A Solution: The Oregon Desert Conservation Act

Suggested Citation: Kerr, Andy. 2000. Oregon Desert Guide: 70 Hikes. Seattle: The Mountaineers Books. pp. 77-82.

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As conservationists, ecologists, economists, and others began to turn their attention to the Oregon Desert, all soon realized that if the goal of conserving and restoring the web of life (biodiversity) in the desert bioregion for this and future generations was to be met, that it would take an act of Congress. The goals of the proposed Oregon Desert Conservation Act (ODCA) are to ensure that:

• The desert ecosystem would function across the landscape and over time.

• The primary provider of conservation would be public land, not private land.

• Government spending would be done in the most efficient manner possible.

• Local affected interests would be treated justly.

Combining their collective knowledge of the Oregon Desert with the principles of conservation biology, they set to work. First, de facto wilderness lands were inventoried. These lands qualify under the definition of wilderness as set forth in the Wilderness Act of 1964:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. A n area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological or other features of scientific, educational, scenic or historical values.

The 1964 law required the Forest Service, the National Park Service, and the Fish and Wildlife Service to review their holdings and make recommendations to Congress. The Bureau of Land Management was not required to review its lands until passage of the Federal Lands Policy and Management Act (FLPMA) of 1976. That law gave the agency until 1991 to complete the task.

Controversy immediately plagued the BLM's wilderness review process. The first task of the agency was designating wilderness study areas, areas of wilderness quality that would be managed "so as not to impair suitability" as wilderness "until Congress has determined otherwise."

To determine roadless areas, the agency first had to determine the roads. BLM took their definition of a road from the official report of the House of Representatives that accompanied FLPMA:

An access route which has been improved and maintained by using hand or power machinery or tools to ensure relatively regular and continuous use. A way maintained solely by the passage of vehicles does not constitute a road.

An adequate definition, but the devil is in those details. In many cases, BLM misapplied the definition. However, it is in the gray area.

After determining the road network, BLM analyzed the areas between the "roads." If the area was five thousand acres or greater (criterion No. 3 in the Wilderness Act definition), BLM then determined whether the area was generally natural (criterion No. 1). If it wasn't, the area was dropped.

Much of the debate around wilderness designations has centered on the issue of roads. A designated wilderness area is an area without roads, and no mechanized uses are allowed. Humans and their machines have been nearly everywhere. We've all experienced motorcraft in the most surprising and/or inappropriate places. Those humans who love machines more than nature will argue that any discernible evidence of vehicle use constitutes a road (especially if they have the rig for it).

Proponents readily concede that several of the proposed wilderness areas in the Oregon Desert Conservation Act contain what all would agree are "roads," albeit of a low standard. As livestock grazing diminishes, for example, the only significant purpose of such roads no longer exists.

Rather than engage in interminable debates with bureaucrats over the shade of gray, conservationists asked, "Does the road have any legitimate purpose?" Fortunately, Congress is the final arbiter. On occasion, Congress has designated wilderness with a paved road in it (later removed). There was no longer any need (if there ever was) for the road.

USGS 7.5' quad maps distinguish five kinds of routes:

• Paved: further distinguished as "primary" or "secondary," depending on their construction

• Improved: engineered, constructed, surfaced (but not with pavement), and/or drained

• Unimproved: dirt, possibly having been passed over with a bulldozer blade

• Jeep trail: a track established and maintained by use

• Trail: pedestrian, or at least not four-wheeled motorcraft

BLM's wilderness inventory was done before most of the desert was mapped at the 7.5' scale, so the inventory did not have benefit of the USGS analysis. Conservationists generally draw the line between "improved" and "unimproved" as defining a "road."

If an area was roadless and generally natural, BLM then determined if it had outstanding opportunities for primitive recreation and/or solitude (criterion No. 2). In particular, this is where BLM disqualified millions of acres of Oregon de facto wilderness land from designated wilderness consideration. BLM interpreted this provision much more narrowly and arbitrarily than did the Forest Service, National Park Service, and Fish and Wildlife Service. These agencies assumed that an area that was generally natural and of sufficient size by definition had outstanding opportunities for solitude and/or primitive recreation.

Finally, BLM didn't let other supplemental wilderness values (criterion No. 4) influence its decision of whether to designate a wilderness study area.

BLM eventually designated 2,806,598 acres in Oregon as wilderness study areas. In 1991, they recommended less than half of these—1,278,073 acres—to Congress for wilderness designation. (Since then, as a result of land acquisition, BLM has identified two new wilderness study areas, totaling 38,920 acres. No recommendation has been made.)

In contrast, conservationists determined that over 6.1 million acres of wilderness-qualified lands are present in the Oregon Desert. These lands are the twenty-six proposed wilderness areas described in this book. To provide for better integrity and long-term management, in drawing the proposed boundaries, certain presently nonconforming lands and roads were included. Over time, they will naturally rehabilitate.

Wilderness designation, while the most essential and most important land conservation tool, isn't adequate to fully protect the Oregon Desert. Certain lands, while of a nonwilderness character, are nonetheless of critical ecological importance.
ODCA would establish or expand several new units of the national park system and the national wildlife refuge system. These units would be managed by the National Park Service and the Fish and Wildlife Service, respectively, because of their respective expertise in managing people and wildlife. The legislation would also establish the Steens Mountain and Lower Owyhee National Conservation Areas, both managed by the Bureau of Land Management. Where possible, the acreage inside all these special management areas also include designated wilderness and wild and scenic rivers.

The wilderness and other special management areas proposed in ODCA comprise the core of ecological protection. Both to provide connecting corridors between the large reserves and to protect and restore ecological values associated with them, ODCA would designate several hundred miles of additions to the national wild and scenic rivers system, to be managed under the Wild and Scenic Rivers Act of 1968. ODCA would specify expansion of the protective river corridor from an average of 1/2 mile in width to an average of 1 mile in width, following the precedent of the Elkhorn Creek Wild and Scenic River, designated in 1996 as part of legislation designed to protect the ancient forests of Opal Creek in Oregon's western Cascade Mountains.
ODCA would also require that—within three years—the Fish and Wildlife Service, with the cooperation of the Forest Service, the National Park Service, and the Bureau of Land Management, report to Congress on:

1. What additional measures and actions are necessary to conserve, protect, and restore the biological diversity of the Oregon Desert across the landscape and over time

2. Recommendations on the reintroduction of extirpated plant, fish, and wildlife species and the control or elimination of exotic plants and animals

3. Natural communities and ecosystems as they originally and currently exist

4. The state of Pacific salmon within the Oregon Desert and steps desirable and necessary to improve their numbers and health

The biggest and most vexing problem is what to do about livestock grazing in the wilderness and special management areas. Such must end if the web of life is to be maintained and restored. Yet it must be done fairly. ODCA would require that livestock permittees on federal land be fairly compensated when their grazing permits in the Oregon Desert are reduced or retired.

Presently under the Wilderness Act, any grazing that was occurring at the time of wilderness designation is permitted to continue. This was a political compromise with the livestock industry at the time of the act's passage in 1964. The livestock industry has broken its promise in the compromise by opposing every wilderness bill since then. While the Wilderness Act allows for a certain degree of regulation to ensure that grazing arrangements maintain "wilderness values," it is, in fact, impossible to simultaneously and fully conserve "wilderness values" and to allow any continued livestock grazing. If cattle continue to dominate and degrade the desert landscape, the overall quality of the ecosystems will not improve, the rare or endangered plants and animals will not be protected, and the quality of hiking and hunting will not be enriched.

ODCA would do several other important things:

• Designate the Desert Trail in Oregon as a scenic trail in the national trails system and provide for a 1-mile-wide protective corridor.

• Prohibit cyanide heap leach mining anywhere in the Oregon Desert.

• Prohibit military overflights under 10,000 feet above wilderness, wild and scenic rivers, and special management areas.

• Authorize acquisition of valid mineral claims at fair market value in wilderness, wild and scenic rivers, national wildlife refuges, national monuments, and national conservation areas.

• Authorize economic and other assistance to small communities and individuals in transition.

ODCA would hopefully result in the eventual acquisition of approximately 373,161 acres of primarily undeveloped lands with ecological values that are presently in private ownership. These lands could be acquired in a variety of ways, depending on the land designation and wishes of the owner.

Acquisition methods could include:

Donation. The owner of the property could donate it to the federal government and take a tax deduction. Willing seller. The federal government would buy the land from the landowner at a mutually agreed upon price.

Exchange. The federal government and the owner of the parcel in question would exchange for an equally valued parcel elsewhere.

Eminent domain. As a last resort, the use of eminent domain would be allowed in units of the national park system and national wildlife refuge sys-tem and the two national conservation areas. Such use would be allowed under restrictions commonly imposed by Congress in land protection legislation. Condemnation is not allowed in the wilderness system in the West or in the wild and scenic rivers system, where 50 percent or more of the lands are already in federal ownership. Condemnation of state lands would not be allowed.

Life estate. In this option, the land would be acquired by the federal government, but the owners would be free to live out their lives on the property. (Extremely little of the private acreage proposed for acquisition for public purposes has anyone living on it.)

144,324 acres of state lands are also targeted for federal acquisition protection in ODCA.

Environmental Benefits of ODCA

• Maintenance and restoration of biological diversity of several endangered ecosystems

• Protection in a natural state of nearly 7.2 million acres for this and future generations

• Reduction in the rate of species extinction

• Elimination of off-road-vehicle damage in fragile areas

• Elimination of the threat posed by cyanide heap leach mining and other destructive mineral exploitation

• Prohibition of a geothermal power plant at the base of Steens Mountain and prevention of the possible extinction of federally listed endangered species

• Recovery and restoration of riparian areas to the great benefit of fish (in-cluding Pacific salmon stocks) and wildlife

• Restoration of watershed health (including water quality and quantity and other environmental values), resulting in increased stream flows, especially during dry' months

• Significant improvement of bighorn sheep, pronghorn, Rocky Mountain elk, sage grouse, and other game numbers Increased scientific study and education opportunities

• Reduction of carbon dioxide contributions to global warming

Economic Benefits of ODCA

• Opportunities to diversify local economies by establishment of new businesses, such as tourist facilities (guides and outfitters, bed and breakfasts, restaurants, lodgings, and so forth)

• Reduction of government subsidies to a small group of livestock operators Increased streamflow for downstream uses

• More efficient production of red meat (emphasis of native over exotic species) as protein source

Recreation and Tourism Benefits of ODCA

• Outstanding wilderness recreation opportunities

• Superior hunting and fishing Highly scenic motorized (on-road) recreation

• Maintenance of a high-quality Desert Trail experience

What are the political chances for enactment of the Oregon Desert Conservation Act? In the beginning: zero. But that is no different from the history of any major piece of federal conservation legislation.

The proper question is: Can the political support be gained and the political opposition overcome to enact the Oregon Desert Conservation Act? The answer is: With proper leadership, adequate resources, and enough time, "Yes!"