Source: The Fence Post

Those offering testimony in Washington D.C. with regard to a proposed Bureau of Land Management rule expressed major concern that the Biden administration’s burdensome regulations on public lands, including the highly controversial proposed rule entitled “Conservation and Landscape Health” would lack congressional oversight.

The proposed rule seeks to codify and promote the agency’s process around designating Areas of Critical Environmental Concern (ACECs), adds an entirely new use to the balance of uses managed under FLPMA, and establishes a new, non-competitive leasing system for conservation.

The big picture Todd Devlin said he aimed to paint for members of the U.S. House Committee on Natural Resources Subcommittee on Oversight and Investigations during the May 24 hearing titled, “Examining the Biden Administration’s Efforts to Limit Access to Public Lands” was the conservation rule must have cooperative agency status, it must go through the full-blown EIS, and it must be an amendment to the Resource Management Plan. This would be the only time in history that the Federal Land Policy Management Act (FLPMA) would be rewritten without congressional action.

Devlin, a Prairie County, Montana, Commissioner currently serves as Chairman of the National Association of Counties’ (NACo) Public Lands Steering Committee. Devlin told the subcommittee “The proposed rule from the BLM would fundamentally change the BLM’s multiple use mandate under FLPMA without the necessary initial input from Congress, state and county governments, private industry, recreationists and other impacted stakeholders. Additionally, this proposed rule would exclude counties from land designation processes, includes vague definitions, and empowers the agency to approve conservation leases without acreage limitations which could limit critical vegetation management and infrastructure maintenance projects on federal lands.”

Devlin said the rule will mandate the BLM to manage for preservation rather than meet their multiple use mandate. FLPMA doesn’t list uses, but rather laws that were passed by Congress for uses, like the Taylor Grazing Act and the Federal Minerals Act, the Forest Reserve Act. Conservation, though, has not been defined through congressional action.

“Our government was designed to work slowly, to go through the process so we didn’t make decisions that were damaging,” he said after his testimony.  “Our forefathers designed the process that way. Basically what you’re doing is giving them Antiquities Act powers by using the Areas of Critical Environmental Concern (ACEC) to protect intact landscapes and that would be defined as conservation and that just doesn’t fly.”

J.J. Goicoechea, former Nevada state veterinarian and current Director of the Nevada Department of Agriculture, said he has spent his life, just as his father, grandfather, and great-grandfather did – stewarding the lands that today are part of his family ranch and the lands managed by the Bureau of Land Management (BLM) and United States Forest Service (USFS). He said Nevada is often the bellwether for public land rule success – or failure. More than 85 percent of the state is owned or managed by the federal government. The BLM owns or administers more than 63 percent – 48 million acres – of his home state. The remaining percentage can be attributed to the USFS, National Park Service, Department of Defense, the Bureau of Reclamation, and the U.S. Fish and Wildlife Service.

Goicoechea said the BLM has fundamentally failed to meet their statutory obligations under the regulatory process.

In his written testimony, Devlin said the proposed rule was written behind closed doors without the necessary formal input from states, counties or impacted stakeholders.

“Proposing a rule with such drastic implications for land and resource management across the West with a 75-day comment period treats the legitimate concerns of states, counties, other intergovernmental partners, and the public as second tier. BLM should withdraw the rule or, at a minimum, extend the public comment period to 180 days.”

Goicoechea said the BLM bypassed their responsibility to truly evaluate potential impacts of such actions, eliminated the opportunity for anyone, other than those employed by senior BLM leadership, to meaningfully contribute to the proposal, and reduced stakeholder confidence in the implementation of a final rule.

In his written testimony, he said the BLM has scheduled only five public information sessions and the meeting schedule, coupled with the unidirectional briefing style, has left stakeholders, “some of which will be most impacted by the proposed rule, and federal partners alike with the impression that this process is designed to tell the multiple use community what is happening to them, rather than being an active, transparent, and collaborative partner.”

BLM stated that the proposed rule’s effects would be “too broad, speculative or conjectural.” In his written testimony, Devlin said, “Even a surface-level reading of the proposed rule calls this justification into question, as the issuance of newly established conservation leases or expanded opportunities for the BLM to create areas of critical environmental concern (ACEC) will negatively impact all aspects of land management and the agency’s multiple use mandate. Any attempt to rewrite FLPMA implementation in a wholesale manner should be subject to the most thorough environmental analyses, including potential economic impacts, just as the BLM would conduct when studying a specific project’s impacts.”

He said counties are ready to work with the BLM to better conserve our lands and resources, but counties deserve the chance to formally engage with the federal government from the beginning, especially when the wholesale reimplementation of federal law is in the balance.

FLPMA mandates that ACECs can only be designated when a resource management plan (RMP) is finalized. The proposed rule, however, would grant the BLM the authority to manage proposed lands of unlimited acreage as ACECs without the requirement of an updated RMP. This gives the BLM a new ability to create de facto Wilderness Study Areas of any size without the input of state and county governments by side-stepping the RMP establishment or revision process mandated by FLPMA.

Devlin said the vague definition of “intact landscapes” is defined by the BLM as “an unfragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species. Intact landscapes have high conservation value, provide critical ecosystem functions, and support ecosystem resilience.”

He said this vague and unclear definition, combined with the proposed rule’s mandate to analyze landscapes for protection from activities that negatively impact intact landscapes, would encapsulate untold millions of acres around the United States as “intact landscapes” and potentially disrupt necessary actions to make our landscapes and watersheds healthy and resilient.

The proposed rule allows the BLM new authority to grant conservation leases of up to 10 years and unlimited size to tribes, non-profits, individuals and private entities. Devlin said counties and states are excluded from conservation leases despite the work counties engage in to meet mutual goals of improving landscapes and watersheds. Assuring no uses other than conservation could severely limit opportunities to manage landscapes to reduce wildfire and invasive species threats, livestock grazing, infrastructure maintenance and even recreational opportunities on federal lands, while elevating conservation as a use above the rest of these critical aspects of the agency’s mandate. This, he said, is in opposition to a decision in the U.S. Court of Appeals for the Tenth Circuit in Public Lands Council v. Babbitt that relevant statutes, including FLPMA, do not allow for the issuance of permits “intended exclusively for ‘conservation use.’

Goicoechea said the agency has failed to define what is considered a “compatible” use or an “incompatible” use with an underlying conservation lease.

“While the BLM has previously stated they believe grazing is a conservation tool, the rule contains no text that would make the industry confident that this rule is not targeted to remove grazing access. Further, the rule makes clear that uses like hunting, fishing, and recreation, when done with a commercial component – like outfitting, guiding, and other conservation activities – would not be defined as a “casual use” and could be precluded due to the presence of a conservation lease. In sum, the BLM has proposed a system that will be rife for abuse and litigation without consistent standards and application.”

He said without access to public lands and the forage and water they provide, cattle and sheep producers in Nevada would not be able to sustain viable operations, putting the national beef and lamb markets at risk of increased volatility. In Nevada alone, he said the result would be $202.6 million in lost grazing economic activity, $66 million in lost ecosystem services, and an incalculable loss to the culture, rural communities, and land values across the state.

“The greatest threat to sage grouse, mule deer, trout, and other key species in the state is habitat loss due to fire and invasive species encroachment. Grazing reduces fire risk, particularly in years like this, where ample moisture will result in an explosion of late-season forage. Without grazing, that forage will dry up and become fuel for catastrophic wildfire. Grazing reduces these fuels as part of normal operations, preventing the BLM from applying chemical or other treatments that cost an average of $150 per acre. The cost savings for acres treated across the West totals billions of dollars annually.”