THE IMPORTANCE OF MANAGING PUBLIC LAND THROUGH COLLABORATION

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 12A
THE IMPORTANCE OF MANAGING PUBLIC LAND THROUGH COLLABORATION
Cally Younger
Deputy Solicitor
Division of Land Resources, Office of the Solicitor
U.S. Department of the Interior
Washington, D.C.

[Page 12A-1]

CALLY YOUNGER is the Deputy Solicitor for the Division of Land Resources for the Department of the Interior. In this capacity, she and her division provides counsel to the Bureau of Land Management on land use planning, among other issues. Previously, she served as Counsel to the BLM Director in Washington D.C. Cally served as counsel to former Governor of Idaho C.L. "Butch" Otter for five years prior to joining the Department of the Interior. As counsel to Governor Otter, Cally focused on public land use issues, the Endangered Species Act and nuclear energy. Cally lives in Washington D.C. with her husband and three boys. She is a graduate of the University of Idaho College of Law.

The Bureau of Land Management (BLM) is unique as compared to other agencies within the Department of the Interior. The BLM manages 245 million acres of land and 700 million acres of mineral estate under the principles of "multiple use and sustained yield" unless otherwise directed by law.¹ This means the BLM must balance a wide variety of resource uses, including the conservation of wildlife and its habitat, when it conducts land use planning and authorizes activities on the public lands. The BLM's principal governing act, the Federal Land Policy and Management Act (FLPMA),² instructs and guides the BLM in its management of the public lands. It also requires the BLM work collaboratively with other governmental entities in land use planning.

The BLM also has special obligations to listed species and other wildlife under both the Endangered Species Act³ (ESA) and FLPMA. Under the ESA, the BLM has formal requirements when making decisions that impact listed species, including in land use plans. Additionally, through land use planning, the BLM can also assist in proactive conservation of wildlife and in recovering listed species. These efforts are most successful when BLM collaborates with state and local partners.

The BLM's Obligations under the Endangered Species Act

When Congress enacted the Endangered Species Act, it demonstrated its intent that all federal agencies should prioritize conserving species and recovering imperiled species. This goal is found in Section 2(c), stating congressional policy that all Federal departments and agencies should seek to conserve endangered species and threatened species and utilize their authorities in furtherance of the purposes of the Act.⁴

In addition to this statement of policy, the ESA prescribes mandatory procedures and standards for the BLM to conserve wildlife. Under section 7 of the ESA, the BLM and other federal agencies must consult the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) when proposing an action that may affect a listed species or designated critical habitat.⁵ The purpose of this consultation is to ensure that BLM actions do not "jeopardize" any endangered or threatened species modify or destroy an endangered or threatened species' designated critical habitat.⁶ An agency action "jeopardize[s] the continued existence of" a listed species if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the

[Page 12A-2]

reproduction, numbers, or distribution of that species".⁷ Under Section 9, the BLM shall not "take" a listed species of fish or wildlife.⁸ "Taking" includes harassment, harm, hunting, killing, and significant habitat modification or degradation.⁹ These requirements are reactionary. These obligations exist only after a species is listed as either "threatened" or "endangered" and are meant to ensure that the listed species isn't further imperiled.

Additionally, the BLM can be proactive-seeking to prevent ESA listings through land use planning. The ESA has a five-factor listing and delisting framework.¹⁰ The fourth factor is the "inadequacy of existing regulatory mechanisms."¹¹ BLM land use plans--which the BLM generally calls "Resource Management Plans" (RMPs)--are considered "regulatory mechanisms" under the ESA.¹² One example of how BLM used RMPs to prevent ESA listings will be discussed in greater detail in the Greater Sage-Grouse case study below.

And the BLM can also aid in recovery of listed species through land use planning. This goes beyond its mandatory obligations under Section 7 and 9. "Recovery" is defined as "improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act."¹³ RMPs can address the needs of a listed species and its habitat through specific conservation measures or management actions that apply to a particular part of the planning area. The BLM can also improve habitat through implementation decisions like habitat improvement projects.¹⁴ However, the BLM must still balance competing land uses in its plans under FLPMA's multiple use requirements, including land use by sensitive species. To strike the right balance, it is crucial that the BLM involve state and local partners. The unique expertise offered by these entities can ensure that decisions made in RMPs actually benefit the listed species and its habitat.

As discussed below, the BLM chose a proactive and preventative approach for greater sage-grouse and its habitat when it began amending relevant RMPs plans in 2012. The BLM did so in an attempt to address the "adequate regulatory mechanism" prong of the listing factors for a future determination as to whether the Greater Sage-Grouse would require ESA protection. Ultimately, these resource management plan amendments were an instrumental part in achieving

[Page 12A-3]

a "not warranted" listing in 2015.¹⁵ Both iterations of that planning effort could be used as a model for future collaborative efforts to proactively conserve sensitive species.

This collaborative approach was possible because of the flexibility in land use planning provided to the BLM through the FLPMA. The enactment of FLPMA was the beginning of modern land use planning, which focused on government retention and management of federal land.

A Brief History of FLPMA

To stimulate movement to the western United States, starting roughly in the mid-19^th century, Congress passed a series of laws encouraging the disposal of federal lands. Congress sought to promote resource development and extraction.¹⁶ These laws encouraged mining, timber harvest, agriculture, construction of railroads, and settlement.¹⁷ Beginning in the early 20^th Century, Congress's view of public land ownership began to shift from disposal to retention and management. These laws focused on managing resource extraction-ultimately to receive a greater public benefit from these resources. Eventually, there were hundreds of confusing and contradictory laws governing public land use. In the latter half of the 20^th century, Congress took action to resolve these discrepancies in management and to make clear that the federal government would take a larger role in regulating public land. And Congress acted quickly. In a span of about twelve years, Congress passed the Endangered Species Act, the Wilderness Act, the National Environmental Policy Act, and the Federal Land Policy and Management Act.¹⁸

FLPMA established a comprehensive regime for the government to retain and manage public lands and eliminated many of the laws that facilitated disposal of public land. Under FLPMA, the Secretary of the Interior, through the BLM, would be the steward of these lands and would manage them "on the basis of multiple use and sustained yield unless otherwise specified by law."¹⁹ Congress further declared it to be the policy of the United States that some public land would remain in its natural state, that public land should provide food and habitat for wildlife, and other scientific and environmental values should be protected.²⁰ Additionally, BLM must also manage lands in a manner that recognizes the need for "domestic sources of minerals, food, timber and fiber..."²¹

The BLM has vast discretion under FLPMA to manage for multiple use and sustained yield when adopting land use plans and authorizing actions on the public lands. During the land use

[Page 12A-4]

planning process, the BLM considers a variety of issues, including "present and potential uses of the public lands" and "the relative scarcity of the values involved."²² BLM must also "rely, to the extent it is available, on the inventory of the public lands, their resources, and others values," and "weigh long-term benefits to the public against short-term benefits.²³ BLM balances all of these interests and uses when it issues, revises, or amends its RMPs.²⁴

Congress also envisioned that federal land use planning would be in collaboration with other units of government. Indeed, FLPMA requires the BLM to cooperate with states and governors.²⁵ Despite nearly a century of encouraging disposal, settlement and resource extraction, many western states were still predominantly comprised of federal land when FLPMA was enacted. Thus, this collaboration requirement is vital to western states.

Land Use Planning Under FLPMA

Wildlife and wildlife habitat are among the resource values that the BLM accounts for and manages. Thus, RMPs can be instrumental in proactively conserving species and recovering listed species. The BLM utilizes several tools during land use planning to account for wildlife and its habitat on public land. Some of these tools are found in FLPMA and some have been created over time through declarations of policy. The BLM has wide discretion in choosing which tools to use during land use planning when considering wildlife and its habitat. As a result...