The Birth, Death, and Afterlife of the Wild Lands Policy: The Evolution of the Bureau of Land Management's Authority to Protect Wilderness Values

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I.     INTRODUCTION  II.    OVERVIEW AND HISTORICAL BACKGROUND         A. The Wilderness Act        B. The Federal Land Policy and Management Act        C. BLM's Section 603 Inventory and WSA Recommendations        D. Section 603 WSA Management: Nonimpairment        E. Section 202 WSAs        F. Section 202 WSA Management: Modified Nonimpairment and           Revocable Protection  III.   THE UTAH LITIGATION        A. Reinventory        B. Litigation and Settlement  IV.    POST-SETTLEMENT CASE LAW        A. District Court Decisions        B. The Ninth Circuit Ushers in a New Era  V.    THE WILD LANDS POLICY        A. Inventory        B. Land Use Planning        C. Project Level Decisions  VI.   THE DEATH AND AFTERLIFE OF THE WILD LANDS POLICY  VII.  CONCLUSION 

I. INTRODUCTION

When Congress passed the Wilderness Act in 1964, (1) it addressed only lands managed by the United States Forest Service, United States Fish & Wildlife Service, and National Park Service, not the 66% of all public land then managed by the Bureau of Land Management (BLM). (2) A dozen years later in 1976, Congress enacted the Federal Land Policy and Management Act (FLPMA), (3) creating BLM's authority to manage and protect wilderness. Section 603 of FLPMA directed BLM to identify its lands possessing wilderness values, then study and recommend to the President and Congress acres suitable for permanent wilderness preservation by 1991. (4) However, the statute did not clearly outline BLM's post deadline authority to evaluate its lands for wilderness values or describe how the agency should balance those values against other uses. (5) In the two decades since FLPMA's wilderness deadline, BLM has narrowed its interpretation of this ongoing authority. (6)

BLM completed its section 603 inventory in 1980, identifying wilderness characteristics on only about twenty-three million acres, or 13%, of the 174 million acres it managed outside Alaska and the Oregon & California Grant Lands. (7) BLM divided those acres into 919 wilderness study areas (WSAs), and as directed by section 603 of FLPMA, managed them "so as to not impair their suitability" for subsequent congressional wilderness designation. (8) After studying each WSA's wilderness characteristics, in 1991 BLM recommended to Congress that 9.6 million acres--only 5% of all BLM-managed land outside Alaska--were "suitable" for designation as wilderness areas. (9) Today, Congress has yet to act on thirteen million acres of WSAs. (10) Until Congress makes final decisions on the remaining WSAs, BLM must manage them under a "nonimpairment" standard. (11)

After completing the section 603 inventory in 1980, BLM continued to identify lands with wilderness characteristics in its general resource inventories required under section 201 of FLPMA. (12) Both during and after the section 603 wilderness review, BLM interpreted section 202 of FLPMA, its land use planning authority, to authorize WSA designation and protection on certain units of land with wilderness character smaller than 5,000 acres. (13) BLM managed these WSAs under a modified nonimpairment standard that the agency, not just Congress, could alter through land use planning. (14)

In 1996, during the Clinton Administration, BLM reinventoried 3.1 million acres of Utah public land that, during the original section 603 wilderness inventory, the agency had determined lacked wilderness character. (15) The state of Utah challenged BLM's authority to reinventory and protect acres it had earlier found lacking wilderness character. (16) The litigation culminated in a 2003 settlement agreement in which BLM, now under management of new Interior Secretary Gale Norton, reversed its longstanding position regarding its authority to designate WSAs under section 202. (17) BLM agreed with the State that the agency's duty to identify and protect wilderness values expired with the 1993 deadline for presidential recommendations set by section 603. …