Have federal land management laws gone too far? County attorney says ‘yes’

Deputy Washington County Attorney Celeste Maloy in Washington D.C. after testifying before a House subcommittee on federal natural resource laws, May 25, 2017 | Photo courtesy of Celeste Maloy, St. George News

WASHINGTON, D.C. – As Washington County wrestles with issues such as the proposed northern corridor and Bureau of Land Management resource management plans, the question arises whether federal natural resource laws go too far.

Deputy Washington County Attorney Celeste Maloy testifies before a House subcommittee on federal natural resource laws, May 25, 2017 | Photo courtesy of Celeste Maloy, St. George News

Many in the conservation community would say “no.” However, many local government officials would answer a resounding “yes” to the question.

“I regularly interact with federal agencies on the challenges that face a rapidly growing county where half of our land is managed by the Department of the Interior and only 16 percent is privately owned,” Deputy Washington County Attorney Celeste Maloy said in testimony before a U.S. House of Representatives natural resources subcommittee.

The May 25 hearing was titled “Examining Impacts of Federal Natural Resources Laws Gone Astray.”

Maloy’s primary focus in her work for the county is public lands law and policy.

“My experience in interacting with land management agencies, particularly the Bureau of Land Management, is that administrative processes overshadow the agency mission given by Congress,” Maloy said.

“We routinely see federal agency employees treat their manuals and handbooks as if they are the ultimate law. When those manuals don’t align with directly relevant statutory guidance, the manuals still prevail.”

Maloy focused on the problems she sees with the Wilderness Act and the Federal Lands Policy and Management Act, or FLPMA.

Wilderness

Washington County undertook participation in the Omnibus Public Lands Management Act of 2009 in part to settle the question of what land would be designated as wilderness, Maloy said.

“In exchange for roughly a quarter of a million acres of declared wilderness within the county, we got an end to the endless (wilderness) inventory process and a Congressional release of WSAs (wilderness study areas),” she said.

We were surprised and upset when the new resource management plans (RMPs) still required inventory for wilderness.”

The local BLM office insisted that they were following their manuals, but Maloy said the BLM’s wilderness manual states that when Congress releases land from wilderness study, the BLM will “take into serious consideration the Congressional action.”

“When Congress speaks, the agencies should act accordingly, not just take it into serious consideration,” she said.

Under the Wilderness Act, if Congress designates public land as a wilderness study area, federal land management agencies are required to preserve the “wilderness character” of the area until Congress either designates the land as wilderness or releases it.

FLPMA

The Federal Lands Policy and Management Act, or FLPMA, clearly instructed the Secretary of Interior to consider alternatives for a planned roadway that Washington County and local municipalities have known for years would be necessary to meet future transportation needs, Maloy said.

That road was a major part of the “balancing” quid pro quo that led us to support the bill.”

After the bill was enacted, however, the BLM’s draft RMP eliminated the possibility of any road with an “exclusion area,” which prohibits new rights of way.

“The statute says to consider route alternatives in the travel management plan, but that isn’t how BLM does things, and they couldn’t allow a road in that area.”

In addition, Maloy said, the multiple use mandate from FLPMA is being eclipsed by the exceptions. FLPMA says that lands are to be managed for multiple use, unless otherwise specified by law.

“Despite that language, WSAs (wilderness study areas), lands with wilderness characteristics, mineral withdrawals, exclusion areas, visual resource management areas, buffers around rock outcrops, and other restrictions on multiple use activities are more common than multiple use management.

“The elimination of uses seems to stem from a philosophy that all human impacts are negative impacts. Congress, by including multiple use management in the BLM’s organic act, clearly did not espouse the idea that humans should be forced off of public land,” Maloy said. “Multiple use was intended to be the rule, not the exception.”

Opposing interpretation

Lisa Rutherford, founding board member of Conserve Southwest Utah and current advisory board member, has a different take on the issues.

The BLM’s resource management plans are clearly in line with what the law says and with Sen. Bob Bennett’s comments as part of Congressional testimony leading up to the passage of the 2008 Washington County Growth and Conservation Act, now part of OPLMA, Rutherford said.

From the U.S. Senate hearing record of April 22, 2008, on S.2834:

“Congressman Matheson and I have made significant changes to the previous proposal. We have permanently protected large amounts of biologically significant public land in Washington County, including additional wilderness and a new national conservation area. We have removed the corridor designations for the Lake Powell Pipeline Corridor and the Northern Corridor that bisected the Red Cliffs Desert Reserve.” (page 8).

The resource management plans are also a good example of multiple use in Washington County, Rutherford said.

“There exists a balance satisfactory to all interests, including hiking, ATVing, off-road biking, horseback riding, camping, wildlife reserves and many more.”

The Washington County Land Bill stands as a model for the rest of Utah and has been so acknowledged publicly by everyone from the Governor and Legislature to local cities, towns and counties.”

Ed. note: Clarified language regarding wilderness study areas.

Email: japplegate@stgnews.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2017, all rights reserved.

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3 Comments

  • Chris June 21, 2017 at 7:46 pm

    “Under the Wilderness Act, if Congress designates public land as wilderness, federal land management agencies are required to preserve the “wilderness character” of the area until Congress designates the land as wilderness or releases it.” I do not know what you were trying to say, but this sentence makes no sense.

    • Julie Applegate Julie Applegate June 21, 2017 at 11:13 pm

      Thank you, that has been clarified.

      Julie Applegate, St. George News

  • KarenS June 22, 2017 at 7:19 am

    There is no need to “interpret” the land use bill. Local leaders are trying to rewrite history in their complaints about building or not building the northern corridor. I followed the progress and completion of the bill closely and all the BLM was required to do was to “identify options” concerning a northern corridor. The BLM has done that and presented several options, one of which is to not build a route at all. There were no promises made about constructing a northern corridor.

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