UTAH PUBLIC LAND SETTLEMENTS-- IMPACT ON BLM LAND USE PLAN REVISIONS

UTAH PUBLIC LAND SETTLEMENTS-- IMPACT ON BLM LAND USE PLAN REVISIONS DENISE A. DRAGOO SNELL & WILMER SALT LAKE CITY, UTAH PROGRAM VICE CHAIR, PUBLIC LANDS SUBCOMMITTEE Negotiations between Secretary of Interior Norton and Utah s Governor Michael Leavitt resulted in two stunning settlements in April of this year which will change the administration of public lands in this State and alter the focus of the Bureau of Land Management s ( BLM s ) pending resource management plan ( RMP ) revisions. On Thursday, April 10, 2003, agreement was reached in the administration of Revised Statute ( R.S. ) 2477 rights of way establishing an acknowledgement process by which Utah State and local governments can claim title to roads on public lands which existed prior to 1976. On Friday, April 11, 2003, settlement was reached in Utah s lawsuit challenging BLM s wilderness reinventory undertaken by the previous Babbitt administration. The settlement in Utah v. Babbitt (now Utah v. Norton, D. Utah, No. 96CV870-B) sets aside the reinventory which had proposed to preserve wilderness characteristics of some 2.6 million acres in addition to the 3.2 million designated as wilderness study areas ( WSAs ) in 1991. The initial WSAs were designated pursuant to 603 of the Federal Land Policy and Management Act ( FLPMA ). In 1996, then Secretary of Interior Babbitt initiated a reinventory of public lands in Utah under 201 of FLPMA and identified 2.6 million acres of federal land as wilderness inventory areas ( WIAs ). See Utah Wilderness Inventory Report (BLM, 1999). This reinventory process was not subject to public comment or environmental analysis under the National Environmental Policy Act ( NEPA ) and was challenged by the State of Utah and the Utah Association of Counties. The federal district court initially enjoined the reinventory; however, this injunction was overturned by the Tenth Circuit, allowing the reinventory to proceed. Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998). The reinventory was completed in 1999. This controversial wilderness reinventory was a key scoping issue in Utah s pending BLM land use plan revisions for the Vernal Resource Management Plan ( RMP ) and the Price RMP, initiated in 2001. Both of these RMPs have been prioritized for revision as time sensitive plans due to their impact on leasing and development of energy resources. A list of time sensitive plans is provided at BLM s website, www.blm.gov. The draft RMP environmental impact statement ( EIS ), for the Vernal RMP is due for release in September, 2003, and the Price RMP/DEIS is proposed for completion in December, 2003. The RMP revision process provided the first opportunity for public comment and NEPA review of Utah s WIAs. The scoping process for both RMPs resulted in a range of comments on wilderness from those supporting designation of WIAs as WSAs, those challenging the proposed WIAs and those

preferring no further designations. See RMP scoping summaries on BLM websites, www.pricermp.com and www.vernalrmp.com. WIAs proposed for designation as new WSAs through the planning process were to be protected pending Congressional review for possible wilderness designation pursuant to BLM s Interim Management Policy ( IMP ) for Lands Under Wilderness Review. See Pre-Plan Analysis for Price RMP, April 14, 2001. The Utah v. Norton settlement sets aside the reinventory and changes the focus of this planning process. RMP revision may also be impacted by further litigation over the settlement. The Southern Utah Wilderness Alliance ( SUWA ) and several other conservation and environmental groups, including Earthjustice and the Wilderness Society, have filed motions to intervene, answers and cross motions seeking to object to the settlement agreement in Utah v. Norton. This article briefly summarizes the background of the wilderness reinventory, the Utah v. Norton litigation and the related R.S. 2477 issues and their impact on pending RMP revisions. The BLM is committed to keeping its current plan revision schedule despite the emergence of these issues after initial scoping of the Vernal and Price RMPs. Clearly, the pending litigation seeking to challenge settlement regarding wilderness reinventory lands and the associated issue of R.S. 2477 road classification will continue to be a focus of discussion as BLM revises land use plans in Utah. Whether or not conservation groups are successful in overturning the Utah v. Norton settlement, the press for protection of values identified in the Utah wilderness reinventory will be addressed as alternatives set forth in the Draft RMP/DEIS for the Price RMP and Vernal RMP. A. Wilderness Reinventory and Pending RMP Revisions 1. Background of the Wilderness Reinventory Prior to the Utah v. Norton settlement, the RMP revisions provided the first NEPA analysis of the reinventory and the first opportunity for the public to fully participate in determining whether lands identified in BLM s 1999 Wilderness Inventory should be designated as WSAs. Each RMP revision is a major federal action significantly affecting the quality of the human environment requiring an EIS. NEPA 102(2)(C); 43 C.F.R. 1601.0-6 (2002); Departmental Manual 516, Appx. 6. The 1999 Wilderness Inventory was not subject to environmental analysis or public comment because it was conducted under the auspices of 201 of FLPMA. Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998). In this respect, the reinventory is distinct from the 1991 wilderness designation under 603 of FLPMA which was subject to public comment and a full environmental impact statement ( EIS ). The Secretary had 15 years from enactment of FLPMA in 1976, i.e., until October, 1991, to designate WSAs and make wilderness recommendations to the President. Acting under 603, Secretary Andrus classified some 3.2 million acres in Utah as having wilderness character. 45 Fed. Reg. 75602 (Nov. 14, 1980). In 1991, Secretary Manual Lujan, Jr., prepared a wilderness inventory for Utah and proposed to President George Bush that approximately 1.9 million of the 3.2 million acres were suitable for wilderness designation. Nonetheless, the full 3.2 million acres continue to be managed so as not to impair wilderness character pending Congressional action. See ROD for the Utah Statewide Wilderness Final EIS, forwarded to Congress, June 22, 1992. An act of Congress is necessary to finally designate public lands as wilderness. Although Congress has not yet enacted any wilderness legislation in Utah, several bills have been proposed since 1991. Wilderness advocates initially sought to expand Secretary Lujan s wilderness recommendation by lobbying for up to 5.7 million acres of wilderness under H.R. 1500. In

1996, Secretary Babbitt notified Utah Congressman James Hansen that the Department of Interior would inventory non-wsa lands identified in H.R. 1500 to determine their wilderness characteristics. This reinventory was conducted under 201 of FLPMA as an inventory of lands, rather than under 603 of FLPMA, which specifically addresses wilderness designation. In October, 1996, the State of Utah, School and Institutional Trust Lands Administration, and the Utah Association of Counties filed suit in federal district court challenging the proposed wilderness reinventory. Utah v. Norton, D. Utah No. 96-CV-870. The State was initially successful in obtaining injunctive relief from the Federal District Judge Benson who issued an injunction in November, 1996. In June, 1998, the Tenth Circuit lifted the injunction and found that a wilderness inventory under 201 FLPMA did not require public participation, that an opportunity for public comment would be provided under 202 FLPMA during the land use planning process and that the plaintiffs did not have standing to challenge the inventory. All causes related to the inventory were dismissed, leaving alive only the cause of action asserting that the DOI had unlawfully imposed a defacto wilderness management standard on the reinventoried lands. Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998). The BLM then completed its Wilderness Inventory Report which was released in 1999. This report is now being used as a baseline document in BLM s planning process and was the focus of many scoping comments for both the Vernal RMP and the Price RMP. On March 31, 2003, the State of Utah revived its lawsuit challenging the wilderness inventory by filing an amended complaint in federal district court. On April 11, 2003, the Department of the Interior and the State of Utah settled Utah v. Norton, D. Utah No. 96-CV-870, which nullified the reinventory but retained 3.2 million acres as WSAs under the BLM s 1991 wilderness recommendations. BLM has also rescinded, as inconsistent with the settlement, the wilderness handbook, adopted in January, 2001, entitled Wilderness Inventory and Study Procedures, H-6310-1. Although Judge Benson has accepted the settlement, SUWA and other environmental groups filed a motion to intervene in these proceedings on April 10, 2003 and recently filed proposed answers and cross claims challenging the settlement. 2. Impact on BLM Land Use Plan Revisions The Utah settlement removes wilderness reinventory lands from designation as new WSAs through the current FLPMA planning process. However, the revised RMPs may protect the values of the resources identified in the 1999 Wilderness Inventory by other special management designations and mitigation measures. In a letter dated April 11, 2003 to Senator Robert Bennett (R--Utah), Secretary Norton confirmed that although BLM was without authority under 603 FLPMA to establish WSAs after 1991, BLM may still inventory lands with wilderness values under 201 FLPMA. The planning process under 202 FLPMA can then be used to determine how best to manage lands with wilderness values in the context of multiple use. BLM can protect wilderness characteristics by preventing unnecessary and undue degradation or by designating areas of critical environmental concern ( ACECs ) as planning proceeds under 202 FLPMA. Floyd Johnson with the BLM Price Office confirmed that ACECs are one of a handful of tools which BLM may use to provide protection to lands and resources within WIAs. (Telephone conversation, May 13, 2003). For example, all river segments within the Vernal and Price RMPs are being reviewed in conjunction with plan revisions to determine their eligibility for designation under 5(d) of the Wild and Scenic Rivers Act of 1968. BLM s preliminary river and stream inventories are described at the RMP websites. See Price RMP-Planning

Bulletin #3, Feb. 2003; www.vernalrmp.com. In addition, during the planning process, sensitive watersheds will be identified and management conditions determined. The Draft RMP/EIS will also set forth baseline Reasonable Foreseeable Management/Development ( RFD ) scenarios and alternatives for all resources including oil and gas leasing and coal development. The RFDs will then be used, e.g., to establish areas open and closed to development and the conditions under which development may proceed. Therefore, those reinventory lands receiving significant public support for wilderness designation during public scoping of the Vernal and Price RMPs may still be protected in some manner without formal WSA designation. These types of protection will be more consistent with BLM s multiple use mandates but may include closure of lands to certain uses and lease stipulations and mitigation alternatives that apply to areas open to use. See BLM Handbook H- 1624-1. 3. Impact of Settlement on Land Use Decisions Pending BLM Plan Revision Certain land use decisions may be undertaken during the RMP revision process. For instance, lands which are open for oil and gas leasing under an existing RMP may be leased during RMP revision when BLM determines that leasing will not constrain the reasonable choice of alternatives under consideration in the planning process. IM No. 2001-191 (Aug. 6, 2001). Prior to the settlement in Utah v. Norton, one of the biggest constraints to the choice of alternatives was the addition of 2.6 million acres of wilderness reinventory lands under the 1999 Wilderness Inventory. This constraint has now been relieved somewhat by the Utah v. Norton settlement. However, BLM must still make a determination of land use conformance and NEPA adequacy ( DNA ) and decide whether further environmental analysis is required prior to allowing a proposed action during land use plan revision. See IM No. 99-149; criticized by IBLA, Wyoming Outdoor Council, 156 IBLA 347 (April 26, 2002); Wyoming Outdoor Council, on reconsideration, 157 IBLA 259 (Oct. 15, 2002). B. R.S. 2477 Rights of Way R.S. 2477 was an 1866 act of Congress, repealed by FLPMA in 1976, which granted rights of way to state and local governments for the construction of highways on federal land not reserved for public uses. Many of these roads were not recorded in title records; therefore, the issue of what constituted a road right of way in 1976 is a contentious issue. As a result, Utah threatened the Department of Interior with litigation to quiet title regarding its claims to up to 15,000 roads. BLM Information Bulletin UT-2001-014, Utah Notice of Intention to File Suit/R.S. 2477, December 4, 2000. To settle this potentially massive litigation, Secretary Norton and Governor Leavitt entered into a Memorandum of Understanding ( MOU ) on April 9, 2003. The MOU establishes an acknowledgment process for settling claims of Utah state and local government to road rights of way crossing federal lands. The MOU applies the BLM s recordable disclaimer rules, published on January 6, 2003, 68 Fed. Reg. 494, clarifying the process by which BLM can disclaim a right of way across public lands subject to state and county roads. The MOU gives priority to state and county applications for R.S. 2477 classifications and BLM disclaimer. The MOU limits application of the rules to exclude national parks, refuges, wilderness and WSAs. In addition, the MOU is limited in scope to lands managed by the U.S. Department of the Interior and does not apply to forest lands managed by the Department of Agriculture.

The R.S. 2477 issue impacts BLM planning regarding lands with wilderness values. Under the Wilderness Act of 1964, 16 U.S.C. 1131-36 (2002), a wilderness area is defined as a roadless area of 5,000 acres or larger. Therefore, designation of county and state roads across public lands may impact roadless characteristics and eligibility of an area for WSA or wilderness protection. Although the MOU specifically avoids WSAs designated in 1991, public road rights of way may impact the wilderness characteristics of those WIAs which are no longer subject to designation as WSAs under the Utah v. Norton wilderness reinventory settlement. R.S. 2477 disputes regarding the controversial lands are unlikely to be resolved before the RMP planning process is complete. Both the Vernal and Price BLM Field Offices assert that classification of roads under R.S. 2477 is an issue outside the scope of the RMP revisions. See Price RMP Planning Bulletin #2, May, 2002. However, the Vernal and Price RMPs will both include a transportation plan that will be influenced by road classification process. In addition, BLM s RMPs/EISs will need to address road designations in determining how to protect wilderness values for the WIAs. CONCLUSION In sum, the BLM indicates that neither the wilderness reinventory settlement nor the R.S. 2477 MOU will delay their planning schedule for the Price RMP and the Vernal RMP, which are time sensitive plans. However, the pending motions to intervene in Utah v. Norton have the potential of reopening the wilderness reinventory debate and could delay the RMP revisions. If the settlement becomes final and non-appealable, nullification of the wilderness reinventory will open WIA lands to management under multiple use principles. The 1999 Wilderness Inventory and public comment (both pro and con) regarding the values and resources resulting in classification of the WIAs will need to be carefully considered as BLM completes its environmental analysis of the planning documents and moves towards release of the Draft RMP/EIS this fall.