive uses and other land values, including wildlife, were of secondary importance. Because this bias continues to influence BLM's approach to land management, this Part presents a brief overview of public lands history and BLM's past ap proaches to managing and planning for the public lands.
A. Nature of BLM Lands
From early in the nation's history until the beginning of the twentieth century, the federal government directed its efforts toward disposing of publicly owned lands. 9o Congress enacted statutes designed to privatize public resources and encourage pioneers to carve a new nation out of the vast western wilderness. 91 The government granted land to states, rail roads, settlers, and miners.92 In all, the United States transferred more than one billion acres of public lands to private ownership.93 Disposal pol icies resulted in scattered patterns of land ownership, with privately and publicly held lands often arranged in a "checkerboard."94 These patterns persist today, hindering effective management of wildlife habitat that spans lands under the control of numerous federal and state agencies and private parties.
The great land rush had a dramatic impact on wildlife. Pioneers al tered and even destroyed habitat, and hunted some species, such as buf
87 See Robert L. Fisclunan, Endangered Species Conservation: What Should We Expect ofFederal Agencies?, 13 PUB. LAND L. REV. 1 (1992) (describing the loss of agency discretion under the ESA); Hardt, supra note 82, at 385 (noting the limitations on land uses that arise if the land is habitat for a listed species).
88 FiSH AND WILDUFE 2000, supra note 50, at 35. 89 See WILKINSON, supra note 32, at xiii. 90 MARION CLAWSON, THE FEDERAL LANDS REVISITED 20-27 (1983). 91 [d. 92 [d. 93 [d. at 26. 94 See COGGINS ET AL., supra note 12, at 98.
784 ENVIRONMENTAL LAW [Vol. 26:771
falo, to near extinction. 95 In the late 1800s, public awareness of widespread abuses of the land disposal system and shifting public senti ments brought about a change in public lands policy. The program of land disposal gradually gave way to a policy of retention and management of the public lands. Beginning with the establishment of the "pleasuring ground" that became Yellowstone National Park,96 the government began to withdraw lands from the public domain. Congress authorized the with drawal of millions of acres for inclusion in what are now the national for ests. 97 The government reserved other lands for the establishment of wildlife refuges and a system of fossil fuel leasing. 98 Private parties could no longer acquire lands set aside in this manner, and federal agencies managed them according to various statutory standards. 99 BLM now over sees all "left-over" lands that settlers did not appropriate and the govern ment did not withdraw during the disposal and reservation eras.
B. The Taylor Grazing Act
Until the mid-1930s, there was'no statutory authority for managing these "left-over" public lands, and they were freely used by stockmen as a grazing commons. IOO By 1934, however, a combination of overgrazing, drought, and the Great Depression made the collapse of the grazing indus try appear imminent. l O! In that year, Congress enacted the Taylor Grazing Act to promote the orderly use and regeneration of the range. 102 To achieve this goal, the Act authorized the Secretary of the Interior to divide the public lands into grazing districts and regulate their use through a sys tem of grazing permits. 103
On paper, the Act was a step in the right direction. It provided that grazing on the public lands was a privilege,' not a right, 104 and brought the public domain under regulation for the first time. The statute also estab lished the first forward-looking management direction for the public lands by requiring BLM to "preserve the land and its resources from destruction
95 Frank J. Popper, A Nest-Egg Approach to the Federal Lands, in MANAGING PUBLIC LANDS IN THE PuBUC INTEREST, supra note 77, at 83-85.
96 Act of Mar. 1, 1872, ch. 24, 17 Stat. 32 (codified as amended at 16 U.S.C. §§ 21-40 (1994)).
97 The General Revision Act of 1891 originally authorized the reservation of forest lands. Act of Mar. 3, 1891, ch. 561, 26 Stat. 1103 (codified at 16 U.S.C. § 471 (repealed 1976)).
98 CLAWSON, supra note 90, at 29. 99 For example, the national forests were managed by the National Forest Service in
accordance with the terms of the Forest Service Organic Administration Act of 1897. Act of June 4, 1897, ch. 2, 30 Stat. 34 (1994) (codified at 16 U.S.C. §§ 473-481 (1994) (repealed in part 1976)).
100 CLAWSON, supra note 90, at 30. 101 MICHAEL J. BEAN, THE EVOLUTION OF NATIONAL WILDUFE LAw 151 (2d ed. 1983). 102 Ch. 865, 48 Stat. 1269 (1934) (codified as amended at 43 U.S.C. §§ 315-315r (1994)). 103 43 U.S.C. §§ 315, 315b (1994). Lands not included in grazing districts were to be grazed
through a system of leases. [d. § 315b. 104 [d. § 315b.
785 1996] BLM'S PLANNING PROCESS
or unnecessary injury."105 Finally, the Act introduced some consideration for wildlife into BLM's management approach. 106
However, the Taylor Grazing Act also validated and formalized the ranching industry's historic domination of range policy. The Act preserved the industry's traditional power by creating "stockmen's advisory boards" whose members were elected by ranchers. 107 These boards wrote grazing regulations, allocated range improvement funds, and influenced Grazing Service (a predecessor agency to BLM) and BLM personnel decisions. 108 When the agency did make efforts to comply with the Taylor Grazing Act's directives to reduce grazing use to sustainable levels, it quickly suc cumbed to political pressure from advisory boards and the livestock in dustry the boards represented. 109 When board members were dissatisfied with BLM decisions on grazing levels, they took their grievances to high level Department of the Interior (DOl) officials and influential Congress men and got results. 110 Many have criticized these boards as a perfect ex ample of industry "capture" that has perpetuated ranchers' dominance of BLM decision making. III
Congress attempted to answer this criticism in the Federal Land Pol icy and Management Act (FLPMA) by authorizing grazing advisory boards only through 1985.1 12 FLPMA also created new entities, called advisory councils, to counsel BLM on land planning and management issues. 113 These councils differ from advisory boards in that they are supposed to be composed not only of ranchers, but also of representatives of other groups interested in the public lands.1 14 Unfortunately, the livestock industry has often dominated these advisory councils as weU,115 BLM has also proved
105 [d. § 315a. 106 [d. § 315m. This section requires BLM to cooperate with other parties interested in the
use of grazing districts, including state wildlife agencies. The extent of BLM's consideration of wildlife during this period was to set aside a few areas for wildlife use. Coggins & Evans, supra note 83, at 447 n.26l.
107 43 U.S.C. § 315h (1994). 108 Pmwp O. Foss, POIJTICS AND GRASS: THE ADMINISTRATION OF GRAZING ON THE PUBLIC
DOMAIN 135-36, 199-201 (1960). 109 CULHANE, supra note 25, at 89-91; Coggins & Evans, supra note 83, at 447. 110 CULHANE, supra note 25, at 18, 90-9l. III See, e.g., NATIONAL AUDUBON SOC'Y, AUDUBON WILDLIFE REPORT 1987, at 41 (1987) [here
inafter 1987 WILDLIFE REPORT] (arguing that grazing advisory boards do not represent all uses because the majority of board seats are filled by livestock industry boards); CULHANE, supra note 25, at 17-18.
112 43 U.S.C. § 1753 (1994). This statutory provision authorized BLM to establish advisory boards in each district and directed that they be composed entirely of representatives from the livestock industry. [d. The section expired on December 31, 1985. [d. BLM's director subsequently reinstated grazing advisory boards by directive. 43 C.F.R. 1784.0-1 to 1784.6-5 (1995).
113 43 U.S.C. § 1739 (1994). 114 [d.
115 1987 WILDLIFE REPORT, supra note Ill, at 41. In 1995, the Department of the Interior (DOl) took the first steps toward reducing the ranchers' influence over BLM policy by adopt ing grazing reform regulations. These regulations call for the creation of balanced resource advisory councils. 43 C.F.R. § 1784.6-1 (1995). The regulations require new councils to be comprised of representatives of consumptive resource industries, recreational, historical, or
786 ENVIRONMENTAL LAW [Vol. 26:771
reluctant to transfer authority from the advisory boards to the multiple resource councils, even though Congress intended the boards to dissolve in 1985,116
Commentators often trace BLM's neglect of wildlife to the Taylor Grazing Act's emphasis on grazing interests,117 Grazing policies and wild life resources are closely interrelated, because grazing is the major activity on the public lands affecting wildlife habitat. 118 Numerous impacts of live stock grazing are harmful to wildlife, including degradation of habitat, re duction in forage, introduction of disease and pollution, destruction of riparian areas, and spread of exotic vegetation,119 Three-fourths of the threatened and endangered animals residing on BLM lands are likely harmed by livestock grazing. 120 Future planning decisions regarding graz ing are certain to be critical for wildlife.
C. The Multiple Use Mandate
In the 1960s, public lands law began to change dramatically. Urban Americans with increasing leisure time began to pay more attention to the public lands, and conservation and recreation groups saw their member ships increase. 121 These new constituents of the public lands began to lobby Congress, DOl, and BLM for a new approach to land manage ment. 122 At the beginning of this new era, Congress directed BLM to man age the lands under its control for multiple uses. 123 For the first time, wildlife advocates could point to specific statutory provisions that desig nated wildlife management as a desired use of the public lands.
The Classification and Multiple Use Act of 1964 (CMU Act)124 for mally authorized multiple use management of BLM lands. 125 In the CMU
environmental groups, and governmental, tribal, or scientiftc interests. Id. § 1784.6-1(c). However, some members of Congress have attacked these regulations, and the livestock industry has filed suit to eI\ioin their implementation. Public Lands Council v. Babbitt, No. 95-165B (D. Wyo. filed July 27, 1995).
116 See supra note 112. Conservationists requested that the boards be allowed to expire in 1985, and their duties transferred to the councils. BLM refused, and the director reinstated the advisory boards by a 1986 administrative order. 1987 WILDLIFE REPORT, supra note Ill, at 41.
117 See e.g. WILKINSON, supra note 32, at 93-94. 118 RANGELAND REFORM, supra note 60, at 25-27; GRAZING To EXTINCTION, supra note 23, at
3; 1987 WILDLIFE REPORT, supra note 111, at 31. 119 GRAZING TO EXTINCTION, supra note 23, at 7. 120 Id. at 8-9. 121 JAMES MUHN & HANSON R. STUART, OPPORTUNITY AND CHALLENGE: THE STORY OF BLM
104-05 (1988). 122 Id. at 105; R. McGREGGOR CAWLEY, FEDERAL LAND, WESTERN ANGER: THE SAGEBRUSH
REBELI.lON AND ENVIRONMENTAL POlJTlCS 15-33 (1993). Among other topics, these groups voiced concern about unplanned resource use, explosive growth, endangered wildlife, and pollution. MUHN & STUART, supra note 121, at 104-05.
123 Classification and Multiple Use Act of 1964, Pub. L. No. 88-607, 78 Stat. 986, 987-88 (expired 1970).
124 Pub. L. No. 88-607, 78 Stat. 986 (expired 1970). 125 Id. § l(a). Prior to 1964, the BLM administered its land for some multiple uses without
statutory authority. The CMU Act was passed pursuant to a compromise between Congress
787 1996] BLM'S PLANNING PROCESS
Act, Congress first recognized nonconsumptive uses, such as outdoor rec reation, watershed protection, wilderness preservation, and fish and wild life management, as desired uses .of the public lands. I26 The statute directed BLM to balance these values with traditional consumptive uses, such as timber production, grazing, and mining, and to authorize a combi nation of uses that best met present and future needs of the American public. I27 This new multiple use mandate induced several organizational changes at BLM. The agency created new divisions dealing with wildlife, watershed protection, and recreation, and gave state and district person nel greater responsibilities for on-the-ground activities. 128 BLM also estab lished Resource Area Offices, increasing the agency's decentralization. I29
Because Congress did not provide BLM with any guidance as to how to balance resource allocation to best meet the public's needs, the agency had broad discretion in making management decisions under the CMU ACt. I30 Observers have accordingly criticized multiple use statutes such as the CMU Act for providing agencies with unbridled discretion in making resource allocation decisions. I31 While some commentators have argued that the multiple use standard does set enforceable, substantive limita tions on agency action,I32 courts have been reluctant to curb BLM's dis cretion. I33 This debate remains important because BLM continues to plan and manage its lands for multiple uses pursuant to FLPMA.I34 The extent to which courts are willing to review BLM planning decisions that do not sufficiently consider the needs of wildlife will have significant impacts on the way BLM balances competing uses of the public lands.
man Wayne Aspinall (D-Colo.), who advocated commodity use of public lands resources, and preservationist-minded DOl Secretary Stewart Udall. MUHN & STUART, supra note 121, at 111-15, 117. The Act was a temporary measure intended to govern management of the public lands pending the results of the newly created Public Land Law Review Commission's com prehensive study of public land laws. Id.
126 Pub. L. No. 88-607, § l(a), 78 Stat. 986 (1964) (expired 1970). 127 Id. § 5(b). 128 MUHN & STUART, supra note 121, at 116. 129 Id. at 116-17. 130 Id.
131 See, e.g., Applegate, supra note 78, at 451-55 (criticizing U.S. Forest Service decision making process under multiple use statutes); Blumm, supra note 23, at 407, 414 (calling multiple use a "wholesale delegation of authority to land managers to act in the public interest").
132 See, e.g., George Cameron Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 ENVTL. L. 1, 100-09 (1983) (discussing judicial review of B1M land use plans). However, Professor Coggins appears to have changed his opinion on this issue somewhat in recent years. See Coggins, supra note 46, at 388-90 (arguing multiple use is ambiguous and obsolete). .
133 See Perkins v. Bergland, 608 F.2d 803, 806-07 (9th Cir. 1979) (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975) (multiple use standard "breathe[s} discretion at every pore")); Natural Resource Defense Council v. Hodel, 624 F. Supp. 1045, 1056-57 (D. Nev. 1985), atfd, 819 F.2d 927 (9th Cir. 1987).
134 See irifra part IV.
788 ENVIRONMENTAL LAW [Vol. 26:771
D. Pre-FLPMA Planning Process
In 1969, BLM responded to the CMU Act's multiple use mandate by beginning its first formal planning effort. 135 Congress passed the National Environmental Policy Act136 soon thereafter, significantly influencing the agency's planning process. During this period, the advisory boards created by the Taylor Grazing Act, which disproportionately represented ranching interests, pressured BLM to maintain historically high levels of grazing. 137 This pressure often produced unbalanced decisions that damaged range and riparian areas crucial to wildlife. 138
1. Planning Url:der the eMU Act
During the 1960s, BLM adopted a complex "competitive" planning model that resulted in the management framework plan, or MFP.139 BLM aptly named the planning model because it required BLM's divisions to "compete" to ensure that each resource received sufficient attention in each plan. 140 Preparing an MFP under this process required three steps. First, each BLM resource division projected how the planning area could be managed to optimize the resource overseen by that division. 141 Second, BLM personnel compared projections for each resource and integrated them to achieve a "multiple use solution."142 Finally, the BLM district man ager reviewed, adjusted, and approved the solution as an MFP.l43 During this process, each division had the opportunity to advocate on behalf of the resource it oversaw. 144
Not surprisingly, this process resulted in plans that benefitted those BLM divisions with the most power, such as the grazing and minerals divi sions. Managers of the newly created wildlife, recreation, and watershed resources divisions remained on the outside looking in. 145 The less power ful divisions worked with smaller budgets and lacked the support of influ ential constituencies such as the livestock and mining industries. 146 As a result, BLM's early plans did little to resolve difficult resource conflicts,
135 Coggins & Evans, supra note 83, at 448; see also MUHN & STUART, supra note 121, at 121 (describing early B1M efforts to implement multiple use management).
136 National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1969) (codified as amended at 42 U.S.C. §§ 4321-4370(d) (1994)).
137 See supra notes 107-16 and accompanying text. 138 BEAN, supra note 101, at 152. 139 Coggins & Evans, supra note 83, at 449-51. 140 [d. 141 [d. at 450. 142 [d. 143 [d. 144 [d. at 449. 145 [d. at 451. These divisions were created after the 1964 CMU Act. Prior to that time,
81M was divided into five groups tied to the agency's traditional management functions: survey, minerals, lands, forestry, and range. MUHN & STUART, supra note 121, at 118. After the agency's reorganization in the 1960s, 81M's Assistant Director for Resources oversaw six ,divisions: land and realty, range, recreation, forestry, watershed, and wildlife. Minerals management had its own separate division. [d. at 174.
146 See supra notes 32-33 and accompanying text.
789 1996] BLM'S PLANNING PROCESS
serving instead to formalize pre-existing agency biases and management approaches. 147
Although BLM lost the statutory authority to engage in multiple use planning when the CMU Act expired in 1970, the agency continued to use this planning procedure until 1975. 148 In 1976, Congress enacted FLPMA. By that time, BLM had already promulgated MFPs for eighty to eighty-five percent of the public lands outside of Alaska. 149 Critics have attacked MFPs as documents that merely formalized existing BLM tendencies to favor grazing and mining, leaving other public lands uses on the side lines. 150 Nonetheless, preexisting MFPs will remain in effect until replaced by the new generation of plans prepared under FLPMA.151
2. The National Environmental Policy Act
The National Environmental Policy Act (N EPA),152 passed only six months after the preparation of MFPs began, had a large impact on BLM planning and on BLM's overall approach to management of the public lands. NEPA is "our basic national charter for protection of the environ ment,"153 and it declares a national policy of encouraging harmony be tween humans and nature, promoting efforts to prevent or eliminate environmental damage, and increasing knowledge of ecological systems and natural resources. 1M Although the statute does not require an agency to make the most environmentally preferable decisions, it does direct fed eral agencies to consider the environmental impacts of their actions. 155 NEPA and its implementing regulations also set forth procedures designed to ensure public input regarding agency decisions. 156 With NEPA's pas sage, agencies were, for the first time, required to integrate environmental considerations into their decision making and planning processes.
The statute requires any agency considering a major federal action that will significantly affect the environment to prepare a detailed state ment considering the follOWing: 1) the impacts of the proposed action, including any unavoidable adverse effects; 2) alternatives to the proposed
147 See Coggins & Evans, supra note 83, at 450-51. 148 Id. at 450. 149 1987 WILDUFE REPORT, supra note Ill, at 21. 150 Coggins & Evans, supra note 83, at 451. 151 43 U.S.C. § 1732(a) (1994). The BLM Manual explains that a qualified MFP remains in
effect until replaced by a FLPMA plan. BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, BLM MANUAL § 1618.1 (1984) [hereinafter BLM MANUAL]. A qualified MFP is one that was prepared with public participation and intergovernmental coordination, and incor porated the principles of multiple-use and sustained yield established in FLPMA. Id. § 1618.11. However, these requirements do not alter the fact that the "competitive" MFP planning process was skewed from the start in favor of consumptive uses, such as mining and grazing, that are managed by the most powerful BLM divisions. See supra notes 128-49 and accompanying text.
152 National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d (1994). 153 40 C.F.R. § 1500.I(a) (1995). 154 42 U.S.C. § 4321 (1994). 155 Id. § 4332(2)(C). 156 Id.; 40 C.F.R. § 1500.1(b) (1995).
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action; 3) the relationship between short-tenn uses of the environment and long-term productivity; and 4) any irreversible or irretrievable com mitments of resources involved in the proposed action. 157 Agencies faced with unresolved conflicts over different uses of resources must also de velop and study appropriate alternatives to a proposed action. 158 Accord ing to NEPA's implementing regulations, agencies may fulfill these obligations by preparing either an environmental assessment (EA) or an environmental impact statement (EIS).159 The proposed action and its po tential impacts dictate which type of document will be adequate to fulfill NEPA's mandate.
Every proposed agency action falls into one of three categories for NEPA purposes. 160 First, agencies may determine that certain types of projects do not have significant impacts on the environment and should therefore be "categorically excluded" from the requirement to prepare an EA or EIS.161 Second, agencies may identify projects for which an EA or EIS is generally required. 162 For example, BLM has determined that an EIS must be prepared in connection with every resource management plan. 163 Third, agencies may wait to determine whether an EA or EIS should be prepared in connection with a particular action.
When an agency begins to plan an action that is not categorically ex cluded from or included in NEPA's requirements, it may choose to first prepare an EA.164 An agency may use an EA to evaluate whether to pre pare an EIS or to facilitate compliance with all of NEPA's requirements,
. including the mandate to consider alternatives to the potential project. Each EA must explain the need for the proposed action, describe alterna tives to the action, and analyze the environmental impacts of all alterna tives. 165 Generally, an agency issues an EA in draft form and accepts public comment on its discussion and conclusions. 166 After considering public input and the EA, an agency must then determine whether the pro posed project will significantly affect the human environment. If the pro ject will not, the agency issues a "finding of no significant impact" (FONSI),167 which concludes the NEPA process with respect to the pro
157 42 U.S.C. § 4332(2)(C) (1994). 158 [d. § 4332(2)(E). 159 40 C.F.R. §§ 1501.3-.4 (1995). 160 ENVIRONMENTAL LAw REPORTER, ENVIRONMENTAL LAw INST., NEPA DESKBOOK 9 (1989). 161 40 C.F.R. § 1507.3(b)(2) (1995). For example, BLM determined that the reintroduction
of native species into their historical habitats (except threatened or endangered species) and the issuance of certain grazing permits and leases are categorically excluded from the requirement to prepare an EA or EIS. U.S. DEP'T OF 1HE INTERIOR, 516 DEPARTMENTAL MANUAL 6, App. 5.
162 40 C.F.R. § 1507.3(b)(2) (1995). Agencies can thus "categorically include" certain projects under NEPA's requirement that an EA or EIS be prepared.
163 [d. § 1601.0-6; BLM MANUAL, supra note 151, § 1601.06. 164 40 C.F.R. § 1501.3 (1995). 165 [d. § 1508.9(b). 166 NEPA's implementing regulations, however, do not require that an agency accept com
ment on a draft EA. See id. § 1503.1 (regulations requiring an opportunity for public com ment apply only to EISs).
167 [d. § 1508.13.
791 1996] BLM'S PLANNING PROCESS
ject at issue. If the project will have a significant impact, the agency must next prepare an environmental impact statement (EIS).168
An EIS provides a more detailed and in-depth examination of issues than an EA. The most critical sections of an EIS are the discussions of the alternatives to the proposed action and the environmental consequences of the proposed action and all alternatives. 169 An agency preparing an EIS must initiate the process with formal scoping, during which other agencies and members of the public can identify significant issues for consideration in the EIS.170 Agencies must also accept written comments on each EIS from the public and other agencies. l7l In addition, to ensure that agencies make decisions based on the most up-to-date information, NEPA's imple menting regulations direct agencies to supplement an existing EIS under certain circumstances. l72 Supplemental EISs are required when an agency makes substantial changes to a proposed project that alter its environmen tal consequences, and when there are significant new circumstances or information relevant to the proposed action and its effects. 173
As noted above, BLM must prepare an EIS when preparing a resource . management plan 174 and must follow NEPA's procedures when proposing any other major federal actions. NEPA's requirements thus permeate the agency's decision-making process. In hindsight, BLM personnel have praised NEPA for forcing the agency to take a "holistic" approach to deci sion making.l75 Unlike BLM's approach to planning under the eMU Act, in which the agency considered each resource separately, implementing NEPA required a joint examination of all resources: 176 Observers have also credited the statute with increasing the diversity of BLM's employ ees-wildlife biologists and other specialists were important additions to agency staff. 177 In practice, however, BLM was reluctant to dramatically alter its MFP planning process to integrate NEPA's requirements.l78 For example, although NEPA required the agency to examine the environmen tal impacts of its grazing management program, BLM chose not to prepare individual, site-specific EISs considering the local impacts of grazing deci sions. Instead, the agency prepared one programmatic EIS for its entire grazing program. 179 BLM intended to prepare brief environmental analysis
168 42 U.S.C. § 4332(C) (1994); 40 C.F.R. § 1501.4 (1995). 169 40 C.F.R. § 1502.14 (1995) ("This section is the heart of the environmental impact
statement."); id. § 1502.16 (requiring a discussion of impacts to form the basis for compari son of alternatives). An agency must consider all reasonable alternatives, including a "no action" alternative. Id. § 1502.14(a), (d).
170 Id. § 1501.7. 171 See, e.g., 42 U.S.C. § 4332(C) (1994); 40 C.F.R. § 1506.6 (1995). 172 40 C.F.R. § 1502.9(c) (1995). 173 Id. 174 See supra note 163 and accompanying text. 175 MUHN & STUART, supra note 121, at 165 (quoting Ron Hofman, Associate State Direc
tor, HIM California State Office). 176 Id. 177 Id. at 166. 178 Coggins & Evans, supra note 83, at 451. 179 Id. HIM also prepared one progranunatic EIS for its entire mineral leasing program.
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records considering the local impacts of specific allotment management plans and complete a full site-specific EIS only if these analyses revealed significant environmental effects. 180
In 1974, the Natural Resources Defense Council (NRDC) successfully challenged the sufficiency of BLM's programmatic grazing EIS.181 The court agreed with NRDC's claim that BLM's general EIS on the grazing program did not fulfill NEPA's requirements. 182 In its opinion, the district court stated that a programmatic EIS was insufficient to analyze the site specific impacts of local allotment management plans. 183 The court also held that one nationwide EIS would not provide local BLM decision mak ers with adequate on-the-ground information to analyze the available alter natives and their consequences, as NEPA required.l84 In a 1975 court approved settlement, BLM agreed to prepare 212 site-specific EISs consid ering the local impacts of grazing decisions. 185
To meet this obligation, BLM formulated a new planning process that involved completion of MFPs, preparation of an EIS for each management area, and adoption of individual grazing decisions. 186 Professor Coggins has called the initiation of this new planning process the beginning of true planning for BLM lands. 187 Although NEPA mandates no particular sub stantive outcome in BLM planning and management decisions, compliance with NEPA procedures does require agencies to collect available.data and analyze alternative management decisions. 188 These preliminary steps are necessary to a successful formal planning effort.
The grazing EISs BLM prepared to comply with the NRDC settlement reveal NEPA's role in fostering comprehensive planning and agency con sideration of wildlife on the public lands. 189 BLM has paid more atteution to a wide variety of land uses formerly given short shrift, such as wildlife, because NEPA requires BLM range managers and overseers of other con sumptive resources to evaluate the environmental impacts of their deci sions in advance. In addition, NEPA's procedural requirements have increased public access to the public lands decision-making process. Wild
180 [d. at 452. The Council on Environmental Quality did not promulgate regulations for malizing the requirements for preparing EAs until 1978. PIior to that time, 8LM prepared environmental analysis records. These were bIief documents, similar to EAs, that the agency used to determine whether to consider the impacts of an allotment management plan in an EIS. [d. Allotment management plans actually allocate forage to grazing permittees at the local level. [d. at 452 n.303.
181 Natural Resources Defense Council v. Morton, 388 F. Supp. 829 (D.D.C. 1974), affd per curiam, 527 F.2d 1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976).
182 [d. at 841. 183 [d.· at 839. 184 [d.
185 Natural Resources Defense Council v. Andrus, 448 F. Supp. 802, 803-04 (D.D.C. 1978). LoOMIS, supra note 74, at 50; Coggins & Evans, supra note 83, at 453. The parties later agreed to reduce the number of site-specific EISs to 153. Natural Resource Defense Council v. Andrus, 448 F. Supp. at 806.
186 Coggins & Evans, supra note 83, at 453. 187 [d. 188 [d. 189 See id. at 455-56.
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life advocates, recreationists, and other public lands constituencies have taken advantage of this greater access and brought their interests to BLM's attention. NEPA did not, however, provide BLM with the compre hensive guidance for planning that it had always lacked, nor did it give agency decision makers substantive direction. In 1976, Congress finally gave BLM greater authority and direction for land planning by enacting FLPMA.
IV. PUBLIC LANDS MANAGEMENT AND PLANNING UNDER FLPMA
Prior to 1976, BLM lacked an organic act that specified its mission, authorities, and responsibilities. Following the 1970 issuance of the Public Land Law Review Commission's report on management of the public do main,190 BLM sought such a statutory mandate. 191 Congress enacted the Federal Land Policy and Management Act (FLPMA)192 to establish a per manent policy for the BLM's administration of the public lands, arguably as a result of congressional dissatisfaction with past BLM management practices. 193 The increasing degradation of the public lands had also prompted sponsors of the legislation to act. 194 FLPMA reaffirmed the prin ciple of multiple use and sustained yield management of BLM lands origi nally contained in the Classification and Multiple Use Act (CMU Act) of 1964,195 and called for extensive planning for those lands. FLPMA also recognized fish and wildlife as one of several significant public lands re sources. 196 Importantly, FLPMA placed some limits on BLM's discretion in planning for and managing public lands that were missing from the CMU ACt. 197 Several other statutes also restrict BLM discretion and mandate consideration of the wildlife resource. This section discusses the impetus for FLPMA's passage, the planning process it requires, and national BLM
190 PuBUC LAND LAw REVIEW COMM'N, ONE TmRD OF TIlE NATION'S LAND (1970) [hereinafter PLLRC REPORT].
191 See MUHN & STUART, supra note 121, at 166-71. 192 Pub. L. No. 94-579, 90 Stat. 2745 (codified as amended at 43 U.S.C. §§ 1701-1784
(1994)). 193 See, 43 U.S.c. § 1751(b)(1) (1994) (reciting congressional finding that a substantial
amount of the public lands are deteriorating and that range improvements could halt deteri oration and benefit wildlife, watershed protection, and livestock); Coggins, supra note 132, at 5.
194 121 CONGo REC. S507 (Jan. 30, 1975) (remarks of Senator F10yd K. Haskell (D-Colo.)). 195 Pub. L. No. 88-607, 78 Stat. 986 (1964) (expired 1970). 196 See 43 U.S.C. § 1701(8) (1994) (stating that BLM will manage public lands in a manner
that will provide food and habitat for fish and wildlife); id. § 1702(c) (including wildlife and fish within the definition of multiple use).
197 See Coggins, supra note 132, at 54-63, 100-08. For example, section 103(c) of FLPMA warns BLM not to view maximum monetary return or maximum resource output as the primary management goal and prohibits the agency from managing the land in a way that would permanently impair its productivity or environmental quality. 43 U.S.C. § 1702(c) (1994). Section 103(h) requires BLM to manage for sustained yield of all renewable re sources, barring planning and management decisions that bring short-term benefits but jeop ardize future outputs of resources. Ed. § 1702(h). Notwithstanding these limits, BLM retains a great deal of discretion under FLPMA.
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initiatives and other statutes, that affect BLM's planning decisions regard ing wildlife.
A. Impetus for Public Lands Law Reform
In 1964, the same year Congress enacted the CMU Act, Congress also created the Public Land Law Review Commission (PLLRC).198 PLLRC was established as part of a compromise between conservation-minded mem bers of Congress and advocates of disposal and development of the public domain. 199 Congress directed PLLRC to undertake a comprehensive re view of the three thousand public lands laws in the United States, study the policies and practices of the federal land management agencies, and recommend modifications to existing laws and practices. 200 PLLRC re leased its report in 1970. Although many environmentalists criticized the report for its commodity-oriented approach,2°1 many of its recommenda tions were in fact aimed at protection and rehabilitation of public lands and the wildlife living there. 202 Ultimately, Congress incorporated many of the PLLRC's recommendations in FLPMA.203
FLPMA provides BLM with an organic act and addresses a wide vari ety of issues concerning public lands. FLPMA gives BLM permanent au thority to manage public lands on a multiple use, sustained yield basis,204 calls for protection of the public lands,205 provides for public participation in management of BLM lands,206 and limits BLM's discretion in planning and management activities by prescribing management standards207 and promising closer congressional oversight in the form of several legislative vetoes. 208 FLPMA also requires BLM to engage in a comprehensive plan ning effort to resolve conflicts on the public lands,209 and directs the
198 Pub. L. No. 88-606, 78 Stat. 982 (1964) (codified as amended at 43 U.S.C. §§ 1391-1418 (1994)).
199 Muhn & Stuart, supra note 121, at 120. 200 PLLRC REPORT, supra note 190, at x. 201 See MUHN & STUART, supra note 121, at 120 (describing criticism of PLLRC). 202 See, e.g., PLLRC REPORT, supra note 190, at 7 (stating that a fundamental premise of
public lands law should be providing responsible stewardship of the public lands and their resources), 157-75 (stating that land managers should give greater emphasis to fish and wild life values in allocating public lands to various uses, and setting forth recommended actions to accomplish this goal).
203 MUHN & STUART, supra note 121, at 166. 204 43 U.S.C. § 1732(a) (1994). An exception is provided for "revested Oregon and Califor
nia Railroad and reconveyed Coos Bay Wagon Road grant lands" in western Oregon, which are managed for the dominant use of timber production. Id. § 1181(a).
205 Id. § 1732(b). 206 Id. § 1712(f); see also Coggins, supra note 132, at 18 (explaining how FLPMA encour
ages public participation). 207 43 U.S.C. § 1713 (1994); see MUHN & STUART, supra note 121, at 120. 208 See 43 U.S.C. §§ 1713(e)(2), 1714(c); see Coggins, supra note 132, at 18. FLPMA did
not repeal the Taylor Grazing Act, 43 U.S.C. §§ 315-315r (1994), but supplements its provi sions. See 43 U.S.C. §§ 1751(b)(1), 1752(a) (1994) (referring to provisions of the Taylor Graz ing Act).
209 43 U.S.C. § 1712 (1994).
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agency to act in accordance with its land management plans once they are completed. 210
B. The FLPMA Planning Process
In FLPMA, Congress placed a great deal of faith in the planning pro cess as a way to ensure an appropriate allocation of the various resources on the public lands. For example, the House committee report on FLPMA stated that "the proper multiple use mix. of retained public lands is to be achieved by comprehensive land use planning."211 In addition, Congress declared that the national interest required present and future uses of pub lic lands be projected through a land use planning process. 212 The multiple resources for which BLM must plan under FLPMA include fish and wild life, recreation, range, timber, minerals, watershed, and natural scenic, sci entific, and historical values. 213 Unfortunately, BLM's efforts to comply with FLPMA's planning mandates have been hindered by the statute's lack of specific requirements and guidelines for the planning process.
1. Statutory Requirements jor Plan Content and Preparation
FLPMA contains few specific standards against which the contents of a Resource Management Plan (RMP) can be measured. In fact, the statute sets forth no required RMP elements. The statute also fails to provide gui dance regarding the procedures BLM should use in preparing plans, be yond emphasizing that RMPs will be prepared with public participation and involvement.214 In addition, FLPMA establishes no timetable for plan completion.
Instead of giving BLM explicit direction, the statute contains nine "criteria" for the planning effort. 215 These criteria are intended to ensure that all values are considered in the planning process, leading to a bal anced multiple use, sustained yield allocation of resources. 216 However, the criteria may be too broad to achieve this goal. According to FLPMA's criteria, BLM must observe principles of multiple use and sustained yield, use a systematic interdisciplinary approach, and rely on an inventory of public lands, resources, and values when preparing plans. 217 The agency must also consider present and potential uses of public lands and the rela tive scarcity of values involved, compare long-term and short-term bene fits, and coordinate its planning process with that of state and local governments and Indian tribes.218 Plans must provide for compliance with federal and state pollution control laws, be consistent with state and local
210 [d. § 1732(a). 211 H.R. REP. No. 1163, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 u.S.C.C.A.N. 6175,
6176. 212 43 U.S.C. § 1701(a)(2) (1994). 213 [d. § 1702(c).' 214 [d. § 1712(a), (f). 215 [d. § 1712(c). 216 See Coggins & Evans, supra note 83, at 456. 217 43 U.S.C. § 1712(c)(I)-(2), (4) (1994). 218 [d. § 1712(c)(5)-(7), (9).
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plans to the maximum extent possible, and give priority to areas of critical environmental concern. 219
These criteria sound promising, but only one provides an objectively enforceable restriction on BLM's discretion.22o The requirement that plans result in compliance with applicable pollution control laws can be moni tored with reference to numerical standards. The other standards give BLM little concrete assistance in formulating RMPs.
Commentators have criticized these provisions for offering little di rection for BLM to follow in carrying out its planning efforts and balancing multiple uses of the public lands.221 The broad principles for planning de scribed above still provide BLM with a good deal of discretion when pre paring RMPs, leaving the agency vulnerable to pressure from consumptive users of the public lands who seek decisions which will favor their inter ests. In addition, BLM's compliance with even these general guidelines has been questioned. 222 BLM thus has operated in a statutory vacuum in devel oping and implementing its formal planning process. 223
Once BLM completes an RMP, the plan controls the management of the public lands. 224 Numerous FLPMA provisions refer to the importance of conforming to RMPs when taking specific actions such as selling or acquiring lands or changing existing land classifications. 225 Both BLM reg ulations and the ELM Manual emphasize that resource management ac tions, budget proposals, and more detailed implementation plans must confOrrrl to approved RMPs.226 BLM personnel wishing to depart from the course of action called for in an RMP must obtain an amendment to or revision of the plan, each of which requires public participation, inter agency coordination, and the preparation of an environmental assessment
219 [d. § 1712(c)(3), (8)-(9). Areas of critical environmental concern are areas requiring. special management attention to, among other things, prevent irreparable damage to fish and wildlife resources. 43 U.S.C. § 1702(a) (1994); see discussion infra part V.A.2.
220 See George Cameron Coggins, The Developing Law Of Land Use Planning on the Fed eral Lands, 61 U. Cow. 1. REV. 307, 321-22 (1990) (arguing that the requirement to "give priority to the designation and protection" of areas of critical environmental concern may also be a definite standard; however, it is hard to objectively measure what degree of consid eration is called for by the "giving priority" standard) (citing 43 U.S.C. § 1712(c)(3) (1994)).
221 See, e.g., COGGINS, supra note 76, § 13.04[3)[c). 222 Coggins & Evans, supra note 83, at 460-64 (criticizing 81M's adherence to each of the
statutory guidelines). 223 81M's experience with planning can be contrasted with that of the U.S. Forest Ser
vice, which is guided by the much more detailed requirements contained in the National Forest Management Act (NFMA). See 16 U.S.C. §§ 1604-1729 (1994). For example, NFMA requires the Forest Service to protect waterbodies from detrimental impacts, sets limits on where timber harvesting may occur, and directs the agency to ensure a diversity of plant and animal communities. [d. § 1604(g). Unlike FLPMA, NFMA sets a deadline for forest plan completion. [d. § 1604(j).
224 43 U.S.C. § 1732(a) (1994). Until an RMP is completed for a resource area, 81M deci sions must conform to the provisions of pre-existing management framework plans. 43 C.F.R. § 1610.5-5 (1995).
225 43 U.S.C. §§ 1712(d) (modifying land classification), 1713(a) (selling), 1715(b) (acqui sition) (1994).
226 43 C.F.R. § 161O.5-3(a) (1995); 8LM MANUAL, supra note 151, § 1617.3.
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or environmental impact statement.227 Final RMPs thus restrict the discre tion that BLM personnel might otherwise have when making resource management decisions on the public lands.
2. BLM Planning Regulations and Guidance
After Congress enacted FLPMA, BLM evaluated its approach to plan ning for the public lands in light of the new statutory mandate. After some debate over whether to improve the MFP approach or develop an entirely new planning process, the agency chose to follow the latter course.228 In 1979, BLM issued regulations that substantially upgraded the existing ad vocacy model of planning229 and called for an interdisciplinary approach instead. 230 These regulations did away with the "competitive" planning procedures used to prepare MFPs and established a nine-step planiling process.231 Under these regulations, BLM would engage in truly compre hensive planning by considering all resources on all lands within each planning area.232 This new process had great promise for assisting BLM in balancing multiple uses, because it required BLM to begin with a clean slate in considering resource allocation issues, collecting data, and evalu ating alternative management approaches for all resources.233 Decisions previously made in management framework plans (MFPs) would not be viewed as necessary elements to be included in the new RMPs. Unfortu nately, the new Reagan administration soon initiated changes in the regu lations that reduced their effectiveness as a tool for comprehensive planning.234
During the early 1980s, new BLM director Robert Burford established a task force to "streamline" the planning regulations.235 This review of the regulations proceeded on the assumption that funds for planning would be greatly reduced. 236 Although the revised regulations did little to change the nine-step planning process established under the initial rules, they did take a step back from comprehensive planning by failing to require that all resources be considered during the planning for each area. 237 Instead, new RMPs would focus solely on resource issues that needed resolution and
227 43 C.F.R. 161O.5-3(c) (1995). 228 LoOMIS, supra note 74, at 52. 229 See supra notes 139-43 and accompanying text. 230 LoOMIS, supra note 74, at 52. At the same time, the U.S. Forest Service developed
regulations to implement NFMA's planning mandate. The regulations initially adopted by both agencies were very siInilar. Id. at 52, 285.
231 Williams, supra note 37, at 6. 232 Id. at 10; LoOMIS, supra note 74, at 285. 233 LoOMIS, supra note 74, at 52. 234 Id. at 285. 235 Williams, supra note 37, at 10. 236 Id. 237 See 43 C.F.R. §§ 1610.4-1 to .4-2 (1995) (BLM shall analyze public concerns and avail
able information to identify issues to be addressed during the planning process and shall select criteria tailored to those issues).
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were not covered by other plans, such as MFPs.238 The new BLM regula tions stand in contrast to the planning rules adopted by the U.S. Forest Service, which contain specific direction regarding how each resource is to be considered during the planning effort. 239
In 1986, BLM took a small step back toward truly comprehensive planning by issuing supplemental program guidance applicable to each of the multiple-use resources. 240 This guidance instructs staff on how to con sider each resource during the planning process. 241 For example, each RMP is to identify priority species and habitats, establish objectives for habitat maintenance, and consider the role of wildlife in regional econo mies. 242 Each plan must also identify public lands where grazing will be excluded and should analyze the effects of grazing on other resources. 243 Implicit in the guidance is the expectation that each plan will fully con sider each resource. However, the guidance still allows BLM managers to exclude certain issues from the planning process if the agency determines that an evaluation of the issue would be "premature."244 Accordingly, even since the adoption of the supplemental guidance, BLM frequently avoids resolving key resource issues during the planning process. 245
3. Sufficiency of Incremental Planning
The pitfalls of this type of incremental planning have been well illus trated in many RMPs prepared to date. For example, BLM often considers existing grazing levels as an external constraint on a final plan, rather than as a resource allocation issue to be resolved through the planning pro cess. 246 Such an approach to planning cannot lead to a true balancing of all public lands resources, because certain resource issues may receive little or no consideration during the planning process. Consequently, pre FLPMA management choices remain effective indefinitely. The end result is an agency decision to avoid preparing an RMP for certain resources.
Such an approach is poor policy and also arguably violates FLPMA, which requires BLM to develop plans for the public lands "regardless of whether such lands previously have been classified, withdrawn, or other wise designated for one or more uses."247 In addition, BLM's tendency to exclude certain resources from the planning process fails to fulfill
238 Id. LOOMIS, supra note 74, at 285; Williams, supra note 37, at 20 (BLM initiates a new plan only when the state director detennines that issues require a plan and that the existing MFP is insufficient).
239 See 36 C.F.R. §§ 219.14-.26 (1995). 240 BLM MANUAL, supra note 151, § 1620. 241 Id. 242 Id. §§ 1622. l1A. 1-2, 1622. 12E. 243 Id. §§ 1622.31A.1, 1622.32A. 244 Id. § 1620.06D. 245 See infra note 246 and accompanying text; BUREAU OF LAND MANAGEMENT, U.S. DEP'T
OF THE INTERIOR, SAFFORD DISTRICT RESOURCE MANAGEMENT PLAN AND ENVIRONMENTAL IMPACT STATEMENT 12 (1991) [hereinafter SAFFORD RMP) (stating that grazing would not be analyzed in planning effort or NEPA analysis because it had been analyzed in previous documents).
246 Feller, supra note 42, at 577. 247 43 U.S.C. § 1712(a) (1994).
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FLPMA's directive that plans be developed in accordance with multiple use and sustained yield principles. 248 A true multiple use, sustained yield approach necessarily requires the agency to consider and balance each public lands resource. Although BLM maintains a great deal of discretion when preparing plans,249 FLPMA does not provide the agency with discre tion to avoid adequate planning altogether. The D.C. Circuit has validated this view in holding that pre-FLPMA MFPs do not satisfy Congress's ex pectation that the agency would adopt comprehensive land use plans. 25o The court rejected BLM's argument that FLPMA authorized the extended use of existing MFPs in place of the new plans required under FLPMA.251 The same reasoning leads to the conclusion that BLM's current practice of excluding certain issues from consideration in the RMP process, and its overall delay in finalizing new plans, violates FLPMA.
a. Decentralized Planning Process
BLM's planning process has always been decentralized. 252 RMPs are generally prepared for individual resource areas, which are portions of BLM districts. BLM will eventually develop RMPs for approximately 144 such areas. 253 The BLM area manager is the ·key person in the planning process, because he prepares, implements, and monitors the RMP for the resource area. 254 District managers supervise the RMPs in their district and approve or modify the area manager's proposed RMP.255 State direc tors must approve each RMP in their state and issue guidance to assist area and district managers in the planning effort. 256 State directors have a good deal of discretion in formulating guidance documents, which reflect the state directors' coordination with the governors' offices and affected agencies within states. 257 Ultimately, the national BLM director has re
248 Id. §§ 1702(c) (defining multiple use as management of resources in the combination that best meets the needs of the American people; providing that resources to be considered include recreation, range, timber, minerals, watershed, wildlife and fish, and scenic values), 1712(c)(1) (requiring BLM to develop plans according to sustained yield and multiple use principles).
249 Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045, 1058 (D. Nev. 1985), affd, 819 F.2d 927 (9th Cir. 1987) (upholding ambiguous BLM plan because FLPMA's general clauses grant BLM great discretion).
250 National Wildlife Fed'n v. Burford, 835 F.2d 305, 322 (D.C. Cir. 1987), rev'd on other grounds sub nom., Ltijan v. National Wildlife Fed'n, 497 U.S. 871 (1990).
251 Id. at 321-22. 252 Williams, supra note 37, at 10. 253 RMP SUMMARY, supra note 45. 254 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, BLM PLANNING: A GUIDE TO
RESOURCE MANAGEMENT PLANNING ON THE PuBUC LANDS 5 (1983) [hereinafter BLM PLANNING GUIDE].
255 Id. 256 Id.
257 For example, state directors issue guidance regarding the designation of areas of criti cal environmental concern (ACECs). See irifra part V.A.2. These guidance documents fur ther refine national guidance issued by BLM headquarters. Variations in these guidancE' documents have led to noticeable differences in implementation of the ACEC program
800 ENVIRONMENTAL LAW [Vol. 26:771
sponsibility for the entire planning system, including issuing national gui dance and setting budget priorities. 258
This distribution of responsibilities for planning mirrors BLM's over all decentralized management structure. Nearly all decision making occurs at local and state levels. 259 Although policies emanate from national head quarters,260 national division chiefs often lack the power to enforce their directives. 261 This produces inconsistent policy implementation and a lack of oversight of local BLM management decisions, particularly if some re sources are not fully considered during the planning for each area. Also, local BLM managers are often left vulnerable to strong pressures from
. ranchers and other commodity interests, resulting in resource allocation decisions that are harmful to wildlife and habitat. 262
b. Plan Substance
Like FLPMA's planning provisions, BLM planning regulations have been criticized for their failure to give specific guidance to agency person nel.263 Unlike U.S. Forest Service planning regulations, which contain de tailed requirements regarding plan content,264 BLM regulations provide little direction and allow the situation in any given resource area to dictate an appropriate plan. 265 The regulations simply define a resource manage ment plan as a written document that generally establishes eight "deci sions. "266 These include identifying land areas for limited, restrictive, or exclusive use, such as designating an important wildlife habitat area as an area of critical environmental concern. 267 The plan must also determine allowable resource uses and levels of production to be maintained and must set resource condition goals. 268 For example, an RMP could estab lish a goal of improving the condition of deer habitat to a certain level. 269
among the states. CHARLES CALLISON, AREAS OF CRmCAL ENVIRONMENTAL CONCERN ON THE PUBLIC LANDS, PART II (1986).
258 BLM PLANNING GUIDE, supra note 254, at 5. 259 1987 WILDLIFE REPORT, supm note 111, at 12. The extent of BLM's decentralization
was vividly illustrated during attempts to determine how many RMPs had been completed as of 1995. The national BLM office does not possess this information and suggested calling each state office to determine which RMPs had been completed in the states. Telephone Interview with Kurt Kotter, BLM (Feb. 1995).
260 For example, BLM's headquarters has issued guidance and directives concerning the designation of ACECs. CALLISON, supm note 257, at 3-6.
261 1987 WILDLIFE REPORT, supm note 111, at 12. As an illustration, state directors are required to submit fish and wildlife data to Washington annually. [d. However, the small staff at headquarters cannot ensure that states comply with reporting requirements. [d.
262 Blumm, supra note 23, at 421. With the changing political climate and the rise of the Wise Use movement in recent years, this type of pressure may become even more difficult to resist.
263 Coggins & Evans, supm note 83, at 464-65. 264 36 C.F.R. § 219 (1995) (Forest Service planning regulations). 265 Williams, supm note 37, at 21. 266 43 C.F.R. § 1601.0-5(k) (1995). 267 [d. § 1601.0-5(k)(I). 268 [d. § 1601.0-5(k)(2)-(3). 269 BLM PLANNING GUIDE, supm note 254, at 8.
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A plan also indicates which areas need to be covered by more detailed activity plans, such as habitat management plans. 27o Program constraints, management practices, support actions, and general implementation se quences necessary to achieve plan goals must be set forth. 271 Finally, plans must include standards for monitoring and evaluating plan effectiveness.272
c. ELM's Nine-Step Planning Process
The regulations require BLM to follow nine steps when preparing each RMP.273 The planning process and the National Environmental Policy Act (NEPA) process are fully integrated. 274 The agency formally initiates preparation of an RMP by publishing a notice in the Federal Register and in newspapers of general circulation in the affected area. 275 Then, BLM follows nine steps to develop a final RMP.276 It takes at least three years to complete each new plan.277 Once a plan is completed, many years may elapse before it is reexamined. Unlike U.S. Forest Service plans, which must be revised every fifteen years,278 RMPs have no mandatory revision date.
(1) Issue Identification
As the first step in the planning process, the regulations require BLM to accept suggestions from federal agencies, state and local governments, Indian tribes, and the public regarding concerns, needs, and resource use and protection opportunities that the agency should consider in preparing the RMP.279 The BLM area manager responsible for plan preparation gath ers these suggestions (as well as those from BLM staff) and identifies ma jor issues to guide RMP preparation. Step one also serves as the scoping process required under NEPA. 280
270 43 C.F.R. § 1601.0-5(k)(5) (1995). Activity plans are third-tier plans prepared after RMPs are completed. The first tier of the planning system is national policy, including stat utes, guidance, the BLM Manual, and nationwide programs for land management. RMPs, and MFPs where they have not yet been replaced, comprise the second tier. See supra notes 37-38 and accompanying text.
271 43 C.F.R. § 1601.0-5(k)(4), (6)-(7) (1995). 272 [d. § 1601.0-5(k)(8). 273 [d. §§ 1601.0-1 to 1610.8. 274 BLM PLANNING GUIDE, supra note 254, at 8. 275 43 C.F.R. § 161O.2(c) (1995). 276 The nine-step planning process is comprehensively described in BLM PLANNING GUIDE,
supra note 254, at 10-18. 277 BUDGET JUSTIFICATIONS, supra note 49, at 3-109. 278 See 36 C.F.R. § 219.1O(g) (1995) (forest plans are ordinarily revised on a lO-year cycle,
or at least once every 15 years). 279 43 C.F.R. § 1610.4-1 (1995). 280 [d. Scoping is a process during which an agency determines what issues its NEPA
analysis for a proposed project will address. Agencies conduct scoping by consulting with other federal, state, and local agencies and Indian tribes, and by accepting input from inter ested members of the public. 40 C.F.R. § 1501.7 (1995). Once scoping is completed, prepara tion of an environmental assessment (EA) or environmental impact statement (ElS) begins. BLM has taken the position that the approval of every RMP is a major federal action with
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The process of issue identification is crucial to the entire planning process. If the agency believes certain resource issues have been ade quately resolved by existing plans, it may give those questions less than full attention during RMP preparation or ignore them altogether. 281 To en sure that wildlife and habitat management issues receive careful examina tion and analysis, advocates for these issues must make BLM aware of the significance of the issues at the outset of the planning process.
(2) Planning Criteria
After identifying major resource issues, the regulations require the area manager to develop planning criteria to guide RMP preparation.282 The planning criteria established for each RMP tailor the planning process to the resource issues previously identified. This allows BLM to avoid un necessary data collection and analysis and establish standards and mea sures to be used in preparing an RMP.283 These criteria determine what the agency will consider during the planning process and how the agency will evaluate various altematives:284 Because these criteria are such an important aspect of the planning process, BLM accepts public comment on the proposed criteria before adopting them. 285 Members of the public and other agencies may also suggest adding or deleting certain criteria. 286
(3) Inventory Data and Information
The planning criteria identify the types and levels of data necessary to resolve the selected resource issues. 287 Next, the area manager arranges for the assembly of available resource, environmental, social, economic, and institutional data and information or, if required, the collection of new data. 288
(4) Management Situation
After assembling necessary data and information, agency regulations direct the area manager to analyze available facts to gain familiarity with the present status of the resource area that is the subject of the planning
significant effects, requiring agency personnel to prepare an EIS at the same time they de velop each RMP. 43 C.F.R. § 1601.0-6 (1995); see supra note 162 and accompanying text.
281 LoOMIS, supra note 74, at 288; Williams, supra note 37, at 10 (noting that RMPs are initiated only when issues are not covered by existing plans); SAFFORD RMP, supra note 245, at 12 (refusing to reanalyze the allocation of lands within the planning area to grazing and merely incorporating prior decisions). The BLM Manual directs that resource uses not cov ered by identified issues be analyzed "as appropriate" and "as necessary to support deci sions" made in the plan. BLM MANUAL, supra note 151, §§ 1616.1, 1616.13B. In practice, this may amount to no analysis at all. See SAFFORD RMP, supra note 245, at 12.
282 43 C.F.R. § 1610.4-2 (1995). 283 [d. 284 BLM PLANNING GUIDE, supra note 254, at 12. 285 [d. 286 [d. 287 [d. at 13. 288 43 C.F.R. § 1610.4-3 (1995).
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effort. 289 This analysis provides the basis for formulating and evaluating various management alternatives. 29o Factors BLM may consider include the following: 1) the types of resource use and protection authorized by FLPMA and other statutes; 2) resource demand forecasts and analyses; 3) estimated sustained levels of uses under existing and differing manage ment practices; 4) requirements necessary to achieve consistency with policies and plans of other federal, state, and local agencies and Indian tribes; 5) opportunities to resolve public concerns; and 6) the degree of local dependence on public lands resources. 291
BLM compiles this information into an internal document called the management system analysis (MSA).292 The MSA includes projections of the various levels of resource uses that can be achieved under different management approaches and a description of the present management sit uation to be used as a baseline for evaluating other alternatives. 293 To con duct this analysis, BLM uses computerized mapping techniques to display resource uses on each parcel of land in the resource area. 294 In addition, the ELM Manual requires agency personnel to perform a cost-benefit analysis of uses that will significantly constrain resource production or require substantial investment. 295
Preparation of the MSA is a critical aspect of the planning process. This analysis is meant to inform BLM and the public about the area's capa bility to resolve the planning issues and satisfy various resource de mands,296 and will be relied upon by decision makers throughout the planning process. BLM formulates alternative resource management ap proaches based on the MSA results.297 The methods used to complete the MSA are thus very important. For example, an overly optimistic estimate of an area's ability to provide forage may lead to overallocation of grazing rights with adverse effects for wildlife. Also, the assumptions upon )Vhich BLM bases its cost-benefit analyses, and the frequency with which it un dertakes these analyses, are crucial. Cost-benefit analyses should not be reserved solely for projects that restrict the outputs of consumptive re sources, but should also examine projects that constrain management of nonconsumptive resources. For example, the costs of activities that will harm nonconsumptive resources such as wildlife or habitat should be taken into account. Similarly, the benefits of preserving wildlife and habitat should be quantified, perhaps with reference to income from tour ism or hunting and fishing activities. In this way, BLM will be prepared to evaluate the total effects of proposed management actions and will not
.289 [d. § 1610.4-4. 290 [d. 291 [d.
292 LoOMIS, supra note 74, at 289. 293 [d.
294 [d. at 290. 295 BLM MANUAL, supra note 151, § 1616.43C. 296 LoOMIS, supra note 74, at 289. 297 BLM MANUAL, supra note 151, § 1616.52.
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rely solely on predictions of expected economic outputs from traditional consumptive resources. 298
(5) Formulate Alternatives
The area manager must next identify reasonable resource manage ment alternatives. 299 These alternatives reflect a range of combinations of resource uses and management practices that are feasible given the re source capabilities identified during the management system analysis and respond to the planning issues previously identified. 3oo
The identification of alternatives is another critical step in the plan ning process. NEPA requires that BLM propose a broad spectrum of alter natives to provide a real basis for resolving conflicts.30l To satisfy NEPA, the agency must include a "no-action" alternative. 302 Generally, this means "no development" or "no use" of a particular resource. However, BLM has interpreted "no action" to mean the continuation of present levels or types of resource use.303 Under this interpretation, BLM is not required to con sider a "no grazing" or "no mining" alternative during the planning process. The planning effort is thus biased from the start in favor of the status quo, such as existing grazing levels. Although BLM's approach seems to contra vene NEPA's directive that agencies consider a wide range of alternatives, it was upheld in 1985 in an unsuccessful challenge brought by the Natural Resources Defense Council. 304
Although BLM need not study a true "no action" alternative, it must examine alternatives that favor resource protection, as well as alternatives that are more commodity and production oriented.305 BLM has taken this directive to heart, often proposing alternatives at each end of a spectrum of resource use. 306 However, linking together all "preservationist" manage ment options in one alternative and all "commodity" management options in another is often counterproductive, because the agency can then avoid
298 An administrative law judge (ALl) in the Department of the Interior recently required BLM to carry out this type of cost-benefit analysis before authorizing grazing in certain Utah canyons. The ALI directed BLM to determine whether the benefits of grazing outweighed costs such as damage to vegetation, riparian areas, and scenic and recreational values. Na tional Wildlife Fed'n v. BLM, UT-06-91-01 (Dep't of Interior, Office of Hearings & Appeals, Hearings Div., Dec. 20, 1993); see Joseph Feller, 'Til the Cows Come Home: The Fatal Flaw in the Clinton Administration's Public Lands Grazing Policy, 25 ENVTL. 1. 703, 707 (1995) (discussing above case).
299 43 C.F.R. § 1610.4-5 (1995).
300 BLM PLANNING GmDE, supra note 254, at 15; LoOMIS, supra note 74, at 292-93. 301 40 C.F.R. § 1502.14 (1995). NEPA's implementing regulations describe the evaluation
of alternatives as "the heart" of the environmental impact statement. Id. 302 Id. § 1502.14(d). 303 BLM MANUAL, supra note 151, § 1616.52B. 304 Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045 (D. Nev. 1985), affd
819 F.2d 927 (9th Cir. 1987). 305 BLM MANUAL, supra note 151, § 1616.52E. 306 Feller, supra note 42, at 571.
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seeking a truly balanced management approach that may satisfy the needs of all public lands users. 307
(6) Evaluate Alternatives
Once the area manager has formulated the alternatives, she must esti mate their impacts, including the physical, biological, economic, and so cial effects of each alternative planning approach. BLM must conduct this evaluation in accordance with the procedures mandated by NEPA,308 At this step, the manager must consider any unavoidable adverse impacts, relationships between short-term uses of the public lands and the long term maintenance or enhancement of the environment's productivity, any irreversible commitments of resources, and ways to mitigate adverse im pacts.309 This process is designed to inform the BLM manager and the public about the trade offs and changes associated with the various alter natives, as well as the manner in which each alternative resolves the is sues identified in step one.310
(7) Select Preferred Alternative
After the area manager has estimated the effects of the various alter natives, she and the district manager evaluate the alternatives and their estimated impacts according to the planning criteria.311 The area manager identifies the "preferred alternative," which is the alternative that in the manager's judgment best resolves planning issues and promotes balanced multiple use objectives.312 This is clearly a key step in the planning pro cess, because the preferred alternative is BLM's proposed plan for the re source area. The district manager reviews this alternative, which BLM then incorporates into the draft RMP and analyzes in the draft environ mental impact statement (EIS).313 The draft documents are then for warded to the state BLM director for approval.314 Once the state BLM director approves the draft RMP and EIS, the agency publishes the drafts and accepts public comment for a period of ninety days.315 BLM an nounces the availability of the draft RMP and draft EIS in the Federal Reg ister, through local news media, and to interested persons on BLM's mailing lists.316
307 [d.; Franzese, supra note 77, at 57-58 (making same point with respect to U.S. Forest Service planning).
308 43 C.F.R. § 1610.4-6 (1995). 309 BLM PLANNING GUIDE, supra note 254, at 16. 310 LoOMIS, supra note 74, at 294. 311 43 C.F.R. § 1610.4-7 (1995). 312 BLM MANUAL, supra note 151, § 1616.73. 313 [d. § 1616.73.B. 314 [d. § 1616.73C.
315 43 C.F.R. § 161O.2(e) (1995). 316 BLM PLANNING GUIDE, supra note 254, at 17.
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(8) Approving the RMP
BLM regulations next require the area manger to review public com ments on the draft RMP and draft EIS.317 The manager uses the public's opinions and suggestions in determining whether to stay with the pre ferred alternative or select another alternative described in the draft docu ments.318 The BLM district manager forwards the proposed RMP, containing the chosen alternative and the final EIS, to the state director for review. 319 The state director must also submit the proposed plan to the state governor, who has sixty days in which to identify any inconsistencies with state or local plans and policies and suggest any necessary changes.32o BLM is not required to adopt the governor's recommenda tions, but must accept public comment on proposed changes under cer tain circumstances.321
Once the state director and governor have completed their review, the proposed RMP is published. Publication begins a thirty-day review pe riod, during which persons who participated in the planning process and have an interest that may be adversely affected by the RMP may protest the plan.322 Protests are filed with the national BLM director and may raise only those issues that were submitted during the planning pro cess. 323 The national BLM director resolves each protest, and his decision constitutes the final decision of the Department of the Interior (DOI).324 There is no further avenue for administrative appeal.325 Thirty days after the review period has passed and all protests have been resolved, the state BLM director may approve the RMP.326
(9) Evaluating the RMP
After BLM adopts the final RMP, the agency monitors and evaluates plan implementation in accordance with standards set forth in the RMP.327 BLM must track changes in the environment and the impacts of plan im plementation on an ongoing basis and must identify new developments that may make plan amendment or revision appropriate.328
C. The Effect of the "Top Tier" on the Planning Process
As previously noted, the resource management planning process de scribed above is only the middle tier of BLM's three-tier planning sys
317 43 C.F.R. § 1610.4-8 (1995). 318 BLM PLANNING GUIDE, supra note 254, at 18. 319 43 C.F.R. § 1610.4-8 (1995). 320 [d. § 161O.3-2(e). 321 [d. 322 [d. § 161O.5-2(a). 323 [d. 324 [d. § 161O.5-2(b). 325 Williams, supra note 37, at 22. 326 43 C.F.R. § 1610.5-1(b) (1995). 327 [d. § 1610.4-9. 328 BLM PLANNING GUIDE, supra note 254, at 19; BLM MANUAL, supra note Hi I, § l(i ](i.!lI.
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tem.329 The top tier includes statutes, the BLM Manual and national guidance, and nationwide resource management initiatives. This section describes several statutes and national programs that fall within the top tier and protect wildlife and its habitat. The statutes, notably the Endan gered Species Act,330 the Sikes Act,331 and the Public Rangelands Improve ment Act,332 restrict BLM's discretion in preparing RMPs and ensure that wildlife receives a certain degree of consideration in the planning process. BLM has also adopted two national initiatives, Fish and Wildlife 2000333 and the Riparian-Wetland Initiative for the 1990s,334 which also influence the planning process and have special importance for wildlife on the pub lic lands. Because BLM actions in preparing and implementing RMPs must conform to the requirements of these statutes and programs, they can have a significant impact on the land planning process.
1. The Endangered Species Act
The Endangered Species Act (ESA)335 requires no formal planning. It does, however, restrict BLM's actions on lands inhabited by threatened or endangered species and commands BLM to conserve listed species.336 Un like FLPMA, which requires BLM to consider all wildlife in making re source allocation decisions, the ESA protects only listed species. However, unlike FLPMA, the ESA provides BLM with much less discretion and furnishes much stronger protection for those species to which it does apply.
For example, section 9 of the ESA prohibits any person, including federal agencies such as BLM, from "taking" any endangered species.337
"Take" is defined broadly to include harassing, harming, and pursuing spe cies, as well as hunting, killing, or wounding them.338 The U.S. Supreme Court recently confirmed the long-standing view of many lower courts that degradation or destruction of a listed species' habitat may constitute
329 See supra notes 37-38 and accompanying text. 330 16 U.S.C. §§ 1531-1544 (1994). 331 16 U.S.C. §§ 670g-670o (1994). 332 43 U.S.C. §§ 1901-1908 (1994). 333 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF TIIE INTERlOR, FISH AND WILDUFE 2000
(1987). 334 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERlOR, RIPARIAN-WETLAND INITIA
TIVE FOR TIIE 1990's (1991). 335 16 U.S.C. §§ 1531-1544 (1994). 336 The ESA also requires BLM to take affumative action to preserve endangered species.
[d. § 1536(a)(I). BLM works with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to develop recovery plans for threatened and endangered species inhab iting the public lands, and BLM must implement these plans. [d. § 1533(f); ROHLF, supra note 52, at 89. In addition, BLM must generally promote the recovery of all listed species on its lands. 16 U.S.C. §§ 1531(c), 1536(a)(l) (1994); ROHLF, supra note 52, at 92. In fulfilling the ESA's requirements, BLM expects to complete 50 recovery plans in fiscal year 1996. BUDGET JUSTIFICATIONS, supra note 49, at 3-56.
337 16 U.S.C. § 1538(a)(I)(B) (1994). This proscription has in many cases been extended by the DOl Secretary to cover threatened species as well. See id. § 1533(d); 50 C.F.R. § 17.31(a) (1995).
336 16 U.S.C. § 1532(19) (1994).
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a taking under section 9. 339 This interpretation has had a significant im pact on agency land management decisions, as illustrated by a recent case challenging U.S. Forest Service policies that allowed clear-cutting in the habitat of the endangered red-cockaded woodpecker. 340 The district court of the Eastern District of Texas ruled that these policies were a taking under the ESA and prescribed a substitute set of management practices for the Forest Service to follow near woodpecker nesting sites.341
Section 7 of the ESA requires BLM to ensure that its actions are not likely to jeopardize the continued existence of listed species or damage these species' critical habitat.342 To comply with this mandate, BLM must go through several steps before moving forward with a project. First, BLM must informally consult with either the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) to determine whether a listed species may be present in the area affected by a proposed action.343 If a listed species is present, BLM must prepare a biological as sessment before beginning a project,344 A biological assessment must identify listed species that may be affected by the proposed action and evaluate the proposed project's likely impacts on the species. 345
If an agency's biological assessment reveals that the proposed action "may affect" listed species or critical habitat, BLM must undertake formal consultation with the FWS or NMFS.346 During consultation, the FWS or NMFS will determine whether the proposed action will jeopardize listed species and issue an opinion stating its conclusion. 347 The fish and wildlife agencies may also suggest mitigation measures that should be taken to avoid jeopardizing listed species.348 While a "jeopardy opinion" would not prohibit BLM from proceeding with a proposed action, going forWard in the face of such an opinion is likely to result in a finding that the agency acted arbitrarily and capriciously if litigation over the action ensues.349
Because both the adoption of a new RMP and the continuation of manage ment direction contained in an existing plan are agency actions subject to
339 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2413-15 (1995) (upholding U.S. Fish and Wildlife Service regulation, 50 C.F.R. § 17.3 (1995), that defines "take" to include habitat modification).
340 Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988), affd in part, vac'd in part sub nom., Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).
341 694 F. Supp. at 1272 (directing the Forest Service to implement several measures to maximize the probability of woodpecker survival). While federal agencies may obtain ex emptions from section 9's restrictions for actions that result in "incidental" takings, such exemptions are unavailable for actions that destroy or degrade critical habitat. 16 U.S.C. § 1536(b)(4) (1994).
342 16 U.S.C. § 1536(a)(2) (1994). 343 See RICHARD lITIELL, ENDANGERED AND OrHER PROTECTED SPECIES 53 (1992). 344 16 U.S.C. § 1536(c)(1) (1994). 345 [d. j ROIll.F, supra note 52, at 105-06. 346 16 U.S.C. § 1536(a)(3) (1994); 50 C.F.R. § 402. 14(a) (1995). 347 16 U.S.C. § 1536(b)(3)(A) (1994). 348 [d.
349 See Hill v. Tennessee Valley Auth., 549 F.2d 1064, 1070 (6th Cir. 1977), ajfd, 437 U.S. 153 (1978) (observing that although DOl Secretary may not veto projects he believes violate the ESA, the Secretary's compliance standards may influence judicial review of the project).
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the ESA's requirements, BLM must initiate consultation if a proposed or already-approved plan is expected to affect listed species.350
2. The Sikes Act Extension
Congress gave BLM specific wildlife management authority in the Sikes Act Extension of 1974.351 Traditionally, BLM has devoted its efforts to maintaining and enhancing wildlife habitat on the public lands, while states have taken responsibility for managing wildlife itself through regu lating hunting and fishing practices.352 The Sikes Act requires BLM and the states to cooperate on efforts to conserve and enhance wildlife resources on the public lands.353
The Sikes Act directs BLM to develop comprehensive plans for wild life conservation.354 These site-specific plans, called habitat management plans (HMPs), identify priority species and their habitat, establish objec tives, and set forth a series of actions necessary to achieve these objec tives. 355 HMPs fit into the bottom tier of the BLM planning process. 356 Resource management plans often specify what areas will require prepara tion of HMPs. Once a final RMP is adopted, BLM then prepares these site specific HMPs.
When HMPs are completed, BLM enters into cooperative agreements with state wildlife agencies or other federal agencies to carry out the plans.357 Nearly four hundred HMPs, covering 50 million acres of habitat, were in varying stages of implementation in 1985.358 During fiscal year 1996, BLM will write or revise sixty HMPs, with an emphasis on threatened and endangered species.359
3. Public Rangelands Improvement Act
The continuing poor condition of the public rangelands prompted Con gress to enact the Public Rangelands Improvement Act (PRIA)360 in 1978. Congress recognized the dangers unsatisfactory range conditions posed to a variety of resources, including wildlife. 361 PRIA affirmed a strong con
350 See Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995) (holding that a Forest Service land management plan is a continuing agency action requiring consultation).
351 Pub. L. No. 93452, 88 Stat. 1369 (1974) (codified as amended at 16 U.S.C. §§ 670g-670o (1994)).
352 BUREAU OF LAND MANAGEMENT, FiSH AND WILDUFE 2000, at 10 (1987) [hereinafter 1987 FisH AND WILDUFE 2000).
353 16 U.S.C. § 670g(2) (1994). 354 [d. § 670h. 355 George Cameron Coggins & Michael E. Ward, The Law of Wildlife Management on the
Federal Public Lands, 60 OR. L. REV. 59, 14647 (1981). 356 See supra notes 37-38 and accompanying text. 357 Coggins & Ward, supra note 355, at 146. 358 1987 FiSH AND WILDUFE 2000, supra note 352, at 11. 359 BUDGET JUSTIFICATIONS, supra note 49, at 3-57. 360 Pub. L. No. 95-514, 92 Stat. 1803 (1978) (codified as amended at 43 U.S.C. §§ 1901-1908
(1994)). 361 [d. § 1901(a)(3).
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gressional commitment to improvement of the public lands for the benefit of all rangeland values. 362
PRIA directs BLM to manage the public rangelands so that the lands become as productive as feasible in accordance with the objectives estab lished through the land use planning process. 363 This language arguably elevates rangeland improvement above all other management goals. 364 To enable BLM to accomplish this objective, PRIA authorizes the agency to temporarily or permanently discontinue grazing on certain lands. 365 BLM has reinforced this authority in regulations that permit the agency to ad just grazing intensity in the land use planning process.366
Unfortunately, BLM has often refused to work toward PRIA's range improvement goals. The agency rarely reduces historic livestock levels or prohibits livestock grazing on selected lands. 367 It is thus unclear whether PRIA's promise for improving the rangelands has been fully realized. Re cent surveys of range conditions would say it has not. For example, in 1993 BLM admitted that forty-three percent of BLM uplands were nonfunc tioning (threatened by livestock grazing) or functioning at risk (not main taining the necessary soil conditions to sustain natural biotic communities).368
4. Fish and Wildlife 2000
In 1987, BLM adopted a long-range plan for its fish and wildlife pro gram.369 This plan, known as Fish and Wildlife 2000, establishes goals and objectives to serve as a guide for the management of BLM's public lands through the 1990s. Fish and Wildlife 2000 outlines many strategies in tended to improve BLM's management of fish and wildlife and enable a more proactive approach to habitat protection and restoration. 370 To ac complish these goals, Fish and Wildlife 2000 calls for three programs: wild life habitat management, fisheries habitat management, and threatened and endangered species habitat management. 371
The goals and objectives contained in Fish and Wildlife 2000 are broad and ambitious, but the plan lacks enforceable standards. For exam ple, the goal of the habitat management program is to "[e]nsure optimum populations and a natural abundance and diversity of wildlife resources on public lands by restoring, maintaining, and enhancing habitat conditions through management plans and actions integrated with other uses of pub lic lands. "372 One of the plan's purposes is to enable the public lands to be
362 Id. § 1901(b). 363 Id. § 1903(b). 364 See Coggins, supra note 132, at 116-17. 365 43 U.S.C. § 1903(b) (1994). 366 43 C.F.R. § 4110.3 (1995). 367 See Feller, supra note 42, at 577. 368 RANGELAND REFORM, supra note 60, at 26. 369 1987 FISH AND WILDUFE 2000, supra note 352. 370 NATIONAL AUDUBON SOC'y, 1988 WILDUFE REPORT 142 (1988). 371 1987 FISH AND WILDUFE 2000, supra note 352, at 12. 372 Id. at 14.
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managed in a manner that will provide habitat for fish and wildlife; this goal is to be reached in part through the development and implementation of RMPs.373 Unfortunately, the plan includes no mechanism to ensure that its objectives are incorporated into the resource management planning process or day-to-day management.
However, the plan's provisions have been included in the ELM Man ual, which arguably should be enforceable against the agency.374 The ELM Manual also expands on Fish and Wildlife 2000's goals by directing BLM personnel to fully consider fish and wildlife in land use plans, develop and implement habitat management plans, and ensure that all activity plans include site-specific objectives for wildlife.375 Finally, because the plan demonstrates some commitment to wildlife at BLM's national level, it pro vides support for BLM wildlife experts involved in the planning process who must convince range managers and other resource specialists that balanced land use decisions are important. BLM officials indicate that ini tiatives such as Fish and Wildlife 2000 exemplify the "new BLM," an agency committed to a balanced approach to lands management.376 Under this balanced approach, the agency will increase the attention it pays to a variety of resources including wildlife and recreation, ensure that con sumptive resources are used in an environmentally sound manner, and improve stewardship of the public lands.377
BLM implements Fish and Wildlife 2000 at the state and local levels. Each state's BLM office must develop its own fish and wildlife plan, set ting forth state-specific goals and objectives.378 State plans are more de tailed than the national plan and include projections of actions and plans to be completed in coming years, including funding and personnel neces sary to fulfill the established objectives.379 State BLM offices are to meet these goals through a combination of habitat management plans, coopera tive wildlife management agreements with state agencies and private orga nizations, recovery plans for threatened and endangered species, and acquisitions of critical .habitat with the assistance of private groupS.380
The real effects of Fish and Wildlife 2000 on habitat and the resource management planning process are difficult to evaluate. BLM uses a variety of benchmarks to assess its progress in implementing the plan. BLM's fish
373 Id. at 13. 374 See Morton v. Ruiz, 415 U.S. 199,235 (1974) (requiring Bureau of Indian Affairs (BIA)
to follow BIA Manual guidelines regarding the publication of directives affecting the pub lic); Service v. Dulles, 354 U.S. 363, 388 (1957) (requiring Secretary of State to follow provi sions in Department's Manual); Sierra Club v. Lujan, 716 F. Supp. 1289, 1293 (D. Ariz. 1989) (holding National Park Service must follow its own policies).
375 B1M MANUAL, supra note 151, § 6500.06. 376 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, MEETING THE CHALLENGE IN
1991: EXECUTIVE SUMMARY ON IMPLEMENTATION OF THREE INITIATIVES 1 (1992) [hereinafter Ex ECUTIVE SUMMARY].
377 Id. 378 See, e.g., BUREAU OF LAND MANAGEMENT IDAHO STATE OFFICE, IDAHO FISH AND WILDLIFE
2000 (1990). 379 Id. 380 Id.
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and wildlife habitat management budget has more than doubled under Fish and Wildlife 2000, increasing from $16.3 million in 1987 to nearly $50 million in 1994.381 The number of full-time fish and wildlife biologists on staff jumped from approximately 210 to 350 during the same time pe riod.382 In addition, BLM has established numerous partnerships with pri vate groups and significantly increased the amount of private contributions used to finance conservation work.383 Other recent BLM achievements include finalizing an implementation strategy plan for water fowl habitat, issuing an updated strategic plan for mountain sheep residing on over 630,000 acres of BLM land, and completing riparian area restora tion projects on streams in the Columbia Basin and along the Oregon coast. 384 The agency carried out wildlife habitat improvement projects on 1.5 million acres in 1994 and 1995, and has requested funding for similar projects on 1.6 million acres for 1996.385
While noteworthy, these accomplishments represent only a small step toward attainment of the lofty goals established by the Fish and Wildlife 2000 plan. For example, while the budget for habitat management has in creased, it will still take BLM a minimum of twenty years at existing fund ing levels to complete all necessary habitat restoration and protection projects. 386 Adequate budget and staffing levels, together with a continued commitment to the plan's goals, will be crucial to the future success of the Fish and WIldlife 2000 program.
5. Riparian- Wetland Initiative for the 1990s
Healthy riparian areas are critical to the survival of most wildlife spe cies. These areas provide habitat for fish; support populations of insects, mollusks, and crustaceans which are important links in the food chain; supply cover and nesting sites for birds; and furnish water, food, and shel ter for larger wildlife species.387 Outside of Alaska, BLM manages approxi mately 1.3 million acres of riparian and wetland areas.388 In September
381 EXECUTIVE SUMMARY, supra note 376, at 7; FIsH AND WILDLIFE 2000, supra note 50, at 35. However, these gains are now at risk as many in Congress attempt to both revamp fed eral agencies' approaches to resource management and balance the federal budget. See supra notes 3-9 and accompanying text.
382 FISH AND WILDLIFE 2000, supra note &0, at 37. 383 [d. at 12. Private contributions are received through the Challenge Cost Share pro
gram. Between 1987 and 1994, annual donations increased from approximately $1 to $8 mil lion. [d. at 120.
384 [d. at 13-24. As examples of BLM's on-the-ground restoration work, the agency built in-stream structures and planted willow trees to curb erosion on four streams in the Colum bia Basin, and replaced culverts with bottomless arches allowing fish passage in coastal streams. [d. at 23-24.
385 BUDGET JUSTIFICATIONS, supra note 49, at 3-46. Fisheries habitat improvement projects covered 1150 miles of stream in 1994, 1300 miles in 1995, and are projected to affect 1500 miles in 1996. [d. at 3-51.
386 FISH AND WILDLIFE 2000, supra note 50, at 35. These projects include those that 'are needed to aid the recovery of listed species and prevent additional listings. [d.
387 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, RIPARIAN-WETLAND INITIA TIVE FOR THE 1990's, at 6-7 (1991) [hereinafter RIPARIAN INITIATIVE].
388 [d. at 4.
813 1996] BLM'S PLANNING PROCESS
1991, BLM published its Riparian-Wetland Initiative for the 1990's,389 which establishes four nationwide goals for the management of these ripa rian areas on BLM lands. These goals are to 1) restore and maintain ripa rian-wetland areas so that seventy-five percent or more are in functioning condition by 1997; 2) protect riparian-wetland areas and associated up lands through proper land management and avoid or mitigate negative im pacts; 3) ensure an aggressive riparian-wetland information and outreach program; and 4) improve cooperative restoration and management efforts in implementing the initiative.39o
Like those in Fish and Wlldlife 2000, these goals are quite broad, and the Riparian-Wetland Initiative does not establish specific objectives or priorities. However, the Riparian-Wetland Initiative is more detailed than Fish and Wildlife 2000 in that it sets forth approximate numbers of wet lands to be improved, activity plans to be prepared, and riparian-related projects to be undertaken through 1995.391 Also included are estimates of the cost of implementing the initiative and the number of additional staff needed to complete the various projects.392 BLM will carry out most of the initiative at the state level.393 Although the initiative does not require that its terms be incorporated in the land planning process, it has had some positive impacts on the BLM planning. For example, BLM personnel devel oping RMPs often include riparian area management as a planning issue, and some completed RMPs have incorporated the goal of seventy-five per cent restoration. 394
By the end of 1991, BLM had undertaken numerous projects to imple ment the Riparian-Wetland Initiative. The agency initiated nearly seven hundred on-site restoration projects and maintained over five hundred ex isting projects.395 One million acres of wetland management areas were inventoried, as well as 1.5 million acres and nearly three thousand miles of riparian areas.396 BLM also acquired 21,000 acres of riparian or wetland property through land exchanges, including habitat for the endangered Lahontan cutthroat trout.397 However, BLM has yet to evaluate the condi tion of over half of its riparian areas.398 The agency also remains a long way from the seventy-five percent restoration goal. Only fifteen percent of BLM riparian areas are known to be properly functioning, while twenty one percent are functioning at risk and nine percent are nonfunction ing. 399 The agency has conceded that riparian areas will not recover on a
389 Id.
390 Id. at 1. 391 Id.
392 Id.
393 Id. at 2.
394 See, e.g., SAFFORD RMP, supra note 245, at 490. 395 EXECUTIVE SUMMARY, supra note 376, at 5. 396 Id.
397 Id.
398 RANGELAND REFORM, supra note 60, at 3-33. 399 Id.
814 ENVIRONMENTAL LAW [Vol. 26:771
large scale absent changes in grazing policy, regulations, and management.400
V. EFFECTS OF THE PLANNING PROCESS ON WILDLIFE
Congress enacted the Federal Land Policy and Management Act (FLPMA)401 to work a fundamental change in BLM's approach to manag ing public lands. The statute was intended to improve the deteriorated condition of public rangelands, shift BLM's management focus from em phasizing local economic interests to the national interest,402 and protect multiple values on the public lands. 403 To meet these goals, Congress di rected BLM to undertake the comprehensive planning effort described in the previous Part. However, some commentators have criticized BLM's progress in fulfilling this congressional directive. 404 Preparation and im plementation of resource management plans (RMPs) and designation of areas of critical environmental concern (ACECs) h~ proceeded at a slow pace. BLM's attention to wildlife has been limited throughout the planning process. 405 The legacies of outmoded principles of resource management continue to influence BLM, and ranchers and other consumptive users of the public lands still wield a great deal of political clout, resulting in BLM decisions that often favor consumptive resources over wildlife values and other nonconsumptive resources.406 Unfortunately, the FLPMA planning process has not yet resulted in a balanced approach to management of the public lands.
This Part discusses BLM's progress in preparing and implementing RMPs and designating ACECs, focusing on impacts to wildlife and habitat. A completed RMP is examined, with an emphasis on plan provisions that affect wildlife.
A. BLM Progress in Planning
Some BLM officials have declared the BLM planning program to be a success,407 but other reviewers do not agree with this assessment. 408 B1M has been slow to complete and implement RMPs. The agency's designa
400 Id. at 3-32. 401 Pub. L. No. 94-579, 90 Stat. 2745 (1976) (codified as amended at 43 U.S.C. §§ 1701-1784
(1994)). 402 See 43 U.S.C. §§ 1701(a)(2) (stating that the national interest will be best realized if
public lands and resources are inventoried and their uses are projected through a land use planning process); id. § 1701(a)(8) (requiring public lands to be managed in a manner that protects their values) (1994).
403 Id. § 1701(a)(7) (requiring land management decisions to be made on the basis of multiple use and sustained yield); id. § 1701(a)(8) (requiring scenic, historical, ecological, environmental, and archaeological values to be protected, and lands managed to provide food and habitat for fish and wildlife).
404 See, e.g., LIMITED PROGRESS, supra note 45, at 30. 405 See ATIENTION TO WILDUFE, supra note 17, at 30. 406 Id. 407 See BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, PLANNING STRATEGIES
FOR THE '90s, at 3 (1992); WIIllAMS, supra note 37, at 11-23. 408 See supra notes 72-78 and accompanying text.
815 1996] ELM'S PLANNING PROCESS
tion and protection of ACECs has also been quite inconsistent throughout the states. In addition, agency consideration of wildlife in the planning process has been hindered by a lack of funding for the planning program in general and wildlife programs in particular.
1. RMP Completion
As of 1993, BLM had completed barely half of the 144 RMPs it intends to prepare to guide the management of the public lands.409 At that time, thirty-six plans were in progress, and thirty-seven had not even been started.410 BLM continues to push forward its estimated completion date for all RMPs. In 1990, the agency predicted that all plans would be final ized by' 1997.411 By 1993, this target date had been extended to 2013, nearly forty years after FLPMA's passage.412 The slow pace of plan preparation concerns wildlife advocates because the pre-FLPMA management frame work plans remain in place until RMPs are developed.413 Changing needs and conditions on the public lands have no doubt rendered many manage ment framework plans (MFPs) obsolete and ineffective in guiding present day management of resource areas. In addition, MFPs have been criticized as imbalanced plans that favor grazing as the preferred use of the public lands, giving little consideration to other resources.414
Budgetary and personnel cutbacks hinder BLM's planning efforts and have an especially harsh impact on wildlife programs. Beginning in 1982, the Reagan Administration proposed sharp cuts in the budgets for BLM's renewable resource programs, resulting in a twenty-two percent decline in the wildlife habitat management program budget by 1986.415 Between 1981 and 1989, when a full-scale effort to develop RMPs should have been un derway, budget cuts reduced BLM's planning staff by :fifty percent. 416
These cuts resulted in enormous workloads for remaining professionals. For example, in August 1986, nineteen 'wildlife biologists were left respon sible for land use planning, inventory and monitoring; and other manage ment activities on forty-eight million acres in Nevada.417 Effective planning for and management of such extensive areas is nearly impossible.
Budgets have increased since the Reagan years but are certainly fac ing a downward trend as current pressures on the federal budget escalate. Although staffing and appropriations for wildlife programs have nearly re covered to pre-Reagan era levels, BLM's planning staff continues to be
409 LIMlTED PROGRESS, supra note 45, at 15. 410 RMP SUMMARY, supra note 45. 411 Id. 412 Id. It takes BLM about three years to complete each plan. BUDGET JUSTIFICATIONS,
supra note 49, at 3-109. 413 43 C.F.R. § 1610.5-5 (1995); see also 1987 WILDIJFE REPORT, supra note 111, at 23. 414 Coggins & Evans, supra note 83, at 451. 415 See 1987 WILDIJFE REPORT, supra note 111, at 19. This figure represents the decline in
constant dollars from 1982 to 1986. 416 LIMlTED PROGRESS, supra note 45, at 15. 417 Id. at 18.
816 ENVIRONMENTAL LAW [Vol. 26:771
threatened with reductions.418 Appropriations for BLM's 1995 resource management planning process totaled about $9.5 million, a slight decrease from previous years.419 This amount may initially appear large, but it seems less significant when compared to the costs of plan development. In 1987, BLM estimated the average cost of preparing an RMP was $450,000.420 The average cost is much greater today, because plans have become more controversial and complex.421 BLM lands and wildlife thus continue to suffer the effects of past neglect and management directives based on obsolete MFPs.
Competing demands on BLM staff have magnified the impacts of per sonnel and funding reductions. The teams that assist in RMP development include specialists in various areas. Because these BLM personnel also have day-to-day responsibilities for managing certain resources, they often delay plan preparation. 422 Staff often give tasks with established deadlines a higher priority than planning, because FLPMA sets no mandatory com pletion date for RMPs. Similarly, staffing cutbacks have resulted in re source specialists assisting in tasks outside their fields of expertise, to the detriment of the planning process.423
2. Designation and Protection of ACECs
In FLPMA, Congress directed BLM to give priority to the designation of areas of critical environmental concern (ACECs) in the planning pro cess. 424 These areas are the most sensitive of the public lands adminis tered by BLM. FLPMA defines ACECs as "areas . . . where special management attention is required . . . to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes. "425 Congress envisioned the ACEC program as a way to give special early attention and protection to the most environmentally important and fragile BLM lands. 426 Accord ingly, Congress directed BLM to develop a separate management plan, providing guidance for the preservation of sensitive values, for each ACEC.427
418 FiSH AND WlLDUFE 2000, supra note 50, at 36-37; BUDdET JUSTIFICATIONS, supra note 49, at 3-108. In 1989, 179 full-time employees were engaged in resource management plan ning. By 1995, this staff had been cut to 122. BUDGET JUSTIFICATIONS, supra note 49, at 3-108.
419 BUDGET JUSTIFICATIONS, supra note 49, at 3-108; 1992 BLM ANNUAL REPORT, supra note 16, at 68.
420 Williams, supra note 37, at 22. 421 BUDGET JUSTIFICATIONS, supra note 49, at 3-109 to 3-110. BLM estimates that the cost
of preparing a plan is increasing by six percent per year. Due to escalating costs, BLM now anticipates initiating only two new plans per year. [d.
422 LIMITED PROGRESS, supra note 45, at 18. 423 [d. at 19. For example, a lack of firefighting personnel in Phoenix, Arizona delayed
RMP completion for two years while planning staff assisted in firefighting efforts. [d. 424 43 U.S.C: § 1712(c)(3) (1994). 425 [d. § 1702(a). 426 S. REP. No. 583, 94th Cong., 2d Sess. 43 (1975). 427 43 U.S.C. § 1701(a)(11) (1994). ACEC plans fall within the bottom tier of BLM plan
ning. See supra notes 37-38 and accompanying text.
817 1996] ELM'S PLANNING PROCESS
The ACEC program provides BLM with a unique tool to protect criti cal environmental values on its lands, including wildlife habitat. No other land management agency has a similar mechanism. However, BLM's field offices in various states have approached the program inconsistently. Although BLM has publicly praised the program,428 its implementation of Congress's directive to give priority to the designation and protection of ACECs in many states has been less than enthusiastic. 429
a. The Designation Process
BLM regulations require that areas having potential for ACEC designation be identified and considered throughout the resource manage ment planning process. 430 BLM personnel or members of the public may nominate areas for designation. 431 To qualify as a potential ACEC, an area must meet two criteria. First, it must exhibit "relevance," which may be satisfied by the presence of a fish or wildlife resource. 432 Second, it must have "substantial significance," which generally requires qualities of spe cial worth, distinctiveness, or meaning, and greater than local impor tance. 433 Examples of areas that have qualified for ACEC status for wildlife protection purposes include bald eagle roosting sites, desert tor- . toise habitat, fish spawning grounds, and elk wintering ranges. 434
BLM evaluates all areas nominated for ACEC status, including those proposed by the public. 435 Those that qualify as potential ACECs must be included in a draft RMP.436 Potential ACECs must also be specifically identified in a notice published in the Federal Register.437 This notice must identify any resource uses that would be limited if the potential ACECs were formally designated. 438 Members of the public then have sixty days in which to comment on the potential ACECs.439 An ACEC is considered to be formally designated once the RMP in which it appears is approved.440 Members of the public may challenge BLM's decision to des
428 Williams, supra note 37, at 21. 429 See LIMITED PROGRESS, supra note 45, at 27 (concluding that the treatment of ACECs
varied at BLM field offices); CAMPBELL & WALD, supra note 42, at ii-iv (arguing that BLM has failed to promulgate clear and comprehensive ACEC regulations).
430 43 C.F.R. § 1610.7-2 (1995). BLM designates ACECs only through the resource manage ment planning process. If an RMP is already in place in an area that warrants additional ACEC designations, the existing RMP must be amended. BLM MANUAL, supra note 151, § 1613.2.
431 BLM MANUAL, supra note 151, § 1617.81B. 432 43 C.F.R. § 1610.7-2(a)(1) (1995). An area may also be "relevant" for ACEC purposes if
it contains a significant historic, cultural, or scenic value or a natural hazard. Id. 433 Id. § 1610.7-2(a)(2). 434 CAMPBELL & WALD, supra note 42, at 20, 24-26, 32. 435 BLM MANUAL, supra note 151, § 1613.2A. 436 Id. § 1613.21C. 437 43 C.F.R. § 1610.7-2(b) (1995). 438 Id. 439 Id.
440 Id. ACECs may also be designated outside the RMP process through amendments to existing land use plans. Id.
818 ENVIRONMENTAL LAW [Vol. 26:771
ignate or not to designate an area as an ACEC by filing a protest of the RMP with the BLM director.441
BLM field offices have a great deal of discretion in the ACEC decision making process. The agency's ACEC guidance, issued in 1988, allows a BLM manager to decide not to designate an eligible area if he concludes that the area can be protected with standard management practices or that no reasonable special management actions will protect or restore the area.442 Accordingly, field office managers may avoid designating ACECs as long as their decisions may be justified under the terms of this gui dance. 443 As a result, ACEC designations often depend on the philosophi cal views of local BLM managers.444
b. Progress in AGEG Designation
As of the end of fiscal year 1993, BLM had designated 589 ACECs, covering 9.5 million acres.445 The different attitudes of BLM state offices toward the ACEC program are apparent when various state's records of ACEC designation are compared. By 1993, only seven ACECs had been designated in Nevada, whereBLM administers almost fifty million acres of land. 446 BLM also has designated few ACECs in Arizona, Montana, and Colorado.447 In contrast, BLM has approved 105 ACECs on the 15.7 million acres the agency manages in Oregon. 448
These differing approaches to the ACEC program have been attrib uted to various factors. BLM's Oregon office has taken the program seri ously and has designated numerous ACECs due to firm leadership by the state BLM director, good statewide coordination, and public support for environmental protection.449 On the other hand, Nevada's BLM leadership generally has been opposed to ACEC designation and has instructed its field offices that wildlife areas, such as sage grouse strutting grounds and desert tortoise habitat, which would otherwise qualify for ACEC status, should not be designated as ACECs where other management options are available.45o BLM's reluctance to designate ACECs in some states has been linked to pressure from mining and grazing interests, which fear any steps that could restrict their use of the public lands. 451 The agency's rec ord on ACEC designation well illustrates the extent of decentralization
441 BLM MANUAL, supra note 151, §§ 1613.43, 1617.84B. The RMP protest procedures are described in supra part m.B.2.
442 See BLM MANUAL, supra note 151, § 1613.33E.1, E.3j 1IMITED PROGRESS, supra note 45, at 31.
443 A manager must discuss his rationale for not proposing designation of a potential ACEC in the draft resource management plan. BLM MANUAL, supra note 151, § 1613E.
444 LiMITED PROGRESS, supra note 45, at 4. 445 PuBuc LAND STATISTICS, supra note 10, at 55. 446 Id. at 6, 56. 447 CAMPBELL & WALD, supra note 42, at 27,29-31,33-34; PuBUC LAND STATISTICS, supra
note 10, at 56. 448 PuBUC LAND STATISTICS, supra note 10, at 56. 449 CAUJSON, supra note 257, at 13. 450 Id. at 26. 451 Id. at 22-23; CAMPBELL & WALD, supra note 42, at iii.
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within BLM and the lack of a uniform approach to implementing any agency program.
c. Impacts of Designation on Wildlife and Habitat
To date, a majority of the ACECs designated were approved to pro tect wildlife resources.452 The unique values contained in most ACECs are subject to actual or potential threats, with BLM identifying the most com mon as abusive recreational use and mineral or oil and gas develop ment.453 Surprisingly, BLM ranked livestock grazing only the third most common threat to ACECs,454 although grazing is the most extensive eco nomic use of the public lands and has an enormous impact on wildlife living on the range.455 Observers have suggested that this illustrates BLM's reluctance to designate areas threatened by grazing as ACECs due to the influence of the livestock industry.456 Such reluctance would clearly re duce the beneficial impacts of the ACEC program on wildlife and habitat.
Designation as an ACEC, in and of itself, provides no protection for an, area. Congress contemplated that each ACEC would be managed in accordance with a site-specific activity plan tailored to the needs of the ACEC.457 Although BLM has taken the contrary position that a specific ACEC plan is not always required,458 in practice BLM has completed or intends to complete individual plans for most of its designated ACECs. These individual ACEC plans can include such measures as restrictions on grazing and logging, required fencing of riparian areas, prohibitions on mo torized access and road construction, and recommendations for with drawal of areas from mining activities.459 Like ACEC designation, BLM's progress in preparing and implementing ACEC plans has varied greatly from state to state. Principal reasons for the lagging protection of ACECs include a lack of adequate funding and personnel, as well as pressure from politically powerful users of the public lands such as recreationists, ranch ers, and miners.460
BLM's efforts to protect wildlife in the California Desert Conservation Area (CDCA)461 through the ACEC process may be representative of
452 CAMPBELL & WALD, supra note 42, at 4, 453 Id, at 6. 454 Id. 455 See U.S. GEN. ACCOUNTING QFFICE, RANGELAND MANAGEMENT: 8LM's HOT DESERT GRAZ
ING PROGRAM MERITS RECONSIDERATION 29-39 (1991). 456 CAMPBELL & WALD, supra note 42, at 7. 457 43 U.S.C. § 1701(a)(1l) (1994) (stating policy that "regulations and plans for the pro
tection of public land areas of critical environmental concern be promptly developed"). 458 81M MANUAL, supra note 151, §§ 1613.12, 1613.33C, 1613.62. This interpretation argua
bly contlicts with the Congressional goal for ACECs set out in FLPMA. See supra note 457. 459 See, e.g., J. STICKLER, MANAGING TIlE FiRST AREAS OF CRmCAL ENVIRONMENTAL CONCERN
IN WESTERN OREGON (1991). 460 CAMPBELL & WALD, supra note 42, at 13-15. 461 Congress established the California Desert Conservation Area, which encompasses 25
million acres, in FLPMA. See Pub. 1. No. 94-579, 90 Stat. 2782 (1976) (codified as amended at 43 U.S.C. § 1781 (1994)). In 1980, it became the first area for which 8LM completed an RMP. In 1994, much of the area was designated as wilderness or incorporated in the newly created
820 ENVIRONMENTAL LAW [Vol. 26:771
BLM's larger attempts throughout the West. The initial RMP for the CDCA, approved in 1980, called for the preparation of twenty-eight individual ACEC plans.462 Three of these plans still had not been completed nine years later.463 Even when BLM does finalize ACEC plans, there is still a delay in implementing many action items called for by the plans, often with harmful consequences for wildlife. One example is the Chuckwalla Bench ACEC in the CDCA, which includes important habitat of the threatened desert tortoise. The ACEC plan for this area, approved in 1982, called for monitoring of the tortoise population, which had been consid ered healthy when BLM wrote the plan. 464 However, BLM did not monitor the tortoise for a number of years. When the agency finally initiated moni toring it revealed a fifty to seventy percent decline in the tortoise popula tion over the previous six-year period.465 This decline was attributed to disease, off-road vehicle use, and vandalism.466 If this decrease had been discovered sooner, BLM could have taken prompt corrective action. Un fortunately, by the time BLM and California Fish and Game Department biologists learned of the population decline, any actions taken to save the tortoise may have been too late to be effective. 467 The desert tortoise was subsequently listed as a threatened species under the Endangered Species Act. 468
B. Consideration of Wildlife and Habitat in the Planning Process-A Case Study
This Article has considered BLM's planning process from a broad per spective. Now, it examines a completed RMP in detail. This narrower in quiry illustrates how BLM attempts to balance wildlife interests with other uses of the public lands when planning for a specific resource area. The RMP for the Safford District in Arizona, completed in 1992, is the subject of this case study.469 Although each RMP is unique, this plan provides a good example of BLM's planning process in action and BLM's considera tion of wildlife during planning.
Death Valley and Joshua Tree National Parks and the Mojave National PreseIVe. California Desert ConseIVation Act, Pub. L. No. 103~433, 108 Stat. 4471 (1994) (codified as amended at 43 U.S.C. § 1781 (1994)).
462 U.S. GEN. ACCOUNTING OFFICE, CALIFORNIA DESERT: PLANNED WILDUFE PROTECTION AND ENHANCEMENT OBJECTIVES NOT ACIllEVED 12 (1989) [hereinafter CAUFORNIA DESERT].
463 [d. at 15.
464 [d. at 18. Many wildlife managers consider monitoring to be the most essential ele ment of any wildlife plan, but BLM consistently assigns this activity a low priority. [d.
465 [d. at 19.
466 CAMPBELL & WALD, supra note 42, at iii. 467 CAUFORNIA DESERT, supra note 462, at 19. 468 50 C.F.R. § 17.11 (1995).
469 BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, PARTIAL RECORD OF DECI SION FOR THE APPROVAL OF THE SAFFORD DISTRICT RMP (1992) [hereinafter SAFFORD ROD]; SAFFORD RMP, supra note 245. Although many RMPs are prepared for individual resource areas, the Safford District RMP encompasses two resource areas.
821 1996] BLM'S PLANNING PROCESS
1. Background
The BLM Safford District includes 1.4 million acres of public land in southeastern Arizona. 47o Several mountain ranges reaching elevations of nearly eleven thousand feet lie in the area, separated by broad basins. The district is drained by the Gila River and its tributaries. Weather conditions are similar to those throughout the desert Southwest, with annual rainfall averaging seven to sixteen inches in the valleys and up to fifteen or more inches in the mountains. 471 Twenty-one percent of the rangelands in the district are in poor condition, and twenty-nine percent are in fair condi tion, with a trend toward improvement.472
The principal consumptive uses of the public lands in the district are grazing and hardrock mining. These activities are also key industries in the counties in which the district is located. 473 In the Safford planning area, major producers are extracting minerals from twenty-seven mining dis tricts, estimated to have values totaling $815 billion.474 Ranchers in 262 grazing allotments within the district are permitted up to nearly 130,000 animal unit months of active use. 475
The Safford District contains diverse wildlife habitat, including ripa rian and aquatic areas, maternal bat caves, desert grasslands and washes, woodlands, and rocky ridges and canyons. 476 As a result, the district is home to a wide variety of wildlife, including three hundred species of birds, forty species of amphibians and reptiles, and eighty species of mam mals. 477 Seventy-three of these species are listed under the federal or Ari zona Endangered Species Acts or are candidates for listing. 478 The district's riparian and aquatic areas shelter twenty-eight priority spe cies,479 including the desert pupfish, bald eagle, black bear, and plains leopard frog. 48o Riparian areas also provide migration corridors for birds moving from tropical wintering areas to northern breeding grounds. 481 Caves scattered throughout the district serve as maternity roosts for Mexi can free-tailed bats, whose population has been declining drastically.482 Terrestrial habitats support priority species such as the desert tortoise, bighorn sheep, desert mule deer, wild turkey, Montezuma quail, and Texas
470 SAFFORD RMP, supra note 245, at iii. 471 [d. at 125. 472 [d. at 147. 473 [d. at 154-59. 474 [d. at 131. 475 [d. at 137. Animal unit months, or AUMs, measure the allowable grazing level on each
allotment. One AUM is the amount of forage needed to sustain one cow, one horse, or five sheep for one month.
476 [d. at 135-37. 477 [d. at 135. 478 [d. at 138-40. 479 BLM "priority species" include 1) species listed as threatened or endangered under the
Endangered Species Act, 2) species identified in cooperation with the Arizona Game and Fish Department, and 3) other species of local importance. [d. at 135.
480 [d. at 138-39. 481 [d. 482 [d. at 135-36.
822 ENVIRONMENTAL LAW [Vol. 26:771
homed lizard. 483 In the Safford RMP and accompanying EIS, BLM ac knowledged that habitat degradation and loss is a major threat to all of these species.484
2. Planning Issues and Management Concerns
The Safford RMP and EIS addressed four planning issues and ten management concerns important to the Safford District. 485 BLM identified these priorities based on public comments', interagency consultation, and the judgment of BLM planning team members and managers. 486 The reso lution of each planning issue affects wildlife and habitat. The identified planning issues were 1) providing access across and to public lands, 2) designating ACECs and other special management areas, 3) opening pub lic lands to off-road vehicles, and 4) managing riparian areas. 487 The man agement concerns most directly affecting wildlife were wildlife habitat management and regulation of mining. 488
Because these issues and concerns shaped the planning process, it is also important to note what issues BLM chose not to analyze in the prepa ration of the RMP. BLM did not examine the appropriate levels of live stock grazing, a key consumptive use of the district's public lands. 489 BLM also failed to consider the impacts of grazing on wildlife habitat. 490 Other agencies and numerous members of the public asked that BLM address these issues in the planning process,491 but it declined to do so. BLMjusti fled the omission of grazing by pointing to two grazing EISs completed in 1978 and 1987.492 According to BLM, the decisions analyzed in those EISs were being implemented, and monitoring showed that rangeland condition was improving under allotment management plans developed in accord ance with the EISs.493 However, the EISs did not contain up-to-date infor mation regarding the impacts of grazing in the Safford District. The 1978 EIS covered a large portion of the rangeland in the Safford District, but it
483 [d. at 136-37. 484 [d. at 135-37. 485 As previously discussed, identification of issues and concerns to be resolved through
the planning process is Step One in the preparation of an RMP. See supra part IV.B.3.c.1. 486 SAFFORD RMP, supra note 245, at 6. 487 [d. at iv. 488 [d.
489 [d. at 12. 490 [d. 491 See, e.g., Letter from Fish and Wildlife Service to BLM (Apr. 5, 1990), in SAFFORD RMP,
supra note 245, at 281 [hereinafter FWS Letter] (stating thil.t the BLM's exclusion of grazing issues was a "serious problem"); Letter from Sierra Club to BLM (June 4, 1990), in SAFFORD RMP, supra note 245, at 248 [hereinafter Sierra Club Letter] (recommending that grazing be included in the BLM's analysis); Letter from Environmental Protection Agency to BLM (June 8, 1990), in SAFFORD RMP, supra note 245, at 362 [hereinafter EPA Letter] (expressing con cern over the potential impact of livestock grazing on the area).
492 SAFFORD RMP, supra note 245, at 12, 381. 493 [d. at 12. Allotment management plans specify pennitted levels of livestock, seasons
of use, required range improvements, monitoring plans, and evaluation procedures for a specific unit of rangeland. [d. at 137.
823 1996] BLM'S PLANNING PROCESS
was out-of-date by 1991.494 The 1987 EIS covered all of Eastern Arizona, but did not even include maps showing the areas being analyzed.495 By relying upon these outdated, general documents, and refusing to consider grazing issues during the planning process, BLM disregarded a key provi sion in its own manual. This provision states that RMPs must "identify public lands where livestock grazing will be excluded" and should analyze the effects of various intensities of livestock grazing on other resources. 496
BLM did not follow this directive in preparing the Safford RMP. This situation illustrates a major flaw in BLM's approach to the plan
ning process-it is not truly comprehensive. Where preexisting plans ad dress an issue to BLM's satisfaction, the agency does not consider the issue again when preparing an RMP.497 This is a poor approach to plan ning and may violate FLPMA.498 This practice, which led BLM to refuse to consider grazing issues in the Safford District RMP, is troubling for wild life in the area for several reasons. First, BLM had approved allotment management plans on less than half of the 262 grazing allotments ,within the district.499 The remaining grazing allotments were apparently not cov ered by any site-specific plan. Second, changing conditions since the com pletion of the EISs may require a change in management approach and the preparation of new or supplementary EISs.500 For example, BLM had ac quired 250,000 acres of new lands since 1978 and disposed of a like amount. 501 Several wildlife species found in or near the Safford District had also been listed under the ESA in the intervening time.502 The compre hensive resource management planning process mandated by FLPMA would have been an ideal means to update the grazing analysis and deter mine whether new management actions are necessary. Third, grazing practices have an enormous impact on the condition of key wildlife habi tats such as riparian areas and grasslands. 503 Considering wildlife nabitat management without also looking at grazing does not permit a full evalua tion of all relevant factors. This is especially true in an area such as the Safford District, where over half of the range is in fair or poor condition
494 FWS Letter, supra note 491. 495 [d.
496 BLM MANUAL, supra note 151, §§ 1622.31A.1, 1622.32A. 497 See supra notes 246-51, 281 and accompanying text. 498 [d.
499 SAFFORD RMP, supra note 245, at 137, 140. 500 Regulations implementing the National Environmental Policy Act, 42 U.S.C. §§ 4321
4370d (1994), require agencies to supplement an earlier EIS whenever there are significant new circumstances or information bearing on the impacts of a proposed action. 40 C.F.R. § 1502.9(c)(1)(ii) (1995). Because the implementation of an existing land use plan is a con tinuing agency action, BLM should be required to supplement an EIS prepared in connection with the plan if circumstances change or new information is discovered. See Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) (holding that a land use plan is an ongoing agency action throughout the plan's duration), cert. denied, 115 S. Ct. 1793 (1995).
501 FWS Letter, supra note 491. 502 [d.
503 See supra notes 118-120 and accompanying text.
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and merits improved management practices. 504 BLM cannot accomplish the complete balancing of all competing uses of the public lands required by FLPMA if it allocates resources to a major consumptive use outside of the planning process.
3. Alternative Land Use Plans
To resolve the planning issues and management concerns identified at the beginning of the Safford planning process, BLM developed three new alternative land use plans. Each alternative provided for a different combi nation of resource uses for the Safford District. The three general themes of the alternatives were balanced multiple use (Alternative A, the Pre ferred Alternative); resource protection (Alternative B); and resource pro duction (Alternative C).505 These alternatives reflect the tendency ofBLM and other land management agencies to present one alternative at each end of the spectrum, with the agency's preferred alternative falling some where in between. This approach polarizes conservationist and consump tive interests and highlights the preferred alternative as the only reasonable plan that achieves FLPMA's mandate for balanced multiple use management. 506 The preferred alternative, with few changes, was ulti- . mately adopted as the final Safford District RMP.507
4. Comparison of Alternatives
Each alternative would have differing impacts on wildlife and habitat in the Safford District. These impacts are organized by planning issue and management concern and are summarized in this section. BLM analyzed the impacts of each alternative in an EIS prepared at the same time as the RMP. Although it would have facilitated the public's participation in the planning process, BLM failed to explain why it chose the preferred alterna tive and rejected the other potential approaches that addressed each plan ning issue and management concern.
a. Access to Public Lands
Each alternative called for the reconstruction of various roads to pro vide access to the public lands and acquisition of legal access across pri vate lands in different locations. 508 BLM completely failed to analyze the effects of the proposed roads and access points on environmental values, including· wildlife. 509 Some commenters expressed concern that re-open ing certain roads would have harmful effects on wildlife and habitat due to
504 SAFFORD RMP, supra note 245, at 147. Of the range on the Safford District, 4.7% is in excellent condition, 38.3% is in good condition, 28.7 % is in fair condition, 20.5% is in poor condition and, 7.8% is not yet classified. [d.
505 BIM also analyzed a "no-action" alternative that would continue implementation of existing land use plans. [d. at 17-93.
506 See supra note 77 and accompanying text. 507 SAFFORD ROD, supra note 469, at 3. 508 SAFFORD RMP, supra note 245, at 26-27,48,68. 509 [d. at 94-97, 163-73.
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increased vehicle use, greater numbers of human visitors, and erosion that could alter stream water quality.510 BLM ignored these concerns and likely violated NEPA's mandate to consider the environmental impacts of pro posed agency actions. 511
b. Areas of Critical Environmental Concern
During the planning process, BLM personnel and members of the public nominated thirty areas for ACEC statuS. 512 Of the nominated areas, both the Preferred Alternative and Alternative B would have designated' thirteen ACECs, and Alternative C would have designated ten. 513 Consis tent with the "preservation" and "production" emphasis of the alternatives, ACEC acreage would be largest under Alternative B and smallest under Alternative C.514 All alternatives contemplated the preparation of site-spe cific activity plans to protect each ACEC.515 In the preferred alternative, four ACECs would have specifically protected wildlife values, including bat maternity caves, riparian areas, and bighorn sheep habitat. 516 Five other ACECs would have provided additional protection and moderate benefits to wildlife species.517 Protective actions called for in the pre ferred alternative and in all other alternatives included partial withdrawals from entry for mining, suspensions of grazing,518 rehabilitation of riparian vegetation, and limitations on off-road vehicle use. 519
BLM's treatment of proposed ACECs in the Safford District mirrors the national experience.520 From among thirty nominated areas, BLM pro posed only thirteen for designation in even its most protective RMP alter native. The agency rejected the other potential ACECs for a variety of reasons. BLM determined that some of the areas lacked more than local importance because they only provided habitat for regionally localized species without federal status, such as the black-tailed hawk. 521 Other ar eas were not designated as ACECs because BLM concluded that they did not require special management attention. 522 Designated acreage and pro tective measures targeted specifically at the wildlife resource varied only slightly among the various alternatives. BLM estimated that under each
510 Sierra Club Letter, supra note 491, at 6. 511 See 42 U.S,C. § 4332(C) (1994). 512 SAFFORD RMP, supra note 245, at 8. 513 [d. at 30, 49, 68. 514 [d. at 49, 68. 515 [d. at 19. 516 [d. at 28-29. These ACECs would cover 15,448 acres of federal land. [d. 517 [d. at 164. 518 Despite its refusal to comprehensively reevaluate grazing levels throughout the dis
trict, BLM did propose limiting grazing in some ACECs where necessary to protect unique values. [d. at 28.
519 [d. at 28-29, 50-51, 69-70. 520 See supra part V.A.2. 521 SAFFORD RMP, supra note 245, at 449. 522 [d. at 451. By making such a determination, BLM can easily avoid designating ACECs.
See supra notes 442-44 and accompanying text.
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alternative, including the most protective, ACEC designations would pro vide only moderate benefits to wildlife by enhancing habitat. 523
Higher benefits for wildlife could have been achieved in several ways. First, BLM could have considered a greater range of options for designat ing ACECs. Several areas nominated for their importance to wildlife were not even included in the most protective alternative. 524 Second, the agency failed to include an adequate analysis of truly protective management op tions in any alternative. Each alternative provided some protection from mining, grazing, and off-road vehicle use in ACECs, but: left the majority of ACEC acreage open to these uses in some form. 525 Prohibiting these types of activities seems to be exactly the type of special management Congress envisioned for these unique areas. 526 Allowing these harmful uses in ACECs greatly reduces the protective value of the ACEC designation. ACECs are only a small fraction of the total acreage in the district,527 and fully protecting them would not have unduly restricted other uses of land throughout the remainder of the district.
c. Off-Highway Vehicles
Off-highway vehicle (OHV) use is a recreational use of the public lands that has continued to grow in popularity.528 Unfortunately, OHV traf fic can significantly damage the public lands by causing erosion, harming vegetation, and disturbing and killing wildlife. BLM regulations require the agency to designate all areas of the public lands as either open, limited, or closed to OHV use, and the agency fulfills this requirement through the planning process. 529 "Open" areas are lands where all types of vehicles are permitted at all times, while "limited" areas accommodate traffic only at certain times and in specified areas (such as roads and trails).530 OHV use is totally prohibited in "closed" areas. 531
Each Safford District alternative would have permitted some degree of OHV use. The Preferred Alternative would have closed some acreage, designated a small area as open, and classified the remainder as limited. 532 Alternative B called for no open areas533 while Alternative C would have been dramatically different, classifying most BLM land in the district as open to unlimited OHV use. 534
523 SAFFORD RMP, supra note 245, at 95. 524 [d. at 449-52. 525 [d. at 437-49. 526 See 43 U.S.C. § 1712(a) (1994). 527 The district contains 1.4 million acres. ACEC acreage proposed in Alternative B, the
most protective of the alternatives, totals only 97,057 acres of federal land, or just 6.9";6 of the district. SAFFORD RMP, supra note 245, at 49.
528 [d. at iv. 529 43 C.F.R. §§ 8342.1-.2 (1995). 530 [d. § 8340.0-5(f), (g). 531 [d. § 8340.0-5(h). 532 SAFFORD'RMP, supra note 245, at 32. 533 [d. at 49. 534 [d. at 71.
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The Safford District presented special problems because bighorn sheep lambing grounds were open to OHV use when the planning effort began. The Preferred Alternative and Alternative B would close these ar eas to OHV use, resulting in considerable benefits to bighorn sheep by reducing disturbances and thereby increasing lamb survival. 535 Overall, the Preferred Alternative's classifications of BLM land for OHV use would produce high benefits for seventeen priority wildlife species. 536 Alterna tive B, the most protective alternative, would have restricted OHV use so as to benefit nearly twice as many priority species, a total of thirty-six. 537 Alternative C, which would open most land to unlimited OHV use, would have adverse effects on wildlife ranging from low to high depending on the intensity of use. 538
Greater benefits for wildlife could have been realized while still per mitting recreational OHV use by adopting Alternative B. In addition, the Preferred Alternative could have required that areas open to OHV use be well-marked and be located near highways or access points to facilitate monitoring. The chosen alternative could also have banned OHV use near riparian areas or areas of priority habitat.
d. Riparian Areas
Healthy riparian areas support diverse wildlife species and are crucial to the health of overall ecosystems. 539 In each alternative, BLM set the goal of improving seventy-five percent of riparian acreage to good or ex cellent condition by 1997. 540 If met, this goal would be quite beneficial for numerous wildlife species. However, as several members of the public pointed out, BLM should ultimately strive to restore and preserve one hun dred percent of riparian areas. 541
Each alternative's strategy for riparian areas was virtually identical. Each alternative provided for the protection of specific riparian areas through the ACEC process. BLM also set out various actions, identical in each alternative, that would be necessary to achieve the seventy-five per cent restoration goal. 542 These strategies were a good first step and in cluded developing a riparian area inventory, cooperating with the Arizona Game and Fish Department to prioritize needed riparian area manage ment, acquiring in-stream water rights to protect riparian areas, and prohibiting firewood cutting in riparian areas. 543 However, none of the al
535 Id. at 164, 167. 536 Id. at 95. 537 Id. 538 Id. at 170. 539 See id. at 128; supra part IV.C.5. 540 SAFFORD RMP, supra note 245, at 32, 49, 72. This goal was contained in BLM's Ripa
rian- Wetland Initiative for the 1990's. RIPARIAN INITIATIVE, supra note 387; see supra part IV.C.5.
541 Sierra Club Letter, supra note 491; Letter from The Wildlife Society to BLM (June 12, 1990), in SAFFORD RMP, supra note 245, at 380-G [hereinafter Wildlife Society Letter].
542 SAFFORD RMP, supra note 245; at 32-33, 52-53, 72. 543 Id.
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ternatives provided specific guidance or timetables for carrying out these actions. The RMP also did not specify which riparian areas would be among the seventy-five percent to be restored.
The alternatives also called for continued development of grazing sys tems to "manage livestock use for the improvement of riparian areas. "544 Cattle are extremely destructive to riparian areas because they trample stream banks, disturb stream bottoms, and remove riparian vegetation. 545 The most effective way to restore riparian areas is to limit livestock access so that native vegetation has ample opportunity to grow and rejuvenate. 546 Simple steps such as fencing off riparian areas, limiting livestock numbers, or restricting grazing to certain periods of the year can have dramatic ef fects. 547 For example, BLM conducted a study project on the west fork of Nevada's Deer Creek that involved fencing out cattle and adding rock structures to deepen fish pools.548 These measures improved the creek's condition from poor to excellent in only four years. 549 However, none of the Safford District alternatives specified what steps would be taken to manage livestock in riparian areas. BLM deferred consideration of this crucial issue to subsequent planning efforts at the allotment level, without explaining why these measures would not be more appropriately consid ered in the resource management plan. 550
e. Wildlife Habitat Management
Each alternative set the same objectives for wildlife habitat manage ment. 551 BLM's goals included maintaining and enhancing priority species and their habitat, conserving candidate species to avoid additional'listings under the ESA, managing priority species habitat to maintain or enhance population levels, and focusing management efforts on enhancing biologi cal diversity.552 The alternatives differed in the ways these objectives would be reached. First, each alternative designated a different number of species and habitat as priorities, which results in special monitoring and management under the RMP. The Preferred Alternative and Alternative B specified a comparable number of species, while Alternative C designated far fewer. 553 Alternative B was much more beneficial for wildlife than the
544 Id. 545 See GRAZING TO EXTINCTION, supra note 23, at 11. In the West, livestock grazing is the
major cause of degraded riparian habitat on the public lands. RANGELAND REFORM, supra note 60, at 3-43; U.S. GEN. ACCOUNTING OFF1CE, PUBUC RANGELANDS: SOME RIPARIAN AREAS RESTORED BUT WIDESPREAD IMPROVEMENT WILL BE SLOW 11 (1988) [hereinafter SOME RIPARIAN AREAS RESTORED].
546 SOME RIPARIAN AREAS RESTORED, supra note 545, at 18, 35, 51. 547 Id. at 18. 548 Id. at 22. 549 Id. 550 See SAFFORD RMP, supra note 245, at 397. 551 Id. at 33, 53-54, 72-73. 552 Id. 553 Id, at 33-34, 54, 73. Alternative A designated at least 50 priority species, Alternative B
designated a minimum of 51, and Alternative C designated only 24. It is impossible to deter mine the exact number of species designated in any alternative because the alternatives
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other alternatives because it included additional groups of species as pri orities. 554 Unlike the other alternatives, Alternative B designated as priori ties native species which have been eradicated from the district, such as grizzly bears, jaguars, and river otters. 555 Alternative B also prioritized de sert grasslands songbirds, reptiles, small game, wetlands waterfowl, and shore birds. 556 None of the other alternatives included any of these spe cies on the priority list.
Second, each alternative set forth different future actions designed to meet wildlife habitat objectives. All alternatives included 1) managing habitat for "optimum" wildlife populations,557 2) transplanting and aug menting populations if necessary, 3) monitoring priority habitat, 4) sup pressing and prescribing burning where beneficial to habitat, 5) closing certain areas to animal damage control activities, and 6) inventorying and categorizing desert tortoise habitat.558 The Preferred Alternative and Al ternative B went further, calling for preparation of several site-specific habitat management plans in cooperation with the Arizona Game and Fish Department559 and consideration of wildlife needs in the allotment plan ning process.560 Alternative B also called for the reintroduction of priority species that had been eradicated from the district, such as grizzly bears and jaguars.56l No alternative provided specifics on how, where, or when these actions would be carried out.
The alternatives established more specific management objectives for several priority species and habitats. 562 These objectives are still quite broad, however. For example, the management objective for a herd of pronghorn antelope is to improve habitat so it will support a viable popu lation of the species. 563 This goal will be met by improving forage condi tion, providing water where shortages are a limiting factor, reducing mortality factors, and conducting or supporting monitoring of pronghorn and its habitat. 564 No alternative identified where or how forage will be improved. Nor did any alternative specify what number of pronghorns constitutes a viable population. More specific directives would have pro vided more guidance for habitat management for priority species and facil
designate both individual animals and entire categories of species, such as "wetlands water fowl" and "small game." [d. at 54.
554 [d. 555 [d.
556 [d. 557 Detennination of an optimum wildlife population depends on the reproductive poten
tial, longevity, management objectives, and ecological conditions present, as well as the role a species plays in the ecological community. [d. at 417. An optimum population falls some where between a minimum viable population and the carrying capacity of an area. [d.
558 [d. at 34-35, 54-55, 73-74. 559 The Sikes Act, 16 U.S.C. §§ 670g-670o (1994), requires BLM to work with state fish and
wildlife agencies to prepare and implement habitat management plans. 16 U.S.C. § 670g(a) (1994); see supra part IV.C.2.
560 SAFFORD RMP, supra note 245, at 34, 55. 561 /d. at 473-74. 562 [d. at 473-760. These objectives were common to all alternatives. 563 /d. at 475. 564 Id.
830 ENVIRONMENTAL LAW [Vol. 26:771
itated the evaluation of progress being made toward achieving established goals.
f Energy and Minerals Together with grazing, mineral extraction is one of the major con
sumptive uses of the Safford District's public lands. BLM's policy is to fos ter and encourage mineral development, while protecting the public lands from undue degradation. 565 Mining can in fact be very hazardous to the environment and to wildlife, because it disrupts habitat and may contami nate waterways with toxic heavy metals. 566 To balance mining's perceived benefits to society with its disadvantages, each alternative included pro tective actions such as withdrawing varying amounts of land from mineral entry,567 prohibiting the sale of materials such as sand and gravel on other lands, and requiring leases on certain acreage to be issued with "no sur face occupancy" stipulations.568 Alternative B protected the largest amount of land in this manner. Alternative C protected the smallest. The Preferred Alternative fell in the middle.
Areas at least partially protected from mining activity included ACECs, riparian areas, and bighorn sheep lambing grounds. 569 These mea sures will benefit wildlife, but the alternatives could have provided addi tional protection, particularly in ACECs. BLM should fully use its authority to regulate mining activities and require mitigation and reclamation mea sures to protect the wildlife resource. 570
5. The Final RMP
BLM's Arizona state director approved the proposed RMP following its publication and the expiration of the public protest period. 571 Several protests were filed challenging the designation of certain ACECs and ob jecting to the suspension of grazing in a key riparian area. 572 In spite of these protests, the state director signed a Record of Decision approving the Preferred Alternative as the final plan, with certain actions deferred pending resolution of the protests.573 Postponing these actions reduced the plan's effectiveness for protecting wildlife and habitat. First, BLM de
565 43 U.S.C. §§ 1701(a)(8) (public lands are to be managed in a manner that will protect their quality), 1702(c) (multiple use management means productivity of the land should not be permanently impaired) (1994); SAFFORD RMP, supra note 245, at 10.
566 Sierra Club Letter, supra note 491. Extraction of minerals is often more damaging to the environment than other resource uses. 2 COGGINS, supra note 76, at H-1.
567 BLM does not have the authority to withdraw lands from mining but can only recom mend their withdrawal. Final decisions on withdrawal must be made by the Secretary of the Interior. 43 U.S.C. § 1714(a) (1994).
568 SAFFORD RMP, supra note 245, at 40, 60-61, 78. A "no surface occupancy" stipulation precludes a mineral lessee from occupying the land's surface unless such activity is specifi cally approved by BLM. Id. at 416.
569 Id. at 40, 60, 78. 570 See 43 C.F.R. § 3809 (1995). 571 SAFFORD ROD, supra note 469. 572 For a description of the procedures for protesting see supra part IV.B.3.c. 573 SAFFORD ROD, supra note 469, at 3.
831 1996] BLM'S PLANNING PROCESS
ferred the designation of five ACECs, including three of the four specifi cally approved to protect wildlife. 574 Second, the agency postponed the suspension of grazing in a key riparian area. 575
The agency justified its selection of Alternative A, the preferred and "balanced" alternative, as the final RMP by referring to FLPMA's directive that the public lands be managed under the principles of multiple use. 576
According to BLM, inherent in this mandate is the need for trade-offs be tween environmental and socio-economic values, such as those repre sented by the final RMP.577 BLM described Alternative A as being the ,best compromise between the production- and protection-oriented alterna tives. 578 However, BLM reached this conclusion without ever comparing the economic values of the wildlife, recreation, and other resources given more protection by Alternative B to the value of devoting the affected pub lic lands to grazing and other consumptive uses.
It is difficult to determine the motivations behind BLM's decision. In selecting the RMP, BLM largely ignored the comments of numerous, citi zens, conservation and recreation and tourism groups, and government agencies, including the Environmental Protection Agency and the Fish and Wildlife Service.579 These members of the public had urged the agency to adopt the more protective Alternative B or to incorporate certain parts of Alternative B, such as those dealing with ACECs or riparian areas, into the preferred alternative. 58o The agency also disregarded many requests that BLM not accept current levels of grazing as a given, but instead reevaluate grazing in a comprehensive manner during the planning process. 581 Speak ing from a different perspective, a small number of ranchers and county government officials opposed even the Preferred Alternative, stating that it withdrew too much acreage from grazing and designated too many ACECs.582 Ultimately, BLM's decision probably reflects the agency's his
574 [d. 575 [d. 576 [d. at 12, 577 [d. 578 [d.
579 See, e.g., Sierra Club Letter, supra note 491 (making several recommendations to en hance environmental protection); FWS Letter, supra note 491 (same); EPA Letter, supra note 491 (same); Letter from Southern Arizona Guides and Outfitters Association to BLM (Jan. 26, 1990), in SAFFORD RMP, supra note 245, at 187 [hereinafter Southern Arizona Guides and Outfitters Association Letter] (recommending fee increases or cattle reductions to benefit wildlife).
580 Sierra Club Letter, supra note 491; FWS Letter, supra note 491; EPA Letter, supra note 491; Southern Arizona Guides and Outfitters Association Letter, supra note 579.
581 See, e.g., Sierra Club Letter, supra note 491; FWS Letter, supra note 491; Letter from Amy Schell to BLM (May 31, 1990), in SAFFORD RMP, supra note 245, at 333 (May 31, 1990) (charging that "failure to consider grazing as a significant issue in the EIS is a violation of NEPA").
582 See, e.g., Resolution of Safford District Grazing Advisory Board (Mar. 30, 1990), in SAFFORD RMP, supra note 245, at 243 (stating that the Preferred Alternative would reduce county tax bases); Letter from Arizona Cattle Growers' Association to BLM (June 12, 1990), in SAFFORD RMP, supra note 245, at 294 (stating that ACECs exclude grazing on too much land); Letter from Phelps Dodge Mining, Inc. to BLM (Apr. 6, 1990), in SAFFORD RMP, supra
832 ENVIRONMENTAL LAW [Vol. 26:771
toric and continuing identification with grazing and other consumptive in dustries, the influence still wielded by these groups, and the difficulty of changing the agency's approach to give equal weight to the interests of new constituent groups of the public lands. 583
6. Conclusions
This review of the Safford RMP illustrates the difficulty of carrying out FLPMA's directive to plan for balanced, multiple use management of the public lands. The statute's broad provisions give BLM little guidance on how to resolve conflicts over public lands resources during the plan ning process and leaves local BLM staff with enormous discretion. Few of those who commented on BLM's draft RMP and EIS were satisfied with the provisions of the preferred alternative. Some felt it was overly protec tive, while most felt it did not go far enough to protect the public lands from the impacts of grazing, mining, and off-road vehicle use.
FLPMA leaves BLM with nearly unbridled discretion in the planning process. BLM is accordingly susceptible to pressure from outside inter ests, particularly groups with political power favoring extensive grazing and mining.584 The influence of members of local communities, who view consumptive industries as key providers of jobs and economic stability, is especially strong. This influence, and the resulting adverse consequences for wildlife, are apparent in BLM's decision not to consider grazing as an issue in preparing this RMP,585 in the small number of ACECs designated in the final RMP,586 and in the limited protection given to designated ACECs and most riparian areas. 587 In addition, FLPMA's lack of specificity regarding what an RMP should contain permitted BLM to avoid setting forth specific actions necessary to achieve the broad goals set for wildlife management. 588 The Safford RMP gives little concrete guidance to the re source managers who must attempt to translate these broad objectives into on-the-ground activities.
VI. OBSTACLES TO BALANCED CONSIDERATION OF WILDLIFE IN THE BLM PLANNING PROCESS
When it enacted FLPMA, Congress envisioned a balanced approach to public lands management, with various resources on those lands being
note 245, at 294 (stating that proposed plans withdraw too much acreage from mineral pros pecting and development). These commenters were greatly outnumbered by those favoring Alternative B.
583 See supra notes 489-504 and accompanying text (discussing issues omitted from the SAFFORD RMP, supra note 245).
584 See Blurnm, supra note 23, at 421 (discussing effects of commodity-based interest group pressure on land management decisions).
585 See supra notes 489-504 and accompanying text. 586 See supra notes 512-27 and accompanying text (discussing the limited range of ACECs
included in the Safford RMP). 587 See id. 588 See supra notes 558-64 and accompanying text (discussing the limited provisions for
wildlife habitat management considered by BLM).
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given equal consideration. 589 The resource management planning process was viewed as a way to maximize the national interest in the public lands. It appears, however, that BLM's planning efforts have not yet resulted in balanced resource management for the public domain, because BLM has continued to favor traditional consumptive uses of its lands at the expense of other uses and resources. Although some progress has been made, wild life is still among the resources most neglected by BLM's present manage ment approach. 59o At least five legal and practical obstacles hinder the equitable consideration of the wildlife resource and effective wildlife habitat protection through the present BLM planning process. These are: 1) an overly broad statutory and regulatory mandate, 2) an approach to planning that is not truly comprehensive because it does not necessarily consider all resource management issues, 3) an excessively decentralized agency structure, 4) a lack of adequate funding and personnel, and 5) a history of deference to consumptive users of the public lands. This Part briefly discusses each of these problems.
A. Overly Broad Statutory and Regulatory Mandate
FLPMA clearly requires a new approach to planning for and manage ment of the public lands. However, its :provisions give BLM little specific direction. Congress even neglected to provide a timetable for RMP com pletion and implementation or to establish the required contents of an RMP. FLPMA gives the designation of ACECs priority status, yet provides no uniform guidelines for the ACEC program. FLPMA also assigns to BLM the difficult task of balancing multiple and often conflicting uses of the public lands to maximize the "national interest," without giving any gui dance as to what the "national interest" may be. The level of consideration to be given to wildlife is not specified, making it easier for BLM to prolong its historic allegiance to consumptive users at wildlife's expense. In con trast, the National Forest Management Act591 specifically directs the U.S. Forest Service "provide for diversity of plant and animal communities" in the planning process. 592 Congress's failure to provide more precise stan dards for the BLM planning process has left courts reluctant to closely review BLM planning decisions and require consideration of the wildlife
589 See 43 U.S.C. §§ 1712(c)(1) (directing BLM to use principles of multiple use when developing land use plans), 1702(c) (defining multiple use to include a "combination of bal anced and diverse resource uses that takes into account the long-term needs of future gener ations for renewable and nonrenewable, including ... recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values") (1994).
590 George Cameron Coggins, The Law of Public Rangeland Management v.. Prescrip tions for ~orm, 14 ENVTL. L. 497, 543 (1984).
591 16 U.S.C. §§ 160G-1729(h) (1994).
592 [d. § 1604(g)(2)(B) (1994). Courts have interpreted Forest Service regulations imple menting this provision as setting requirements that are enforceable against the Forest Ser vice. See infra note 598.
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resource. 593 In short, FLPMA leaves BLM with too much discretion in in terpreting and complying with its provisions.
BLM regulations implementing FLPMA perpetuate this flaw. Unlike Forest Service rules, which provide detailed guidance regarding the plan ning process and plan substance,594 BLM's regulations are too general. Forest Service regulations contain standards for the management of fish and wildlife habitat that are concrete and enforceable.595 For example, the Forest Service must manage fish and wildlife habitat to "maintain viable populations of existing native and desired nonnative vertebrate species in the planning area. "596 The Forest Service regulations also require identifi cation of management indicator species to assist planners in estimating the effects of proposed planning alternatives on wildlife. 597 Because courts have proved willing to enforce these requirements against the For est Service,598 the agency has been motivated to give more serious consid eration to wildlife during the planning process. As an illustration, planners working on a revised forest plan for the Tongass National Forest in Alaska convened panels of experts to analyze population viability of various old growth dependent species and prepare a strategy for ensuring viability that would be incorporated in the new forest plan. 599 BLM currently lacks the motivation to take similar steps.
B. Planning Is Not Truly Comprehensive
As demonstrated by the Safford District RMP,600 BLM resource man agement plans do not always start with a clean slate and consider all re
593 See Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045, 1049-63 (D. Nev. 1985), affd 819 F.2d 927 (9th Cir. 1987) (recognizing inadequacies of BLM plan that con tained only very broad provisions regarding grazing, but concluding that plan was not so inadequate as to require an il\iunction); Coggins, supra note 220, at 330-31.
594 36 C.F.R. §§ 219.1-.29 (1995). 595 See id. § 219.19. 596 [d. A ''viable population" is one that "has the estimated numbers and distribution of
reproductive individuals to insure its continued existence is well distributed in the planning area." [d. Under the rubric of promoting ecosystem management, the Forest Service re cently proposed rules that would replace the viability requirement with a requirement that forest plans protect habitat capability only for sensitive species. 60 Fed. Reg. 18,886 (Apr. 13, 1995). This would be a short-sighted revision, because the habitat protection requirement would apply only to those species whose populations are already at risk. Such an approach would lead to the type of extreme "deathbed conservation" measures taken on behalf of the spotted owl. See infra note 613.
597 36 C.F.R. § 219. 19(a)(l) (1995). 598 See Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 301-02 (9th Cir. 1991) (upholding
preliminary il\iunction against timber .sales until Forest Service implemented revised stan dards and guidelines that would ensure the viability of the northern spotted owl); Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484, 1490-94 (W.D. Wash. 1992) (same), affd, 998 F.2d 699 (9th Cir. 1993).
599 See A. Ross KIESTER & CAROL ECKHARDT, REVIEW OF WIWLIFE MANAGEMENT AND CON SERVATION BIOWGY ON THE TONGASS NATIONAL FOREST: A SYNTHESIS WITH RECOMMENDATIONS (1994); A PROPOSED STRATEGY FOR MAiNTAINING WELL-DISTRIBUTED, VIABLE POPULATIONS OF WIWLIFE AsSOCIATED WITH OW-GROWTH FORESTS IN SoUTHEAST ALASKA: A REPORT OF AN INTER AGENCY COMMITTEE (1993).
600 See supra part V.B (discussing BLM's development of the Safford RMP).
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source issues. New RMPs consider in depth only those issues determined by BLM to require resolution at the time planning'is initiated.601 Under this approach, which likely violates FLPMA,602 the agency avoids tackling con troversial questions such as the propriety of grazing in certain areas or reductions in livestock levels.603 Here also, Forest Service regulations are superior to BLM rules, because they require the Forest Service to identify lands suitable for grazing during the planning process. 604 Forest Service plans also must integrate detailed consideration of various forest re sources, including timber, fish and wildlife, and grazing, into each plan. 605 Unlike the BLM's approach to grazing in the Safford District, the Forest Service could not easily ignore a major resource issue such as grazing in its planning efforts.
C. Excessive Decentralization
BLM's overall structure and its resource management planning pro cess are both extremely decentralized. The agency's system of state of fices is relatively unique among federal natural resource agencies, most of which have regional offices that supervise operations in several states.606 Most BLM key management decisions are made at the local level with Httle oversight by its national office. The agency develops RMPs solely at the resource area level and submits them to the state BLM director for ap proval. BLM designates ACECs in the same manner.
Of course, the nature of BLM's responsibilities makes it impossible for BLM's Washington, D.C. office to oversee every decision made by BLM's local managers. Local personnel, who are most familiar with the on the-ground conditions and unique issues facing their areas, should have some flexibility in making decisions. However, the current degree of de centralization is excessive, producing inconsistent policy implementa tion.607 In addition, state BLM directors are likely subject to greater pressure from state and local government officials than the directors of federal agency regional offices that span all or parts of several states.608
Because BLM's district and resource area managers have a great deal of discretion and are not subject to' close oversight from the national level, they are also vulnerable to pressure from local consumptive interests, such as ranchers and miners, who seek to influence planning and manage ment decisions. The widely varying records of the various states in
601 See supra notes 246-51, 281, 489-504 and accompanyjng text. 602 See supra notes 247-51 and accompanying text. 603 See LoOMIS, supra note 74, at 330; Feller, supra note 298, at 705-08. 604 36 C.F.R. § 219.20 (1995). 605 [d. § 219.13.
606 For example, the U.S. Forest SelVice, National Park SelVice, and Environmental PrO tection Agency all have regional offices.
607 See Ed Marston, Babbitt is Trying to Nationalize the BLM, HIGH COUNTRY NEWS, May 16, 1994, at 1, 11 (describing state BLM offices' inconsistent philosophical approaches and differing implementation of policies).
608 [d. at 10-11.
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designating and protecting ACECs illustrate the detrimental effects of this decentralization. G09
D. Lack of Funding and Personnel
BLM is a poorly funded agency. Cost-saving measures often target BLM resource planning and fish and wildlife programs, because they are not perceived as increasing the production of consumptive resources from the public lands. GlO Accordingly, when BLM's slow progress toward fulfil ling FLPMA's planning requirement is criticized, BLM can legitimately point to a lack of funding and personnel as a major stumbling block. Budg etary constraints also severely restt:ict the effectiveness of BLM's wildlife programs and limit the attention the agency can devote to the wildlife re source. In addition, funds that could be directed toward wildlife habitat improvement projects, such as grazing fee revenues, are rarely used for this purpose. Instead, the agency often directs these funds toward projects that benefit the livestock industry, such as water systems for cattle, pre scribed burning and seeding of rangeland, and cattle guards. 611 As a reSUlt, BLM lacks sufficient funds either to develop RMPs promptly or to imple ment completed RMPs fully. Although funding cutbacks and agency streamlining are a reality in this era of "re-inventing government,"G12 it is shortsighted to cut budgets for planning and habitat protection programs in the short-term when these programs can help avoid the need for more dramatic and expensive measures in the future. G13
E. Historic Deference to Consumptive Users
BLM's history and the statutes by which it has been governed in the past aligned the agency closely with ranchers and miners, key consump tive users of the public lands. 614 Many in the livestock industry view graz ing on the public lands as a right, not a privilege, making it difficult for BLM to reduce grazing levels and institute other measures designed ~o im prove range condition. Local advisory boards and multiple use councils
609 See supra notes 445-51 and accompanying text. 610 The General Accounting Office has determined that BLM wildlife programs receive
between 3% and 7% of available funding, while the range, minerals, and timber programs receive up to 33%. ATIENTION TO WILDlJFE, supra note 17, at 4.
611 [d. at 20. For example, in one BLM district only about 6.5% of the district's $2.6 million in range betterment funds was allocated to wildlife-related projects in fiscal years 1984 to 1989. [d.
612 See Leshy, supra note 6, at 684-85. 613 The controversy over management of the Pacific Northwest's old-growth forests pro
vides a good illustration. Hungerford, supra note 57, at 1430. For years, BLM and the Forest Service ignored the needs of old-growth dependent species in the Northwest's public forests and allowed environmentally unsustainable logging practices to continue. [d. As a result, the northern spotted owl was listed under the ESA, logging in the Northwest came to a halt, and the federal government poured millions of dollars into new planning efforts to ensure spe cies viability and allow some level of logging to continue. [d. The Clinton Administration's Option 9 plan for logging in the Pacific Northwest called for the government to spend $1.2 billion on worker retraining, economic development, and watershed restoration. [d.
614 See supra notes 23-34 and accompanying text.
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were and continue to be dominated by ranchers, and they exert a great deal of influence over local BLM decision making. 615 Similarly, many view mining as an entitlement. Mining laws dating to the late 1800s permit any interested party to prospect for hardrock minerals free of charge on al most all public lands.616 BLM has been reluctant to require mineral opera tors to follow protective mining practices for the benefit of wildlife if the protective measures would substantially increase mining costs.617
Political pressure from these interests at both the local and national levels has kept BLM from instituting reforms and from giving equal consid eration to wildlife and other nonconsumptive uses of the public lands. 618 Preserving "community stability" has always been a key concern for BLM, and the agency often favors consumptive industries that promise local em ployment in order to achieve this goal.619 This is true even though the economic value of uses of the public lands that depend on healthy wildlife populations and good environmental quality, such as camping, hiking, and hunting, is rapidly growing.620 There are some indications that BLM is moving away from this traditional deference to consumptive users, but much remains to be done. 621
VII. SUGGESTIONS FOR CHANGE
Both legal and institutional reforms are required to ensure that BLM gives wildlife resources the same consideration as other values on public lands. This Part suggests some changes that would help achieve the bal anced approach to resource management that Congress envisioned when it passed FLPMA. Of course, it is unlikely that sweeping changes will be made overnight. Any improvements will likely be incremental, due to polit ical pressures on BLM and the Department of the Interior and fiscal pres sures on the federal government. However, change is necessary to ensure that the national interest in the public lands is maximized.
A. Amend FLPMA
Congress should amend FLPMA to provide greater guidance to BLM in its planning and management efforts. The statute should set forth the required contents of an RMP and instruct BLM to engage in a truly com prehensive planning effort that considers all resource issues in every re source area or district. BLM should not be able to indefinitely postpone consideration of certain issues or continue to operate under plans that do
615 Id. 616 Id. 617 ATIENTION TO WILDUFE, supra note 17, at 35. 618 For example, political pressures have resulted in the scaling back of Interior Secretary
Bruce Babbitt's efforts to refonn grazing management and the removal of BLM's refonn minded director Jim Baca Tom Kenworthy, Interior Department O.Jficial Resigns Under Pressure, WASH. POST, Feb. 4, 1994, at A17.
619 See supra notes 25-30 and accompanying text. 620 See PUBLIC REWARDS, supra note 14; supra notes 47-51 and accompanying text. 621 For example, BLM's Fish and Wildlife 2000 and Riparian-Wetland Initiative are
good first steps in the right direction. See supra part IV.C.4-5.
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not satisfy FLPMA's requirements. Specifically, Congress should direct BLM to consider the sustainable level of grazing when preparing an RMP for any resource area where grazing occurs and to set allowable grazing levels in the RMP. BLM should not be permitted to rely on grazing alloca tions made in preexisting MFPs or other outdated plans. 622 Congress should mandate that RMPs include 1) specific actions necessary to meet goals and objectives; 2) implementation schedules; and 3) projected budget and staffing requirements for implementation. Congress should also require BLM to consider the economic benefits and environmental costs of all land use activities on the public lands and weigh these benefits and costs carefully. In addition, FLPMA should specify the amount of con sideration BLM must give the wildlife resource. Simply requiring that wild life be balanced with other uses of the public lands has not been sufficient. This broad command leaves BLM too much discretion, enabling the agency to prefer other uses, such as grazing and mining. At a minimum, FLPMA should require that RMPs provide for habitat management prac tices that will maintain viable wildlife populations. 623
Congress should also direct BLM to adopt binding and enforceable regulations to further assist agency personnel in the planning effort. These regulations should set forth uniform procedures and guidelines for consid ering and protecting species viability through planning. The new rules should also ensure consistent treatment of areas nominated for ACEC sta tus throughout the various states. These regulations should specify that certain areas, such as critical habitat for endangered species, will automat ically qualify for ACEC status. In addition, site-specific ACEC plans should be required for every designated ACEC and should be developed and im plemented within three years after designation.624 Stringent protections, such as the withdrawal of ACECs from entry for mineral exploration, should be required. 625 Resource uses with potentially adverse impacts should be permitted within an ACEC only if they are found to be compati ble with the values the ACEC was designated to protect. 626
622 TItis is similar to a requirement contained in the National Forest Management Act, 16 U.S.C. §§ 1600-1729 (1994), which specifies that Forest Service plans must set forth pro posed levels of timber harvest. [d. § 1604(f)(2) (1994).
623 The National Forest Management Act and its implementing regulations contain a simi lar provision. [d. § 1604(g)(3)(B) (1994); 36 C.F.R. § 219.19 (1995).
624 See CAMPBELL & WALD, supra note 42, at iv. A similar requirement is contained in the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287 (1994), which directs the responsible agency to prepare a river management plan for each river within three years of its designa tion under the statute. [d. § 1274d.
625 Currently, B1M cannot withdraw areas from mineral exploration, but can only recom mend that the Secretary of the Interior do so. 43 U.S.C. § 1714 (1994).
626 This "compatibility" test could be modeled after that contained in the National Wildlife Refuge Act, 16 U.S.C. §§ 661-668dd, 668dd(d)(1)(A) (1994). This provision allows the Secre tary of the Interior to authorize uses within wildlife refuges only if he determines they are compatible with refuge purposes. As a result, agencies must investigate the compatibility of consumptive uses, such as grazing, with the purposes for which a refuge was established. See Wilderness Soc'y v. Babbitt, 5 F.3d 383, 388-89 (9th Cir. 1993) (holding that Department of the Interior was not substantially justified in renewing annual grazing permits on refuge without first analyzing whether the grazing was compatible with refuge purposes).
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While these requirements should not make RMPs so specific and de tailed that they constrain future management in response to changing con ditions, they should ensure that RMPs will provide concrete guidance for on-the-ground management actions and enforceable standards against which the sufficiency of an RMP can be evaluated by a court. FLPMA should also set deadlines for land use planning completion and implemen tation. To ensure BLM makes continuing progress in developing plans and putting them into practice, Congress should require BLM to report on its progress annually.627
B. Improve National Oversight
To facilitate uniform nationwide policy implementation, BLM's na tional office should have greater oversight capabilities. BLM's structure should be streamlined, with state headquarters reorganized into regional offices. Such a reorganization may help reduce BLM's susceptibility to pressure from state government officials and congressional delegations. Local BLM offices should be required to report to the regional and na tional offices regularly regarding their progress in developing and imple menting RMPs, designating and protecting ACECs, and restoring and protecting wildlife habitat. Local BLM offices should not be able to ignore or modify national policies and guidance. BLM's national director should have the authority to review and suggest changes to RMPs before they are finalized to ensure that they reflect BLM's overall goals and objectives.
Of course, it is impossible for BLM's national office to be involved in every local decision. Local agency officials necessarily have a wealth of information about the lands in their districts and the site-specific issues that they must resolve. A large degree of management discretion and deci sion making authority should thus remain at the local level. However, BLM's national leadership should be confident that each local manager's decisions will conform to BLM's national policies and guidance and not be dependent on each manager's own personal philosophies of public lands management. Strong support from BLM leadership and uniform national guidance will make it easier for local BLM personnel to make planning and management decisions that may be unpopular at the local level due to their perceived impacts on community economies or because they change the status quo.
C. Increase Funding for BLM Planning and Wildlife Programs
Sufficient funding for resource management planning and wildlife programs is necessary to ensure that the FLPMA's mandates are fulfilled. Congress should direct that an adequate portion of BLM's appropriations go toward these areas. Outside of the appropriations process, other sources of funding for projects that benefit wildlife, such as grazing fees and matching grant programs, should be fully utilized. For example, Con
627 The National Forest Management Act imposes such a requirement on the Forest Ser vice. 16 U.S.C. § 1604(c) (1994).
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gress should allocate a specific portion of the grazing fee revenues avail able for range improvement to wildlife habitat restoration projects. Because grazing is a major contributor to poor range conditions and a lack of forage for wildlife, it is logical that a portion of grazing revenues go toward offsetting this damage. Grazing fees should also be set to reflect the fair market value of the range resource, thereby eliminating subsidies for ranchers and providing additional funds for wildlife habitat restora tion. 628 BLM should also have sufficient staffing and funding to take full advantage of the Challenge Cost Share Program, a matching grant pro gram allowing state and local governments and private organizations to supplement BLM appropriations and funds received from consumptive use programs. 629 These funds have often gone unclaimed in the past due to BLM's inability to match them. 630
D. Promote a New Vision
Numerous commentators have demonstrated the need for a "new vi sion" of public lands management,631 Congress intended FLPMA to bring about fundamental changes in the way the public domain is managed, but the potential of the statute has never been fully realized. To achieve truly balanced multiple-use management of BLM lands, a combination of re forms such as those outlined above will be necessary. By adopting such measures, Congress would demonstrate to BLM and to the users of the public lands that all resources, including wildlife, are important and merit equal consideration. Such a finn statement of purpose is needed to pre serve wildlife on the public lands and guide the management of those lands for the benefit of present and future generations.
628 FLPMA provides that the United States should receive fair market value for the use of the public lands and their resources, but this policy has not yet been enforced. 43 U.S.C. § 1701(a)(8), (9) (1994). This issue is at the heart of the ongoing grazing reform controversy. See supra note 115.
629 ATTENTION TO WILDUFE, supra note 17, at 22. 630 [d.
631 See, e.g., Symposium, Clinton's New Land Policies, 25 ENVTL. L. 679 (1995); Sympo sium, A New Era for the Western Public Lands, 65 U. Cow. L. REV. 183 (1994).
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