Wild lands by any other name

by Matt Jenkins

The quarter-billion acres of mostly arid territory overseen by the federal Bureau of Land Management have become an unlikely battleground in the war over wilderness. Last December, Interior Secretary Ken Salazar ordered the BLM to identify any "lands with wilderness characteristics," and, when appropriate, protect them as designated "wild lands." Salazar's order in full is a veritable cornucopia of bureaucratic wonk, but it has rekindled a long struggle. Now, some Western congressional representatives and even governors are pushing back against it.

BLM land has always fit awkwardly into the American notion of wilderness. The BLM manages more land than the Forest Service and the National Park Service combined, but the 1964 Wilderness Act makes no mention of the agency. Congress corrected that oversight in 1976, when it passed the Federal Land Policy and Management Act, whose Section 603 directed the BLM to identify its wilderness-quality lands and give Congress its recommendations by 1993.

The agency completed that round of inventories, but thanks to widespread antipathy to the prospect of more wilderness, the effort to have Congress formally protect BLM's wilderness-quality lands has, in large part, stalled out. That has left a patchwork of 545 BLM wilderness study areas, or WSAs, mostly in 12 Western states.  Some 12.7 million acres have indefinite and possibly perpetual interim protection until Congress decides whether to officially designate them as wilderness -- or release them for other uses.

The debate over the future of those lands is hardly black-and-white, and their beauty -- or lack of it -- is very much in the eye of the beholder. "The big, attractive wilderness areas were (officially) designated, and then we've had a couple decades of battles over lesser ones," says William Myers, who was the Interior Department's top attorney under George W. Bush. "These are the hard ones that didn't qualify in everybody's mind as obvious wilderness areas in the '70s and '80s."  Whether any particular piece of public land should ever become official wilderness is one question. But underlying it is a bigger one that's been an issue for nearly two decades now: whether BLM has continuing authority to identify and protect new wilderness-worthy lands.

Wilderness opponents -- most notably the oil and gas industry and rural county governments, particularly in Utah -- insist that with the passing of the 1993 deadline to make recommendations to Congress, the door has closed on BLM's ability to identify any additional new wilderness-worthy lands. Based on that interpretation, Bush-era Interior Secretary Gale Norton and Utah Gov. Mike Leavitt made an out-of-court settlement in 2003 that prohibited the BLM from protecting any more wilderness-quality land anywhere in the country.

But wilderness advocates maintain that sections 201 and 202 of the Federal Land Policy and Management Act give the BLM the responsibility to continue to identify and protect such lands. It was this part of the law that Salazar relied on when he issued his order.

Salazar's order was a direct repudiation of the Norton-Leavitt settlement, and Uintah County, an oil-and-gas hotspot in northeast Utah, immediately sued. The lawsuit alleges that under Salazar's order, "BLM must make wilderness protection the overriding priority" in its management of public lands, a violation of the agency's multiple-use directive. The suit also says that "there is no substantive difference" between the new set of interim wild lands protections and wilderness study areas, "except Interior's use of a different name." In late April, Utah Gov. Gary Herbert and the state attorney general filed their own lawsuit challenging the order; the state of Alaska joined that suit.

For wilderness opponents, Salazar's order will simply increase the amount of quasi-wilderness that has been tied up in land-management limbo since 1993. The order by itself does not identify specific areas as wild lands; rather, it establishes a two-tier process under which the BLM will first identify lands with wilderness characteristics and then decide whether to formally designate them as wild lands -- the functional equivalent of wilderness study areas.  But unlike WSAs, whose ultimate fate only Congress can decide, the BLM has discretion to open these new lands to oil and gas drilling and other development, if that is "appropriate and consistent with applicable requirements of law and other resource management considerations"; the agency is essentially required only to take a close look at the specifics before deciding what to do.

That kind of close scrutiny is especially important for lands that might qualify for permanent protection as wilderness,  says Mark Squillace, the director of the Natural Resources Law Center at the University of Colorado, who testified in favor of Salazar's order at a March congressional hearing. "If you just say, 'Let's open these lands up,' and you've not thought about the wildland characteristics, and whether they're more valuable, then the chance (to protect them) is lost forever."

Even critics of Salazar's order concede that the BLM's ability to allow development on the new class of wild lands is an important difference from WSAs that were designated in the 1990s. "The order creates a new sort of term of art, because it says, 'We will protect wilderness characteristics unless ...,' and then it has that magic phrase," says Myers, who testified against it at the same hearing. "The presumption is to protect wilderness at the expense of other aspects of public-lands use, but there is that 'out.' "

Critics have been quick to say that the order puts wilderness first among supposedly equal "multiple uses." But others point out that, when it comes to a particular piece of land, land-management agencies have always made trade-offs. (Perplexingly, Salazar and the Obama administration seem to have gone AWOL in the fight; both the BLM and the Interior Department refused to make their wilderness-management officials available for interviews.)
"If you think about the way land-use planning's done, (agencies) basically engage in a kind of zoning process," Squillace says. "The BLM and the Forest Service frequently make choices to elevate one use over other uses when they're managing (specific) lands. That's what land-use planning is all about."

It's no secret that large swaths of BLM land are already earmarked for energy extraction. In the West's five biggest oil and gas producing states (Colorado, Montana, New Mexico, Utah and Wyoming), 42 percent of BLM land is already leased to the industry.

And if the areas that would receive extra scrutiny under Salazar's order aren't, as their critics maintain, the most obvious candidates for wilderness protection, neither are they troves of fossil fuel. "Most of them are not candidates for oil and gas development, and probably never will be," says John Leshy, the top Interior solicitor under President Clinton. "The vast majority of lands that have attraction to the industry are available to them."

In early April, Reps. Mike Simpson, R-Idaho, Rob Bishop, R-Utah, and Steve Pearce, R-N.M., managed to attach a rider to the budget bill that prohibited implementation of Salazar's order through the end of September. Not long after, Rep. Kevin McCarthy, R-Calif., introduced a bill -- co-sponsored by Bishop and Pearce -- that would permanently strip protection from 6.7 million acres of wilderness study areas throughout the West, as well as from 36.1 million acres of Forest Service roadless areas. Even if that bill makes it through the House, though, it's unlikely to pass the Senate.

Practically everyone involved in this fight agrees that out-of-court settlements, budget-bill riders, and secretarial orders, which can easily be reversed under a new presidential administration, are a terrible way to make policy. It may ultimately be up to the courts to decide what authority the BLM has.

If the lawsuits challenging the order go to trial, a federal district judge will be asked to decide between the two competing interpretations of BLM's authority to identify and protect new wilderness-quality land. Nada Culver, who directs The Wilderness Society's BLM Action Center in Denver, maintains that the question is "an issue that's already been settled."

In 2008, the U.S. 9th Circuit Court found that although Section 603 "provides a mechanism by which the BLM may submit lands to Congress for legislation preserving them, the BLM's authority to identify lands with 'wilderness characteristics' is not limited to (that) process." Utah is in the 10 Circuit, not the 9th. But, Culver says, if the issue were to go before that court, it's unlikely that the judges there would dissent from their colleagues. Myers disagrees. "If it was that clear, I think Secretary Salazar would have said just that: 'The 9th Circuit's told us we have authority to (designate) new WSAs under Section 202.' "

Myers also points out that the 9th and 10th Circuit courts have reached different conclusions about the legality of the Clinton-era roadless rule for the national forests. A similar "circuit split" on the issue of BLM wilderness would ultimately go to the Supreme Court. "I don't think we're close to being finished with this debate," he says.

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