The birth, death, and afterlife of the wild lands policy: the evolution of the Bureau of Land Management's authority to protect wilderness values.

• Author: Brumfield, Olivia
• Position: Author abstract

1. INTRODUCTION II. OVERVIEW AND HISTORICAL BACKGROUND A. The Wilderness Act B. The Federal Land Policy and Management Act C. BLM's Section 603 Inventory and WSA Recommendations D. Section 603 WSA Management: Nonimpairment E. Section 202 WSAs F. Section 202 WSA Management: Modified Nonimpairment and Revocable Protection III. THE UTAH LITIGATION A. Reinventory B. Litigation and Settlement IV. POST-SETTLEMENT CASE LAW A. District Court Decisions B. The Ninth Circuit Ushers in a New Era V. THE WILD LANDS POLICY A. Inventory B. Land Use Planning C. Project Level Decisions VI. THE DEATH AND AFTERLIFE OF THE WILD LANDS POLICY VII. CONCLUSION I. INTRODUCTION

   When Congress passed the Wilderness Act in 1964, (1) it addressed only lands managed by the United States Forest Service, United States Fish & Wildlife Service, and National Park Service, not the 66% of all public land then managed by the Bureau of Land Management (BLM). (2) A dozen years later in 1976, Congress enacted the Federal Land Policy and Management Act (FLPMA), (3) creating BLM's authority to manage and protect wilderness. Section 603 of FLPMA directed BLM to identify its lands possessing wilderness values, then study and recommend to the President and Congress acres suitable for permanent wilderness preservation by 1991. (4) However, the statute did not clearly outline BLM's post deadline authority to evaluate its lands for wilderness values or describe how the agency should balance those values against other uses. (5) In the two decades since FLPMA's wilderness deadline, BLM has narrowed its interpretation of this ongoing authority. (6)

   BLM completed its section 603 inventory in 1980, identifying wilderness characteristics on only about twenty-three million acres, or 13%, of the 174 million acres it managed outside Alaska and the Oregon & California Grant Lands. (7) BLM divided those acres into 919 wilderness study areas (WSAs), and as directed by section 603 of FLPMA, managed them "so as to not impair their suitability" for subsequent congressional wilderness designation. (8) After studying each WSA's wilderness characteristics, in 1991 BLM recommended to Congress that 9.6 million acres--only 5% of all BLM-managed land outside Alaska--were "suitable" for designation as wilderness areas. (9) Today, Congress has yet to act on thirteen million acres of WSAs. (10) Until Congress makes final decisions on the remaining WSAs, BLM must manage them under a "nonimpairment" standard. (11)

   After completing the section 603 inventory in 1980, BLM continued to identify lands with wilderness characteristics in its general resource inventories required under section 201 of FLPMA. (12) Both during and after the section 603 wilderness review, BLM interpreted section 202 of FLPMA, its land use planning authority, to authorize WSA designation and protection on certain units of land with wilderness character smaller than 5,000 acres. (13) BLM managed these WSAs under a modified nonimpairment standard that the agency, not just Congress, could alter through land use planning. (14)

   In 1996, during the Clinton Administration, BLM reinventoried 3.1 million acres of Utah public land that, during the original section 603 wilderness inventory, the agency had determined lacked wilderness character. (15) The state of Utah challenged BLM's authority to reinventory and protect acres it had earlier found lacking wilderness character. (16) The litigation culminated in a 2003 settlement agreement in which BLM, now under management of new Interior Secretary Gale Norton, reversed its longstanding position regarding its authority to designate WSAs under section 202. (17) BLM agreed with the State that the agency's duty to identify and protect wilderness values expired with the 1993 deadline for presidential recommendations set by section 603. (18) The settlement effectively closed the universe of land BLM protected under the "modified" nonimpairment standard, but left the scope of its remaining authority over non-WSA lands with wilderness characteristics largely undefined. (19)

   Since 2003, the agency has struggled to define the scope of its authority to protect lands with wilderness characteristics that are neither designated as wilderness nor within an existing WSA. (20) District courts in Oregon, where conservation groups have been actively challenging BLM's consideration of wilderness values in the land use planning process and when authorizing site-specific projects, concluded that the agency had no ongoing obligation under FLPMA to identify or consider wilderness character when undertaking land use planning, but that the National Environmental Policy Act (NEPA) (21) required it to consider new information showing the presence of wilderness values on affected lands. (22) In 2008, the Ninth Circuit reversed that trend, ruling that section 201 of FLPMA requires BLM to maintain an accurate inventory of wilderness values, and that section 202 vests it with broad authority to protect those values with different management tools in the land use planning process. (23) The court also clarified that NEPA requires BLM to disclose and discuss how planning decisions might affect those values. (24)

   Consistent with the Ninth Circuit's opinion, in 2010 Interior Secretary Ken Salazar issued a new policy acknowledging BLM's ongoing duty to maintain an accurate inventory of wilderness values and to consider these areas in the land use planning process. (25) The policy authorized BLM to use its land use planning authority to prioritize wilderness values and designate "Wild Lands," a new class of lands distinct from WSAs, which BLM would protect by "avoiding impairment" to their wilderness values. (26) Interest groups with a stake in public land development protested the new Wild Lands Policy, claiming that it resurrected BLM's presettlement practice of designating section 202 WSAs and protecting them under the nonimpairment standard. (27) Sympathetic to these protests, Congress blocked funding to implement the Wild Lands policy, (28) and in 2011, the Secretary rescinded it. (29) In 2012, BLM tried again to define the scope of its FLPMA duty and authority by publishing new manuals (30) that eliminated the Wild Lands designation process but still acknowledged the agency's duty under section 201 of FLPMA to maintain accurate wilderness inventories and consider management options to protect wilderness values in the section 202 land use planning process. (31)

   This Note traces the birth, death, and afterlife of the Wild Lands Policy, describing the evolution of BLM's interpretation of its FLPMA duty and authority regarding lands with wilderness characteristics. Part II reviews BLM's statutory authority regarding wilderness values and describes the agency's pre-2003 interpretation of that authority. Part III explains the Utah litigation and the effects of the 2003 settlement agreement. Part IV discusses judicial interpretations of BLM's authority after the settlement, including the Ninth Circuit's ruling clarifying the scope of the agency's obligations and authority regarding wilderness values under FLPMA and NEPA. Part V examines the effects of the 2010 Wild Lands Policy and its implementing guidance. Part VI describes the Policy's quick death, and the effects of BLM's 2012 guidance, which reacknowledged wilderness as a resource the agency must inventory and balance under FLPMA. This Note concludes that the Wild Lands Policy and 2012 guidance reflected a narrower interpretation of BLM's FLPMA authority than its presettlement position, yet still acknowledged the agency's statutory duty to balance wilderness values as a multiple-use resource, a potentially powerful tool for protection of wilderness values on the public lands.

2. OVERVIEW AND HISTORICAL BACKGROUND

   This Part explains Wilderness Act and FLPMA provisions relevant to BLM's identification and management of lands with wilderness characteristics. It also discusses BLM's pre-2003 interpretations of its authority to designate and manage WSAs under FLPMA.

   1. The Wilderness Act

      Congress passed the Wilderness Act in 1964 to "preserv[e] and protect [lands with wilderness characteristics] in their natural condition," securing "the benefits of an enduring resource of wilderness" for generations of Americans. (32) The Wilderness Act defined wilderness, established protective standards for designated wilderness, and created a system for future wilderness designation: The National Wilderness Preservation System (NWPS). (33) It codified Congress's intent to make preservation of lands with wilderness characteristics a national priority. (34)

      The Wilderness Act described wilderness as an area "untrammeled by man" that "retain[s] its primeval character and influence, without permanent improvements or human habitation." (35) Section 2(c) specified that "wilderness" possesses three main characteristics. To constitute wilderness, an area must be 1) natural, (36) 2) with "outstanding opportunities" for solitude or primitive recreation on 3) at least 5,000 contiguous roadless acres. (37) However, these provisions leave many questions unanswered. (38) For example, what constitutes a "road" (39) or an "outstanding" opportunity for solitude or recreation? Case law has defined these criteria somewhat, but their application remains largely subjective. (40)

      The Wilderness Act also outlined the wilderness designation process: Federal land management agencies review certain lands for wilderness character and recommend potential wilderness areas to the President, who makes recommendations to Congress, which officially designates wilderness. (41) To preserve congressional prerogative to designate wilderness, the Wilderness Act directed agencies to manage both areas under study and proposed candidate areas in the same manner as designated wilderness. (42) Legal disputes frequently challenge agency adherence to this interim protection. (43)

      The Wilderness Act conferred...