BRC Land Use Update for Jan 13 2005 -- Part 1

***** BRC ALERT ***** BRC ALERT ***** BRC ALERT ***** BRC ALERT *****

Dear BRC Action Alert Subscriber,

We sent this land use update to our Utah members yesterday and received quite
a few requests to forward it to folks outside Utah. So, we've decided to
blast it out to our national alert list.

That's perfectly appropriate as the update concerns an issue of National
importance. That is: can the BLM pursue a never ending, ongoing inventory and
designation process for Wilderness Study Areas?

Apologies to all our Utah members who have now recieved this update a second
time. Please forgive.

Read and enjoy!
Brian Hawthorne

ORIGINAL UTAH LAND USE UPDATE SENT JAN 13 2005

This is one of those "long-winded emails from Brian"... BUT DON'T YOU DARE
HIT THE "DELETE" BUTTON! This is one I guarantee you'll want to read every
word of.

This is the first of a two part BRC Utah Land Use Update that details the
latest battle over BLM land in Utah. The situation is this: The anti-access
crowd is on their 1 yard line and it's entirely possible we could score a
touchback. So...

READ WITH GUSTO!

Brian Hawthorne
Public Lands Director,
BlueRibbon Coalition

P.S. A heartfelt thanks to all who generously support the BlueRibbon
Coalition and our efforts to protect recreational access to public lands.
Without you, these kinds of "long winded emails from Brian" would be much
less enjoyable to read!

********************

BRC UTAH LAND USE UPDATE - PART 1

********************

We wanted to get this Utah update out to our members and supporters in Utah
early this morning. It's regarding an extremely important lawsuit that saw
oral argument in the 10th Circuit Court of Appeals in Denver, Colorado,
yesterday (January 12, 2005)

Our motivation was driven in part by recent news stories that contained
several errors in fact. It's sad to say, but we're kind of getting used to
this sort of thing. The "mainstream media" rarely reports on public lands
issues accurately. *sigh*

Speaking of that, if you would like to express your views in the Utah press
via a letter to the editor and are unsure of the facts, or just need a bit of
help, contact BRC and we'll do our best to point you to the facts and help
you write a good letter. ( contact Teresa Combe for help
[email protected] )

Anyhoo... here is an update that put this important issue into proper
context. It's going to be difficult to keep it brief because the issue
contains intricacies and nuances that aren't easily put into a short email.
Apologies in advance.

Here's the scoop:
Yesterday, the 10th Circuit Court of Appeals heard argument in a case
challenging the BLM's authority to conduct wilderness reviews outside and in
addition to that specifically authorized by Congress in Section 603 of the
Federal Land Policy and Management Act (FLPMA). The whole flambeau began when
former Secretary of the Interior, Bruce Babbitt, had a disagreement with then
Chairman of the House Resource Committee, Jim Hansen, about how many acres of
BLM lands in Utah ought to be designated as Wilderness.

Hansen thought BLM did a reasonable job in their original inventory which was
open to the public via a 10 year public planning process. Babbitt apparently
thought the Southern Utah Wilderness Alliance (SUWA) did a better job than
his own agency, and ordered an unprecedented, and illegal, re-inventory of
Utah's public lands for "wilderness character."

As you might imagine, folks in Utah had a bit of a problem with that. You can
most definitely include BRC and our Utah partners, the Utah Shared Access
Alliance (USA-ALL) in that bunch. We vigorously opposed the process Babbitt
initiated, which was a blatant attempt to illegally change Congressional
directive regarding wilderness on BLM lands on a nation-wide basis. (Don't
miss: Utah Land Use Update Part 2 in your email inbox!)

The State of Utah and the affected Utah Counties filed suit. That suit was
initially successful, resulting in a Temporary Restraining Order (TRO) that
stopped Babbitt's re-inventory. BLM appealed and that appeal was affirmed in
part and denied in part. Essentially, the appeals court found the State and
the counties lacked "standing" to sue.

I'll never forget how a good friend of mine described that to me. He said the
federal government can plan to stab you in the heart, they can purchase the
knife, rip your shirt open and place the blade to your skin, but there isn't
a thing you can do about it because until the blade pierces your heart, the
feds technically haven't really harmed you. So, you can't sue them until the
blade has actually pierced your heart."

That's a great way to describe "standing". What the appeals court decided is
that the BLM can inventory to its heart content for any reason they deem
appropriate. But until the government uses the inventory in a manner that
results in harm to you, the State of Utah, or me... we can't do a thing about
it.

But when the BLM announced that the new Resource Management Plan (RMP) for
the Vernal Field Office was going to include new Wilderness Study Areas
designated pursuant to Babbitt's inventory, "standing" was achieved. The
knife had then pierced the skin and was thrusting its way to the heart. Utah
renewed its lawsuit, and wisely, the BLM settled.

In the settlement, Utah dropped its claims when BLM admitted it could not
legally designate any new Wilderness Study Areas. BLM maintained it could
inventory for "wilderness values", and within the land-use planning process
they could identify and adjust management plans to "protect" those qualities.


The anti-access crowd cleverly waited to intervene in this important lawsuit.
It is my personal opinion that they carefully chose not to enter the fray
until right before Utah achieved standing to renew its claims. By waiting, it
gave them opportunity to bring their claims to the 10th Circuit Court of
Appeals in Denver, Colorado, where the case was heard yesterday. The 10th
Circuit is, in their minds at least, a more favorable venue.

BRC and USA-ALL has been in the thick of this from the beginning. Simply
stated, both groups hold the position that the BLM lacks legal authority to
conduct a never ending, ongoing wilderness inventory and review process.
Congress gave BLM very specific instructions regarding wilderness, and those
instructions included a deadline for any and all wilderness review. (please
see BRC Land Use Update - Part 2)

The moment SUWA took their demands to the 10th Circuit, BRC and USA-ALL moved
to submit an Amicus Brief (a.k.a. "Friend of the Court" brief). Oral argument
was heard yesterday, and BRC spoke to several who attended. According to our
sources, the court took most of the time allotted discussing matters of
jurisdiction. Some discussion was made about SUWA's claims that the
negotiated settlement was made "in the dead of night", without opportunity
for interested parties like SUWA to be at the table.

Stay with me now, because the reporting on this issue has been atrocious and
you need to know the facts.

If you read the "mainstream press" regarding this whole flambeau, you may
find the settlement described as: "Utah and the U.S. Department of Interior
reached a settlement that eliminated nearly 6 million acres of federal land
from temporary wilderness protection". Now... how do I say this without
offending someone... Lets just say, that statement belongs in the pasture.

See, the truth is: there was never any "temporary wilderness protection", or
"interim wilderness status" on any of these lands. That's simply lazy
journalism. I like to call it "journalism via fax". It's a situation where
the reporter simply splices the media release from the likes of SUWA right
into his or her story. Big mistake, if you are interested in informing your
readers about the facts surrounding an issue...but then, how many of the
"mainstream journalists" are interested in that?

Ok, sorry, I've digressed. Please forgive. I trust you understand my
frustration.

The fact is, there wasn't any "temporary wilderness protection" granted to
any of these lands. What the anti-access crowd points to in the effort to
advance this misinformation is a letter from Babbitt directing BLM'ers to
give special consideration to lands in SUWA's 5.7 million acre wilderness
bill.

There's a bit of a problem with that. SUWA's wilderness bill has been
injected with some sort of wilderness growth hormone and now resembles
something like the energizer bunny. It just keeps growing and growing and
growing... SUWA's Utah Wilderness bill is now over 10 million acres! Now,
you'll never read that on their website or in their newsletter. They don't
talk about acres anymore. All they talk about is "protecting landscapes".
Hmmmm... Must be a result of their polling data.

Have I digressed again!? Sorry, I just can't resist the temptations to poke
fun at all those clever staffers at SUWA.

The other item those folks like to point the "mainstream press" to is that
wilderness handbook you heard about a while back. I don't know if you
remember, but USA-ALL was instrumental in exposing the illegality and
impropriety of this "handbook" years ago. Of all the Clinton era land use
outrages, the BLM's wilderness handbook was "The Jewel in the Crown." If
you've got a minute, check out USA-ALL's info on that:
http://www.sharetrails.org/uploads/PDFs/USA-ALL.pdf



Of course, the "mainstream press" gobbles it up and regurgitates it as news.
Rest easy, dear BRC supporter. We are making every effort to inform and
educate these reporters. It may not happen right away, but BRC the entire
organized OHV community is rising to the challenge and we ARE making a
difference.

Since I've digressed so much...

Allow me to send a "way to go" to our Utah partners - USA-ALL. Their new
Executive Director, Mike Swenson, is quite impressive. I've worked with Mike
on several issues in Utah recently, and I'm darned glad to have him on our
team. He's young, but has a very astute knowledge of the legal nuances of
federal land use management issues. Could be a result of his interest in
becoming a natural resource attorney, or maybe just because he's an avid four
wheel drive enthusiast and wants to protect Utah's Red Rock Roads (early
Bronco by the way... very cool!). I don't know which, and I don't care.
USA-ALL is a great partner, worthy of your support.

It's not possible to predict when the appeals court will rule on this issue,
and I'm not comfortable predicting what the outcome may be. But the
anti-access crowd is worried. They bet the farm on this ridiculous "BLM
wilderness handbook", and they aren't one bit happy that it was an outfit
like USA-ALL that was instrumental in bringing it down.

Stay tuned... this should be fun to watch!


Newsclips:
Utah-U.S. wilds deal concerns judges
http://www.sltrib.com/utah/ci_2523261

Appeals court to hear wilderness suit
http://www.sltrib.com/utah/ci_2521735

Links:
Federal Land Management and Policy Act:
http://www.sharetrails.org/uploads/PDFs/FLPMA.pdf

BRC and USA-ALL's Amicus Brief:
http://www.sharetrails.org/uploads/PDFs/AmiciBrief.pdf

USA-ALL's review of BLM's "wilderness handbook":
http://www.sharetrails.org/uploads/PDFs/USA-ALL.pdf

This is the second part of a two part email we sent to our Utah members
yesterday.

Hope you enjoy...
Brian Hawthorne


Dear BRC Action Alert Subsciber,

Below is Part 2 of our Utah Land Use update. I hope you enjoy reading it. If
you have any comments feel free to send me an email.

Thanks again for your generous support,
Brian Hawthorne
Public Lands Director
BlueRibbon Coalition
[email protected]

The Four Pillars of FLPMA -- My View
- by Brian Hawthorne

This is a short summary of a presentation on the Federal Land Policy and
Management Act (FLPMA) I give to university students from time to time.
Interestingly, the first time I gave this presentation was at a People for
the West meeting in Central Utah. Several in the audience walked out in
disgust. Indeed, to my shock and surprise, many thought my presentation was
heresy!

The very kind folks in the audience who didn't walk out quietly took me aside
and tried to explain why the Federal Land Policy and Management Act (FLPMA)
was illegal and why motorized recreationists should vigorously work for its
repeal. This occurred right after then President Bill Clinton designated the
Grand Staircase National Monument. Sitting in that room were people whose
lives, livelihoods, and culture was about to change drastically, and for
some, be utterly destroyed.

It was also in the heady days of renewed activism among multiple use groups.
There was much optimism then. So much optimism, in fact, to believe FLPMA
could be overturned and the public lands returned to the states, as it was
originally intended at the founding of the Nation and as promised in the very
law establishing the State of Utah.

Beginning in the early 1970's, Congress and the American people began a
debate on whether or not to change national policy for vast areas of the west
known as "public lands". Congress was considering changing the policy of
"disposal", where the federal government held lands only until they were sold
(or otherwise transferred to the states), to "retention" where the federal
government would retain and manage the lands for the benefit of the general
public.

Naturally, western public land states were concerned. Entire communities rely
upon access to resources existing on adjacent public lands. Indeed, western
custom and culture had grown from a tradition of access to and use of public
lands. Many felt that if the policy was changed, appointed and unaccountable
bureaucrats living far away from the lands they administered would unduly
influence the lives and livelihoods of citizens in the west.

In 1976, Congress struck a "bargain" with those western states. The
"bargain", expressed in its most simplistic terms, was this: The western
states would not oppose the retention of these lands if the Federal
Government would manage them under multiple use/sustained yield principles,
protect valid existing rights, limit wilderness review and consider the needs
and concerns of adjacent communities when formulating land use plans.

These important provisions are the "four pillars of FLPMA," and they are the
critical components in the "bargain."

FOUR "PILLARS" OF FLPMA:
First, and perhaps most important, was the mandate to manage lands under the
principles of Multiple Use. Particularly, Section 202 subsection (c)(1)
specifically requires development and revision of land use plans on the basis
of "principles of multiple use and sustained yield. " FLPMA section 102(a)(7)
also specifically requires that goals and objectives be established by law as
guidelines for public land use planning, and that management be on the basis
of multiple use and sustained yield unless otherwise specified by law.

Second was the preservation of valid existing rights, including grazing
rights, mining claims, oil and gas leases, water rights and rights of access
granted pursuant to R.S. 2477.

The third "pillar" was specific instructions to the Secretary of the Interior
to formulate land use plans that are consistent with State and local plans
"to the maximum extent he finds consistent with Federal law and the purposes
of this Act." This provision included provisions to coordinate land use
inventory, planning and management activities not only with other federal
agencies, but specifically with agencies of the State and local government.

The fourth pillar of FLPMA consists of very specific instructions regarding
Wilderness. Those instructions are contained in Section 603 of FLPMA wherein
Congress instructed the agency to inventory all of their lands, identify
which were definitely not of wilderness quality and then to begin an
intensive inventory and analysis to determine which of the remaining lands
would be recommended for inclusion into the National Wilderness Preservation
System.

Congress was so specific as to set a deadline for completion of this task. A
critical part of the "bargain" was that there be no mandate in FLPMA and no
process requirement for engaging in an ongoing, never ending wilderness
inventory and review. Once the "603 Process" was completed, the agency was
supposed to have been done with wilderness inventory and review. The question
of which lands should be included in the National Wilderness Preservation
System would then be between Congress and the American People.

Radical environmentalists have chipped away at each of those pillars one by
one. That's why BRC is keeping an eye on your local BLM planning team.
Congress gave your local BLM planner very specific instructions regarding
things like Wilderness, recreation, and relationships with adjacent
communities. It's called multiple use and sustained yield, and we intend to
hold them to it.

John Mellencamp wrote in one of his songs "Every one of us has got to choose
between right and wrong, giving up, and holding on..." Well, speaking for
myself, I have chosen right over wrong, and I'm not giving up or letting go
of my commitment to multiple use.

Irrespective of whether or not FLPMA is constitutional, or repealing FLPMA is
a realistic goal, the majority of the motorized recreationists I represent
today don't think this is the best course of action. Not at all. Instead, the
vast majority of the folks I represent firmly believed the original precepts
of FLPMA are genius.

I imagine some of you will write me strongly worded emails telling me that
I've been "up in the night" and I'd better quit talking heresy. It won't do
any good. I'm a fan of FLPMA, and a believer in multiple use.
Perhaps...someday... the radical wilderness advocacy groups will drive us so
far that in order to save our culture we'll need to scrap FLPMA and demand
the federal lands be transferred to the states as it was promised in Utah's
enabling act and as was done in the original 13 colonies. Until then, I'm not
giving up.

Brian Hawthorne is Public Lands Director for The BlueRibbon Coalition, a
national recreation group that champions responsible use of public and
private lands based in Pocatello, Idaho. BRC represents over 10,000
individual members and 1,100 organization and business members, for a
combined total of over 600,000 recreationists nationwide. www.sharetrails.org