Malheur County Federal Land Legislation Take 4, Part 2: The Ugly, the Missing, and the Alternative — Andy Kerr | Oregon Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactician, Schmoozer, Raconteur

As it’s a complex piece of policy and politics, this is the second of two parts, the first of which was published last week. Part 1 analyzed the legislation in terms of the good, the bad, and the whatever. This Part 2 will analyze the ugly and the missing, and suggest an alternative.

Figure 1. Much, but not all, of the Owyhee River in Oregon is within the National Wild and Scenic Rivers System or Oregon Scenic Waterways System. The provision of wilderness including and surrounding any river and its immediate canyon will afford greater ecosystem protection. Source: Bureau of Land Management.

The Ugly

There are two particularly egregious provisions in the Malheur Community Empowerment for the Owyhee Act (S.1890, 118th Congress) that make an otherwise tolerable piece of legislation intolerable. These contain language about grazing “rights” and grazing in wilderness areas.

Private Grazing “Rights” on Federal Public Lands

While there is such a thing as grazing rights on private property, there is no such thing on federal public lands in the United States. Never has been and never should be.

For well over a century, public lands grazing permittees and lessees have politically and legally sought to convert their privilege to graze public lands into a right to graze public lands. A private property right to graze public lands is a public property wrong. Here is the bill language:

(d) NO EFFECT ON GRAZING RIGHTS OR PRIVILEGES.—Nothing in this Act—(1) affects the rights or privileges provided under the Act of 10 June 28, 1934 (commonly known as the ‘‘Taylor Grazing Act’’; 43 U.S.C. 315 et seq.)

As drafted, this language creates private property “rights” to graze public lands. In no piece of legislation ever enacted by Congress since its establishment in 1789 has Congress ever conferred a property right to grazing on federal public lands. See my Public Lands Blog post “A Federal Public Lands Grazing “Right”: No Such Animal.” This language is an existential threat to federal public lands.

Grazing in Wilderness Areas

Alas, since the enactment of the Wilderness Act of 1964, previously established livestock grazing is allowed to continue after an area is designated wilderness—contrary to fact, but not to law. Rather than including stock boilerplate language regarding grazing in wilderness that Congress has long included in individual wilderness bills, S.1890 includes unacceptable language that further entrenches livestock grazing in wilderness areas.

By the way, not only does the Wilderness Act allow livestock grazing, the federal government also essentially gives the forage away for free (in wilderness and elsewhere). See my Public Lands Blog post “The High Cost of Cheap Grazing.”

Figure 2. *The Rome Cliffs are but one of many geological wonders left unprotected by S.1890.* Source: Gary Halvorson, Oregon Archives.

The Missing

Three key conservation opportunities are missed in S.1890:

• Voluntary retirement of federal grazing permits or leases. Wyden (and Merkley) have previously, prudently, and proudly enacted into law such a provision, which has been a win-win-win for nature, taxpayers, and public lands ranchers. Voluntary retirement of federal grazing permits or leases is ecologically imperative, economically rational, fiscally prudent, socially just, and politically pragmatic. S.1890 would be greatly improved with such a provision.

• Full protection of areas of critical environmental concern (ACECs). The BLM has established hundreds of thousands of acres of ACECs on its lands in Malheur County. These areas are established, in the words of the Federal Land Policy and Management Act, “to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes.” While much of the ACEC acreage could be incorporated into the new wilderness areas established by this bill, tens of thousands of acres will not be. S.1890 will leave these areas open to hardrock mining and other threats. In earlier Wyden (and Merkley) legislation to reform the management of BLM forestlands in western Oregon, ACECs would have become fully protected as part of the National Landscape Conservation System. For more on the NLCS, see my Public Lands Blog post “BLM Areas of Critical Environmental Concern: Crown Jewels Open to Theft.”

• Inclusion of new wild and scenic rivers. Besides wilderness, another foundational public lands conservation designation is wild and scenic river designation. S.1890 would not establish any new wild and scenic rivers in Malheur County. Fortunately, Wyden (and Merkley) have cosponsored the proposed River Democracy Act (see my Public Lands Blog post “Wyden’s Unprecedently Good Wild and Scenic Rivers Legislation” for more information).

Alignment with the Biden Administration’s Conservation Goals

President Biden has committed the United States to “30x30,” conserving 30 percent of the nation’s lands and waters by 2030. How would Wyden’s proposed legislation help or hinder progress toward this goal?

Approximately 746,000 acres of the ~1.1 million acres of new wilderness areas proposed in S.1890 would come from existing wilderness study areas (WSAs). Under US Geological Survey 30x30 accounting protocols, these lands would be upgraded to GAP 1 (wilderness) from GAP 2 (WSAs). While the designation is more protective, the upgrading to wilderness from WSA doesn’t increase the amount of protected lands that already count toward 30x30.

The bill would release ~176,000 acres of current BLM WSAs (GAP 2) from their WSA status and downgrade them to GAP 3, which doesn’t count toward 30x30. However, ~352,000 acres of lands with wilderness characteristics (LWCs), which are now GAP 3 lands, would be elevated to GAP 1 lands.

As drafted, then, S.1890 would result in a net increase of ~176,000 acres of 30x30 protected lands. In the context of 30x30, S.1890 would confer a relatively minor quantitative gain. However, since the nature protections are stronger overall, it would produce an absolute qualitative gain.

In recent congressional testimony, the BLM’s Thomas Heinlein weighed in on the bill:

S.1890 aligns with the Administration’s conservation goals through its wilderness designations as well as its approach to improving the ecological health of working lands and restoring Tribal homelands to Tribal ownership. The BLM supports S.1890 and appreciates the opportunity to continue working with the Sponsor on these critical conservation goals and Tribal conveyances.

This is code for “while we generally support the concepts, we have problems with the specifics, which need to be changed” (including, I suspect, several cases of sloppy drafting).

Figure 3. *Off-road vehicle use is prohibited in wilderness areas.* Source: Bureau of Land Management.

Changes That Would Allow Me to Support the Bill

In assessing whether to support or oppose public lands legislation, I first determine whether the legislation will result in a net gain for nature and future generations of Americans. From a policy perspective, if a net gain, how much of a net gain? What conservation of nature is being gained, and what nature is being lost to exploitation? From a political perspective, what is being done for the conservation community and to the conservation community? From both policy and political perspectives, is there an alternative path to increased conservation?

Adding up the good, the whatever, the bad, and the ugly in S.1890 as introduced, I have concluded that there would be no net gain in conservation and, in fact, would be a huge loss in conservation. The bad and the ugly in S.1890 far outweigh the good. Further exalting livestock grazing on BLM lands along with establishing the precedent of private grazing rights on public lands and even more livestock friendly wilderness areas would set back public lands conservation in the US and isn’t worth gaining the 1.1 million acres of new wilderness areas on lands that I have advocated for since I started my conservation career during the Ford administration. (Placing the whatever in either the gain or the loss column doesn’t change the analysis.) Therefore, I cannot support the legislation as introduced.

However, if the ugly policy sins (establishing public lands grazing as a private property right and further weakening the Wilderness Act in favor of livestock grazing) were dropped from S.1890 when it is marked up by the Senate Energy and Natural Resources Committee (and if the committee doesn’t make anything else worse), I could strongly support S.1890 as amended as a net gain for nature and this and future generations. I could ignore the bad policy sins (livestock grazing being further exalted on BLM lands, a loss of BLM public lands, and a loss of BLM control over certain public lands) because in the context of an ugly-free S.1890, they’re not that bad. Existing BLM policy allows for “operational flexibility.” From an ecological damage standpoint (let’s just forget about “long-term ecological health” in this context), the exact timing of the annual cow-bombing is insignificant to the cow-bombing itself.

I highly recommend some other language tweaks that would correct sloppy conception and/or drafting:

• Proper plurals. The Jordan Crater Wilderness would include Jordan Craters (see Map 1) so should be called the Jordan Craters Wilderness. This drafting error has been flagged repeatedly in earlier versions of the legislation but still persists. The proposed Sacramento Hill Wilderness similarly fails to note the plural Hills on the map. The plurals are correctly noted on the official map that would accompany the bill into law. However, the official map depicts no fewer than three Jordan Craters wilderness areas while in fact, there is only one.

Figure 4. *Jordan Craters include lava flows recent enough that no lichens have yet made a beachhead.* Source: Bureau of Land Management.

• Proper names. The proposed Little Groundhog Reservoir, Coyote Wells, and Cairn “C” wilderness areas are all named after unnatural features. Wilderness areas should be named after natural geographic features or in honor of outstandingly honorable humans, not after minor unnatural intrusions in the otherwise natural landscape. These wilderness areas are going be protected for the ages. Let’s get the names right. Permit me to suggest naming them after the most prominent natural features in the areas: Oregon Butte, North Fork Owyhee, and Coyote Butte Wildernesses, respectively.

The Alternative

The chances of S.1890 being enacted into law during this 118th Congress are almost nil. Even if the bill made it through the Senate (and it shouldn’t with its ugly provisions), the leadership in the Republican-controlled House of Representatives would never let it come to a vote. This would be true even if the bill were supported by Representative Cliff Bentz (R-OR-2nd), which it is not.

The alternative is a presidential proclamation establishing an Owyhee Canyonlands National Monument. Way back in 1906, Congress passed the Antiquities Act, which granted authority to the president to proclaim national monuments. Any federal land within a national monument is managed for the purposes of the national monument. A presidential proclamation establishing an Owyhee Canyonlands National Monument could accomplish these worthy objectives:

• Protect more federal land. The president need not be constrained by S.1890. President Biden will very likely carry Oregon in his try for re-election, but an Owyhee Canyonlands—and a boatload of other—national monuments could help excite his base and also swing voters who care about future generations.

• Include state land. The inclusion of qualifying state land within the national monument boundary would facilitate the transfer of the state land to the federal government, with the Oregon Common School Fund getting real money to replace the money-losing asset it now has.

• Facilitate voluntary federal grazing permit and lease retirement. President Biden’s proclamations restoring the Grand Staircase-Escalante and Bears Ears National Monuments from their defilings by President Trump included such provisions.

Just a thought.

Bottom Line: If the recommended critical tweaks are made to remove the ugly parts (grazing “rights” and further exaltation of livestock grazing in wilderness areas) of S.1890, the Senate and the House of Representatives should pass the bill and the president should sign it into law.