Bureau of Land Management National Conservation Areas: Legitimate Conservation or Satan's Spawn?
Kerr, Alex A., Salvo, Mark, UCLA Journal of Environmental Law & Policy
In the last third of the twentieth century, Congress saw fit to designate ten Bureau of Land Management ("BLM") national conservation areas ("NCAs") in eight western states. Unlike Wilderness or national parks or national wildlife refuges, Congress has never enacted general, uniform guidance to direct the creation and management of NCAs. There is no "National Conservation Area System." (1) Although there are similarities in the legislation establishing NCAs, each is the result of local politics and Congressional compromise.
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 These areas are usually withdrawn from location, leasing and sale under federal mining and geothermal development laws; motorized vehicles are generally limited to designated roads and trails;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. …