CHAPTER 7 THE RENEWABLE WILDERNESS RESOURCE: PERSPECTIVES ON THE MANAGEMENT OF BLM WILDERNESS LANDS

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 7
THE RENEWABLE WILDERNESS RESOURCE: PERSPECTIVES ON THE MANAGEMENT OF BLM WILDERNESS LANDS
Robert D. Comer ¹
Regional Solicitor
Special Institute on Natural Resources and Environmental Law
U.S. Department of the Interior
Lakewood, Colorado

Robert D. Comer serves as the Regional Solicitor, Rocky Mountain Region, and has served as the Associate Solicitor, Land and Water, for the Department of the Interior. In this capacity, Mr. Comer manages a staff of 40 legal professionals in providing advice for the strategic implementation and litigation of Department programs.

Prior to joining the Department, Mr. Comer specialized in business and transactional legal issues and litigation and has an extensive background in environmental and natural resource law. Mr. Comer has been in private practice with Snell and Wilmer and Associate General Counsel for Asarco Incorporated, a former Fortune 500 specialty chemical and mineral processing company, among other legal endeavors. Before becoming an attorney, Mr. Comer had served as President, Vice President and Director of Applied Ecology for Thorne Ecological Institute.

Mr. Comer has written extensively on environmental and natural resource topics. Bob serves as Chair of the Public Land and Resource Committee for the American Bar Association, and has chaired the ABA Water Quality and Wetlands and Mining Committees. He also has served on several Boards and is a former editor for the Natural Resources and Environment Journal. Bob earned his B.A. cum laude and J.D. from the University of Colorado and an M.F.S. from the Yale University School of Forestry and Environmental Studies.

Introduction

This month marks the fortieth anniversary of the Wilderness Act. The protection of wilderness is a joyous event worthy of celebration and a milestone in the shaping of America's modern land and resource management ethic. It recognizes the value of identifying those special places and preserving their qualities, undisturbed, for generations to come.

Wilderness too is a place of mind. We have all heard the press or individuals describe certain special places as "wilderness," which while they may provide a form of personal solitude do not contain sufficient wilderness characteristics to meet the federal statutory definition.

Nearly every parcel of land managed by the Department of the Interior and the U.S. Forest Service has been inventoried for its wilderness qualities in the forty years since passage of the Wilderness Act. To date, Congress has designated 105 million acres of land for inclusion in the National Wilderness Preservation System. The President of the United States recommended 10 million Bureau of Land Management (BLM) acres as suitable for wilderness designation. The fate of these lands continue to await decision by Congress, which jealously has guarded its right to be the sole entity authorized to make decisions concerning the inclusion of federal lands in the National Wilderness Preservation System.

Controversy has arisen concerning the inventory and management of BLM lands in an important, but relatively narrow category of the "wilderness" spectrum. Congress established a particularized approach for the inventory and study of lands determined to contain wilderness characteristics. The Secretary of the Interior was directed to make recommendations for wilderness designation to the President by October 21, 1991, with the President to make his wilderness designation recommendations to Congress within two years thereof (the §603 wilderness study process). The BLM lands recommended as suitable for wilderness designation by the President to Congress, termed Wilderness Study Areas (WSAs or §603 WSAs), are required to be protected to the statutory "non-impairment" standard pending a decision by Congress as to their inclusion in the National Wilderness Preservation System.

The BLM wilderness inventory was conducted in the late 1970s and was completed in 1980 by Secretary Andrus during the Administration of President Carter. The immediate inventory of potential wilderness lands was critical to the protection of wilderness values given the operative principle that wilderness could not regenerate, and once impaired was lost forever.

Following substantial public review and comment, the BLM's Wilderness Inventory and Study Procedures Handbook (September 27, 1978) established a three-phase inventory, study, and reporting process to accomplish the wilderness inventory, review and reporting objectives of §603. The inventory procedures followed a two-step approach. The first was an initial inventory completed in December 1979 that identified and eliminated from further consideration public lands that lacked clear wilderness characteristics. The second step was the "intensive inventory," which was completed for the most part by November 14, 1980. This second step distinguished lands with wilderness characteristics for further wilderness study from lands determined to contain insufficient wilderness qualities. As a result of the inventory process, 149 million acres were released from the §603 process. During the study phase, BLM analyzed both existing and potential values, resources, and uses on the 23 million acres of WSA later categorized as either suitable or nonsuitable for wilderness designation. Congress has mandated that lands identified by the President as suitable for designation but for which no wilderness decision has been made remain protected from impairment to assure their wilderness character is preserved.

In the mid-1990's, the BLM instituted policy revisions that caused many lands to be re-examined for their wilderness character and imposed the statutory non-impairment standard in the management of those lands determined to have wilderness character. For instance, in 1999, the Utah BLM nearly doubled its wilderness study lands from the 3.2 million acres identified through the §603 wilderness study process to a total of more than 5,700,000 acres of land protected under the non-impairment standard by the addition of 2.6 million acres of re-inventoried lands determined to have wilderness character. Application of the non-impairment standard effectively limited the potential land use on both the Presidential wilderness recommendations and the re-inventory lands, imposing a wilderness management regime for an indefinite period of time pending Congressional wilderness designations, which have been infrequent for BLM lands. ²

Many viewed the policy to re-inventory BLM lands as an important step in the expansion of wilderness preservation on BLM lands. Others, including the State of Utah, viewed this as an intrusion on their ability to use public lands and manage their fee lands, and in particular the state's school trust lands. In response, the State of Utah sued the Department of the Interior (the Department) in 1996. Although the parties settled the case in 2003, the litigation continues through the intervention of new parties at the time of settlement.

This paper looks at issues associated with the re-inventory of wilderness on BLM lands. To understand the issue, the paper steps back to the wilderness review process established by the Wilderness Act ³ and those administrative actions that have led to controversy under the Federal Land Policy and Management Act of 1976 (FLPMA). ⁴ The paper then examines the Settlement Agreement between the Bureau of Land Management and the State of Utah and the policies BLM has established to effect the settlement. The paper takes no position on the differing legal positions on the propriety of BLM wilderness re-inventory to establish §202 WSAs or the 2003 Settlement Agreement.

A Brief Legislative History of Wilderness in America

Congress has demonstrated both bravado and a history of caution with respect to wilderness and has been very specific in every wilderness pronouncement it has made. The Wilderness Act of 1964 established the National Wilderness Preservation System, "composed of federally owned areas designated by Congress as 'wilderness areas."' It provided a ten-year review and study period to determine the suitability or nonsuitability of lands for Secretarial recommendation to the President for wilderness preservation and subsequent advice by the President for designation to Congress. The Act required the President to forward his recommendations to the Congress by September 3, 1974, ⁵ with the proviso that "no Federal lands shall be designated as 'wilderness areas' except as provided for in this chapter or by a subsequent Act of Congress." ⁶ The Act focused on wilderness designations for lands of the National Forest System, the National Park System and National Wildlife Refuge System, and for the first time, assured the preservation of wilderness across agency boundaries by imposing stringent management criteria. Today more than 650 units totaling 105 million acres are identified as part of the National Wilderness Preservation System.

Congress adopted the Wilderness Act legislative model in crafting the wilderness inventory and recommendation provisions of FLPMA. Prior to FLPMA, there was no single, unifying mandate for management of the public lands. ⁷ Given that BLM lands were not identified for inventory and study in the Wilderness Act, and the fact that FLPMA had established a public land planning process and management regime, Congress directed the inventory and study of wilderness qualities on BLM lands; lands with wilderness character would be protected for all time from incursion by human influence. The operating premise at the time of these enactments was that "wilderness once impaired was forever lost." Wilderness was a diminishing resource, and "once destroyed can never be restored." There was no belief or expectation that wilderness could or would regenerate. Based on these premises, it is the belief of...