Bureau of Land Management National Conservation Areas: legitimate conservation or Satan's Spawn?
Congress cites a multitude of reasons for creating NCAs, but two unstated motives almost always bear on the decision to designate a new area. The first has been to elevate the status of environmentally significant BLM lands (and sometimes their protection) to avoid transferring them to another, more conservation-oriented federal agency. A second unspoken reason Congress creates NCAs is that they are considered a political alternative to Wilderness designation. (2)
The enabling legislation designating each NCA establishes the management scheme and lists the permissible uses for that particular area. Table 1 depicts the NCAs Congress has designated to date. By analyzing the columns from left to right one can see the differences between NCAs. Analyzing the rows yields trends in both the levels and types of protection legislated for each area.
Congress addresses resource protection, or the lack thereof, in the purposes for which each NCA was designated, the values each area is intended to conserve, the statutory uses that are permitted in each area, or with specific provisions regarding particular uses. Only a few generalities can be made for NCAs. These areas are usually withdrawn from location, leasing and sale under federal mining and geothermal development laws; motorized vehicles are generally limited to designated roads and trails; and as public lands grazing has become more controversial, where grazing privileges have predated NCA designation Congress has acted to specifically preserve them in the enabling legislation. (3) In most cases Congress has authorized acquisition of inheld or adjacent state or private lands through purchase, donation or exchange to consolidate or expand NCAs. Which political party controls what branch of government appears to have little effect on the form or substance of NCA designation. (4)
NCAs are potentially helpful in the conservation, protection and restoration of BLM lands. Since there is no underlying statutory basis (including minimum protections) for NCAs, each area Congress creates is essentially concocted to meet the political opportunities or realities of the moment. For example, the Clinton Administration was so bold as to develop a list of minimum protections for NCAs proposed during its tenure; Congressional sponsors of NCA legislation were advised to meet the standards or suffer the President's veto. (5) Similarly if conservationists have a strong political hand, they can help craft good NCAs. If they do not, they will not.
The history of NCAs teaches us that they should be considered when it is determined that transfer of the environmentally significant (usually threatened) landscapes to another federal agency is not preferred or politically practical. However, there are standards that conservationists should enforce when Congress seeks to designate a new area. NCAs should not be a substitute for Wilderness designation, rather they should encompass larger landscapes with important natural and other public values and include Wilderness and Wild and Scenic River designations for all qualifying rivers within them. Also, conservationists should reject any NCA that, at a minimum: does not declare environmental conservation as its primary purpose, to which all other exploitative or recreational uses are subordinate; fails to withdraw the entire area from all forms of mineral and geothermal development; does not prohibit off-road vehicle use; or "releases" wilderness study areas from further consideration as BLM wilderness. (6) Where livestock grazing is an issue, conservationists should also advocate for voluntary or compulsory grazing permit retirement. (7) If, as NCA legislation winds its way through the political process, it takes a turn for the worse, then conservationists may need to kill it, fight harder to win the necessary protections, or strategically withdraw and regroup so that stronger protection can be obtained for the area in the future.
TABLE 1. COMPARISON OF BUREAU OF LAND MANAGEMENT NATIONAL CONSERVATION AREAS NATIONAL CONSERVA- TION AREA King Range Steese El Malpais ESTABLISHED Oct. 21, 1970 Dec. 2, 1980 Dec. 31, 1987 PUBLIC LAW 91-476 96-487 100-225 AREA (ACRES) 60,000 1,220,000 262,690 STATE California Alaska New Mexico WHITE HOUSE Republican Democrat Republican CONGRESS Democrat Democrat Democrat STATUTORY "[C]onserving "[P]rovide for "[P]rotect for PURPOSES and develop- the immediate the benefit and ing, for the use and future enjoyment of and benefit of protection of future genera- the people of the lands in tions (this) the United Federal owner- area contain- States, the ship within the ing the La lands and framework of Ventana Natu- other a program of ral Arch and resources multiple use the other therein under and sustained unique and a program of yield and for nationally multiple usage the mainte- important ... and sustained nance of envi- resources of yield." ronmental the public quality ..." lands sur- rounding Grants Lava Flows ..." STATUTORY "[N]atural "[C]aribou "[U]nique and VALUES resources range and nationally including but Birch Creek" important geo- not limited to (Wild and logical, archeo- the soils, bod- Scenic River logical, ies of water (designated as ecological, cul- including the wild)). tural, scenic, shorelines scientific and thereof, forest wilderness growth includ- resources ..." ing timber, vegetative cover including forage, fish, and other wildlife, and geological resources including min- erals." STATUTORY "[I]ncluding None stated. Managed to USES but not limited "protect the to ... scenic resources spec- enjoyment, ified (above)" hunting, fish- in accordance ing, hiking, with FLPMA riding, camp- and "other ing, picnicking, applicable pro- boating and visions of law, swimming, all including those uses of water provisions resources, relating to watershed grazing on management, public lands"; production of hunting and timber and trapping per- other forest mitted in producers, accordance grazing and with New other agricul- Mexico state tural uses, fish law, except and wildlife zones estab- management, lished for pub- mining, preser- lic safety, vation of eco- administration logical or public balance, scien- enjoyment. tific study, occupancy and access." WATER No provision. No provision. Enough RIGHTS PRO- reserved to VISION fulfill purposes of the NCA. LAW No provision. No provision. No provision. ENFORCEMENT PROVISION HYDROELEC- No provision. No provision. No provision. TRIC DEVEL- OPMENT PROVISION Motorized No provision. No provision. No provision. Vehicles Provision WOOD PROVI- Expressed use No provision. Commercial SION (see "Uses" sale of dead or above). green wood prohibited. MINERAL Prospecting Withdrawn All lands with- WITHDRAWAL and patents from location, drawn from all PROVISION are subject to entry and pat- forms of entry, "reasonable ent; leasing appropriation regulation" as and sale con- or disposal the Secretary tinued. Secre- under the pub- may issue. tary may lic land laws; classify lands from location, as open to entry and pat- entry, location ent under the and patent. All mining laws; valid claims and from dis- subject to position under "reasonable all laws per- regulations ... taining to min- to assure that eral and mining will, to geothermal the maximum leasing. Also extent practi- includes provi- cable, be con- sion for sistent with exchanges of the scenic, sci- mineral inter- entific, cultural ests. and other resources ..." Patents for minerals only. WILDERNESS No provision. No provision. Wilderness PROVISION NCA overlaps designated existing Wil- within NCA; derness. new Wilder- ness Study Area desig- nated. LAND ACQUI- Donation, No provision. Donation, SITION PROVI- purchase, or purchase, SION exchange. exchange, transfer from another fed- eral agency. LIVESTOCK Express use No provision. "[S]hall be GRAZING PRO- (see "Uses" permitted to VISION above). continue, pur- suant to appli- cable Federal law, including this sub- chapter, and subject to such reasonable regulations, policies and practices as the Secretary deems neces- sary." NATIONAL CONSERVA- San Pedro Red Rock Gila Box TION AREA Riparian Canyon Riparian ESTABLISHED Nov. 18, 1988 Nov. 16, 1990 Nov. 28, 1990 PUBLIC LAW 100-696 101-621 101-628 AREA (ACRES) 56,431 195,780 20,767 STATE Arizona Nevada Arizona WHITE HOUSE Republican Republican Republican CONGRESS Democrat Democrat Democrat STATUTORY [P]rotect the "[C]onserve, "[C]onserve, PURPOSES riparian area protect and protect and ... of the enhance for enhance the public lands the benefit riparian and surrounding and enjoyment associated the San Pedro of present and areas ..." River ..." future genera- tions ... the area ... con- taining and surrounding the Red Rock Canyon ..." STATUTORY "[A]quatic, "[U]nique and "[A]quatic, VALUES wildlife, arche- nationally wildlife, ological, pale- important geo- archaeological, ontological, logic, archeo- paleontologi- scientific, cul- logical, cal, scientific, tural, educa- ecological, cul- cultural, edu- tional and tural, scenic, cational, recreational scientific, wild- scenic, and resources ..." life, riparian, other wilderness, resources and endangered values ..." species, and recreation resources ..." STATUTORY "The Secretary "The Secretary "The Secretary USES shall only shall only allow shall allow allow such such uses of only such uses uses ... [that] the conserva- ... [that] will will further the tion area as he further the primary pur- finds will fur- purposes for poses for ther the pur- which the con- which the con- poses for which servation area servation area the conserva- is established." is established." tion area is established"; nothing shall preclude the Secretary from taking mea- sures to pre- vent devastating fire or infesta- tion of insects or disease with- in the NCA; hunting permit- ted in accord- ance with Nevada state law, except zones estab- lished for pub- lic safety, administration or public enjoy- ment. WATER Enough Enough Enough RIGHTS PRO- reserved to reserved to reserved to VISION fulfill purposes fulfill purposes fulfill purposes of the NCA. of the NCA. of the NCA. LAW Fines and No provision. Fines and ENFORCEMENT imprisonment imprisonment PROVISION authorized. authorized. HYDROELEC- No provision. No provision. No provision. TRIC DEVEL- OPMENT PROVISION Motorized "[O]nly ... Limited to "[P]ermitted Vehicles allowed on designated only on roads Provision roads specifi- roads and specifically cally desig- trails. designated for nated for such such use...." use...." WOOD PROVI- No provision. No provision. No provision. SION MINERAL All lands with- All lands with- All lands with- WITHDRAWAL drawn from all drawn from all drawn from all PROVISION forms of entry, forms of entry, forms of entry, appropriation appropriation appropriation or disposal or disposal or disposal under the pub- under the pub- under the pub- lic land laws; lic land laws; lic land laws; from location, from location, from location, entry and pat- entry and pat- entry and pat- ent under the ent under the ent under the mining laws; mining laws; mining laws; and from dis- and from dis- and from dis- position under position under position under all laws per- all laws per- all laws per- taining to min- taining to min- taining to min- eral and eral and eral and geothermal geothermal geothermal leasing. leasing. leasing. WILDERNESS No provision. Wilderness No provision. PROVISION Study Areas expressly unaf- fected. LAND ACQUI- Donation, Donation, Donation, SITION PROVI- purchase or purchase, purchase or SION exchange. exchange, exchange. transfer from another fed- eral agency, or limited con- demnation. LIVESTOCK No provision. No provision. No provision. GRAZING PRO- VISION NATIONAL CONSERVA- Snake River Gunnison Colorado TION AREA Birds of Prey Gorge Canyons ESTABLISHED Aug. 4, 1993 Oct. 21, 1999 Oct. 24, 2000 PUBLIC LAW 103-64 106-76 106-353 AREA (ACRES) 484,873 57,725 122,300 STATE Idaho Colorado Colo./Utah WHITE HOUSE Democrat Democrat Democrat CONGRESS Democrat Republican Republican STATUTORY "[C]onserva- "[P]rotect the "[C]onserve, PURPOSES tion, protec- resources of protect, and tion and the Conserva- enhance for enhancement tion Area in the benefit of of raptor accordance present and populations with (1) this future genera- and habitats Act; (2) the tions the and the natu- Federal Lands unique and ral and envi- Policy and nationally ronmental Management important val- resources and Act of 1976 ues ..., includ- values ... ...; and (3) ing geological, [and the] sci- other applica- cultural, pale- entific, cul- ble provisions ontological, tural, and of law." natural, scien- educational tific, recrea- resources and tional, values ..." environmental, biological, wil- derness, wild- life education and scenic resources ..." STATUTORY Densest "[R]ecognized "The areas ... VALUES known nesting for offering contain unique populations of exceptional and valuable raptors in multiple use scenic, recrea- North opportuni- tional, multiple America; his- ties ... natural, use opportuni- torical, cultural cultural, ties (including and archaeo- scenic, wilder- grazing), pale- logical ness, and rec- ontological, resources; mill- reational natural, and tary training resources ..." wildlife com- area; World ponents Center for enhanced by Birds of Prey; the rural west- Raptor ern setting Research and ..." Technical Assistance Center; domestic live- stock grazing; hydro-electric facilities. STATUTORY "[T]he Secre- Motorized "[O]nly such USES tary shall allow vehicles (see uses ... [that] only such uses below); hunt- will further the of lands in the ing, trapping purposes for conservation and fishing in which the area as ... accordance Conservation will further the with Colorado Area is estab- purposes for law, except lished," includ- which the zones estab- ing livestock Conservation lished for pub- grazing (see Area is estab- lic safety, below); and lished," except administration hunting, trap- for National or public ping and fish- Guard training enjoyment. ing in and livestock accordance grazing (see with Colorado below). and Utah law, except zones established for public safety, administration, or public enjoyment. WATER Expressly no Expressly no Expressly no RIGHTS PRO- reserved water reserved water reserved water VISION right to fulfill right to fulfill right. Allows purposes of purposes of for establishing the NCA. the NCA. new water Allows for right under establishing Colorado law. new water Adjacent seg- right under ment of Colo- Colorado law. rado River specifically excluded as part of the NCA. LAW No provision. No provision. No provision. ENFORCEMENT PROVISION HYDROELEC- Expressly No provision. Prohibits fed- TRIC DEVEL- allowed. eral govern- OPMENT ment from PROVISION developing new "water resource facili(ties)" in the NCA, including "hydropower projects." Motorized No provision. "In addition to Limited to Vehicles the use of designated Provision motorized roads and vehicles on trails. established roadways, ... [they are also] allowed to the extent the use is compatible with off-high- way vehicle designations as described in the manage- ment plan in effect on the date of enact- ment." WOOD PROVI- No provision. No provision. No provision. SION MINERAL All lands with- All lands with- All lands with- WITHDRAWAL drawn from all drawn from all drawn from all PROVISION forms of entry, forms of entry, forms of entry, appropriation appropriation appropriation or disposal or disposal or disposal under the pub- under the pub- under the pub- lic land laws; lic land laws; lic land laws; from location, from location, from location, entry and pat- entry and pat- entry and pat- ent under the ent under the ent under the mining laws; mining laws; mining laws; and from dis- and from dis- and from dis- position under position under position under all laws per- all laws per- all laws per- taining to min- taining to min- taining to min- eral and eral and eral and geothermal geothermal geothermal leasing; except leasing. leasing. "sale" (able) minerals from existing sites allowed "to the extent compatible with the pur- poses ..." WILDERNESS Wilderness Wilderness Wilderness PROVISION Study Areas designated designated expressly within NCA; within NCA. released. Wilderness Study Area released. LAND ACQUI- Donation, No provision. Donation, SITION PROVI- purchase, purchase or SION exchange, exchange. transfer from another fed- eral agency. LIVESTOCK "So long as the No provision. "[T]he Secre- GRAZING PRO- Secretary deter- tary shall issue VISION mines that and administer domestic live- any grazing stock grazing is leases or per- compatible with mits in the Con- the purposes for servation Area which the con- ... in accor- servation area is dance with the established, the same laws Secretary shall (including regu- permit such use lations) and of public lands Executive within the con- orders followed servation area, by the Secretary to the extent in issuing and such use of such administering lands is compat- grazing leases ible with such and permits on purposes." Live- other land stock grazing is under the juris- managed accord- diction of the ing to Taylor Bureau of Land Grazing Act and Management." related laws. Black Rock Desert-High NATIONAL Rock Canyon CONSERVA- Emigrant TION AREA Trails ESTABLISHED Dec. 21, 2000 PUBLIC LAW 106-554 AREA (ACRES) 797,100 STATE Nevada WHITE HOUSE Democrat CONGRESS Republican STATUTORY "[C]onserve, PURPOSES protect, and enhance for the benefit of present and future genera- tions the unique and nationally important his- torical, cul- tural, paleontologi- cal, scenic, sci- entific, biological, educational, wildlife, ripa- rian, wilder- ness, endangered species, and recreational values and resources asso- ciated with the Applegate- Lassen and Nobles Trails corridors ..." STATUTORY Segments of VALUES historic Cali- fornia emi- grant Trails; wilderness landscape; absence of development; Great Basin plant and animal species; cultural, arche- ological, pale- ontological, and geographi- cal resources; domestic live- stock grazing. STATUTORY "[O]nly such USES uses ... [that] will further the purposes for which the con- servation area is established," except live- stock grazing (see below); "large-scale permitted events in defined, low impact areas of the Black Rock Desert playa" (Burn- ing Man); and hunting, trap- ping and fish- ing in accordance with Nevada law. WATER No provision. RIGHTS PRO- VISION LAW No provision. ENFORCEMENT PROVISION HYDROELEC- No provision. TRIC DEVEL- OPMENT PROVISION Motorized Limited to Vehicles designated Provision roads and trails. WOOD PROVI- No provision. SION MINERAL All lands with- WITHDRAWAL drawn from all PROVISION forms of entry, appropriation or disposal under the pub- lic land laws; from location, entry and pat- ent under the mining laws; and from dis- position under all laws per- taining to min- eral and geothermal leasing. WILDERNESS Wilderness PROVISION designated within NCA. LAND ACQUI- No provision. SITION PROVI- SION LIVESTOCK "Where the GRAZING PRO- Secretary of VISION the Interior currently per- mits livestock grazing in the conservation area, such grazing shall be allowed to continue sub- ject to all applicable laws, regula- tions, and executive orders."
(1.) In 2000, former Interior Secretary Bruce Babbitt drew together the NCAs and other BLM reservations, including Wilderness, Wild and Scenic rivers, national monuments, the Steens Mountain Cooperative Management and Protection Area and the California Desert Conservation Area into a "National Landscape Conservation System" ("NLCS"). An associate director was promoted to manage a small NLCS office in Washington, D.C., to develop guidance and policy for the NLCS, but the agency promised that no new legal protections or restrictions would be imposed on BLM reservations in the new system. It remains to be seen whether the new Bush Administration will abolish the NLCS.
(2.) Some NCAs overlap existing Wilderness, while others are designated in conjunction with new Wilderness areas. But in every case NCAs are larger than the Wilderness areas within them to allow for otherwise incompatible uses to continue in the non-Wilderness parts of each NCA.
(3.) In three of the last four NCAs established, livestock grazing has been listed as a statutory value as well as a statutory use of the area. See National Parks, Military Parks, Monuments, and Seashores: Snake River Birds of Prey National Conservation Area, 16 U.S.C. [section] 460iii-3(f) (2001); Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act, Pub. L. No. 106-353, [section] 6(g), 114 Stat. 1374 (2000); Black Rock Desert-High Rock Canyon Emigrant Trails, H.R. REP. No. 106-1033, 106th Cong., at 638 (2000). For two NCAs, Snake River Birds of Prey National Conservation Area and Black Rock Desert-High Rock Canyon Emigrant Trails, Congress stated that grazing is important to local communities and that livestock have not been proven to be harmful to the environment. 16 U.S.C. [section] 460iii (11); H.R. REP. No. 106-1033, 106th Cong. at 636-37. For three NCAs, grazing was specifically reserved in Wilderness designated within the NCA. See Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act, Pub. L. No. 106-353, [section] 6(g)(1)-(2), 114 Stat. 1374 (2000); Black Rock Desert-High Rock Canyon Emigrant Trails, H.R. REP. No. 106-1033, 106th Cong. at 640 (2000); National Parks, Military Parks, Monuments, and Seashores: El Malpais National Monument and National Conservation Area, 16 U.S.C. [section] 460uu-32(b) (2001).
(4.) Sometimes the politics of what an area will be called result in the most dramatic and contentious discussions regarding the area's designation. For example, although the pride of the Oregon Congressional delegation, the recently established Steens Mountain Cooperative Management and Protection Area ("SMCMPA") is a political bastard. Pub. L. 106-399, 114 Stat. 1655 (2000). As the delegation deliberated the future for the area managed by the BLM in southeastern Oregon, local resource users warned that they would not tolerate Steens Mountain being legislated as a "national conservation area" due to the land use restrictions implied by such a designation. The delegation therefore dutifully avoided any reference to NCAs in naming the area. Nevertheless, despite its unusual name, the SMCMPA affords strong protections for the Steens, including our country's first legislated livestock, free wilderness area. See id; see also Mark Salvo & Andy Kerr, Congress Designates First Livestock-free Wilderness Area, WILD EARTH 10, 55 (2000).
(5.) Testifying in favor of the Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act of 2000, former Bureau of Land Management Director Tom Fry recounted the Clinton Administration's minimum standards for NCAs.
The Administration has testified before Congress several times this year on special protective legislation for public lands managed by the Bureau of Land Management (BLM). While each NCA or BLM-managed National Monument is unique, there are certain common elements, and we have set a standard for what these special areas must include. Critical components of a Monument or NCA include: a land, mining and mineral withdrawal; off-highway vehicle (OHV) use limitations; and language which charges the Secretary to allow `only such uses' as further the purposes for which the monument or NCA is established. In addition, we cannot consent to any language that represents a step backward from current management.
Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act of 2000, S. REP. No. 106-460, 106th Cong, at 6.
(6.) Pursuant to the Federal Land Policy and Management Act of 1976, Congress will eventually "release" all wilderness study areas not designated as Wilderness. See 43 U.S.C. [section] 1782(a), (c). Wilderness study areas were released in the Snake River Birds of Prey and Gunnison Gorge National Conservation Areas. See National Parks, Military Parks, Monuments, and Seashores: Snake River Birds of Prey National Conservation Area 16 U.S,C. [section] 460iii-5(b) (2001); Black Canyon on the Gunnison National Park and Gunnison Gorge National Conservation Area Act of 1999, Pub. L. 106-76 [section] 8(a)(2), 113 Stat. 1126.
(7.) For a discussion of federal grazing permit retirement, and how it could rid our national parks and Wilderness areas of domestic livestock, see Andy Kerr & Mark Salvo, Livestock Grazing in the National Park and Wilderness Systems, WILD EARTH 10, 45-52 (2000).
Andy Kerr is principal of the Larch Company and Director of the National Public Lands Grazing Campaign. He can be reached via email at: email@example.com.
Mark Salvo serves as Grasslands and Deserts Advocate for American Lands in Portland, Oregon. He endeavors in matters of the BLM, including Wilderness designation, grazing permit retirement, and the conservation and restoration of sage grouse and their habitat across the West. He may be reached via email at: firstname.lastname@example.org.
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|Author:||Kerr, Alex A.; Salvo, Mark|
|Publication:||UCLA Journal of Environmental Law & Policy|
|Date:||Jun 22, 2002|
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