Federal Land Policy and Management Act (1976)
Federal Land policy and Management Act (1976)
William V. Luneburg
Excerpt from the Federal Land Policy and Management Act
The Congress declares that it is the policy of the United States that ... the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts.
The land west of the Mississippi River was acquired by the United States by conquest, treaty, and purchase during the first seven decades of the nineteenth century. Even today hundreds of millions of acres located within the lower forty-eight states and Alaska remain the property of the federal government, subject to the plenary, or absolute, constitutional authority of Congress to provide for its disposition, regulation, and protection. Various federal agencies have been assigned the statutory authority to manage this land. One of those agencies is the Bureau of Land Management (BLM), formed by a merger in 1946 of the Grazing Service and the General Land Office and located in the Department of the Interior. The BLM is now in charge of 261 million acres of the public domain. Of that, 176 million acres located in western states (excluding Alaska) are rangelands for 90 percent of which livestock grazing is approved.
Between the federal acquisition of the land in the West and 1938, ranchers freely grazed livestock, both cattle and sheep, on the public domain. As the herds grew, forage scarcities developed and were aggravated by droughts, blizzards, and homesteading. Overgrazing became a continual problem, one that provoked a variety of reactions including violence on the range and calls for congressional regulation. While bills were routinely introduced in Congress even prior to 1900 to deal with the issues created by livestock grazing on federal land, it was not until the development of the Dust Bow| of the 1930s that Congress mustered the will to overcome political opposition to enact the Taylor Grazing Act of 1938. That statute aimed to "stop injury" to the public land from overgrazing and soil deterioration and to improve the range—goals that have ever since been the consistent theme of public land legislation, although they have yet to be fully realized in practice. The Secretary of the Interior was given the authority to create grazing districts, to determine the amount of land in each that could be subject to grazing, to issue permits to graze livestock on the land, and to charge fees for those permits.
With few statutory standards in the Taylor Grazing Act to limit its discretion, the BLM generally accommodated ranchers' desires without focusing on improvement of range condition. As a result, rangeland productivity continued to suffer. Yet for several more decades, BLM "management" was not a matter of intense public debate. That all changed, however, during the 1960s and 1970s as aggressive environmental and conservation organizations came into existence and called for drastic changes in the BLM's approach. During this period, litigation in the federal courts was a potent force for change in the way federal agencies dealt with natural resource and environmental issues, and the regulation of public rangeland was no different in that regard. The seminal case was decided in 1974, Natural Resources Defense Council v. Morton, where the court ordered the BLM to prepare environmental impact statements (a type of cost/benefit analysis) for livestock grazing on over 140 million acres of public land pursuant to the National Environmental Policy Act of 1969. While Congress had long ignored the BLM's stewardship of public land, the result in this case made it difficult for the legislature to duck the issues presented regarding the adequacy of federal land management. Moreover, the BLM itself had been pressing Congress to give it a comprehensive "organic" statute; the agency had labored since its inception under hundreds of unrelated and often conflicting laws. The result of these pressures was the Federal Land Policy and Management Act of 1976 (FLPMA) (P.L. 94-579, 90 Stat. 2743), which does not repeal but rather operates in tandem with the Taylor Grazing Act.
PROVISIONS OF THE FLMPA
At the outset of the FLPMA, Congress sets forth thirteen ambitious (and not always consistent) policies, including that the public lands should remain in federal ownership unless the national interest requires disposition, that those lands should be inventoried and managed through a planning process, that management of the lands should be on the basis of the principles of multiple use and sustained yield and "in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values," and that the United States should receive fair market value in exchange for the use of the public lands and their resources by private persons.
The specific provisions of the FLPMA that follow the initial declaration of congressional policies encompass numerous and diverse subject matters, including:
- the organization of the BLM and the creation of authority to implement the statute through the issuance of rules and the commencement of civil actions in the courts to enforce those regulations;
- the development of land use plans;
- restrictions on sales and acquisitions of public land, exchanges of federal land for private land, and withdrawals of federal lands to limit their use;
- range management (e.g., grazing permits and fees); and
- the grant and renewal of rights-of-way across federal land (e.g., to build an oil pipeline).
Of particular importance are the statutory mandates directed to the BLM first to inventory the public lands under its control for the resources and "values" (e.g., for grazing, for recreation, etc.) they potentially offer and then to divide those lands into various areas for each of which a plan must be devised determining the use or uses to which the area will be put for a period of time. The FLPMA rejects grazing as necessarily the dominant use for rangeland, opting instead to require that the BLM plan and manage on the basis of "multiple use and sustained yield" (MUSY) principles that have, since at least 1960, governed the management of the National Forest System by the Forest Service located in the Department of Agriculture. MUSY does not offer a fixed formula for determining the use of land. Rather, it requires the agency to survey all the feasible uses of an area (e.g., grazing, wildlife, recreation, timber), giving each use equal weight, and to choose the one or ones that maximize the land's present value (not necessarily monetary) without impairing the land's ability to provide benefits of various kinds in the future. Once the BLM has approved a land use plan for a particular area, then any management actions later taken by the agency with regard to that land, including issuance of grazing permits, must be consistent with the plan.
CHALLENGES AND ADDITIONS TO LAND MANAGEMENT POLICY
Subsequent to the enactment of the FLPMA, Congress attempted to further specify the required approach to range management. One pertinent statute is the Public Rangelands Improvement Act of 1978, which establishes range condition improvement as the first priority.
As the BLM has accumulated authority to manage federal land under multiple use principles and range improvement mandates, its actions have been challenged by ranchers fearful of the effect on their grazing privileges. However, so far the Supreme Court has rejected those legal arguments on a variety of bases, including that the agency has substantial discretion to limit grazing privileges consistent with governing land use plans (Public Lands Council v. Babbitt ).
See also: National Forest Management Act.
Foss, Phillip O. Politics and Grass: The Administration of Grazing on the Public Domain. Seattle: University of Washington Press, 1960.
Nelson, Robert H. Public Lands and Private Rights: The Failure of Scientific Management. Lanham, MD: Rowman & Littlefield, 1995.
Wilkinson, Charles F. "The Rancher's Code." In Crossing the Next Meridian: Land, Water, and the Future of the West. Washington, DC: Island Press, 1992.
Bureau of Land Management. <http://www.blm.gov/nhp/index.htm>.
The Dust Bowl
Beginning in the 1890s, farmers began to plow areas on the Great Plains that were previously considered too arid for anything but grazing livestock. The practice accelerated after World War I as the demand for wheat increased and tractors and combines became common. Before they were plowed, these lands were covered in buffalo grass, whose roots trapped water and held the soil in place. With the grass removed the soil was easily picked up by the wind, setting the stage for ecological disaster. In the mid-1930s, in a 300,000-square mile area that became known as the Dust Bowl, "black blizzards" drew the topsoil into swirling clouds of dense brown fog. Crops were buried or torn out at the roots, and cattle were choked. The dirt clogged engines and infiltrated homes, despite wet blankets hung over windows. Hospitals reported "dust pneumonia," and some farmers caught by unexpected storms suffocated in their fields. One storm covered an area nine hundred miles wide and fifteen hundred miles long and dropped an estimated 12 million tons of soil on Chicago. In April and May of 1934 alone, 650 million tons of soil were blown off the plains. During the 1930s, more than 350,000 people were driven from their homes in the the afflicted areas, which included Kansas, Texas, Oklahoma, Colorado, and New Mexico. Many of the refugees settled in California.
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