Legislative and Regulatory Update
January 2003 by Staff• ESA used, and apparently abused, in Arizona and New Mexico
Federal wildlife officials have proposed a significant increase in the amount of land that would be designated as a protected space for a tiny endangered owl.
The U.S. Fish and Wildlife Service released a proposal to designate 1.2 million acres in southern Arizona as critical habitat for the ferruginous pygmy owl. The previous critical habitat area, designated in 1999 but struck down by a court order, covered about 730,000 acres.
The habitat issue has been at the center of a heated debate in southern Arizona, with the Fish and Wildlife Service taking criticism from environmental groups and the National Association of Home Builders.
The homebuilders sued over the pygmy owl, claiming the federal government shouldn’t have given it endangered status in 1997 or critical habitat in 1999. The court upheld the endangered species status but ordered the Fish and Wildlife Service to include more information on the economic effect of the critical habitat designation.
A federal judge followed the Fish and Wildlife Service recommendation by ordering the Forest Service to halt grazing on hundreds of thousands of acres in Arizona and New Mexico to “protect” the owl.
US District Judge Raner Collins of Tucson, Arizona, issued an injunction that will ban cattle in portions of 150 grazing allotments or about 11 percent of all grazing allotments in the two states.
The injunction will begin January 22, 2003, and remain in effect until the Forest Service completes formal consultation with the US Fish and Wildlife Service regarding the owl. Forest Service officials would not comment on the proposal.
Glynn Burkhardt, president of Pima County Coalition for Multiple Use, stated, “This irresponsible waste of your land and tax monies by the US Fish and Wildlife Service and the Bureau of Land Management, followed closely by cooperation from the State of Arizona Land department and the cash-strapped Arizona State government, and the Pima County government, is exactly what will continue if the citizens and industries in Arizona don’t oppose these spend-thrift activities.”
Burkhardt pointed out that the proposed 1,200,000-acre habitat designation amounts to 66,667 acres for each owl.
Burkhardt added that when calculating the losses from sales tax, ranching, mining, aggregate, sand and gravel, and recreational uses, and using a conservative figure of $500 per acre, the potential revenue lost over ten years will amount to $600 million or over $33.3 million per owl.
The US Fish and Wildlife Service estimated the cost of the designation at only $33 million to $52 million over 10 years, which amounts to $27.50 to $43.33 per acre.
Gary F. Garczynski, president of the National Association of Home Builders, said the economic impact would be staggering. He called on the government to release the data used when it decided on its new critical habitat proposal.
“Unfortunately, the public has no basis to judge the validity of the government’s action because the agency hasn’t provided basic information regarding where these owls are located,” Garczynski said.
Readers are encouraged to contact the US Fish and Wildlife Service. Constructive comments can be sent to: Field Supervisor, US Fish and Wildlife Service, 2321 W Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951; phone: (602) 242-0210; fax: (602) 242-2513. Don’t forget to send a copy of your comments to your US Senator, Representative, and the Pima County Board of Supervisors.
• In a somewhat related story…
The Bush administration is proposing an easing of the regulations for logging and recreation in forests and grasslands.
Officials said their intent was to improve the forest management rules approved by the Clinton administration two months before President Bush took office, though Democrats accused the administration of undoing environmental safeguards that protect forests and wildlife.
The proposal would give local and regional managers of the U.S. Forest Service more discretion to approve logging, drilling and mining operations without having to conduct formal scientific investigations into their impact on plant and animal life.
“A lot has changed in the last 30 years,” said Sally Collins, the Forest Service’s associate chief. “This new rule cuts out a lot of red tape.”
Collins said land management plans for each forest or grassland now typically take up to seven years to complete because of requirements for detailed scientific studies and other paperwork. She estimated that the Forest Service could save 30 cents on every dollar now spent on what she said are often duplicating efforts.
“This is fundamentally a process that doesn’t need a long detailed analysis,” she said. Asked if the changes would result in more logging, she replied, “We can’t say it’s going up or down or sideways or the same.”
The proposal, crafted with White House oversight, described the Clinton rules as too complicated and “neither straightforward nor easy to implement.”
Chris West, vice president of the timber industry’s American Forest Resource Council in Portland, Oregon, said the proposal restores a common sense approach to balancing environmental and economic interests.
“What you’re not going to have is a bunch of time wasted and opportunities for environmentalists to be obstructionists at a macro-planning level,” West said.
Bush and Western lawmakers in both parties pushed measures in Congress this year to cut down excess trees they blamed for fueling wildfires that blackened more than 6.5 million acres this year.
Last year, the new administration declined to appeal a judge’s decision overturning Clinton regulations putting nearly 60 million acres of undeveloped forestland off limits to road-building and timbering.
The new proposal would specifically allow local federal forestry officials to develop or alter management plans for the land they supervise without having to first conduct an in-depth environmental impact study.
The administration said those management plans are essentially a zoning document, and that it would be better to conduct environmental studies on a case-by-case basis when specific threats to wildlife are anticipated. A regional forester, however, still could decide that a management plan itself has significant environmental impacts, triggering the need for a study.
Specific standards and procedures for maintaining and monitoring wildlife populations would be eliminated, with broad goals substituted in their place.
The proposal would end the Clinton administration’s controversial planning regulations that emphasized ecological sustainability over economic and social needs.
The proposed rule can be found at: www.fs.fed.us/emc/nfma/final120602.pdf
For further information, contact Jody Sutton at (801) 517-1023.
Comments on this proposed rule must be received in writing by March 6, 2003. Send written comments to: USDA FS Planning Rule, Content Analysis Team, P.O. Box 8359, Missoula, MT 59807; via email to email@example.com; or by fax to Planning Rule Comments at (406) 329-3556.
• Among the numerous bills that died when Congress adjourned...
HR 1811 would have required the federal government to fully fund the Payment-in-lieu of Taxes program at $300 million. This program is designed to reimburse local and state governments for lost tax revenues when the federal government makes lands off-limits for national parks or similar designations.
HR 3258 would have prevented BLM from basing right-of-way (ROW) fees on the value of a user’s business. The Clinton administration had attempted to use this evaluation with fiber optic companies. However, BLM issued a memorandum back in May 2003 that instructs offices to base these fees on the value of the land, so it is already complying with the intent of HR 3258.
HR 1462 would have created a $100 million per year weed management program.
HR 4968 would have created an exchange of 133,000 acres of federal government land suited to mineral and gas exploration to Utah for 108,284 acres of other lands in the state.
• More on the ESA
The Endangered Species Act (ESA) may finally get a much-needed overhaul.
With the change in leadership in Washington, D.C., it is more likely that we may see some type of legislation to control the out-of-control ESA.
It’s expected that Senator James Inhofe (R-Oklahoma) will be the new chairman of the Senate Environment Committee, taking over from the ally of environmental extremists, Senator James Jeffords (I-Vermont).
Retiring House Resources Committee Chairman James Hansen (R-Utah) introduced HR 5709 back on November 12, which would have exempted all plant life, military lands, and private property from the ESA. Many expect Representative Richard Pombo (R-California) to take over as Chairman of this House Committee, and Pombo has been even more critical of the ESA.
• Miners must present proof of filing, says IBLA
Interior Board of Land Appeals Administrative Judge C. Randall Grant ruled that BLM can declare claims forfeited if it does not receive the maintenance fee payment or waiver, and the appellant cannot provide sufficient evidence of proof of compliance.
In this particular case, the appellant argued she filed a waiver form along with a proof of labor form in the same envelope. BLM argued that they did not receive a maintenance fee or waiver form, and there was no such evidence in her file. The appellant did not have a receipt or other evidence to prove her case. Her mining claims were declared forfeited by BLM. Case: Hosko, 158 IBLA 4 (November 5, 2002).
This should be a reminder to all miners that you need to send two copies of each document, by registered mail, with a postage paid return envelope, and a letter requesting that one set of documents be time stamped and returned in the provided envelope. Of course the safest option is to personally deliver your paperwork to the BLM office to get it stamped as received. If you are mailing your documents by registered mail, make sure you send them early enough that you have time to send another set if unforeseen problems arise (i.e., lost in the mail).
IBLA decisions, up to 50 pages at a time, are available free of charge. Additional pages are 10 cents per page. Contact: Interior Board of Land Appeals, 4015 Wilson Blvd., Arlington, Virginia 22203. Their phone number is (703) 235-3799.
• Federal government backs mining project
At the request of the Bureau of Land Management, federal government lawyers filed an opinion that states local officials in Washoe County, Nevada, exceeded their authority when they rejected a permit for the Oil-Dri clay mine and plant earlier this year.
In the opinion, the government argues that the 1872 Mining Law bars local governments from restricting mining activity on federal land.
Chicago-based Oil-Dri of America, the world’s largest producer of cat litter, seeks to dig clay from two open pit mines on BLM land near Hungry Valley and to manufacture cat litter and other absorbent materials in a plant located on adjoining private land. A special-use permit for the project was opposed by nearby residents and the Reno-Sparks Indian Colony and was rejected February 26 by the Washoe County Commission. Oil-Dri sued the county in April, seeking unspecified damages.
Although commissioners may have had authority to deny the processing plant on private land, the brief argues that the county “issued a de facto ban on mining on the federal land” without legal authority to do so.
Bob Vetere, vice president and general counsel for Oil-Dri, said the brief strengthens his company’s position in its lawsuit against the county.
“It’s one I could have written myself,” Vetere said. “I hope that the court takes their guidance to heart. We certainly think they’re right on.”
But Assistant District Attorney Madelyn Shipman said she’s confident the county remains on strong ground in its legal battle with the mining company.
She said Oil-Dri pursued its plans for both private and public land under a single permit application and that commissioners acted within their authority to deny the permit because of environmental and land-use concerns.
• Appeals Court says Clinton roadless rule can stay
The 9th US Circuit Court of Appeals reversed a temporary injunction, saying the Forest Service had met all the legal requirements in developing the Clinton roadless rule that banned road building in about 58 million acres of federal forest.
Lawsuits were initially filed by timber, tribal, recreation, and property rights groups to block the rule that Clinton signed on his last day in office. The Bush administration declined to defend the rule, but several environmental groups intervened.
U.S. District Judge Edward Lodge had issued a temporary injunction halting the rule and stated that the Clinton plan skirted environmental rules required under the National Environmental Policy Act, did not allow the public sufficient time to comment, and failed to consider other alternatives to protect forest lands.
By a 2-1 vote, the 9th Circuit reversed Lodge’s temporary injunction, saying the Forest Service had met all the legal requirements in developing the road ban.
Mark Rey, an Agriculture Department undersecretary who oversees the Forest Service, said officials were reviewing the 9th Circuit decision. He acknowledged a road ban will take effect, although there could be changes to the one challenged in court.
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