null BLM PLANNING 2.0 - DOES IT TAKE US TWO STEPS BACK? IMPLICATIONS OF SWEEPING CHANGES TO RESOURCE MANAGEMENT PLANNING

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 2B
BLM PLANNING 2.0 - DOES IT TAKE US TWO STEPS BACK? IMPLICATIONS OF SWEEPING CHANGES TO RESOURCE MANAGEMENT PLANNING
Laura K. Granier
Partner
Davis Graham & Stubbs LLP
Reno, NV

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LAURA K. GRANIER is a partner at Davis Graham & Stubbs LLP. Ms. Granier's practice includes regulatory work involving government affairs with a focus on natural resources and land use and complex commercial litigation. She has successfully handled several issues of first impression concerning mineral resources in Nevada including a 2011 case enjoining enforcement of a state tax imposed on mining claims determined to be unconstitutional as well as cases involving complex land tenure issues and water rights. Ms. Granier has been involved in the land use planning process in Nevada for Greater Sage Grouse conservation efforts and currently is lead counsel for a number of Nevada counties and private plaintiffs challenging the BLM's and USFS's decisions issued in that land use planning process. Ms. Granier has successfully handled litigation involving complex land tenure issues for various mining projects throughout Nevada. She has worked closely with legislators in previous sessions on challenging issues related to water, mineral resources, revenue, education and land use. Her regulatory experience includes a broad spectrum of work before various agencies with regulatory jurisdiction over environmental issues, mining, education, taxes, land use, and public utilities.

The Department of the Interior, through the Bureau of Land Management ("BLM"), administers more than 245 million acres of land and approximately 700 million acres of sub-surface mineral estates throughout the nation.¹ This responsibility has proven to be complex and challenging - but was delegated with clear guidelines from Congress. Through the Federal Land Policy and Management Act ("FLPMA"), Congress directed that in administering public lands, the goals and objectives would be established by law as guidelines for public land use planning, and management would be on the basis of multiple-use and sustained yield.² FLPMA further requires that the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat. 1876, 30 U.S.C. § 21a) as it pertains to the public lands.³

FLPMA requires that the BLM establish these guidelines through development of land use plans commonly known as resource management plans⁴ ("RMPs") in partnership with State, local and tribal governments, to manage public lands and resources in accordance with principles of "multiple-use."⁵ RMPs have longstanding and widespread implications: once an RMP is approved, all future resource management authorizations and actions for areas covered by the RMP must comply with the RMP.

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On December 12, 2016, the BLM finalized new regulations dubbed "BLM Planning 2.0" making sweeping changes to rules governing the land use planning process for the agency's administration of the public lands (the "Rule").⁶ The changes made to the planning regulations, according to the agency, "respond to the needs identified in a 2011 BLM review of the land use planning process and in recent Department of the Interior ("DOI") and BLM policies and strategies."⁷ Jim Lyons, Deputy Assistant Secretary ("DAS"), Land & Minerals Management for the U.S. Department of the Interior under the Obama administration, asserted that the new planning rule responds "to the recommendations and concerns raised by state and local governments, stakeholders, and the public to modernize and improve our land use planning process in ways that make our efforts more collaborative, transparent, and efficient."⁸ DAS Lyons explained that state, local, and tribal government officials had "expressed concern about the current process, stating that they feel disconnected from the BLM's land and resource management planning process."⁹ Yet, a number of local government and State representatives have expressed grave concerns that Planning 2.0 shifts important decisions from local officials to a national level and, in fact, a group of counties from six different western states have challenged the Rule as violating FLPMA and other Federal laws.¹⁰ Local government officials have expressed deep concerns that when "land management decisions are handed down from

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Washington D.C., they impact . . . our counties' economics and way of life."¹¹ State Representatives have asserted that the Rule will "dramatically shift planning away from local communities to the BLM headquarters, opening the door for special interests in Washington D.C. to have greater influence on the BLM's planning process than those who live near and rely on public lands."¹² The conservation community has encouraged adoption of landscape-level planning, anticipating that the result would be RMPs with a greater emphasis on conservation.¹³ If the recent land use planning process on Greater Sage-Grouse habitat conservation is any indication, this shift of decision-making from local to a national level has resulted in great controversy and, in the opinion of many State and local governments, a plan that creates more problems than it does solutions - both for people and for the environment.

This paper examines the history of public lands policy that led to the adoption of FLPMA to provide context to consider the new Rule, summarizes some of the major changes in the BLM's RMP regulations resulting from Planning 2.0, and reflects on whether these changes respond to the agency's objectives identified when the effort to revise the regulations began and conform with FLPMA. The paper also considers the implications of these changes on multiple-use of the hundreds of millions of acres of public lands across the West and those who rely upon such use and resources developed therefrom.

I. PUBLIC LAND POLICY & LAW

A. Recommendations for Multiple-Use & Decentralization of Decision-Making

"In questions of resource balance, decentralization of decision-making is vital. The proper balance of uses on one forest might not be appropriate on another. Local options are desirable. . . The orientation of people using the [public lands]s varies. . . ." ¹⁴

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Congress established the Public Land Law Review Commission in September 1964 (the "Commission").¹⁵ In doing so, Congress declared the need for a comprehensive review of public land laws, rules and regulations out of concern that the public land laws of the United States had been developed over many years through a series of Acts of Congress not fully correlated with each other, certain of those laws may have been inadequate to meet current and future needs of the American people and because administration of those lands had been divided among several agencies. The Commission was instructed to (1) study existing statutes and regulations governing the retention, management, and disposition of the public lands; (2) compile data necessary to understand and determine the various demands on the public lands; and (3) recommend any modifications to laws, regulations and policies to best carry out the policy objective.¹⁶

The Commission's work was supported by a staff and a number of reports and studies dealing with various aspects of public land administration, including a study of multiple-use (the "Multiple-use Study" or "Study") which recognized the importance of considering relative land use values in particular areas, in an area-by-area basis, and requiring "on-the-ground" land

University, Ross S. Whaley of Colorado State University and Harold Nygren of Bainbridge, New York. Reference to "forests" is made as the study examined management of lands under federal ownership - forest and public lands. Although this paper focuses on BLM managed "public lands" the same issues relate to the management of forest lands. Congress has charged the United States Forest Service with the management of 155 national forests and 20 national grasslands covering over 180 million acres of forest and rangeland throughout the United States. See 16 U.S.C. § 1604(a); 36 C.F.R. § 200.3(b)(2). The Forest Service promulgates a "Planning" rule to achieve this mandate, see 36 C.F.R. § 219 et seq., and this set of regulations governs the Forest Service's development of individual land and resource management plans for the national forests and grasslands that the agency oversees. Forest-resource stakeholders (such as environmental groups, recreational interest groups, and industry groups that promote timber harvest, mining, and grazing) have long debated the appropriate terms of the Planning rule. The Forest Service has promulgated five successive Planning rules since 1979, all of which have been controversial, and some of which have even been invalidated by federal courts.

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management because of the inherent nature of land diversity, as an in situ matter.¹⁷ The Multiple-Use Study further reported that "[t]echnical judgments without consideration of needs are insufficient as a basis for deciding on land uses in a multiple-use context."¹⁸ The Study recognized the importance of land use planning focusing on local needs and expressed concerns with a "tendency to rely more heavily on planning on resource divisions at a higher echelon than on information from line officers."¹⁹ This issue resonated in the Commission's seminal report to the President and Congress, One Third of the Nation's Land, which explained that state and local units of government "represent the people and institutions most directly affected by Federal programs growing out of land use planning."²⁰ The Commission recommended to Congress that Federal agencies be required to submit their plans to state or local...