More Proof of FLMPA Exemptions for WFH&B Lands: DOI's "Instruction Memorandum" 2009

NEWS RELEASE Sept 28, 2009
Special Designation within the National System of Public Lands

September 21, 2009 the United States Department of the Interior, Bureau of Land Management, Washington D.C. issued the following Instruction Memorandum No. 2009-215.

Purpose: This Instruction Memorandum (IM) serves two purposes: (1) it clarifies planning and management guidance for special designations within the National System of Public Lands created by presidential proclamations or acts of Congress, (the WFHBA of 1971 was created by Act of Congress) and (2) it revises the Land Use Planning Handbook (H-1610-1), Appendix C: Program/Resource-Specific Guidance, III. Special Designations, A. Congressional Designations, Land Use Plan Decisions.

Policy/Action: A presidential proclamation or act of Congress that designates an area within the National System of Public Lands supersedes conflicting direction by the Federal Land Policy and Management Act (FLPMA). These designations include, but are not limited to, National Monuments, National Conservation Areas (NCAs), Wilderness Areas, National Scenic or Historic Trails, Wild and Scenic Rivers, Cooperative Management and Protection Areas, Outstanding Natural Areas, National Recreation Areas, Forest Reserves or any other lands described in Public Law 111-11 Sec. 2002(b). Specifically, the land use plan and management direction for such a designation must comply with the purposes and objectives of the proclamation or act of Congress regardless of any conflicts with the FLPMA’s multiple-use mandate.

This IM also revises the Bureau of Land Management’s (BLM) planning requirements for areas designated by a presidential proclamation or act of Congress within the National System of Public Lands. Existing policy requires the BLM to develop a Resource Management Plan (RMP) for each specially designated area (e.g. National Monuments, and NCAs, and similar designations).

This IM changes the current policy to provide more flexibility and efficiency in meeting the planning requirements for these specially designated areas. The BLM may meet the planning requirements for such designations through one of the following planning initiatives:

Through the development of a land use plan for the special designation; Through an amendment of an existing land use plan; or

By integrating the planning process for the designation with the planning process for a new or revised land use plan.

There are several factors to consider in determining which type of plan is most appropriate for a specially designated area. These include, but are not limited to, direction provided in the establishing proclamation or act of Congress, stakeholder and public interest, date of current plan or proposed revision/new start, cost, schedule, size of the planning area, and/or level of change from existing management. Decisions regarding the planning approach for designations made by a presidential proclamation or an act of Congress should be made in consultation with the BLM’s Office of National Landscape Conservation System and Community Programs.

All land use plan amendments must be developed consistent with the guidance in Section VII, Amending and Revision Decisions, of the BLM Land Use Planning Handbook and must be accompanied by either an Environmental Assessment or Environmental Impact Statement as appropriate (BLM NEPA Handbook Chapter 7). When integrating planning for a special designation created by presidential proclamation or act of Congress with a general RMP planning process, the Field Office should ensure that the RMP identifies the objects or resources for which the area was designated and illustrates how those objects or resources are protected by the plan. The RMP must also clearly distinguish between the planning area for the RMP and the planning area for the special designation. The existence of multiple decision areas necessitates a plain distinction between the decision and analysis for each area. Additionally, an integrated planning process should conclude with an independent Record of Decision for both the RMP planning area and the special designation planning area.
Time frame: Immediately.

Budget Impact: There is the potential for cost savings associated with the various options for combining planning processes by taking advantage of economies of scale on existing planning units that include areas designated by presidential proclamation or act of Congress.

Background: Recent litigation and the designation of new National Monuments and NCAs have highlighted the need for clarification regarding the relationship between the law creating these special designations and FLPMA’s multiple-use mandate.

According to Section 302(a) of FLPMA, the National System of Public Lands is to be managed under the principles of multiple use and sustained yield “except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.” This section of FLPMA directs that when an area of public land is set aside by a presidential proclamation issued under the Antiquities Act of 1906 or an act of Congress, the designating language is the controlling law. Therefore, as a general rule, if the management direction of the proclamation or act of Congress conflicts with FLPMA’s multiple use mandate, the designating language supersedes that section of the FLPMA. The particular management direction contained in the designating law (proclamation or act of Congress) should be carefully reviewed to determine whether conflicts with the FLPMA exist. Field Offices are encouraged to explore innovative ways to ensure compliance with both the designation and the FLPMA, if appropriate.

Resource Management Plans for units designated by a presidential proclamation or an act of Congress are designed to provide guidance for future management actions and the development of subsequent site-specific implementation decisions. The BLM has determined that the planning requirements for these areas can be met through a stand-alone RMP/EIS, through the amendment of an existing land use plan, or as part of a new/revised land use plan to account for the particular characteristics of the specially designated area. Each Field Office should determine which of these options will most effectively achieve the intended goals for specially designated areas.

Manual/Handbook Sections Affected: Land Use Planning Handbook (H-1610-1), Appendix C: Program/Resource-Specific Guidance, III. Special Designations, A. Congressional Designations, Land Use Plan Decisions.

Coordination: This IM was coordinated with the Offices of Decision Support, Planning and NEPA (WO-210), National Landscape Conservation Systems (WO-170), and the Office of the Solicitor.

Contact: If you have any questions, please contact Marci Todd, Division Chief, Division of Decision Support, Planning and NEPA at 202-912-7292 or Jeff Jarvis, Division Chief, National Landscape Conservation Systems at 202-912-7170.


Signed by: Authenticated by:
Richard C. Hanes Robert M. Williams
Acting, Assistant Director Division of IRM Governance,WO-560
Renewable Resources and Planning

ERXAMPLE CASE: (Request for a New Designation of Land as "Special Place")

Management Issues and Threats to Your National Monument

The Upper Missouri River Breaks National Monument needs commitment by the U.S. Bureau of Land Management (BLM) to manage this landscape as a special place. The monument contains a 149-mile Wild and Scenic River, it is the most remote stretch of the Lewis and Clark National Historic Trail, the Nez Perce National Historic Trail passes through the monument, there are 6 Wilderness Study Areas and one Area of Critical Environmental Concern which contain some of the best preserved expanses of a prairie ecosystem. The area has been described as the "best of the best" remaining habitat for the threatened sage grouse. Restoring and conserving this unique expanse of Central Montana is paramount.

All Americans expect this landscape to have a high level of stewardship that restores and preserves the fragile environment of the Missouri Breaks. But there are abuses that threaten the vegetation, wildlife, soil, and water quality. Listed below are various issues and threats to the monument that are of concern to the Friends of the Missouri Breaks Monument.:


Cattle Grazing

The resource management plan itself does not address livestock grazing. Presently there are thousands of cattle grazing the monument. Upland grasses must be shared with native wildlife. Cattle are allocated 40% and wildlife and the watershed 60% of the vegetation. . Fragile riverbank vegetation communities (riparian areas) do not contain the healthy cottonwood galleries with understory subspecies (woody shrub species that sustain wildlife, such as chokecherry and red-osier dogwood common to a working riparian system). It is estimated that today's aging cottonwood groves amount to only fifty-percent of what Lewis and Clark saw. The BLM states that within the next couple of decades, "... paddlers on the river will need to carry artificial shade with them. The Resource Management Plan (RMP) contains no plan to restore natural vegetative communities to this fragile and important ecosystem, although the associated watershed plans do. Learn More ...


Airstrips

Six airstrips are not an appropriate feature in a National Monument. They have the potential to disturb wildlife, can be used by hunters to gain a technological advantage that is a deviation from the hunter's "fair chase" ethic, and detract from the "remoteness and solitude" for which the Monument was designated. Within all the other BLM national monuments put together, there is only one other airstrip.

The BLM plan authorizes six primitive, backcountry airstrips within the monument. The BLM expects that these "airstrips" will be used by fixed wing aircraft, hot airballoons, helicopters and ultra light aircraft. The rationale for having "airstrips" in the Monument is to provide "diverse recreational opportunities." Although the BLM asserted that authorizing six airstrips is a reduction from the ten strips in the Monument, the fact is, that none of the airstrips should have been considered as compatible with the preservation and protection of the wild breaks country.


The Friends raised serious concerns about the appropriateness of authorizing any aircraft landings in the Monument. Six "airstrips" is more than has been authorized in all the other BLM monuments combined (only one other monument has an airstrip, and it is on the monument boundary near a town). Most of the newly authorized "airstrips" are in the heart of the Bullwhacker area, which the Proclamation describes as containing "some of the wildest country on all the Great Plains". Allowing low level flights from aircraft hopping from one strip to another does not preserve this wild character.


The Friends repeatedly pointed out that the existence of these airstrips was never brought to the attention of the Resource Advisory Council by BLM or the public in the 5 months that the RAC wrestled with making recommendations to the Secretary on whether or not there should be a special designation for this area. In addition, the BLM never apprised the Secretary of their existence all during the year that he deliberated on whether or not to recommend this area to the President for special designation as a Monument. There is a reason for that. Even though the BLM had been managing this area for decades, almost no one in BLM knew these "airstrips" existed. This speaks to the level of use they were getting prior to designation.

None of the airstrips are legally registered with the Federal Aviation Administration, as required by FAA rules, and they do not appear on FAA maps. Most of these airstrips were put in by the BLM decades ago for administrative purposes, fell into disuse, and were all but forgotten. Some were developed by trespassers and illegally maintained when overgrown by sagebrush. The BLM long ago stopped using them and still has no need for any of them. They have no value for fire suppression, and they have no value for emergency rescue (if aviation can be used to evacuate someone from the monument in an emergency, it will be a helicopter). Finally, the BLM has undertaken no studies about the impact from the noise of multiple types of aircraft on wildlife and on the public which seeks a primitive, quiet experience in the breaks.


Roads

The Monument contains a multitude of roads that were never constructed nor authorized. Some came into being as a result of traffic driving cross country to an overview, checking for livestock, game or just to observe the scenery. Some were shortcuts. Some roads were authorized for a specific purpose, for example, to access a mineral prospect, and should now be closed if the activity for which they were originally authorized is no longer occurring. Far too many of these roads appear to have remained open.

Wilderness Areas

There are substantial areas of public land within the Monument which have wilderness values and potential. These include sixWilderness Study Areas (WSAs) and the rugged expanse of the Bullwhacker, said to have "some of the wildest country on all the Great Plains." Strong protection for these core lands is needed. The BLM should manage them in a manner that protects their natural values. Building roads, reservoirs, and pipelines in and near a WSA, diminishes wilderness qualities. To read the BLM's description of these areas, and their explanation for not protecting them click here.

Mineral Exploration

There can be no additional leases within the Monument. However, the leases which are valid grant the right to drill. Gas development brings seismic work, thumper trucks, compressors, roads, well pads, pools of water (some toxic to animals) and water trucks driving frequently between the wells and the disposal sites. These are not small impacts. All phases of development must be inspected, monitored and regulated. A major increase in development is expected immediately outside the Monument. Impacts on mule deer, pronghorn, sage grouse and other species caused by this expanding footprint of gas drilling are significant, and will affect the Monument.

River Use

With 149 miles of a Wild and Scenic River as the core of the Monument, at least one ection without motors would be expected. But there is only designation of a short section for a few days a week during the summer. For hunters who want the opportunity to experience a motorless pursuit, for summer floaters who want the opportunity to experience some of our country's last areas of real solitude and remoteness, and for a primitive excursion into another era, this is it, a very brief section for a very brief period of time.

The Monument Boundary

Have you ever heard of an agency map depicting a national monument that did not show the boundary of the monument? That is what we have here in central Montana. After the breaks monument was designated in 2001, some people protested that the official p of the Monument included private land within the boundary of the monument. The private land was still private and not part of the land managed by the BLM. It is not uncommon for private land to be included within a boundary just like all land designations are included within a state boundary, but some people complained to Gayle Norton, former Secretary of the Interior, and it came to pass that the BLM erased the boundary from all its maps. The only "official" map with a boundary is the one attached to the original Proclamation.

The Friends has repeatedly protested the deletion of the boundary. The Upper Missouri River Breaks National Monument Proclamation states that the designation applies to "All Federal lands and interests in lands within the boundaries of this monument," and not to private land. The elimination of the boundary was a silly gesture and a futile act that accomplished nothing positive. The failure to keep the boundary and show, rather, a "planning area," detracts from the purpose of designating this rugged landscape as a monument. Without a boundary on the maps, the public does not realize that there are additional private lands within the monument boundary which could become part of the monument if the government purchased or traded the land after negotiating with a willing seller.

The Friends has produced a map Friends Map, and it has a real boundary.