WTF Now?

Top Line: Many bitter lemons can make quite fine lemonade, but only if the conservation community reinvents itself.

Figure 1. President Biden can proclaim an Owyhee Canyonlands National Monument on his way out the door—but only if US Senator Ron Wyden asks him to. Source: Mark List.

As I sat down the morning after the election to pen some thoughts about the existential threat that Americans just elected to a second term, I went back and reviewed my Public Lands Blog post from eight years ago entitled “The November 2016 Election: Processing the Five Stages, Then Moving On.” I wish I could be as optimistic this time.

While I fear for the atmosphere, the biosphere, the hydrosphere, global humanity, and American society, I will limit my thoughts here to the conservation of nature and the protection of the environment—most especially federal public lands. Such lands were not a significant issue in the elections but will be severely affected by the results. Unfortunately, the fate of public lands has become tied to the fate of Democrats, and the Democratic Party is likely out of power in both houses of Congress and the White House. While the election results were not a mandate to further industrialize or privatize federal public lands, more of such will nonetheless be the consequence.

In this post, I shall first analyze the policy and political landscape of the nation’s federal public lands. Second, I shall make two recommendations to the lame-duck Biden administration about what to do and not do before leaving office. Finally, and most important, I shall suggest that the American conservation community fundamentally reinvent itself to become politically relevant once again.

The Forthcoming Political Landscape

The political landscape for public lands conservation during the second Trump administration will be a combination clear-cut, toxic waste dump, and minefield. Public lands conservationists will no longer be able to rely on the rule of law—neither in making, carrying out, nor interpreting the law. 

The Administration

Trump 2.0 will be exponentially more awful than Trump 1.0. Trump’s mistake during his first rampage was that he appointed at least some people both smarter than him and (most important) loyal to the Constitution. They thwarted many of the dumb, mean, and/or unconstitutional things Trump wanted to do. That will not be the case this time around. In addition, the Supreme Court has since then granted a president immunity from criminal prosecution for any official act and has thus removed another restraint against abuse of power.

Much of the public lands conservation community’s work has been to use administrative processes to seek more protection for public lands. The effectiveness of this approach peaked during the Clinton administration (1993–2001) for land and the Obama administration (2009–2017) for oceans. The first Trump administration (2017–2021) was a very large negative. The Biden administration (2021–2025) wasn’t any great shakes.

The Courts

This activist Supreme Court is increasingly making it up as they go along. If a majority doesn’t like a law as a matter of substance, they creatively reason it away despite any precedence or traditional jurisprudence. Cases are before the court that could spell the end of the National Environmental Policy Act as we have known it. Other cases that similarly jeopardize the Endangered Species Act, the Clean Water Act, the Clean Air Act, the National Forest Management Act, the Federal Land Policy and Management Act, and others are likely to get the Supreme treatment.

The Congress

In re the conservation of public lands, Congress has been getting worse. Affirmative land conservation is down, while affirmative land degradation is up by even more. Almost all of the land conservation is attributable to Democrats, while the land degradation is firmly bipartisan. The main reasons for this are money in politics and gerrymandering of congressional districts.

Gerrymandering, while a bipartisan plague, is done most effectively by Republicans. The result is that most members of Congress of both parties have extremely safe seats and are easily elected in the general election. If a seat is threatened, it’s only in a partisan primary. The Democrats take the public lands conservation community for granted, and the Republicans take us to the cleaners.

Earth to Biden Administration: For the Love of Nature, Do Nothing except One Thing

The Biden administration is set to finalize several policy initiatives that pertain to public lands, wildlife, the climate, and/or the environment. Among these are initiatives regarding old growth in the national forests, greater sage-grouse, and management of the National Wildlife Refuge System. The Biden administration should not finalize any of them. Put down the policy pen and step away.

Do Nothing!

You may be thinking, Is not half a loaf better than none? Actually, no.

Across the board, the conservation policy initiatives I’ve mentioned are very weak tea, if not bitter pills. For example, the Biden administration proposals for old-growth forests and greater sage-grouse would be a net loss for their conservation. In re the former, unbelievably, the Forest Service proposal to amend its forest management plans will result in a loss in both quality and quantity of old-growth forests. In re the latter, the prospective Biden 2024 sage-grouse plan is worse than the 2015 Obama sage-grouse plan and may not be much better the 2019 Trump sage-grouse plan. 

Lest you believe such stale heels are better than half a loaf, let me tell you about the Congressional Review Act (CRA). The Congressional Research Service describes the CRA as “a tool Congress can use to overturn certain federal agency actions.” The CRA disapproval process can apply to almost any federal “rule” (including federal land and/or resource management plans) that is finalized within a specified period. For this 118th Congress, any rule finalized after August 1, 2024, is subject to a “lookback” provision when the 119th Congress convenes in January. If it were President Harris, she’d veto any joint resolution of disapproval (JRD) of a Biden rule. But it’s not.

If a CRA JRD is filed, it may receive special consideration in the House of Representatives and must receive such in the Senate. The procedure calls for a clean (no amendments) up-or-down vote in the House and Senate (where it is not subject to a filibuster that requires sixty votes to overcome). If a JRD passes both houses, it is presented to the president for signature or veto.

The Congressional Research Service explains the noose and the salting of the earth that applies to a disapproved rule:

A rule that is the subject of an enacted CRA joint resolution of disapproval goes out of effect immediately if the rule has already taken effect when the resolution of disapproval is enacted and “shall be treated as though such rule had never taken effect.” If the rule has not yet gone into effect when the resolution of disapproval is enacted, it will not take effect.

In addition, a rule subject to an enacted joint resolution of disapproval “may not be reissued in substantially the same form, and a new rule that is substantially the same . . .  may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.” [emphasis added]

So not only do we not want the Biden administration issuing weak and lame environmental rules, we also sure as hell don’t want Congress disapproving such rules and forbidding any future administration from doing another rule that is “in substantially the same form.”

Except One Thing: National Monuments

Proclamations by the president of new or expanded national monuments with the authority granted by Congress pursuant to the Antiquities Act of 1906 are not rules subject to the Congressional Review Act. Biden needs to proclaim a boatload of new national monuments. And not just a few, but severalfold more than he was contemplating before the election, with some zeros added to the acreages.

While not subject to the CRA, national monument proclamations are subject to an activist Supreme Court. Chief Justice John Roberts has written that he’s fishing for a case to gut the Antiquities Act (as the Supreme Court has gutted the Voting Rights Act and others).

If failing to act is the right course for Biden’s (wimpy) environmental rules to not get CRAed, is it not the same with national monuments? No. National monuments are quite popular, and it would be unpopular even for a popularly elected president to reverse national monument designations. If Trump is going to reverse Biden’s monuments (or the Supremes are going to gut them), they need to be made to do it out loud and in public.

Earth to Conservation Organizations: Restructure for a Changed Political Landscape

Continuing to rely on the administration, the courts, or Congress as they are now constituted to elevate the conservation status of public lands is a fool’s errand. What used to work well for the conservation community no longer does and will not again until the makeup of these federal branches changes. Such change can only come with better election results.

If I were in charge, I would institute a plethora of reforms regarding election to government office and the operation of government.

See Public Lands Blog post: “Small-d Democratic Reforms to Revive Our Republican Form of Government”

Since I’m not in charge, please permit me to suggest that conservation organizations need to fundamentally reorganize themselves to become politically relevant once again.

To conserve federal public lands, it’s now all about elections. It’s no longer about commenting on draft environmental impact statements. But due to some quirks of conservation history, most conservation organizations are organized under federal tax law in ways that prevent their effective engagement in political and election advocacy.

Most conservation organizations are organized under Section 501(c)(3) of the Internal Revenue Code. This tax status allows the organization to avoid paying taxes on its income and allows the donor to take a tax deduction for contributions to the organization. The cost of these two benefits is that the organization can only seek to influence legislation in very limited ways and cannot seek to influence elections in any way. To avoid income taxes, these organizations waive part of their First Amendment rights and most of their effectiveness.

There is another tax status, 501(c)(4), that allows the organization to avoid taxation on its income but does not give the donor a tax deduction for contributions to the organization. A “c4” can use all its funds for lobbying or influencing elections. In addition, a c4 doesn’t have to disclose the names of its donors.

While some c3s have affiliated c4s, those c4s are always much smaller than the c3 and are dusted off only briefly every two to four years for elections. In the rest of the public interest advocacy universe, organizations have a c4 as their mothership and a smaller affiliated c3 for taking in foundation money and/or large contributions from donors who insist on getting a tax deduction.

You may want to ask any conservation organization you contribute to if it is a c3 or a c4—or both. Increasingly, I’m no longer contributing to c3s but rather to c4s.

See Public Lands Blog post: “The Public Lands Conservation Movement: Mis-organized for Job #1”

In Conclusion

Here are a few excerpts from what I wrote in November 2016, followed by my thoughts today.

On this day-after I am working through my five stages: denial, anger, bargaining, grieving and acceptance. The thing about these stages is they don’t have to come in a particular order and can be repeated.

Nothing has changed eight years later. 

I’m going to take a long walk with my dog and ponder next steps. A bad election outcome will cause one to change strategies and tactics, but not goals.

I took that walk but with a new puppy (that looks quite a bit like the old one) and it was 8.2 miles that day as Lucy needed wearing out and I needed refreshing.

I’ve been around long enough to remember the dark days of the Reagan Administration and the dark days of the G.W. Bush Administration. The days of Trump may be darker. In previous dark times, the Democrats generally held at least one house of Congress and served as a check on the excesses of Reagan and Bush, as did the federal courts.

This time a Republican President can sign legislation passed by a Republican House of Representatives and a Republican Senate. The only check is the Senate rule that requires 60 out of their 100 votes to end debate (aka filibuster).

Trump 1.0 was hell for the conservation of public lands. Trump 2.0 will likely be as bad or worse.

I’m willing to bet that if the House also goes Republican, as is expected, the Senate filibuster will go away. As we have been taught once again, elections matter.

In two years, there’s another election. All House members and one-third of senators will be on the ballot.

Bottom Line: The conservation community needs to fundamentally reorganize itself to matter in elections.

Wyden’s Unilateral Public Lands Livestock Grazing Giveaway

Top Line: Senator Wyden is cosponsoring legislation that would give blank checks and get-out-of-jail-free cards to all BLM grazing permittees and lessees.

Figure 1. A bovine on public lands crapping in the same stream from which it drinks. In the absence of domestic livestock, this stream would be colder and deeper, well shaded by willows if not also cottonwoods, and likely full of trout. Source: George Wuerthner.

Senator Ron Wyden (D-OR) is the sole cosponsor of a bill by Senator John Barrasso (R-WY) that would give Bureau of Land Management (BLM) grazing permittees and lessees even more free rein than they have now to (ab)use the public lands. The Barrasso-Wyden bill, the Operational Flexibility Grazing Management Program Act (S.4454, 118th Congress), would effectively remove any administrative control the BLM has over the grazing of livestock on 155 million acres of federal public lands.

As a senator from Wyoming, Barrasso has long carried any and all water requested of him by public lands grazing permittees and lessees. The Barrasso-Wyden bill is the latest in a long line.

Wyden’s Proposed Owyhee Canyonlands Bill: Quid Pro Quo

This is not Wyden’s first legislative attempt on behalf of grazing “flexibility.”

For the past several years, Senator Wyden and his staff have labored long and hard to bring forth legislation to address public land management issues in Malheur County, Oregon. The latest incarnation of his Malheur Community Empowerment for the Owyhee Act, would primarily do two things on BLM holdings in Malheur County:

• Establish ~1.1 million acres of new wilderness areas.

• Authorize “flexible” livestock grazing on BLM lands in Malheur County.

The bill would do other things, but most of the verbiage pertains to wilderness and livestock grazing.

Wyden’s bill proposing a wilderness–livestock grazing grand bargain in the Owyhee Canyonlands (S.1890; 118th Congress), was introduced in the Senate in June 2023, reported out of the Energy and Natural Resources Committee in December 2023. A vote of the full Senate has not been scheduled. Most, but not all, of the conservation community supports S.1890 and they feel it is—despite a grazing “flexibility” provision—a significant net gain for public lands conservation.

Figure 2. Land near Kemmerer, Wyoming. On one side of the fence, the land is ungrazed. Guess which side. Source: George Wuerthner.

Here are two political givens:

• Conservationists love wilderness and hate livestock grazing.

• Public lands ranchers love livestock grazing and hate wilderness.

However, there is a place where these two sets overlap (picture a Venn diagram), and Wyden has found it in his Owyhee bill. Public lands ranchers really want “flexibility” language and are willing to give 1.1 million acres of wilderness to get it. Conservationists really want 1.1 million acres of wilderness and are willing to give a carefully worded and constrained version of grazing “flexibility.”

In the crafting and politics of legislation, such is known as a quid pro quo. One faction gets something they want more by accepting something they want less. Happens all the time. 

The proposed wilderness boundaries and grazing language were long debated and fought over, but Wyden’s latest bill seems to thread a political needle.

In cosponsoring S.4454, Wyden has tossed aside the delicate compromise offered in his Owyhee legislation and embraced a unilateral and far more damaging giveaway to the public lands livestock industry.

Figure 3. Livestock in the Sonoran Desert National Monument in Arizona. Source: George Wuerthner.

The Entrails of the Barrasso-Wyden Bill: Quid Pro Nihilo

“Flexible” grazing is not bovines practicing their yoga cow pose.

It would be bad enough if Wyden had taken his Owyhee “flexibility” language national and offered it without any corresponding conservation (a.k.a. “wilderness”) offset. However, the Barrasso-Wyden (national) “flexibility” language is arguably ten times worse in effect than the Wyden (Owyhee) “flexibility” language.

The Wyden (Owyhee) version of “flexible” grazing contains sideboards and leaves public lands managers with their ability to manage grazing on public lands. The Barrasso-Wyden (national) version of “flexible” grazing means that public lands ranchers get to do even more of what they want on public lands, with the public lands managers no longer having a say, with no analysis and stewardship requirements.

The Barrasso-Wyden (national) “flexibility” language is a total giveaway of blank checks and get-out-of-jail-free cards to grazing permittees and lessees on public lands administered by the BLM.

Figure 4. Livestock near the Paria River in the Grand Staircase–Escalante National Monument in Utah. I honestly don’t know what they are eating. Source: George Wuerthner.

The public policy director for the Western Watersheds Project (WWP), Josh Osher (my go-to guy for all matters of public lands grazing policy), submitted testimony (on behalf also of Kettle Range Conservation, Oregon Natural Desert Association, Public Employees for Environmental Responsibility, and Wilderness Watch) in opposition to the Barrasso-Wyden bill (WWP et al.). The bottom line:

S. 4454 is an attempted end around to virtually eliminate NEPA requirements and public involvement in grazing management on public lands. This bill puts all of the power in the permittee’s hands and removes nearly all discretion from the Secretary to manage grazed lands for multiple use. Passage of S. 4454 would lead to continued failure of BLM managed lands to meet even the most basic standards for land health and eliminate the few remaining tools at the BLM’s discretion to address problematic livestock grazing. [emphasis added]

How does the Barrasso-Wyden (national) “flexibility” language compare to the Wyden (Owyhee) “flexibility” language? The WWP letter notes:

Furthermore, this legislation is a significant departure from the current pilot program initiated by the BLM and the operational flexibility language in S. 1890, the Malheur Community Empowerment for the Owyhee Act. S. 4454 dramatically expands the purposes for modifying the terms and conditions of grazing permit from responses to environmental factors and ecological conditions to now include producer preferences and responsiveness to market conditions. [emphasis added]

The Barrasso-Wyden “flexibility” language would make a complete sham of the National Environmental Policy Act (NEPA) by requiring the BLM to always choose the “flexible” grazing alternative. The WWP letter notes:

The bill language states that the “Secretary shall develop and authorize at least 1 alternative” for operational flexibility. It is unclear if “authorize” means that alternative must be chosen or simply analyzed with the discretion remaining with the Secretary to determine which alternative to implement. If the former, this a complete usurpation of the Secretary’s authority to manage public lands according to multiple use principles. [emphasis in original]

The WWP letter further notes:

The final section that prohibits termination of a grazing permit due to the use of operational flexibility functions to fully insulate the permittee from any consequences of bad management choices for which the Secretary had no discretion to modify or deny. [emphasis added]

In reading legislation, I always try to follow two principles:

• Read the language as if you are paranoid. Read the language in a way that the forces of darkness could/would interpret it if they were in charge. Just because one is paranoid, it doesn’t mean that one is not being followed.

• Clearly discern what is being done for you and what is being done to you in the legislative language. The Barrasso-Wyden bill is all the latter and none of the former.

Rather than an acceptable quid pro quo, the Barrasso-Wyden “flexibility” language is a quid pro nihilo (something for nothing). Something for public lands ranchers, nothing for conservationists.

Figure 5. Livestock in the Eagletail Mountains in Arizona. Source: George Wuerthner.

A Benign Bovine: No Such Animal

Let’s take a moment to remind ourselves why livestock production—especially on public lands—is problematic.

Domestic livestock have done, and are doing, more damage to Earth than the chainsaw and bulldozer combined.

Livestock production—primarily cows—accounts for 14.5 percent of global greenhouse gas emissions (a few sources say less, most sources say more), most in the form of methane emitted by belching bovines. A molecule of methane has a global warming potential at least 28 times greater than that of a molecule of carbon dioxide. Animal agriculture also produces 65 percent of the world’s emissions of nitrous oxide (yes, laughing gas, but no laughing matter here), which has a global warming potential 296 times greater than that of carbon dioxide. In addition, 70 percent of the world’s agricultural lands are dedicated to livestock—lands that were formerly forests, grasslands, and/or wetlands.

Locally—and most especially on public lands—livestock cause chronic and grievous environmental harm. Most streams flowing through public lands have been cow-bombed to such an extent that water quality is horrendous and water quantity is diminished.

Figure 6. Fresh cow shit on rocks in a stream on public lands. If it were deposited on land, many would call it a cow pie. I do not. Unlike pie, cow shit is neither sweet nor savory. Source: George Wuerthner.

The public land forage now consumed by one cow and one calf could be allocated instead to sustain either one bison, seven to eight deer, more than two elk, nearly eleven pronghorn, nearly seven bighorn sheep, or more than one moose—not to mention that it could serve as hiding cover for sage-grouse and a buffet for butterflies and other pollinators.

Fewer domestic livestock on public lands would mean fewer wolves killed to protect livestock.

As a fraction of the nation’s beef supply, the contribution of public lands is very minor, and the market wouldn’t miss anything if livestock grazing ended on public lands.

Figure 7. Livestock near Beatty Butte in Oregon. The average full-grown cow (left) weighs ~1,400 pounds. On BLM land, the calves dine for free. Source: George Wuerthner.

A Fair Quid for the Quo

In Wyden’s Owyhee bill, the price local public lands ranchers would to pay for their “flexible” grazing language is 1.1 million acres of wilderness. In the Barrasso-Wyden flexible grazing bill, the price public lands ranchers have to pay is nada, zero, zip, zilch.

Were the Wyden site-specific (Owyhee) quid pro quo expanded nationally in the same proportion, public lands ranchers would have to accept 34,937,664 acres (but who’s counting?) of new wilderness areas. However, the Barrasso-Wyden (national) “flexibility” language is at least ten times worse than the Wyden (Owyhee) “flexibility” language, so make that 349,376,649 acres of new congressional conservation designations.

Alternatively, the quid for the quo (or the quo for the quid, depending upon your point of view) could be a new title for S.4454 that provides for a nationwide voluntary grazing permit relinquishment program. (See my three Public Lands Blog posts on the subject under “For More Information” below.) There is such legislation pending in the House of Representatives, the Voluntary Grazing Permit Retirement Act (H.R.6314, 118th Congress). Wyden has successfully legislated voluntary grazing permit retirement language in legislation establishing the Soda Mountain Wilderness and expanding the Oregon Caves National Monument.

If I were one of those twenty-two elite federal grazing permittees in Malheur County, I’d be urging my buds to walk away from Wyden’s wilderness–flexible grazing bill and run toward his national flexible grazing bill. Why pay when one doesn’t have to? Especially since it would be ten times better at zero cost.

The Wyden (Owyhee) “flexible” grazing language is acceptable to much of the conservation community in the context of a quid pro quo for wilderness designation. The Barrasso-Wyden “flexible” grazing language is not accompanied by even 1 acre of congressional conservation designations such as wilderness, national monuments, national parks, national wildlife refuges, or national conservation areas. Wyden should walk away from this quid pro nihilo.

Figure 8. Livestock in the Agua Fria (“Cold Water”) National Monument in Arizona. To an untrained eye, the foreground might look “natural.” Actually, it is quite cow-bombed. Source: George Wuerthner.

For More Information

Kerr, Andy. December 2, 2016. A Federal Public Lands Grazing “Right”: No Such Animal. Public Lands Blog.

———. May 26, 2017. The High Cost of Cheap Grazing. Public Lands Blog.

———. August 13, 2021. Where’s the Beef? Public Lands Blog.

———. October 3, 2022. Senator Wyden’s Owyhee Wilderness, and More, Legislation. Public Lands Blog.

———. September 4, 2023. Retiring Grazing Permits, Part 1: Context and Case for the Voluntary Retirement Option. Public Lands Blog.

———. September 12, 2023. Retiring Grazing Permits, Part 2: History of the Voluntary Retirement Option. Public Lands Blog.

———. September 12, 2023. Retiring Grazing Permits, Part 3: Future of the Voluntary Retirement Option. Public Lands Blog.

Western Watersheds Project et al. June 26, 2024. Letter to Subcommittee on Public Lands, Forests and Mining in re S.3322 and S.4454 (118th Congress).

Bottom Line: Senator Wyden should remove his name as a cosponsor of S.4454.

Figure 9. Dead livestock in the Sonoran Desert National Monument in Arizona. Source: George Wuerthner.