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Legal Alerts | December 20, 2016 BLM and Forest Service Planning Regulations

BLM Planning Regulations

On December 12, 2016, the Bureau of Land Management (BLM) issued sweeping new regulations regarding the procedures used to prepare, revise, and amend land use plans. Land use plans, known as resource management plans (RMPs), are the basic guidance and management plans for BLM-managed lands or resources. As described in the preamble to the new regulations, “[l]and use planning forms the basis of and is essential to, everything that the [BLM] does in caring for America’s public lands.” 81 Fed. Reg. 89,580 (Dec. 12, 2016). Under the Federal Land and Policy Management Act of 1976 (FLPMA), the BLM is required to develop land use plans in coordination with state, local, tribal governments, and the public to manage public lands in accordance with FLPMA’s multiple use and sustained yield mandate. 43 U.S.C. § 1712.

The BLM asserts that the new regulations do not fundamentally modify the existing land use planning process but instead improve a planning process the BLM characterized as “cumbersome.” 81 Fed. Reg. at 89,581. The new regulations alter the previous planning regulations in several important aspects. First, the new rules provide increased opportunity for the public to submit information and comments on a plan revision or amendment early in the process by: encouraging the submission of information by the public during the preparation of the planning assessment; requiring the BLM to conduct a preliminary review of the existing conditions within a planning area; and allowing the public to comment on the identification of the preliminary purpose and need for a plan revision or amendment and on preliminary resource management alternatives. 81 Fed. Reg. at 89,664 (to be codified at 43 C.F.R. § 1610.2-1). The new regulations leave intact the existing opportunities for the public to comment on draft RMPs and draft environmental impact statements and to submit protests regarding proposed RMPs and final environmental impact statements. Id.

Second, the new regulations are designed to provide the agency with greater flexibility regarding the geographic scope or emphasis of a planning effort. See 81 Fed. Reg. at 89,666 (to be codified at 43 C.F.R. § 1601.4). This flexibility will allow the agency to more easily develop RMPs that plan on a “landscape level” rather than a specific geographic area as is most commonly done under the former regulations. Notable recent examples of landscape level or resource-based planning efforts under the BLM’s prior planning regulations include the BLM’s planning process to provide greater protections for the sage-grouse that affected over 90 RMPS in 11 states and the BLM’s separate RMPs for wind energy, solar energy, and transmission corridors.

Third, the new regulations allow planning decisions to be removed from the state- and Field Office-level and be vested in the BLM Director. 81 Fed. Reg. at 89,662 (to be codified at 43 C.F.R. § 1601.0-4). Specifically, the new regulations authorize the BLM Director to designate the “deciding official” and the scope and scale of planning efforts, particularly when lands in more than one state are involved. Id. Similarly, the revised section 1601.0-4 allows the BLM Director to determine the geographic scale of a planning effort.

Fourth, the new planning regulations potentially diminish the importance and role of state and local land use plans. Under the old planning regulations, the BLM defined “officially approved and adopted resource related plans” to include plans, policies, and programs prepared by other federal, state, or local governments (43 C.F.R. § 1601.0-5(j)) and required the BLM to consider such plans in its RMPs (43 C.F.R. § 1610.3-2). The new regulations narrow the scope of local plans that the BLM must consider to officially adopted “resource-related” plans. 81 Fed. Reg. at 89,662 (to be codified at 43 C.F.R. § 1601.0-5).

Finally, the new regulations encourage the BLM to use “high quality information” when preparing, revising, or amending RMPs. 81 Fed. Reg. at 89,663 (to be codified at 43 C.F.R. § 1610.1-1(c)). High quality information includes the “best available scientific information” and information such as “traditional ecological knowledge.” 81 Fed. Reg. at 89599.

FLPMA requires the BLM to develop RMPs in coordination with state, local, and tribal governments. 43 U.S.C. § 1712. The BLM repeatedly states throughout the preamble to the new regulations that the regulations were developed with, and will honor the requirement for close coordination with, state, local, and tribal governments. 81 Fed. Reg. at 89,581. Nonetheless, on December 12, 2016, counties and local governments in California, Colorado, Idaho, New Mexico, and Wyoming filed litigation challenging the new rules in the District of Utah. Concerns raised in the lawsuit include coordination and cooperation with local governments.

Forest Service Planning Regulations

Additionally, on December 15, 2016, the Forest Service issued revisions to the 2012 Forest Service planning regulations. 81 Fed. Reg. 90,723 (Dec. 15, 2016). The 2012 regulations were the result of a decade-long effort to replace the Forest Service’s original 1982 planning regulations. Efforts to revise the regulations in 2005 and 2008 were met with litigation and eventual abrogation of the rules. The 2016 amendments to the 2012 planning regulations are designed to clarify how the 2012 rule’s substantive requirements (including requirements related to sustainability, plant and animal diversity, multiple use, and timber) should be utilized when amending or revising plans developed under the original 1982 regulations. The rules also provide greater discretion to the responsible planning official to determine the scope and extent of a plan revision or modification.

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