Owyhee "Multiple Layers of Protection"
Supporters of conservation of the Owyhee Canyonlands are seeking protection in the form of a national monument or a wilderness designation. In brief, their goals are those described in the Wilderness Act of 1964 to leave the land “protected and managed so as to preserve its natural conditions.” To achieve this, they are calling for adoption of protection measures of the sort described in the Act. Opponents have countered this proposal with the assertion that there are already “multiple layers of federal laws, rules and regulations … that do an excellent job of protecting water quality, the environment, recreation, wildlife and the sustainable multiple use of our public lands.” (www.ourlandourvoice.com) Monument or wilderness designation, they say, would simply duplicate existing laws with added restrictions and bureaucracy.
As I have suggested elsewhere, complete and accurate information coupled with honest and balanced examination are essential to an accurate understanding of the issues. Only then can there be a productive discussion leading to the best result for the Canyonlands, local citizens, and users of public lands generally. As a modest contribuition to such a discussion, I have compiled an annotated list of the laws and regulations usually cited as making up these layers. I have drawn on the “Multiple Layers of Protection” fact sheet from the “Our Lands, Our Voice” (OLOV) website of the Owyhee Basin Stewardship Coalition (OBSC) which I have supplemented with material prepared for State Representative Cliff Bentz’ May 23, 2016 legislative testimony against Owyhee protection. I have also relied on newspaper sources, particularly the Ontario Argus Observer. For each entry I provide a link to the original legislation, or a website containing such a link, and add a brief explanation. Additional information can be found in the BLM’s Southeastern Oregon Resource Management Plan and Record of Decision (SEORMP-ROD).
I would caution readers to look not only at the specific passage pertaining to a matter but as well to examine the rest of a law or regulation in order to understand the context in which it operates. Cherry-picking to support one’s view potentially can end in disappointment, since the intent of a law is ultimately determined by judicial authority that considers all relevant provisions.
1. National Environmental Policy Act (1970). NEPA outlines national environmental policies and goals and establishes provisions for federal enforcement of them, including requirements for preparation of environmental impact statements. The Act also created the Council on Environmental Quality (CEQ) in the Executive Office of the President. The CEQ was established to coordinate with agencies and other White House offices in the development of environmental policies and initiatives. It oversees implementation of the environmental impact assessment process. While NEPA may contribute to protection in particular instances of government projects, as in the US Air Force Saylor Creek Bombing Range in Idaho (see 18 Oct 2016 post), it is not concerned specifically with achieving wilderness goals. Moreover, as was demonstrated by the expansion of the Saylor Creek Bombing Range in 1999, its processes are subject to political and bureaucratic intervention.
2. Clean Air Act (1963). This Act, with major amendments in 1970, 1977 & 1990, regulates air pollution nationwide. It requires comprehensive federal and state regulations on stationary and mobile sources. “Stationary sources” include industrial fixed emitters of air pollutants such as power plants burning fossil fuels, petroleum refineries, petrochemical plants, food processing plants and manufacturing plants of many types. “Mobile sources” comprise motor vehicles, locomotives, airplanes and engines that can be moved from one place to another. While the Owyhee Canyonlands, like everywhere else, generally benefit from such protections, these measures are directed primarily at more populated areas and do not provide protective measures specifically aimed at protecting wilderness.
3. Clean Water Act (1972). OLOV specifically refers to “ACE 404 permits on all activity near water,” which are issued by the Army Corps of Engineers. According to the EPA website, “Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports), and mining projects. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt from Section 404 regulation (e.g., certain farming and forestry activities).” It is unlikely such activities would be found on lands being considered for wilderness designation.
4. Endangered Species Act (1973). The purpose of the Endangered Species Act (ESA) is “the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend.” While the purposes of the ESA are complementary to those of wilderness designation, they are nonetheless different and cannot be considered as fulfilling the goals of wilderness designation. The ESA focuses specifically on conserving endangered flora and fauna and can apply to private land (see next).
5. Candidate Conservation Agreements with Assurances. Candidate Conservation Agreements (CCAs) are voluntary conservation agreements between the U.S. Fish and Wildlife Service and public or private parties to identify and protect wildlife and plant species that are threatened and might be considered for listing under the ESA. The Candidate Conservation Agreements with Assurances (CCAA) program specifically targets non-federal landowners, such as ranchers, and provides them with the assurance that if they implement various conservation measures, they will not be subject to additional regulatory requirements if the species should become listed under the ESA. Agreements are valid for thirty years. The program concerns lands not under the federal government, which are often private; these lands would not be eligible for wilderness designation. By the end of February 2016, 55 landowners representing more than 650,000 acres had entered an agreement or had signed a letter of intent under the Malheur County Greater Sage-grouse program. The USFWS website gives an individual example from Harney county.
6. Federal Land Policy and Management Act (1976). FLPMA governs BLM management of the lands under its jurisdiction. It is very comprehensive, but particularly pertinent to the Owyhee are Title IV and Title VI.
Title IV deals with Range Management, and Sections 401-403 set the policies and procedures for administering grazing fees, leases and permits, and establishing grazing advisory boards. The purpose was to address the deteriorating quality of rangelands and to direct that 50% of the monies collected for grazing fees be set aside for range improvement in the place where they were collected. However, revenue from fees currently falls far short of BLM expenditures on range land management.
Title VI covers, inter alia, BLM Wilderness Study. Section 603 directed the BLM to review roadless areas of 5000 acres or more and certain other lands identified as having “wilderness characteristics” as described in the Wilderness Act of 1964 (qv) and to report their suitability for preservation as wilderness. During the period of review the Secretary of Interior is directed to continue “to manage such lands according to his (sic) authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness.” Such management, however, continues only for the duration of the review and cannot be considered permanent protection unless the President recommends, and the Congress approves, permanent designation as wilderness.
7. Wilderness Act (1964). No lands in the Oregon portion of the Owyhee Canyonlands have yet been designated Wilderness under the Wilderness Act of 1964. OLOV notes, however, that “many acres are Wilderness Study Areas that are effectively treated as wilderness.” Wilderness Study Areas (WSA) were created under FLPMA (see previous) as a temporary status applied to lands selected for review and possible designation as wilderness. FLPMA requires that the review “shall be conducted in accordance with the procedure specified in section 3(d) of the Wilderness Act [16 U.S.C. 1132(d)]” This section is concerned with giving public notice, holding public hearings, and advising local governments concerning recommendations to be made to “the President with respect to the suitability of any area for preservation as wilderness.” WSA status does not grant permanent protection.
8. Area of Critical Environmental Concern (ACEC). According to the FLPMA (see above), “The term ‘areas of critical environmental concern’ means areas within the public lands where special management attention is required (when such areas are developed or used or where no development 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.” Currently there are 28 ACECs in the Vale BLM district covering 206,905 acres. (SEORMP-ROD, pp. 68-102, Table 13; cf. maps of former Jordan and Malheur Resource Areas.) While wilderness designation would accomplish many of the goals of an ACEC, ACECs also involve specific management measures to protect the particular values of the area. The two would be complementary.
9. Wild and Scenic Rivers Act (1968). The “National Wild and Scenic Rivers Act” (NWSRA) States that “certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.” Protections in the Owyhee NWRSA corridors are typically one-half mile wide (quarter mile on each side) and usually do not extend to tributaries for which protection is critical to maintaining water quality and availability. Their object is the river and not the watershed as a whole.
10. Organic Act (1897). The Forest Service Organic Administration Act provided the main statutory basis for the management of forest reserves in the United States, and created the United States Forest Service (USFS). There are no National Forest lands in the Owyhee Canyonlands, so this does not apply.
11. Antiquities Act (1906). The Antiquities Act was passed to deal with the pillaging and destruction of archeological sites–especially Native American sites–and to provide an expeditious means of protecting threatened federal lands and resources. The President is authorized to proclaim national monuments on federal lands having historic landmarks or other objects of historic or scientific interest. He is enjoined to reserve “the smallest area compatible with the proper care and management of the objects to be protected.” Presidents have proclaimed a total of 151 monuments. Congress has modified many proclamations, abolished some monuments and created some under its own authority.
12. Archaeological Resources Protection Act (1979). The purpose of this Act is “to provide more effective law enforcement to protect public archaeological sites.” It was passed to address difficulties in enforcing the Antiquities Act (see previous) and weaknesses in the penalties imposed by that Act. Two improvements were more detailed descriptions of the prohibited activities and larger financial and incarceration penalties for convicted violators.
13. National Historic Preservation Act (1966). Under this act, the Secretary of the Interior “is authorized to expand and maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture.” The limits of such protection are suggested by the five Owyhee sites on the register: Birch Creek Ranch, Jean Baptiste Charbonneau memorial and Inskip ranch ruins, the Owyhee Dam historic district, the Peotola fronton in Jordan Valley town, and the Sheep Ranch Fortified House.
Besides the foregoing, the OLOV list adds the following as relevant to protection of the Owyhee Canyonlands:
14. Federal transportation laws that affect lands transected by any roads. Wilderness is by definition a roadless area, so these laws do not afford any protection to lands that could be considered for wilderness designation.
15. Trade laws such as NAFTA that affect agricultural products produced on the land. These laws are really irrelevant to the goals of wilderness protection, since they would normally apply to lands that would not meet the criteria for wilderness protection.
16. Allotment Management Plans (AMP). An AMP is a plan for managing livestock grazing on specified public land. Of the 45 allotments in the Jordan Resource Area, the SEORMP-RD, Appendix E shows that AMPs were implemented in 14 allotments and not implemented in 24. For another seven, either “none” was recorded or the space was left blank. Still, for nearly every allotment “management considerations with implementation of the resource management plan” were listed, mostly pertaining to maintaining wildlife habitat for various species. If the allotment covered a special management area (WSA, HMA, ACEC, WSR, endangered species, archeology), that was also noted, as were pastures with riparian and DEQ water quality considerations.
17. Jordan Valley Rangeland Protection Association. The JVPRFA was formed in 2007 by local ranchers and receives equipment, training and other support from the Oregon Department of Forestry. For example, through ODOF they received “slide-in” pumpers to use in personal pickups to fight fire on both state and federally managed lands. The Association works closely with BLM and local fire resources to suppress range fires.
18. Wild Free-Roaming Horses And Burros Act (1971). This act mandates protection, management, and control of wild and unclaimed horses and burros “as an integral part of the natural system of the public lands.” The BLM is authorized to designate and maintain specific ranges on public lands as sanctuaries for them. From the language of the Act–“‘range’ means the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands.” The OLOV list includes Herd Management Areas (HMA) among existing layers of protection. A Herd Area (HA) is “a place used as habitat by a herd of wild horses at the time the Act was passed.” An HMA is an HA determined to have adequate food, water, cover and space to sustain healthy and diverse horse and burro populations. Jordan Resource Area HA/HMA’s total nearly 680,000 acres. Ironically, protection of feral horses has resulted in degradation of both rangeland and water sources as well as sage grouse habitat.
In preparing this list, I was struck by how the concept of protection or stewardship implied by it differed from that of the national monument proponents. The primary concern of the OBSC is maintaining the sustainability of the Canyonlands for agriculture, grazing in particular. This inference is supported by OBSC member Linda Bentz’ inclusion of the Taylor Grazing Act (1934) at the top of her list of existing protections in an Argus Observer op-ed piece. The purpose of this Act was “stop injury to the public grazing lands [excluding Alaska] by preventing overgrazing and soil deterioration; to provide for their orderly use, improvement, and development; [and] to stabilize the livestock industry dependent upon the public range.” It has been supplanted by FLPMA.
By contrast, the Owyhee Campaign and similar groups aim to preserve the wilderness characteristics of the Canyonlands and to have them managed to conserve the Canyonlands’ “natural state,” which would still allow continued grazing and other ongoing economic activities, albeit with some restrictions. Of especial concern to these groups are the depredations of mining and irresponsible use of off-road vehicles (also of concern to ranchers) and the protection of imperiled species such as the sage grouse and the big horn sheep. When one side uses the terms “protection” and “stewardship,” they are talking about something different from the other side. Of the items in the OLOV and Rep. Bentz lists, only Wild and Scenic River and WSA status provide the broader protections sought by environmentalists. But the former is narrowly restricted to river and stream corridors, while the latter is a temporary designation. Still, inclusion of WSA on both lists perhaps indicates a willingness to accept permanent wilderness designation for those areas, if there are assurances that the grazing provisions found in the Wilderness Act of 1964 and in subsequent legislation would apply and could not later be made more restrictive.