BLM’s Greater Sage-Grouse Resource Management Plan Amendments
Remove Primary Uses from Public Lands
Prepared For:
The Western Caucus Foundation
By:
Megan Maxwell
720-290-1424
[email protected]
Introduction
On September 24, 2015 the Bureau of Land Management (BLM) announced the availability of
two Records of Decision (RODs) and Approved Resource Management Plan Amendments,
comprising of the Great Basin Region including the Greater sage-grouse (GRSG) sub-regions of
Idaho and Southwestern Montana, Nevada and Northeastern California, Oregon, and Utah (80
FR 57633); and the Rocky Mountain Region including the GRSG sub-regions of Lewistown,
North Dakota, Northwest Colorado, and Wyoming; and the Approved Resource Management
Plans for Billings, Buffalo, Cody, Hi-Line, Miles City, Pompeys Pillar National Monument,
South Dakota, and Worland (80 FR 57639), collectively, land use plans (LUPs).
The issuance of the RODs marks the end of a four year planning process in coordination with
United States Forest Service (USFS)1 to attempt to provide adequate regulatory mechanisms in
response to a Federal District Court’s approved settlement that required the United States Fish
and Wildlife Service (USFWS) to decide whether GRSG should be listed under the Endangered
Species Act by the settlement imposed deadline of September 30, 2015.
The RODs impact management of approximately 90 million BLM surface acres in the Great
Basin Region (GBR),2 and 23 million BLM surface acres in the Rocky Mountain Region
(RMR),3 severely restricting and in many instances eliminating one or more primary uses on
multiple use lands.
Targeted, Multi-Tiered Approach
The LUPs provide a “layered management approach” that establishes the highest level of
protection in the most valuable habitat with purported increasing management flexibility as
1
USFS also issued two RODs due to a different land use planning authority; available at:
FR Notice of Availability: https://federalregister.gov/a/2015-24213.
3
FR Notice of Availability: https://federalregister.gov/a/2015-24208.
2
1
habitat value decreases. The LUPs establish the following habitat categories in order of value
(left-right):
HABITAT MANAGEMENT CATEGORIES
GBR8
RMR9
Sagebrush
Focal
Areas
(SFAs)
Priority
Habitat
Management
Areas
(PHMA)
General
Habitat
Managemen
t Areas
(GHMA)
LUPs seek
to
eliminate
new habitat
disturbance
LUPs seek to
limit or
eliminate new
habitat
disturbance
with limited
exceptions
8.4 mil.
acres
2.9 mil.
acres
20.5 mil.
acres
9.9 mil. acres
LUPs seek
to limit new
surface
disturbance
where
special
management
would apply
to sustain
GRSG
populations
14 mil. acres
1.4 mil.
acres
Restoration
Habitat
Management
Areas
(RHMA)4
Linkage &
Connectivity
Habitat
Management
Areas
(LCHMAs)5
LUP seeks to
minimize
disturbance
Important
Habitat
Management
Areas
(IHMA)6
Other Habitat
Management
Areas (OHMA)7
LUP seeks to
minimize
new surface
disturbance
Management
determined at a
project level
-
-
2.7 mil. acres
5.9 mil. acres
165,927
acres10
81,900
acres11
-
-
The intent of the planning process was to incorporate landscape level conservation measures into
existing BLM land use plans to protect, enhance, and restore GRSG and their habitat by
reducing, eliminating, or minimizing threats to GRSG habitat. The most important documents
used in guiding the management decisions found in the LUPs are:
 BLM’s National Technical Team Report (NTT Report), which provides one-sizefits-all habitat management recommendations for GRSG across its entire range;
 USFWS’ Conservation Objectives Team Report (COT Report), that identifies
priority conservation areas (PACs) for GRSG, and population specific threats;
 United States Geological Survey’s (USGS’) Conservation Buffer Distance
Estimates for Greater Sage-Grouse—A Review (Buffer Report), which provides a
range of buffer distances for six types of disturbance; and
4
Applicable only to Billings and Miles City.
Applicable only to Northwest Colorado.
6
Applicable only to Idaho.
7
Applicable only to Nevada.
8
See GBR ROD at 1-15.
9
See RMR ROD at 1-16.
5
2
 USFWS, Greater Sage-Grouse: Additional Recommendations to Refine Land Use
Allocations in Highly Important Landscapes (2014 Ashe Memo), where USFWS
identifies a new habitat category (which became the SFAs in the FEIS) where
“the strongest levels of protection are recommended” based on areas “noted and
referenced by the conservation community.”
The LUPs are generally based upon the policy objectives and guidance found in the COT Report,
while the NTT Report conservation measures and buffer distances found in the Buffer Report are
used as a tool to reach the objectives outlined in the COT Report. Importantly, each of the above
noted reports, with the exception of the 2014 Ashe Memo has been challenged for failure to
comply with the Data Quality Act (Pub. L. No. 106‐554, § 515, 114 Stat. 2763, 2764a‐153‐154
(2000), DQA).12 Because the purpose of the land use plan revisions is to address the threats to
GRSG across its range, it is of critical importance that the primary documents used in guiding
the management decision found in the LUPs be complete and accurate. The DQA challenges
against the NTT, COT, and Buffer Reports indicate that the reports were neither complete nor
accurate. In addition, with respect to fuels management to address wildfire, it has been alleged in
pending legal challenges that the BLM ignored an entire body of science critical to its analysis
on range management issues.
The National Environmental Policy Act (NEPA) at 40 C.F.R. § 1502.9(b) requires agencies to
disclose responsible scientific opposition, and therefore BLM should have disclosed that both the
NTT and COT Reports, were being challenged under the DQA when the final environmental
impact statement (FEIS) was released.13 The DQA challenges raise specific concerns related to
several management actions found in the NTT and COT Reports which were carried forward in
the LUPs without disclosing that there is reasonable scientific opposition; those management
actions include:
3 percent disturbance cap;
Disturbance density cap- 1disturbance per 640 acres;
Lek buffers;
Required design features;
 Grazing restrictions;
12
Garfield County et al. v. BLM, Data Quality Act Challenge to U.S. DOI Dissemination of Information Presented
in the Bureau of Land Management’s National Technical Team Report (March 18, 2015); available at:
http://www.blm.gov/wo/st/en/National_Page/Notices_used_in_Footer/data_quality.html. See also, Garfield County
et al. v. USFWS, Data Quality Act Challenge to U.S. Department of the Interior Dissemination of Information
Presented in the USFWS Conservation Objectives Team Report (March 18, 2015); available at:
http://www.fws.gov/informationquality/. See also, Garfield County et al. v. US DOI, Data Quality Act Challenge to
U.S. DOI Dissemination of the Information Presented in the Buffer Report; available at:
http://cdn.westernenergyalliance.org/sites/default/files/15.09.14%20Buffer%20Report%20DQA%20Challenge.pdf.
13
The challenge against the Buffer Report was not filed until after release of the FEIS, thus, BLM could not have
disclosed the existence of this challenge. Nevertheless, disclosure of the controversy related to buffers was discussed
at length in both the NTT and COT DQA challenges.
3
 No Surface Occupancy (NSO) without exception in priority habitat; and
 Habitat objectives.
Notwithstanding the DQA challenges, BLM has an obligation to disclose reasonable scientific
opposition under 40 C.F.R. § 1502.9(b), especially that which has been raised during the call for
public or agency comment on draft EIS.’ BLM has failed to disclose the concerns raised under
the DQA, as well as identify the same scientific concerns raised during the call for comment on
the various draft NEPA documents. Therefore, the NEPA documents associated with each of the
LUPs are flawed and incomplete.
NEPA also requires that agencies use available and relevant data, which they did not in the
preparation of the LUPs. For example, neither the Draft EIS nor the FEIS documents include
sections on geology, which is required as a baseline for evaluating mineral potential, or use
BLM’s LR-2000 online database to quantify the number of mining claims affected by the LUPs
– especially the SFA proposed mineral withdrawal zones. Additionally, the NV – CA FEIS
erroneously states that there is no scientific data documenting the synergies between managed
livestock grazing and suppressing rangeland fuel loads despite the fact that the State of Nevada
and at least two Nevada counties provided detailed bibliographies pointing out these references
that needed to be considered in the NEPA analysis.
LUP Objectives
The LUPs are based on three primary objectives: 1) to minimize or eliminate new or additional
surface disturbance; 2) improve habitat conditions; and 3) reduce the threat of fire. However, in
an attempt to reach these objectives as guided primarily by the NTT Report, COT Report, Buffer
Report, and Ashe Memo, the majority of the resulting management actions will lead to de facto
withdrawals, or functional prohibitions of millions of acres within GRSG habitat. The
management actions that will lead to de facto withdrawals or functional prohibitions, include:







Surface disturbance and density caps (3%; 5% WY only);
Disturbance density restrictions = 1/640 in PHMA;
NSO for oil and gas projects in PHMA/SFA;
Lek buffers;
ROW avoidance in PHMA and GHMA;
Travel & transportation restrictions (limited to existing routes); and
Timing stipulations.
Other management actions categorically prohibit or exclude certain primary uses which include
the following:
 PHMA closed to salable and non-energy leasable minerals;
 No wind or solar projects in PHMA and SFAs;
4
 ROW exclusion in SFAs; and
 Withdrawals.
The proposal to withdraw 10 million acres from mineral entry is particularly egregious given the
fact that USFWS in its 2015 “Not Warranted Finding” concludes that mining directly affects less
than 0.1 percent of occupied GRSG range (FR 59858, October 2, 2015, p. 59915), which equates
to approximately 173,000 acres range-wide. The impact of the withdrawal proposal has already
begun, with some mineral operations having received verbal notice that the agencies’ intend to
prepare a validity exam which is the first step in invalidating the claims and removing the land
from mineral entry.
Further, some small exploration companies have expressed that the segregation of lands will
likely put them out of business. They will not have the funds to continue work or survive a
lengthy and costly validity exam process for their mining claims. The Chief Mineral Claims
Examiner testified at a recent Nevada Federal Court hearing that it took approximately two years
to complete a mineral validity exam on a total of five claims. Typical exploration projects often
include dozens or even hundreds of claims the validity examination of which would potentially
take more than a decade and cost hundreds of thousands of dollars for the claim holder.
In order to achieve the second objective (to improve habitat), BLM will be basing its
effectiveness monitoring, and determining when adaptive management triggers have been
reached upon population and habitat changes. Although the counts of male GRSG on leks has
been, and continues to be, the primary mechanism for collecting data about the relative
abundance and population trends of GRSG, the BLM has not acknowledged that lek counts
provide only a crude, nonrandom, and statistically invalid estimates of population trends (Walsh
et al. 2004; Ramey et al. 2014). Fundamentally, BLM has failed to recognize that populations of
any given species naturally fluctuate.
BLM has not adequately accounted for the fact that populations of GRSG are responsive to such
factors as seasonal and long-term fluctuations in regional weather conditions, short-term weather
extremes and stochastic events, intra- and inter-species competition for resources, intra- and
inter-species behavioral competition, predator-prey relationships, and subtle or severe changes in
habitat quality.
The reason this is important is because with relatively good precision global climate patterns
related to the Pacific/North American Pattern, Pacific Decadal Oscillation, El Niño-Southern
Oscillation, and their predictable interactions can be modeled to predict when a dip or surge in
GRSG populations will occur, triggering a soft and/or hard trigger, which includes increased
restrictions on development.
5
In the LUPs, BLM has blindly assumed that long-term population trends can be controlled
through restricting human activity and curtailing multiple uses of public lands, which is a
critically flawed assumption. Consequently, the land use restrictions in the LUPs, which are
based solely on the unfounded premise that restricting human activities will benefit GRSG, are
not scientifically justifiable and have a low likelihood of actually benefitting GRSG and its
habitat.
Finally the third objective: to reduce the threat of fire, while critically important, BLM in both
the FEIS documents and the resulting LUPs has failed to recognize an entire body of literature
related to the benefits of grazing as a proven and cost-effective tool to reduce fuel loads. Instead,
BLM has created a management scenario that puts the ranching/grazing community at risk of
losing grazing permits, and at least a reduction in grazing allotments. As a result, these onerous
restrictions also have put at risk the continued use of private lands for grazing which
economically relies upon the continued use of public lands under existing permits. By taking an
adverse position to the benefits of proper grazing and range management, BLM has prioritized
“review” of permits in SFAs, and PHMAs, of which decisions will be based on inappropriate
habitat objectives, biasing the decision towards a reduction in grazing allotments. Additionally,
the fire management and invasive species control measures in the LUPs are dependent upon
annual Congressional appropriations process. Consequently, they are not a reliable regulatory
mechanism unless Congress provides full funding on an annual basis.
The purpose the LUPs is to protect, improve, and restore GRSG habitat across the remaining
range of the species and provide greater certainty that BLM activities in GRSG habitat will lead
to conservation of the species. However, due to BLM’s insistence on eliminating primary uses as
the sole management policy for these lands, the agency is putting at risk millions of acres of the
public domain especially those in the GBR where fire and invasive species are having
devastating impacts.
FLPMA § 202(e)
Under the Federal Land Policy Management Act (FLPMA) § 202(e), the Secretary of the
Interior’s authority to issue management decisions to implement land use plans is limited to
doing so in accordance with the following:
 Such decisions (including exclusion of one or more of the principal or major uses)
shall remain subject to the Secretary’s reconsideration and/or termination and to
Congress’ review in the form of a concurrent resolution of non-approval under the
provisions of FLPMA § 202(e), of the land use plan involved;
 Such land use planning decisions or actions that exclude one or more principal or
major uses for two or more years with respect to a tract of land of 100,000 acres
or more “shall be reported by the Secretary to the House of Representatives and
Senate”
6
 If within 90 days from the giving of such notice (exclusive of dates on which
either House has adjourned for more than three consecutive days), the Congress
adopts a concurrent resolution of non-approval of the management decision or
action, then the management decision or action shall be promptly terminated by
the Secretary.
FLPMA § 202(e) establishes a procedure that includes Congressional review of the Secretary’s
decision to remove tracts of land greater than 100,000 acres from one or more multiple use. As
such, FLPMA § 202(e) reserves Congress’ authority over public lands and creates a check and
balance on the Secretary’s authority to issue and implement a management decision that
excludes multiple uses on over 100,000 acres of land. The GRSG LUPs have eliminated a host of
multiple uses from millions of acres of lands across both the GBR and the RMR, where
renewable energy projects are categorically excluded from PHMA and SFAs, the withdrawal of
locatable minerals in SFAs, and functional prohibition of essentially all other categories of
development especially mineral leasing. As such, FLPMA § 202(e) applies and the Secretary
must notify Congress that primary uses across the range of GRSG will be eliminated, giving
Congress the opportunity to halt the LUPs.
Importantly, the authority under § 202(e) is not a “veto” as there was in Chadha and does not
apply to the LUP issue because the role of Congress in FLPMA § 202(e) is based on Congress’
plenary authority under the Property Clause, which establishes that the Secretary’s authority to
use the FLPMA land use planning process to limit uses of public lands is subject to
Congressional concurrence.14
MINING
10 million
RANGE-WIDE ACRES SUBJECT TO § 202(e)
SOLAR
WIND
24.2 million
24.2 million
MINERAL
LEASING15
24.2 million
14
The reasoning in Chadha involved a single house veto over deportation proceedings, and does not apply to the
present issue because Article IV of the Constitution (Property Clause) gives Congress plenary power over public
lands. A further distinction is the Secretary’s decision remains subject to her own modifications and/or termination
under FLPMA whereas in Chadha the deportation determination had finality.
15
Includes non-energy and salable minerals.
7