When I was nominated for Congress some years ago, the management of public lands was a significant campaign issue. The federal government owns most of the land and resources in Colorado’s 3rd district, which encompasses most of the Western Slope and Southern Colorado. All the major candidates had ideas about how to improve public land management, and it was frequently discussed on the campaign trail by Gregg Rippey, Matt Smith, and me, as well as the eventual winner, John Salazar. We all wanted a more collaborative approach, giving local communities a stronger voice in Congress on these issues.
Today, one wonders whether Congress has anything to do with public land policy. Both Houses have standing committees with jurisdiction over natural resources, and they hold frequent hearings on public lands legislation. Such bills rarely pass in today’s divided Congress, so land managers no longer wait for congressional action on any major initiative. If any new policy suits a president’s agenda – any president of either party – it is simply announced and implemented, by White House executive orders, or directives from department heads and bureau chiefs. It is assumed, nay declared, to be legal whether or not Congress ever created such authority.
That is the reality of today’s federal land management system. It operates by administrative edicts, not laws.
On rare occasions, federal courts may strike down administrative directives, ruling that officials exceeded their legal authority. Our readers know, for example, that the Supreme Court recently struck down a decade of administration attempts to define “waters of the United States” to include nearly every drop of water in the country. Similarly, a panel of the 9th Circuit Court of Appeals vacated the administrative “moratorium” on federal coal leases, citing the law that clearly requires such leasing absent additional withdrawals, which Congress has not enacted. That is a significant ruling for the West, especially Wyoming, which produces over 40 percent of the coal in America, nearly all of it on federal lands. Still, do not expect major new coal leases to be issued by an administration completely opposed to coal.
Court rulings and congressional enactments notwithstanding, the last two years have seen coal production decline from 1.3 billion tons to 870 million. The Bureau of Labor Statistics says U.S. coal mining employment has shrunk by over half. Fifteen years ago, coal supplied more than half America’s electricity, but today accounts for less than 20 percent, replaced mainly by natural gas in the face of federal regulations. Whether such restrictions were warranted by climate concerns is a legitimate debate, but the point here is that most of the war on coal was waged by administrative directives, not by congressional action. The coal moratorium was initiated by the Obama Administration in 2016, repealed by the Trump Administration, reinstated by a federal court, and now vacated by another – none of that involved Congress.
Mineral leasing is the tip of the iceberg of federal land policies that ignore Congress. The Interior Department just released a new conservation plan for the greater sage grouse that will alter the management plans for 60 million acres of BLM and National Forest lands across 10 western states, a plan BLM’s Director calls “the largest collaborative conservation effort in our history.” The “monumental initiative” will wall off vast swaths of public land from oil and gas production, mining, grazing, and other economic activity. The same agency also announced new restrictions on 2.1 million acres of Colorado and Utah to “enhance ecological integrity” for the Gunnison sage grouse.
The Interior Department also just created the latest national wildlife refuge, a 4-million-acre preserve in the Everglades. The wildlife refuge system began with an executive order of President Theodore Roosevelt and now encompasses 155 million acres, an area virtually the size of Texas. There 571 national wildlife refuges, not one of which was created by Congress. Designations within those same public lands also include 3 biosphere reserves, 10 national historic landmarks, 43 national natural landmarks, 72 national recreation trails, 13 wild and scenic rivers, 207 research natural areas, 74 wilderness areas, and at least 1 world heritage site. Few of them were created by Congress, nor were the nearly 300 national monuments created by presidential executive orders.
On the campaign trail in 2004, not one person at any event ever said to me, “You know, Congress really has little to say about public land policy.” If that’s right, as it appears to be, I wonder if BLM Directors and Interior Secretaries should be elected instead.
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