As it’s a complex piece of policy and politics, this is the first of two parts, the second of which will follow in a week.
Top Line: With a few critical tweaks, Senator Wyden’s legislation could be a net gain for the conservation of nature for the benefit of this and future generations. Without those tweaks, the bill as drafted is an existential threat to the conservation of federal public lands and should not be enacted into law.
Figure 1. Portions of Leslie Gulch would be included in the National Wilderness Preservation System. Source: Bureau of Land Management.
Senator Ron Wyden (D-OR) has long sought to negotiate a legislative deal with a plethora of public lands stakeholders in Malheur County, Oregon. These stakeholders include conservationists, tribes, local government, irrigation districts, various kinds of recreationists, fish and wildlife managers, and economic development boosters. Some of these stakeholders have some interests in common with other stakeholders. Some stakeholders have interests not in conflict with some interests of other stakeholders. Finally, some stakeholders have interests that are perceived to be an existential threat to the interests of some of the other stakeholders. In other words, a micro example of politics in America.
Fundamentally:
• Conservationists want conservation (aka wilderness designation).
• Tribes want land back and co-management of other federal land.
• Livestock concerns want even more “flexibility” to do what they want on federal public lands.
• Economic development boosters want anything they think will bring in money.
• Recreationists want more support for their favored form of recreation.
• Local government wants whatever livestock concerns and economic development boosters want.
(Regarding the latter, the best thing ever for Malheur County is to be in a state with legal marijuana within a short drive of most of the people in a state that doesn’t have legal marijuana. But I digress . . . )
Will Wyden’s fourth attempt at Malheur County federal land legislation be good enough to enact into law? Riffing on one of my favorite films, in this post we analyze the legislation in terms of the good, the whatever, and the bad. In Part 2 of this post, we will also analyze the ugly and the missing, and suggest an alternative.
Figure 2. Malheur County, Oregon. Source: Wikipedia
Malheur County: The Scene and the Senator
Demographically, the overwhelmingly vast majority of the ~32,000 people in Malheur County live in the greater Ontario-Nyssa-Vale-Adrian area. (The only other incorporated city in the county is Jordan Valley, with fewer than 200 people.)
Psychographically, though most Malheurians perceive themselves as living in a “rural” habitat, the US Census Bureau squarely places the county in the Ontario, Oregon-Idaho Micropolitan Statistical Area (along with Payette County across the Snake River), all part of the Boise Combined Statistical Area. Malheur County is a hard day’s drive to the state capital in Salem, which is located in another time zone.
Geographically, if Malheur County (Oregon’s second-largest county in land area) were a state, it would be slightly larger than Vermont and slightly smaller than Massachusetts. In terms of population, Malheur County’s is one-eighteenth that of Wyoming, the state with the smallest population. Of Malheur County’s 6,355,200 acres, 78.4 percent is public land, the vast majority of which is owned by the federal government. Other than a few small state parks, some Bureau of Reclamation lands, and a tiny bit of the Malheur National Forest, most public land is administered by the Bureau of Land Management (BLM), which oversees 69 percent of all land within the county.
Senator Ron Wyden has long wanted to conclude a grand bargain for public lands in Malheur County. He’s been persistent. As I have noted before, Wyden has stood successfully for statewide election in 1996, 1998, 2004, 2010, and 2016. In at least one of those elections, Wyden has at least gotten the most votes in each of Oregon’s thirty-six counties—save one. Last year, in 2022, Wyden again failed to carry Malheur County. I fear he’s now aiming for a local win in 2028.
Map 1. The official map referenced in S.1890. It’s quite a mess and unless it’s fixed will lead to unnecessary management issues down the trail. Brown would be wilderness, goldenrod are lands with wilderness characteristics, peach puff are wilderness study areas to be decommissioned, light blue are state lands, light green is national forest. Source: Senator Ron Wyden’s Office.
Will the Fourth Time Be the Charm?
In 2017, 2020, and 2022, Senator Wyden introduced legislation pertaining to public lands management in Malheur County. The trend has generally been toward improvement, but not always in a straight or smooth line.
In 2017, his proposed legislation was awful. See my Public Lands Blog post “Owyhee Canyonlands: Faux Conservation and Pork Barrel Development.”
In 2020, his proposed legislation was horrific. See my Public Lands Blog posts “L’Affaire Malheur, Part 1” and “L’Affaire Malheur, Part 2.”
In 2022, his proposed legislation had improved significantly but still needed work. See my Public Lands Blog post “Senator Wyden’s Owyhee Wilderness and More Legislation.”
On June 8, Senator Wyden introduced the Malheur Community Empowerment for the Owyhee Act (S.1890, 118th Congress). It is cosponsored by Senator Jeff Merkley (D-OR). The bill’s synopsis—“To provide for the establishment of a grazing management program on Federal land in Malheur County, Oregon, and for other purposes”—does not portend well. As is often the case with congressional legislation, it’s those “other purposes” that count the most.
Figure 3. Most, but not all, of the lands to be designated as wilderness in S.1890 are associated with the Owyhee River. Source: Bureau of Land Management.
The Good
The establishment of ~1.1 million acres of new wilderness areas (Table 1) to become part of the National Wilderness Preservation System (NWPS) is an unalloyed good. Currently, Oregon has 2,507,239 acres of lands in the NWPS, or 3.98 percent of the state. All adjoining states, including Idaho, have done much better. If S.1890 were enacted into law, the percentage of Oregon protected as wilderness would increase by 1.74 percent to 5.72 percent.
Figure 4. Two wilderness areas would be named in honor of Mary Gautreaux, Wyden’s longtime legislative staff and a legendary Oregon conservationist (see my Public Lands Blog post “Preremembering Mary Gautreaux, Oregon Conservationist”). I don’t think MG would have liked the naming of wilderness areas after her, but too bad. Source: Twitter.
The Whatever
The bill would, among other economic development measures, authorize significant expenditures of federal money:
• $2 million to the US Secretary of Transportation to upgrade the Owyhee Dam Road;
• $6 million to the Secretary of Transportation to establish the Succor Creek, Birch Creek, and Three Forks Scenic Loop Roads;
• $2 million to the US Secretary of Transportation to do a feasibility study for a Rail to Trails project, the Oregon Eastern Branch/The Oregon and Northwestern Railroad;
• $0.5 million to the US Secretary of Transportation to complete a feasibility study on how best to market communities or sections of Malheur County as the “Gateway to the Oregon Owyhee”; and
• $1 million to the Bureau of Reclamation (USBR) to work with firefighting entities in the county to upgrade the Jordan Valley Airstrip to support firefighting efforts.
Figure 5. The Bureau of Reclamation built and operates the locally iconic Owyhee Dam and Reservoir. Source: Gary Halvorson, Oregon Archives.
USBR would also get money to do feasibility studies on
• establishment of not more than two marinas on Owyhee Reservoir;
• improvements to existing Oregon state parks bordering Owyhee Reservoir;
• establishment of a network of hostelries in the county using former hotels and bunkhouses that are not currently in use; and
• improvement to private camps on the shore of Owyhee Reservoir.
Figure 6. Despite the name “Lake” Owyhee, lakes are natural, it’s a reservoir, not a lake. Source: Gary Halvorson, Oregon Archives.
As neither lodging networks nor firefighting are part of the USBR’s mission, these items appear to be a case of sloppy drafting.
The BLM would receive $2 million to facilitate land conveyances to the Burns Paiute Tribe and the Castle Rock Co-Stewardship Area (see “The Bad” below) but no additional funds for other directions in S.1890 to
• study and carry out recreation improvements on the Owyhee River below Owyhee Dam;
• study big game migrations in the Owyhee region;
• coordinate bighorn sheep management with state wildlife agencies; and
• provide for increased law enforcement in the Owyhee region.
Jeez, that’s a lot of economic development stuff, but whatever. A lot of this stuff to be studied won’t be found to be feasible. What is found to be feasible will tend to bring people (and their money) to Malheur County to see nature (although some parts of it are far more pristine than others). In the long run, more people coming and complaining about all those domestic livestock fouling public lands is better for nature and worse for public lands ranchers.
Human hordes from greater Boise have already discovered the Oregon Owyhee. Better to direct them to the right areas in nature and then exploit them as they pass through town with overpriced lattes, martinis (perhaps a local gin), steak dinners, day spas, and legal weed.
The Bad
The bill would result in livestock grazing being further exalted on BLM lands, a loss of BLM public lands, and a loss of BLM control over certain public lands.
Figure 7. Domestic livestock have caused more ecological damage than have the chainsaw and bulldozer combined. Source: Bureau of Land Management.
Exalting Grazing
S.1890 would establish a “Malheur County Grazing Management Program . . . to provide grazing permittees and lessees increased operational flexibility to improve the long-term ecological health (LTER)” of BLM holdings in Malheur County. LTER with respect to an ecosystem is defined as
the ability of the ecological processes of the ecosystem to function in a manner that maintains the composition, structure, activity, and resilience of the ecosystem over time, including an ecologically appropriate diversity of plant and animal communities, habitats, connectivity, and conditions that are sustainable through successional processes.
Who could be against “long-term ecological health?” In principle, of course. In practice, the fundamental problem is that domestic livestock—as a matter of fact—are never “ecologically appropriate” animals. And any native vegetation consumed by a meadow maggot is not available for Rocky Mountain elk, mule deer, bighorn sheep, pronghorn antelope, greater sage-grouse, butterflies, or any others of the “ecologically appropriate diversity” of native wildlife.
Figure 8. The proposed wilderness areas in S.1890 would protect important habitat for pronghorn (they are not actually “antelope”), including for the likes of this fawn. Source: Bureau of Land Management.
The Wyden bill proposes to use bovine bulldozers to “improve” LTER on BLM lands by giving grazing livestock operators “operational flexibility,” which with respect to grazing on federal lands is defined as
(A) a seasonal adjustment of livestock positioning for the purposes of that grazing pursuant to a flexible grazing use authorized under the program with respect to which written notice is provided; or
(B) an adjustment of water source placement with respect to which written notice is provided.
Under S.1890, increased “operational flexibility” would be granted as long as resource conditions were inventoried and then monitoring information was collected and analyzed, etc. The bill would allow a permittee or lessee to—with permission of the BLM—adjust the beginning and end dates of annual grazing permit use by up to two weeks on either end. Similarly, a permittee could move a “water structure” up to 100 yards from an existing such structure. As I read the bill, a permittee or lessee could vary the timing and/or location of domestic livestock grazing on an allotment as long as such did not end up causing more forage utilization than is allowed under the grazing permit.
“Operational flexibility” is one of the “tools” for “outcome-based grazing,” which is the latest grazing fad to allow one to appear to be doing something less damaging for the environment without doing the one thing that would actually work. That one thing is reducing—if not eliminating—the fodder-to-feces-producing fly-fetching animatrons that foul the public lands. The bill would codify into statute a misguided Trump administration policy entitled “Flexibility in Livestock Grazing Management.”
In theory, “outcome-based grazing” will result in less-damaging grazing. I don’t think such will result in less damage to native ecosystems. On the other hand, as long as livestock utilization numbers don’t increase, it should not result in more overall damage than occurs now.
Also established by the bill is a “Malheur C.E.O. Group,” a committee to further the grazing program. Membership is weighted in favor of local livestock and development interests. S.1890 would authorize $11 million for “projects” the “CEO group” could approve. However, if a project is not unanimously supported by the advisory group, federal money cannot be spent on the project and the project cannot be on federal land.
Figure 9. California bighorn sheep are found in several of the proposed wilderness areas in S.1890. Source: Bureau of Land Management.
Loss of Public Land
The bill would convey a total of ~32,000 acres of federal public lands to the Burns Paiute Tribe to be held in trust for them by the Secretary of the Interior. A loss of federal public land, even when transferred to a Native American tribe, is a loss to public lands and their conservation value. While I oppose any losses of public lands, I’m strongly in favor of the federal government giving Native American tribes money with which they can buy nonfederal lands that they formerly held. I’m also in favor of the federal government granting tribes the power of eminent domain (condemnation with compensation) to acquire unoccupied nonfederal lands.
(By the way, the language in S.1890 that conveys the public lands to tribal trust makes reference to the “Jonesboro Parcels” on a 1958 map particularly referenced in the bill. Said parcels are on another map referenced in the bill but not on that first map, which doesn’t cover the area where the parcels are located. Sloppy drafting.)
Co-Stewardship
S.1890 would establish a ~10,500-acre Castle Rock Co-Stewardship Area that would envelop the prominent landmark Castle Rock and be transferred to tribal trust. My problem with co-stewardship (or management) with tribal governments of federal public lands is the same as I have with co-stewardship/management with county or state governments.
While some tribal/county/state governments could be fine co-stewards/managers of federal public land, many would not. I could name tribes across the country that have demonstrated records of conservation stewardship and many other tribes that have not been good conservation stewards. As examples, a couple of tribes in Oregon are doing a superlative job of managing their own lands, while a couple of others are managing their lands in manners that are ecologically indistinguishable from nearby lands owned by industrial timber interests. As for other governments in our federal system co-managing/stewarding federal public lands, Multnomah (pronounced “PORT-land”) County maybe, Malheur County never; California maybe, Utah never. I could go on.
While the federal land management agencies all need to improve their stewardship/management, co-stewardship/management with another government is not the way to do it.
The Castle Rock Co-Stewardship Area would be managed in a manner that
(I) ensures that Tribal interests are adequately considered;
(II) provides for maximum protection of cultural and archaeological resources; and
(III) provides for the protection of natural resources with cultural significance.
The BLM, which would be the ultimate manager of this area, could “adequately consider” the tribe’s interests but still reject them (“having been thought about carefully”). I’m guessing that the tribe’s read of “adequately considered” is that its interests have been adequately considered only if these interests are honored in any decision.
As “co-stewards,” the Burns Tribe would be expressly denied any new water right associated with the co-stewardship area. Not quite “co-” in fact.
And existing cow-bombing “if established before [the co-stewardship area is established] . . . shall be permitted to continue.” With bovines continuing to be out and about, the “maximum protection of cultural and archeological resources” and “the protection natural resources with cultural significance” are simply not attainable. Pick protecting natural, cultural, and archeological resources or pick protecting livestock. One cannot have both. As drafted, S.1890 picks the latter.
Part 2 of this post next week will analyze the ugly and the missing parts of the proposed legislation and suggest an alternative.