Culhane, Paul J.

Friesema, H. Paul

English

Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons The Federal Land Policy and Management Act (Summer Conference, June 6-8) 1984 6-6-1984 The BLM Planning Process: Chasing the Rabbit H. Paul Friesema Paul J. Culhane Follow this and additional works at: https://scholar.law.colorado.edu/federal-land-policy-and-management-act  Part of the Administrative Law Commons, Constitutional Law Commons, Courts Commons, Environmental Law Commons, Forest Management Commons, Land Use Law Commons, Law and Economics Commons, Legal History Commons, Legislation Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Oil, Gas, and Mineral Law Commons, Property Law and Real Estate Commons, Public Policy Commons, Recreation, Parks and Tourism Administration Commons, and the State and Local Government Law Commons Citation Information Friesema, H. Paul and Culhane, Paul J., "The BLM Planning Process: Chasing the Rabbit" (1984). The Federal Land Policy and Management Act (Summer Conference, June 6-8). https://scholar.law.colorado.edu/federal-land-policy-and-management-act/4 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     H. Paul Friesema & Paul J. Culhane, The BLM Planning Process: Chasing the Rabbit, in THE FEDERAL LAND POLICY AND MANAGEMENT ACT (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1984).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  THE BLM PLANNING PROCESS: CHASING THE RABBITProfessor H. Paul Friesema Professor Paul J. CulhaneCenter for Urban Affairs & Policy Research Northwestern UniversityTHE FEDERAL LAND POLICY AND MANAGEMENT ACTFifth Annual Summer Program Sponsored by the Natural Resources Law Center, University of Colorado School of Law, June 6-8, 1984I. INTRODUCTIONA. The Federal Land Policy and Management Act (FLPMA) authorizes the Bureau of Land Management to conduct comprehensive land use planning as the central facet of it s  d istrict-level resource decision making. This land use planning process is  to include public participation.B. As we argued early in the FLPMA era, the FLPMA planning process comingles what decision theorists call “rational- comprehensive" decision procedures with other, highly politicized procedural requirements. P. Culhane andH. P. Friesema, 19 Nat. Res. J. 43-74 (1979).C. The classic version of "rational-comprehensive" decisionmaking is  a four-step process: (1) decision-making consensuson goals --  a preference function is  assumed to exist;(2) decision makers identify all possible alternative programs or decisions; (3) they identify all consequences of each alternative; and (4) using some appropriate decision calculus, they select the optimum alternative.0. C ritics of the rationalist model, beginning with Charles Lindblom, have pointed out the flaw in the assumption of th is model —  in political decision making, participants often disagree, a p r io r i, on goals or an ordering of objectives. C. Lindblom, 19 Publ. Admin. Rev. 79-88 (1959). As Professor Charles Anderson of the University of Wisconsin aptly notes, step #1 in the rationalist model is  "like  the famous recipe for rabbit stew that begins,'Catch the rabb it '." 73 Amer. Pol. S c i. Rev. 712 (1979).-1 -I I .  THE RESOURCE MANAGEMENT PLANNING PROCESSA. The primary statutory base of the BLM planning process is  Federal Land Policy and Management Act of 1976, 90 Stat. 2743,43 U.S.C. §§1701-1782.1. FLPMA §102(a)(2) declares the congressional policy that management policy for BLM lands is  delegated to the land use planning process of FLPMA §202.2. FLPMA §202(a) states,"The Secretary [of the Interior] shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands."3. The remainder of §202 does not specify the details ofthe planning process, but mandates multiple use management, coordination with other agencies' plans, "a systematic, interdiscip l inary approach," public involvement (again), and other general principles.4. The BLM planning process is  also affected by other substantive statutes (e.g., The Public Rangelands Improvement Act of 1978, the Wilderness Act of 1964).B. FLPMA's planning mandate codifies BLM land use planning practices that had evolved during the 1969-76 period with­out explicit statutory authority. Pre-FLPMA "management framework plans" (MFPs), covered about 80% of BLM lands outside of Alaska by the time of the passage of FLPMA in 1976. BLM planning practice was, to a certain extent, modelled on Forest Service "multiple use planning"-2-procedures. Thus, notwithstanding changes in nomencla­ture and formal regulations, some form of land use planning had become a standard operating procedure in the BLM prior to FLPMA. But Resource Management Plans d iffer in some fundamental ways from MFPs. Cf. Culhane and Friesema, 19 Nat. Res. J. 43-74 (1979); S.T. Dana and S.K. Fairfax, FOREST AND RANGE POLICY (2nd ed.) (McGraw-Hill, 1980).C. The current BLM planning process is  governed by regula­tions which became effective July 5, 1983. U.S. Depart­ment of the Interior, "Planning, Programming, Budgeting: Planning," 42 C.F.R. Subpart 1601 et seq, 48 Fed. Reg. 20364-20375 (May 5, 1983).D. Because of the long planning process no currently avail­able resource management plans have been completed under these new regulations. The existing RMPs were prepared under regulations from the Carter administration (1979).E. Most of the land use plans in actual use now and for some time to come are (often amended) Management Framework Plans initiated or even completed prior to the passage of FLPMA (1976).F. Section 1610.4 of the new regulations prescribe a process that is  to take place at the BLM d istr ic t level with the resource area as the principal planning unit:1. Identification of the issues that BLM d istr ic t and area managers shall address in the planning process. This step, which is  integrated with the "scoping" phase of the NEPA process (see below)- 3-is  open to public, intergovernmental, and inter­agency participation.2. BLM managers prepare " planning c r ite r ia ," that is,a l is t  of planning constraints resulting from public law, national and state-level agency policies, other agencies' or governments' plans, and so forth.3. Area managers and staff collect and assemble inven­tory data for use in the planning process.4. Analysis of the management situation -- planners prepare a determination of the physical and bio­logical capability of a resource area to meet the demands identified in prior steps, national or state objectives set for the area, and so forth.5. "A ll reasonable resource management alternatives shall be considered and several complete alternatives developed for study." § 1610.4(5), underscoring added.6. "The D istric t or Area Manager shall estimate and display the physical, b io lo ig ical, economic, and social effects of implementing each alternative considered in detail." § 1610.4(6), underscoring added.7. BLM managers shall select a preferred alternative for identification in the draft plan/EIS.8. After consideration of comments received on the draft, the d istr ic t  manager shall recommend to the BLM state director a resource management plan and final EIS.-4-9. Monitoring and evaluation of the plan implemented. This is  an elaboration and specification of plan­ning stages which has evolved over the years of land use planning in the agency. It  is  very con­sistent also with the requirements of NEPA.I I I .  RESOURCE MANAGEMENT PLANNING AND THE NEPA PROCESS.A. Section 1601.0(6) of the 1983 BLM planning regulations defines resource management plans as "major federal actions significantly affecting the quality of the human environment," thus categorically subjecting these plans to the environmental impact statement (EIS) requirment of the National Environmental Policy Actof 1969, 42 U.S.C. 4321 et seq.B. Land use plans (MFPs) prepared prior to FLPMA were not integrated into the NEPA compliance process. Unlike the other land managing agencies, BLM sought to comply with NEPA at the later "activity plan" stage of its  efforts.C. The old Management Framework Plans (as the new Resource Management Plans) were designed to be broad conceptual documents, not detailed activity plans. EISs were written on specific functional activ ities carried out within the "framework" of the land use plan -- such as a grazing pro­gram, coal leasing program, or wilderness study.D. The linking of the land use plan to the preparation of an environmental impact statement is  a major change in the land use planning process within BLM. This was begun under the Carter regulations and is  continued under the Watts era regulations.- 5-E. One major implication of the § 1601.0(6) EIS requirement is  to increase access to the BLM planning process.1. BLM's old MFP documents were not freely available outside the locale of the agency's d istr ic t  offices; thus, BLM's comprehensive land use planning process was open, as a practical matter, chiefly to local user groups.2. EISs, by contrast, are widely available. Thus, the BLM planning process is  now accessible to regional and national interest groups, other federal agencies, and state government agencies.3. BLM's final RMP EISs filed to date demonstrate that a wide range of participants are availing themselvesof the opportunity to participate in resource management planning decisions.F. Another major implication of linking of the RFM with an EIS may be to reduce the EISs on more functional, specific and detailed plans and activ ities concerning grazing, minerals leasing, etc. Because of the logic of tiering, it  may be possible to comply with NEPA by preparing environmental assessments with activ ities and activity plans conceptu­a lly  considered in the RMP. This may shield many details of agency proposals from public scrutiny. But this resale is  like ly  to in itiate  a major conflict.IV. PUBLIC PARTICIPATIONA. FLPMA § 202 twice mandates public participation in land use planning -- in the opening sentence of the section, quoted supra, and in § 202(f).-6-B. The earlier regulations implementing FLPMA provided an array of opportunities for public participation in the preparation of Resource Management Plans. BLM seemedto adopt the sp ir it  as well as the letter of this public participation requirements, actively seeking broad in­volvement and participation.C. Formal and broad public participation processes have tended to advantage environmental groups rather than consumptive user groups. Cf. P. Culhane, PUBLIC LANDS POLITICS, 242-244 (Johns Hopkins University Press, 1981).D. The Reagan administration era rewriting of the FLPMA regulations began with the goal of simplifying the land use planning process in general, and reducing the public participation and intergovernmental input into agency decision making, in particular. The draft regulations provided that the public participation requirements would be the NEPA requirements and regulations of CEQ in imple­menting NEPA and nothing more.E. There was serious opposition to reductions in public par­ticipation in the RMP process. Probably because of the unambiguous importance attached to public participation in FLPMA, the final regulations restore many public par­ticipation opportunities.F. Adequate notice of upcoming planning decisions must be provided in newspapers and the Federal Register, andto a mailing l i s t  of interested individuals and groups.- 7-G. Formal opportunity for participation must be provided at several key points in the planning process:1. At the beginning of the planning process, in preparation for the identification-of-issues stage in the process;2. As a review of the proposed planning criteria  to be used in the process;3. After the publication of the draft plan/EIS, and after the publication of the final EIS/pl an.4. Finally, protest procedures provide a avenue for intra-departmental appeal of the final plan (with judicial review another avenue).H. FLPMA has a provision that the BLM is  "to the extent con­sistent with the laws governing ... the public lands, [to] coordinate the land use inventory, planning, and management activ itie s with the land use planning and management programs of other Federal departments and agencies and of the states and local government with which the lands are located FLPMA 202 (c) ( 9 ) .  This is  generally referred to as the consis­tency and coordinating requirement.I. Western governors and other local government groups have in­sisted upon more input into land using planning efforts of BLM, not less. The recent BLM policy of trying to be respon­sive to western state and local government interests has con­flicted with the goal of simplifying and reducing participation in BLM planning.-8-J. The new regulations develop complex and elaborate procedures for complying with the consistency and coordinating requirements of FLPMA (1610.3-1 and 1610.3-2).K. Thus the attempt to simplify, regularize and reduce the public and inter-agency review of BLM plans has ended with regulations which add complexity, perhaps some vetoes, and often seem to invite lit igation .L. The RMP/EIS requirements and the related planning effort are very consequential for agency activ ities. The staffing and work patterns of the field offices are organized around these planning mandates. Producing these type of plans seem to be the preeminent agency activity. But it  is  by no means certain i f  these planning processes will be able to resolve fundamen­tal conflicts over resource uses of the public lands.V. CONCLUSIONSA. The BLM planning process has many characteristics of the c lassic rational-comprehensive decision model. A comprehensive range of alternatives and consequences mustbe surveyed. Large amounts of inventory data must be collected. As an aid to comprehensiveness, "in terd iscip l inary" methods grounded in the "physical, biological, economic, and other sciences" must be employed. And so forth.B. Yet, FLPMA and the 1983 Interior regulations on the planning process also provide for access to the planning process bya broad range of interested parties. Thus, while instructing it s  local managers to act out the subsequent steps in the- 9-rational-comprehensive decision sequence, BLM has provided the opportunity to undermine the necessary f irs t  step -- the development of agreed-upon goals. Many groups have quite divergent preferences about the proper management of BLM lands, and they all now have full access to the planning process. But the planning process does not provide a vehicle for resolving these conflicts over goals.C. The ab ility  to challenge agency goals has become so wide­spread that it  threatens the agency with decisional paraly­s is  (for a somewhat parallel argument concerning decisional paralyses within the Forest Service planning process, see R.W. Behan, "How to Starve a Lawyer: A Modest Proposalfor an Alternate Strategy for Public Involvement," Society of American Foresters Annual Meeting, October, 1980).D. Over time it  may be possible to use the planning process to arrive at some consensus over agency purposes and goals among the diverse groups trying to influence BLM decisions. But for now it  appears that d istr ic t  and area managers will have years of trying to "catch the rabbit."-10-

The BLM Planning Process: Chasing the Rabbit

https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1002&context=federal-land-policy-and-management-act

The BLM Planning Process: Chasing the Rabbit

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