By Tom Kenworthy, a Senior Fellow at the Center for American Progress.
The lords of yesterday have their knickers in a twist over Interior Secretary Ken Salazar’s new policy that reinstates the department’s ability to provide interim protections for wilderness quality federal lands in the West until Congress determines whether they should remain pristine or can be developed.
Rep. Rob Bishop (R-UT), who is the new chair of a House Resources Committee panel on public lands, told E&E Daily he’s planning to hold a show trial to demonstrate Salazar didn’t have the legislative authority to bolster protections for Bureau of Land Management properties, charging that the new policy violates the spirit, if not the letter, of the Federal Land Policy and Management Act (FLPMA):
I don’t know anywhere else where an administration has been brazen enough to think they can establish policy without the legislative authority to do so.
You would think that someone who spent 28 years teaching American history and government before he came to Washington to represent the oil and gas industry could actually read and understand the 1976 statute that governs how the BLM manages its nearly 250 million acres of publicly owned land. Or could remember as far back as 2003 – his first year in Congress – when Bush administration Interior Secretary Gale Norton really did abuse her authority and trample on FLPMA and the way it had been applied – even by the notorious James Watt – for more than a quarter of a century. No protest from Bishop about brazen administration actions on that occasion.
It’s not like Bishop would have to read all 78 pages of FLPMA. It’s right there on the first page, in the Declaration of Policy, where it says it is the policy of the United States that “ the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition.”
A little later on, in section 201, FLPMA clearly states that the secretary of interior “shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern.”
That is the spirit and letter of FLPMA, utterly violated by Norton in 2003 when she and the state of Utah cut a deal as Congress recessed for its Easter break. That agreement, in response to a Utah lawsuit, said the BLM’s authority to create so-called wilderness study areas (WSAs) had expired in 1993, and that the agency would no longer provide interim protections to prevent impairment of areas that had wilderness qualities. That immediately put 2.6 million acres of public land in Utah at risk of development and being disqualified forever as wilderness.
As more than 50 law school faculty members with expertise in natural resource law said in a 2009 letter to Salazar urging him to reverse the Norton policy:
The 2003 agreement…is an unpublished and unenforceable out-of-court settlement, whose legal effect was nothing more than to terminate the litigation….
The Obama administration, the law professors, continued, “is free to adopt the same interpretation of FLPMA that was followed by all previous administrations from the passage of FLPMA in 1976 until 2003, namely, that the BLM has continuing authority…to designate WSAs and to manage them so as not to impair their suitability for preservation by Congress as wilderness.”