Post by Sandy Schneirla on Jan 16, 2011 16:45:14 GMT -5
Secretary of the Interior Ken Salazar Secretarial Order #3310 – Wild Lands
By Carla Boucher, Attorney
January 6, 2011
Just before the Christmas recess of Congress j2010, Secretary of the Interior Ken Salazar issued
Secretarial Order #3310. According to the Secretary’s Office and the Bureau of Land Management
(BLM), the Secretarial Order “restores balance to the management of public lands by affirming that the
protection of the wilderness characteristics of public lands is a high priority of the BLM”.
Was the management out of balance? The President’s administration and environmental groups think
so. In 2003 then-Secretary of the Interior Gale Norton signed a settlement agreement with the State of
Utah. This settlement agreement was reached as a result of a law suit filed by the State of Utah against
BLM back in 1996. The settlement set aside the BLM reinventory of public lands in Utah. The details of
this case and the settlement agreement provide a key to understanding the motivation for Secretarial
Order #3310 and the misconception that management was out of balance.
In 1996 the Secretary of the Interior undertook reinventory of lands in Utah included in H.R. 1500 that
were NOT Wilderness Study Areas (WSAs) in order to determine whether the lands had wilderness
characteristics. The reinventory was being conducted under Section 201 of FLPMA (Federal Land
Policy and Management Act of 1976). FLPMA directs the inventory and planning process of lands
managed by the BLM. Section 201 of FLPMA directs the inventory of lands generally in contrast to
Section 603 of FLPMA which addresses wilderness specifically. The requirements for public
involvement under the two sections are different. Section 201 does not require public participation
because there is future opportunity for public involvement during a Section 202 planning process.
Section 603 wilderness inventory process does require public involvement. In this case, the Tenth
Circuit found in 1998 that the inventory in Utah, conducted under Section 201, would stand because it
did not require public involvement as the State of Utah alleged (among other things). In 2003 the state
of Utah refilled its suit against the Secretary. A month after filing the Department of Interior settled with
the State of Utah. The settlement, among other things, set aside the 1996 reinventory and the BLM was
forced to rescind its wilderness handbook.
Today, under the lessons learned through the 1996 litigation and settlement agreement of 2003, the
Department of Interior is making it clear that it will reinventory lands for wilderness characteristics but will
do so under Section 201, eliminating the need for public involvement and hoping to stave off a flood of
lawsuits relative to their authority to reinventory in 2011. Brazenly, Interior is not merely attempting to
inventory more of its lands for wilderness characteristics, it is adopting a written policy on the definition of
wilderness, road, naturalness, trammel, improved and maintained, mechanical means, and regular and
continuous use.
So what, you ask. So…
The definitions of road, maintenance, mechanical means, regular and continuous use, aren’t just related
to the definition of an area’s wilderness characteristics, they are also intimately related to how RS 2477
claims are determined. The settlement agreement of 2003 lead to a Memorandum of Understanding
(MOU) between the State of Utah and the Department of Interior (DOI) that established a system for the
DOI to accept from the State of Utah petitions to settle RS 2477 claims. Prior to the MOU it became
standard operating procedure, if not official BLM policy, to just ignore state claims to RS 2477
assertions. The current administration is threatened by the MOU where designation of road jurisdiction
to a county or the state negatively impacts the eligibility of an area as a proposed Wilderness, protected
as wilderness until designated as such by Congress via the Wilderness Act. Roads converted to
possession and jurisdiction of a county or the state under the MOU, in areas the BLM want to have
Protecting, Promoting and Providing 4x4 Opportunities Worldwide
Secretarial Order #3310 – Wild Lands
wilderness characteristics, would prevent the BLM from managing those areas as defacto wilderness
because they no longer meet the statutory definition of Wilderness under the Wilderness Act as areas
“untrammeled by man”. Even though the “road” exists regardless of whether the BLM manages it or the
county manages it, the difference is that when the BLM manages it they can change the type or use,
eliminate use, or redefine the road in order to “force” an area into looking like wilderness lands
untrammeled by man.
In order to “restore the balance” (perhaps recoup lost ground) DOI issued the new Secretarial Order.
Proposed Wilderness areas are now called Lands with Wilderness Characteristics (LWCs).
“Naturalness is defined as areas where the imprint of people’s work is substantially unnoticeable. Road
is more precisely defined as a thing which has been improved and maintained where people have
physically taken action to keep the road open to vehicle traffic, by mechanical means with the use of
hand or power machinery or tools to insure relatively regular and continuous use which is vehicular use
that has occurred and will continue to occur on a relatively regular basis such as access roads for
equipment to maintain stock and water tank or other established water sources, which may entail lengthy
return intervals for this purpose or access roads to mining claims. A route that was established or has
been maintained solely by the passage of vehicles would be considered a road, even if it is used on a
relatively regular and continuous basis. Vehicle routes constructed by mechanical means but that are no
longer being maintained by mechanical methods are not roads. Sole use of hand and feet to move
rocks or dirt without the use of tools or machinery does not meet the definition of ‘mechanical means’. A
cherry-stem road can form the boundary of an inventory area and does not by itself disqualify an area
from being considered ‘roadless’.”
The statutory definition of Wilderness from the Wilderness Act becomes irrelevant because the BLM and
DOI are claiming they are not managing any lands relative to Wilderness, they will inventory and then
manage them as LWCs under the authority of Section 201 of FLMPA sanctioned by the Tenth Circuit.
The meaning of “highway”, and thus the definition of road, maintained, regular and continuous, as those
terms of law are used in state law to assert RS 2477 claims, are now diluted and perhaps irrevocably
changed. I’m reminded of President Clinton’s advisor Paul Begala who said in reference to Executive
Orders, “Stroke of the pen. Law of the land. Kinda cool!”.
These changes implemented through the Secretarial Order and the draft guidelines issued by the BLM
for wilderness inventory and planning not only change the face of Wilderness designation and RS 2477
assertions they also mock the role of Congress in our American system of checks and balances among
the 3 branches of government. Congress, when it passed the Wilderness Act of 1965, reserved unto
itself the authority for designating Wilderness. This sole Congressional authority is being usurped by the
DOI and the Administration. It is no accident or coincidence that the Wilderness Act passed the way it
did in its final form. Much political debate and negotiation occurred to draft a piece of legislation that
could be supported enough to pass muster in both chambers of Congress and be signed into law by the
President. Lawmakers purposefully retained specific authority to Congress, with the participation of the
executive branch in defining, inventorying, and recommending lands to Congress for Wilderness
designation. Lawmakers purposefully acted in order to pass legislation so as NOT to give agencies
broad discretion in identifying and managing lands as Wilderness. If the Secretarial Order stands in the
political climate of today, it serves as a remarkable template for the executive branch and environmental
organizations to meander around other federal laws it cares not to follow. For all political parties on
Capitol Hill, this should be the issue that draws their attention and causes them to balk at the actions of
the Secretary and the BLM. To their fault, the environmental organizations and the DOI will have to deal
with the unintended consequence of their actions insomuch as they will alienate their Democrat Party
supporters not on the issue of the environment but on the Constitutional issue of separation of powers.
Write, call, and visit your Congressman now. It is vitally important that your elected officials, both
Republican and Democrat, hear from you. But it is imperative that your Democrat hears from you. They
must hear from large numbers of their constituents, who care not about what the Secretarial Order does
or does not do for the environment, but rather what the Order does to damage the authority of Congress
and the integrity of the laws they pass.
Protecting, Promoting and Providing 4x4 Opportunities Worldwide
The new year is a great time to establish a relationship with new public officials and a great time to touch
base with those who already know you well. By February 22, 2011, the BLM is directed by the
Secretarial Order to finalize policy guidance clarifying how public lands with wilderness characteristics
are to be inventoried, described, and managed. By June 22, 2011, the BLM must report to the Secretary
the BLM’s plan for considering wilderness characteristics in existing land use plans. Time is short.
Please write, call, and visit your Congressman now about Secretarial Order #3310.
A form letter is provided on the UFWDA forum www.ufwda.org/smf/index.php?topic=3321.0 to aid
you in your conversations with your Congressman and as as a follow-up. Personalize the letter
and mail it please.
Under that forum topic there is a whole array of documents on the subject, that Carla Boucher
has assembled to assist your understanding. There is also a list of House Natural Resources
Committee members who need to be contacted.
By Carla Boucher, Attorney
January 6, 2011
Just before the Christmas recess of Congress j2010, Secretary of the Interior Ken Salazar issued
Secretarial Order #3310. According to the Secretary’s Office and the Bureau of Land Management
(BLM), the Secretarial Order “restores balance to the management of public lands by affirming that the
protection of the wilderness characteristics of public lands is a high priority of the BLM”.
Was the management out of balance? The President’s administration and environmental groups think
so. In 2003 then-Secretary of the Interior Gale Norton signed a settlement agreement with the State of
Utah. This settlement agreement was reached as a result of a law suit filed by the State of Utah against
BLM back in 1996. The settlement set aside the BLM reinventory of public lands in Utah. The details of
this case and the settlement agreement provide a key to understanding the motivation for Secretarial
Order #3310 and the misconception that management was out of balance.
In 1996 the Secretary of the Interior undertook reinventory of lands in Utah included in H.R. 1500 that
were NOT Wilderness Study Areas (WSAs) in order to determine whether the lands had wilderness
characteristics. The reinventory was being conducted under Section 201 of FLPMA (Federal Land
Policy and Management Act of 1976). FLPMA directs the inventory and planning process of lands
managed by the BLM. Section 201 of FLPMA directs the inventory of lands generally in contrast to
Section 603 of FLPMA which addresses wilderness specifically. The requirements for public
involvement under the two sections are different. Section 201 does not require public participation
because there is future opportunity for public involvement during a Section 202 planning process.
Section 603 wilderness inventory process does require public involvement. In this case, the Tenth
Circuit found in 1998 that the inventory in Utah, conducted under Section 201, would stand because it
did not require public involvement as the State of Utah alleged (among other things). In 2003 the state
of Utah refilled its suit against the Secretary. A month after filing the Department of Interior settled with
the State of Utah. The settlement, among other things, set aside the 1996 reinventory and the BLM was
forced to rescind its wilderness handbook.
Today, under the lessons learned through the 1996 litigation and settlement agreement of 2003, the
Department of Interior is making it clear that it will reinventory lands for wilderness characteristics but will
do so under Section 201, eliminating the need for public involvement and hoping to stave off a flood of
lawsuits relative to their authority to reinventory in 2011. Brazenly, Interior is not merely attempting to
inventory more of its lands for wilderness characteristics, it is adopting a written policy on the definition of
wilderness, road, naturalness, trammel, improved and maintained, mechanical means, and regular and
continuous use.
So what, you ask. So…
The definitions of road, maintenance, mechanical means, regular and continuous use, aren’t just related
to the definition of an area’s wilderness characteristics, they are also intimately related to how RS 2477
claims are determined. The settlement agreement of 2003 lead to a Memorandum of Understanding
(MOU) between the State of Utah and the Department of Interior (DOI) that established a system for the
DOI to accept from the State of Utah petitions to settle RS 2477 claims. Prior to the MOU it became
standard operating procedure, if not official BLM policy, to just ignore state claims to RS 2477
assertions. The current administration is threatened by the MOU where designation of road jurisdiction
to a county or the state negatively impacts the eligibility of an area as a proposed Wilderness, protected
as wilderness until designated as such by Congress via the Wilderness Act. Roads converted to
possession and jurisdiction of a county or the state under the MOU, in areas the BLM want to have
Protecting, Promoting and Providing 4x4 Opportunities Worldwide
Secretarial Order #3310 – Wild Lands
wilderness characteristics, would prevent the BLM from managing those areas as defacto wilderness
because they no longer meet the statutory definition of Wilderness under the Wilderness Act as areas
“untrammeled by man”. Even though the “road” exists regardless of whether the BLM manages it or the
county manages it, the difference is that when the BLM manages it they can change the type or use,
eliminate use, or redefine the road in order to “force” an area into looking like wilderness lands
untrammeled by man.
In order to “restore the balance” (perhaps recoup lost ground) DOI issued the new Secretarial Order.
Proposed Wilderness areas are now called Lands with Wilderness Characteristics (LWCs).
“Naturalness is defined as areas where the imprint of people’s work is substantially unnoticeable. Road
is more precisely defined as a thing which has been improved and maintained where people have
physically taken action to keep the road open to vehicle traffic, by mechanical means with the use of
hand or power machinery or tools to insure relatively regular and continuous use which is vehicular use
that has occurred and will continue to occur on a relatively regular basis such as access roads for
equipment to maintain stock and water tank or other established water sources, which may entail lengthy
return intervals for this purpose or access roads to mining claims. A route that was established or has
been maintained solely by the passage of vehicles would be considered a road, even if it is used on a
relatively regular and continuous basis. Vehicle routes constructed by mechanical means but that are no
longer being maintained by mechanical methods are not roads. Sole use of hand and feet to move
rocks or dirt without the use of tools or machinery does not meet the definition of ‘mechanical means’. A
cherry-stem road can form the boundary of an inventory area and does not by itself disqualify an area
from being considered ‘roadless’.”
The statutory definition of Wilderness from the Wilderness Act becomes irrelevant because the BLM and
DOI are claiming they are not managing any lands relative to Wilderness, they will inventory and then
manage them as LWCs under the authority of Section 201 of FLMPA sanctioned by the Tenth Circuit.
The meaning of “highway”, and thus the definition of road, maintained, regular and continuous, as those
terms of law are used in state law to assert RS 2477 claims, are now diluted and perhaps irrevocably
changed. I’m reminded of President Clinton’s advisor Paul Begala who said in reference to Executive
Orders, “Stroke of the pen. Law of the land. Kinda cool!”.
These changes implemented through the Secretarial Order and the draft guidelines issued by the BLM
for wilderness inventory and planning not only change the face of Wilderness designation and RS 2477
assertions they also mock the role of Congress in our American system of checks and balances among
the 3 branches of government. Congress, when it passed the Wilderness Act of 1965, reserved unto
itself the authority for designating Wilderness. This sole Congressional authority is being usurped by the
DOI and the Administration. It is no accident or coincidence that the Wilderness Act passed the way it
did in its final form. Much political debate and negotiation occurred to draft a piece of legislation that
could be supported enough to pass muster in both chambers of Congress and be signed into law by the
President. Lawmakers purposefully retained specific authority to Congress, with the participation of the
executive branch in defining, inventorying, and recommending lands to Congress for Wilderness
designation. Lawmakers purposefully acted in order to pass legislation so as NOT to give agencies
broad discretion in identifying and managing lands as Wilderness. If the Secretarial Order stands in the
political climate of today, it serves as a remarkable template for the executive branch and environmental
organizations to meander around other federal laws it cares not to follow. For all political parties on
Capitol Hill, this should be the issue that draws their attention and causes them to balk at the actions of
the Secretary and the BLM. To their fault, the environmental organizations and the DOI will have to deal
with the unintended consequence of their actions insomuch as they will alienate their Democrat Party
supporters not on the issue of the environment but on the Constitutional issue of separation of powers.
Write, call, and visit your Congressman now. It is vitally important that your elected officials, both
Republican and Democrat, hear from you. But it is imperative that your Democrat hears from you. They
must hear from large numbers of their constituents, who care not about what the Secretarial Order does
or does not do for the environment, but rather what the Order does to damage the authority of Congress
and the integrity of the laws they pass.
Protecting, Promoting and Providing 4x4 Opportunities Worldwide
The new year is a great time to establish a relationship with new public officials and a great time to touch
base with those who already know you well. By February 22, 2011, the BLM is directed by the
Secretarial Order to finalize policy guidance clarifying how public lands with wilderness characteristics
are to be inventoried, described, and managed. By June 22, 2011, the BLM must report to the Secretary
the BLM’s plan for considering wilderness characteristics in existing land use plans. Time is short.
Please write, call, and visit your Congressman now about Secretarial Order #3310.
A form letter is provided on the UFWDA forum www.ufwda.org/smf/index.php?topic=3321.0 to aid
you in your conversations with your Congressman and as as a follow-up. Personalize the letter
and mail it please.
Under that forum topic there is a whole array of documents on the subject, that Carla Boucher
has assembled to assist your understanding. There is also a list of House Natural Resources
Committee members who need to be contacted.
Attachments:
