Thursday, January 7, 2010

FLPMA: An Overview of the Law that DOES NOT apply to Traditional Wild Horse and Burro Lands

See paragraph # 16 "Land Management Provisions" for the exemptions clause of the

43 U.S.C. §§ 1701-1782, October 21, 1976, as amended 1978, 1984, 1986, 1988, 1990-1992, 1994 and 1996.

Some people I have talked to, even lawyers, think the exception does not apply to wild horse and burro lands, reasoning that since Salazar made the announcement a few years back that "all land & resource management plans" will be based on energy exploration and the "biggest bang" for the buck. Silly wabbits. Wen r dey gonna wise up?Dont they know that a declaration by a department head DOES NOT trump statutory law? Even if signed by the president by Executive Order, (which I dont believe it was) the decision could be challenged. Anything that tends to over-ride statutory law is subject to Constitutional challenge....sooooo, er., ah, what are we waiting for?

1. Overview. This Act constitutes the organic act for the Bureau of Land Management and governs most uses of the federal public lands, including grazing. The Act requires the Bureau to execute its management powers under a land use planning process that is based on multiple use and sustained yield principles. The Act also provides for public land sales, withdrawals, acquisitions and exchanges.

2. Findings/Policy. Congress declared it is the policy of the U.S. that: public lands be retained in federal ownership; public lands and their resources be periodically inventoried and their use coordinated with other federal and state planning; the Secretary of the Interior establish rules for administering public lands and adjudicating disputes; public lands management be based generally on multiple use and sustained yield; public lands be managed to protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; public lands be managed to preserve and protect certain lands in their natural condition, to provide food and habitat for fish, wildlife and domestic animals and to provide outdoor recreation and human use; the U.S. receive fair market value for the use of public lands and their resources unless otherwise provided by statute; uniform procedures for the disposal, acquisition and exchange of public land be established by statute; regulations and plans for protection of public lands of critical environmental concern be promptly developed; public lands be managed in a manner that recognizes the nation's need for domestic sources of minerals, food, timber and fiber; the federal government should compensate state and local governments for burdens created as a result of the immunity of federal lands from state and local taxation. § 1701.

3. Selected Definitions. Allotment management plan: a document prepared in consultation with the lessees or permitees involved, that applies to livestock operations on public lands or on lands within National Forests in the eleven contiguous western states. Areas of critical environmental concern: areas within public lands where special management attention is required to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards. Bureau: Bureau of Land Management. Multiple use: the management of public lands and their various resource values so that they are utilized in the combination that best meets the present and future needs of the American people. Public lands: land and interest in land owned by the U.S. and administered by the Secretary of the Interior through the Bureau of Land Management, except (1) lands on the Outer Continental Shelf and (2) lands held for the benefit of Indians, Aleuts and Eskimos. Right-of-way: an easement, lease, permit or license to occupy, use or traverse public lands. Secretary: Secretary of the Interior. Sustained yield: the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of public lands consistent with multiple use. Withdrawal: withholding an area of federal land from settlement, sale, location or entry, for the purpose of limiting activities in order to maintain other public values in the area or reserving the area for a particular public purpose or program. § 1702.

Sec. 202. [43 U.S.C. 1712] (a) The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which pro-vide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, set aside, or otherwise designated for one or more uses.

4. Inventory and Identification of Public Lands. The Secretary must maintain an inventory of all public lands and their resources and other values, giving priority to areas of critical environmental concern, and ascertain the boundaries of public lands. The Secretary also must develop, maintain and WHEN APPROPRIATE revise land use plans whether lands have been classified, withdrawn, set aside, or otherwise designated,(it IS NOT appropriate to revise land use plans if they have the effect of nullifying statutory law - it would be an INAPPROPRIATE (and unconstitutional)revision. ONLY THE LEGISLATURE CAN MODIFY OR NULLIFY (VOID) STATUTORY LAW)

The Sec. must also coordinate land use plans in the National Forest System with land use planning and management programs of and for Indian tribes. In the development of land use plans, the Secretary is required to: use and observe the principles of multiple use and sustained yield; use an interdisciplinary approach to achieve consideration of physical, biological, economic and other sciences; give priority to protection of areas of critical environmental concern; consider present and potential uses of public lands; consider the relative scarcity of the values involved; weigh long-term against short-term benefits; coordinate with other federal, state and local agencies. All public lands are subject to inclusion in land use plans developed under the Act. The Secretary must allow for federal, state and local government and public involvement in the planning process. §§ 1711 and 1712.

5. Sales of Public Lands. Land may be sold under the Act when: it is difficult and uneconomic to manage and is not suitable for management by another federal agency; it was acquired for a specific purpose for which it is no longer needed; its disposal will serve important public objectives, such as community expansion or economic development, which outweigh other public objectives and values, including recreation and scenic values. Land of agricultural value and desert in character must be conveyed either under this authority or in accordance with other existing law. Sale of a tract exceeding 2,500 acres may be made only after 90 days after the Secretary has notified Congress. Sizes of agricultural tracts to be sold must be no larger than necessary to support a family-sized farm. Sales are required to be conducted under competitive bidding procedures, at a price not less than their fair market value. If necessary to assure equitable distribution or to recognize equitable considerations or public policies, lands may be sold with modified competitive bidding or without competitive bidding. The Secretary must give the right of first refusal to contiguous land owners at the fair market value. §§ 1713 and 1722.

6. Withdrawals of Lands. The Secretary may make, modify, extend or revoke withdrawals but only in accordance with the Act. The Secretary must publish a notice in the Federal Register within 30 days of receipt of an application for withdrawal and whenever the Secretary proposes a withdrawal, and allow a public hearing. After October 21, 1976, a withdrawal aggregating 5,000 acres or more may be made for a maximum of 20 years upon the Secretary's decision or request by a department or agency head, after notice to Congress. A withdrawal of less than 5,000 acres may be made for a period of time that the Secretary deems desirable as a resource use, for a maximum of 20 years for any other use, or for 5 years to preserve the tract for a specific use under consideration by Congress. When the Secretary determines or is notified that an emergency situation exists requiring preservation of values that otherwise would be lost, the Secretary must immediately make a withdrawal and file notice with Congress. All withdrawals for a specific period must be reviewed by the Secretary and may be extended only in accordance with the procedures for initial withdrawal. The Secretary may not: make, modify or revoke any withdrawal created by Congress; make a withdrawal which can be made only by Congress; modify or revoke any withdrawal creating national monuments; modify or revoke any withdrawal adding lands to the National Wildlife Refuge System. The Act requires the Secretary to review certain withdrawals existing on October 21, 1976 and determine whether the continuation of the withdrawal would be consistent with the statutory objectives of the programs for which the lands were dedicated. § 1714.

7. Acquisition of Public Lands and Access to National Forest System. The Secretary, with respect to public lands, and the Secretary of Agriculture, with respect to acquisition of access to units of the National Forest System, are authorized to acquire by purchase, exchange, donation or eminent domain lands or land interests. Lands and interests in lands acquired by the Secretary become public lands, and those acquired by the Secretary of Agriculture become National Forest System lands. § 1715.

8. Exchanges of Lands or Interests Within the National Forest System. The Secretary may dispose of a tract of public land or land interests by exchange, and the Secretary of Agriculture may do likewise for lands or interests within the National Forest System, when the Secretary concerned determines that the public interest will be well served by that exchange. This determination must take into account the value of the land for several purposes, including for fish and wildlife. The value of the lands exchanged must be equal, or the value equalized by payment of money, as set by appraisal. Lands acquired by the Secretary by exchange which are within the boundaries of the National Forest System, National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers System, National Trails System, National Wilderness Preservation System, or any other system established by Congress, or within the boundaries of the California Desert Conservation Area or any national conservation area or national recreation area established by Congress, must become part of the unit within which they are located. By August 20, 1989, the Secretaries of the Interior and Agriculture are required to promulgate new and comprehensive regulations governing exchanges pursuant to this Act.

9. If the Secretary concerned determines it is in the public interest that an exchange be expedited, the Secretary may exchange lands or interests which are of approximately equal value when: the combined value of the lands to be transferred from federal ownership is less than $150,000; the Secretary concerned finds in accordance with the new regulations that a determination of approximately equal value can be made without formal appraisals; the definition of and procedure for determining approximately equal value has been set forth in regulations by the Secretary concerned.

10. Upon receipt of an offer to exchange lands or interests in land, the Secretary may temporarily segregate, for up to five years, the federal lands under consideration for exchange from appropriation under the mining laws. All non-federal lands acquired through exchange must be automatically segregated from appropriation under the public land law for 90 days. § 1716.

11. No tract of land may be disposed of under this Act to a person who is not a citizen of the U.S. or a corporation not subject to state or federal laws. § 1717.

12. The Act requires the Secretary to issue patents or other documents of conveyance for disposed lands or interests, and to include terms and restrictions to insure proper land use and protection of the public interest. § 1718.

13. Mineral Interests. Conveyances of title issued by the Secretary, except for exchanges under § 1716, must reserve to the U.S. all minerals in the lands unless the Secretary finds that there are no known mineral rights in the land, or the reservation is interfering with or precluding a more beneficial nonmineral development of the land. § 1719.

14. Coordination with State and Local Governments. At least 60 days prior to offering for sale or otherwise conveying public lands under this Act, the Secretary must notify the governor of the state within which the lands are located, and the head of the governing body of any political subdivision with zoning or other land use regulatory jurisdiction in the geographical area, in order to afford the opportunity to zone, regulate, or change or amend existing zoning or other regulations. § 1720.

15. Conveyances to States. The Secretary may convey to states unsurveyed islands and other public lands erroneously or fraudulently omitted from original surveys. The conveyance must be consistent with land use plans within that state and may not be used to determine the baseline between federal and state ownership or state boundaries. This provision does not apply to lands within the National Forest System, the National Park System, the National Wildlife Refuge System, and the National Wild and Scenic Rivers System. § 1721.

16. Land Management Provisions. The President, with Senate approval, must appoint a Director of the Bureau, who will perform duties with respect to the management of lands under this Act as prescribed by the Secretary. The Act requires the Secretary to manage the use, occupancy and development of public lands under principles of multiple use and sustained yield, except when lands have been dedicated to specific uses. The Secretary must issue regulations to implement the Act's public land management and protection provisions, with civil and criminal penalties for violation. The Secretary also may contract with local law enforcement authorities in enforcing federal laws and regulations on public lands. §§ 1731-1733.

17. The Act establishes a working capital fund for managing public lands, with $3,000,000authorized to be appropriated as initial capital. A fund is also established for planning and preparing salvage timber disposal. §§ 1736-1736a.

18. Implementation Provisions. The Secretary may conduct investigations, studies and experiments involving managing, protecting, developing, acquiring and conveying public lands. The Secretary may enter into contracts and cooperative agreements for these purposes and may recruit volunteers. Congress authorized $250,000 to be appropriated annually for these activities. § 1737.

19. The Secretary may contract for airborne cadastral surveys and resource protection operations of the Bureau. The Secretary is required to establish citizen advisory councils to advise on land use planning, classification, retention, management and disposal of public lands. Councils must meet at least annually. §§ 1738-1739.

20. The Secretary must promulgate regulations to carry out the Act with respect to public lands, and the Secretary of Agriculture must do likewise with respect to lands within the National Forest System. The Act requires the Secretary to report annually to Congress to aid Congress in overseeing public lands programs. §§ 1740-1741.

21. Search, Rescue and Protection Forces. The Secretary is authorized in cases of emergencies to incur expenses to: search for and rescue persons lost on public lands; protect or rescue persons or animals endangered by an act of God; transport seriously ill or deceased persons. § 1742.

22. Grazing Fees. The Secretaries of the Interior and Agriculture must jointly conduct a study to determine the fee value of domestic livestock grazing on the public lands in the western states, taking into consideration the costs of production, differences in forage values and other factors, and report to Congress by October 1977 their recommendations for a grazing fee schedule.

23. Congress found that a substantial amount of federal range lands is deteriorating in quality, and that installation of additional range improvements could arrest much of the continuing deterioration and lead to substantial betterment of forage conditions with resulting benefits to wildlife, watershed production and livestock production. Due to this need, 50 percent or $10,000,000 annually, whichever is greater, of all grazing fees received by the U.S. from the 16 contiguous western states must be credited to a separate Treasury account and used as follows: one-half in the district, region or national forest from which the fees were derived for on the ground range rehabilitation, protection and improvements; one-half for these same purposes as the Secretary concerned directs. These uses must include all forms of range land betterment, including fish and wildlife habitat enhancement. § 1751.

24. Grazing Leases and Permits. Permits and leases for domestic livestock grazing on public lands must be for a term of ten years, subject to terms and conditions the Secretary concerned considers appropriate and consistent with governing law. The Secretary concerned may issue a permit or lease for a shorter duration if: the land will be devoted to a public purpose prior to the end of ten years; it is in the best interest of sound management to specify a shorter term. The holder of an expiring permit or lease must be given first priority for a new permit or lease, if the lands remain available for grazing, the holder is in compliance with regulations and the terms of the lease or permit, and the holder accepts any new terms and conditions. All permits or leases for domestic livestock may incorporate an allotment management plan developed by the Secretary concerned. Permits and leases may be canceled upon two years notice in order to devote the land to another public purpose, with reasonable compensation on an adjusted basis for permanent improvements made on the land. § 1752.

25. Grazing Advisory Boards. The Act required the Secretary and the Secretary of Agriculture to establish at least one 15-member grazing advisory board for each Bureau district office and National Forest headquarters in the 16 contiguous western states, upon request from holders of permits and leases in the jurisdiction. The function of the boards was to offer advice and recommendations concerning development of allotment management plans and the utilization of range-betterment funds. Boards consisted of livestock representatives who are holders of leases or permits, elected by holders in the area. The provisions of this section expired December 31, 1985. § 1753.

26. Rights-of-Way and Roads. The Secretary and the Secretary of Agriculture are authorized to grant or renew rights-of-way over, upon or through public lands for necessary transportation or other specified purposes which are in the public interest. The use of rights-of-way in common is required to the extent practical to minimize environmental impacts. Each right-of-way must be limited to its necessary use and must contain terms and conditions which will carry out the purposes of the Act, including minimization of damage to aesthetic values and fish and wildlife habitat. §§ 1761 and 1763-1765.

27. The Secretary is authorized to provide for the acquisition, construction and maintenance of roads within or near public lands in locations and according to specifications that permit maximum economy in harvesting timber while also meeting requirements for protection, development and management of the lands for utilization of their other resources. § 1762.

28. California Desert Conservation Area. Congress found that the California desert: contains historical, scenic, archaeological, environmental, biological, cultural, scientific, educational, recreational and economic resources that are uniquely located adjacent to an area of large population; is a total ecosystem that is extremely fragile, easily scarred and slowly healed; faces serious threats to its resources, including certain rare and endangered species of wildlife, plants and fish; should be subject to a comprehensive planning and management process. The purpose of this section is to provide for the immediate and future protection and administration of the public lands in the California desert conservation area. The Act directs the Secretary to prepare and implement by September 1980 a comprehensive, long-range plan for the management, use, development and protection of these lands, taking into account principles of multiple use and sustained yield. The Secretary also is required to establish an advisory committee to advise on the plan's preparation and implementation. § 1781.

29. Bureau of Land Management Wilderness Study. By October 1991, the Secretary is required to review roadless areas of 5,000 acres or more and roadless islands of public lands, identified during the § 1711 inventory as having wilderness characteristics, and report to the President on the suitability of each area for preservation as wilderness. § 1782.

30. Appropriations Authorized. Congress authorized to be appropriated sums necessary to carry out this Act, with the exception of Bureau activities. The Secretary must submit to Congress every four years a request for authorization of appropriations for the Bureau. § 1748.

Chapter 4 - Statute Summaries
Federal Wildlife & Related Laws Handbook

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