Residents at risk: wildlife and the Bureau of Land Management's planning process.

• Author: Nolen, Kelly

1. 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 Act(2)

   Times are tough for wildlife on the public domain. It is now fashionable 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 control.(3) 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 laws(4) even though polls show that most Americans support current levels of environmental regulation.(5)

   In this political climate, both wildlife and the Bureau of Land Management (BLM) have come under fire. The "wise use" movement, which battles 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 Act(7) and transfer BLM lands to the states.(8) According to the sponsors of these bills, the pendulum that historically swung toward development and exploitation of our public land resources has now swung completely the other way, and correction is necessary.(9) Unfortunately for the wildlife living on BLM lands, the pendulum actually never traveled far from the historic 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 approximately 270 million acres of land managed by BLM(10) 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 government 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 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 management.(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.(20)

   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 competing 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 to the demands of consumptive interests such as grazing and mining than the needs of wildlife.(24)

   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 ranchers(26) and whose influence affected the agency at all levels.(27) Local grazing advisory boards were especially influential because BLM created them in order to emphasize the importance of the agency's local constituents.(28) These boards reinforced the relationships between BLM field staff and local individuals and groups, and created an agency orientation toward satisfying local needs and ensuring community stability that continues today.(29) BLM thus finds itself susceptible to local pressure to favor extractive 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.(31) 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 resources.(32) These industries have benefitted from a well-organized and well-funded lobbying capacity that historically was not matched by advocates 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 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 administration, and desiring to provide BLM with comprehensive authority to manage public lands, Congress enacted the Federal Land Policy and Management Act (FLPMA)(35) in 1976. FLPMA directs BLM to develop resource 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 BLM Manual, and nationwide programs for the management of the public lands.(37) The bottom tier involves the more detailed activity planning necessary to implement completed RMPs, such as the preparation of individual habitat management plans, grazing allotment management plans, or plans for areas of critical environmental concern.(38)

   RMPs must 1) be prepared in conjunction with an environmental impact 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 inconsistent treatment of areas of critical environmental concern in completed 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 addition, BLM has completed RMPs at a very slow pace--the agency must 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 public lands and its past approach to planning. Part IV summarizes the resource 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 planning system. The final section suggests changes in the existing statutory and regulatory scheme that would better equip BLM to fulfill FLPMA's mandate to plan for a balance of values, including resident wildlife.

2. WILDLIFE AND THE PLANNING PROCESS

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