Grand Junction Daily Sentinel

Public lands plans at risk in Congress

Why advocate for putting the Bureau of Land Management headquarters in the West if Congress is going to dictate what the agency’s Resource Management Plans look like?

As Congress returns to work this week following the August recess, lawmakers are contemplating a novel and wonky approach to rolling back public land management plans in three states. It’s a bad idea that could destabilize any activity — from mineral development to motorized access — authorized by federal land management plans.

House Republicans have signaled their intent to use the Congressional Review Act to kill three Biden-era land management plans in Alaska, North Dakota and Montana. But academics and legal scholars warn that doing so could open a Pandora’s box of unintended consequences that could paralyze land management agencies for decades.

The CRA allows Congress and the White House to strike by simple majority recently finalized “rules” that have been sent to Congress for review. But there’s some question whether Bureau of Land Management Resource Management Plans are formulated under rulemaking authority or planning authority.

“Longstanding agency and congressional practice suggest neither the agency nor Congress considered RMPs to be subject to CRA review, and Congress has not acted to amend (the Federal Land Policy and Management Act) to clarify its intent to the contrary.”

That’s a quote from a letter to congressional leaders signed by 30 professors and practitioners in the fields of administrative, environmental, and natural resource law, including two from Colorado.

Land use plans have historically not been treated as products of rulemaking, but Republicans asked the Government Accountability Office if the plans are subject to CRA review and the GAO said yes.

If Congress continues down this path, then any RMP anywhere could be tossed, public participation be damned. The law professors point out that FLPMA regulations prescribe a specialized, participatory planning model distinct from federal agency rulemaking under the Administrative Procedures Act.

“While we take no position on the substantive provisions in the (three) plans at issue, we strongly urge Congress to avoid the harmful precedent and unintended policy consequences of invalidating RMPs or Forest Plans through the CRA,” the letter reads.

Instead of bringing resolutions to the House floor for a vote, “Congress should amend the CRA to clarify that RMPs — and other land management plans required by statute — are not subject to CRA review.”

Congress is considering using dynamite where a flyswatter could suffice. There are ways to amend RMPs without blowing up the entire resource management planning process.

What’s especially galling is how this attempt to use the CRA flies in the face of giving voice to public land users. If Congress is going to decide what goes into an RMP, it makes the BLM a mere implementer of plans and the public mere bystanders to partisan whims on Capitol Hill.

Amending the three RMPs in question may have some support in those states, but using the CRA would implicate hundreds of federal land management plans nationwide. As the scholars note, permits and approvals for oil and gas development, transmission lines, mining plan approvals, livestock grazing, rights of way (for pipelines, power lines, roads, and other infrastructure projects), timber harvest, and other commercial uses could all be subject to challenge if the underlying RMP has not been submitted to Congress.

“The resulting uncertainty could trigger an endless cycle of litigation, effectively freezing the ability of the BLM and other agencies to manage public lands for years, if not decades to come,”

The BLM has finalized 123 land-use plans since the CRA was enacted in 1996. The Forest Service has 176 active land use plans. Is Congress going to put 300 plans in legal jeopardy to overturn three RMPs that Republicans don’t like?