Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Premembering Bob Packwood, Oregon Conservationist

Premembering Bob Packwood, Oregon Conservationist

The Snake River in Hells Canyon would be dammed today if not for former Senator Bob Packwood (R-OR). The French Pete watershed would not have been returned to its rightful place in the Three Sisters Wilderness if not for Packwood.

No, Packwood is not dead yet, but he is in his ninth decade (and with all his marbles, the last time I saw him). I am implementing a new policy to remember some Oregon public lands conservation greats before they, in words from Hamlet’s "To be, or not to be" soliloquy, “have shuffled off this mortal coil mortal coil.” It is an interesting exercise and a challenge to write a remembrance of someone not yet passed. I’ll call it a premembrance.

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National Forests in the Eastern United States: An Incomplete Legacy

National Forests in the Eastern United States: An Incomplete Legacy

Take a gander at your favorite statewide maps, on paper or in Google Maps, and you may be left with the impression that those green polygons labeled National Forest are indeed solid expanses of national forest. In the West and Alaska, mostly yes; in the East, not so much.

Only 54 percent of the lands within the official boundaries of eastern national forests are federal public lands. Compare that to 90 percent of western national forest lands and 95 percent of Alaskan national forest lands. Nationally, only 83 percent of the Forest Service green on maps is Forest Service land. 

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The National Wild and Scenic Rivers System: Room for More Streams

Alas, Congress adjourned at the end of 2016 without enacting the Oregon Wildlands Act into law. We expect the bill to be reintroduced in the next Congress but are not optimistic about its passage. But while the congressional conservation pipeline may be clogged, it is not full. Now is the time for more legislation to be introduced to designate more wild and scenic rivers in Oregon.

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Reigniting the Pacific Northwest Timber Wars by Logging More Old Growth: Bring It On, President Trump!

At 61 and with acrophobia, I’m no use in climbing old trees to defend them from the chainsaw. But a younger generation of activists will sit, en masse, in those threatened old-growth trees, in front of bulldozers, and/or in appropriate offices. And if it comes to that, I’m happy to get arrested in offices of the Forest Service, the Bureau of Land Management, the Republican Party, the timber industry, or elected officials.

Bring it on, President Trump. Bring it on, Big Timber. Bring it on, Rep. Walden. Go ahead, make my day: reignite the Pacific Northwest timber wars.

Let the battle be joined, as nothing less is at stake than the lands and forests we leave to future generations.

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A Congressional Conservation Agenda for the Twenty-First Century

With President-elect Trump having won the Electoral College and the Republicans being in the majority of both houses of the coming 115th (2017-2018) Congress, the public lands conservation community is going to be on defense like never before.

It was either the Prussian general Carl von Clausewitz (1780–1831) or the Manassa Mauler, William Harrison "Jack" Dempsey (1895–1983) who famously said that the best defense is a good offense. The conservation community needs to be for good things while we are opposing bad things.

Though we’ve burned through one-sixth of the current century, Congress has yet to enact any sweeping and bold public lands conservation legislation in the new millennium. There’s still time though, and a crying need.

You may be questioning my grip on reality at this moment, given the recent election. While I am quite cognizant of the dark times that await us, I’m equally aware that it often takes several Congresses (two-year terms) to enact sweeping and bold legislation into law....

There is no time like the present to begin to change political reality.


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National Monuments: Long-Term National Versus Short-Term Local Interests

The people of Boston might make more money chopping up Old Ironsides into souvenirs and leasing out the space on the water to a floating casino, but they can’t. The oldest commissioned ship in the United States Navy doesn’t belong to them alone. The people of Washington DC might make more money if the National Mall were converted to condominiums, but they can’t. The nation’s lawn doesn’t belong to them alone.

Nor do the nation’s federal public lands belong to locals alone.

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A Federal Public Lands Grazing “Right”: No Such Animal

One of my obsessions in life is to disabuse any and all that holders of permits (or leases) to graze livestock of the federal public lands have a “right” to do so....  Federal grazing permits/leases do not convey “grazing rights” on federal public lands. Grazing permits issued by the Bureau of Land Management (BLM) and Forest Service allow the permit/lease holder the privilege to use publicly owned forage on federal public lands. The permits do not confer a right to permittees/lessees to graze public lands.... If the Forest Service or Bureau of Land Management revokes or does not renew a federal grazing permit or lease, it is not a [constitutional] “taking.” The withdrawal of a giving is not a taking.

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A Stage Theory of Elevating the Status of Federal Public Lands

If one rationally considered the probability of succeeding at elevating a discrete piece of federal public land to the status of a congressionally designated national what-have-you area (wilderness, wild and scenic river, national park, national monument, national recreation area, national wildlife refuge, or such), one might never embark on the voyage. One usually has to overcome an entrenched establishment of industry, locals, and government that doesn’t want things to change. Yet, conservationists proceed anyway, and if they are smart, clever, and persistent (with emphasis on the latter) enough, they do find success. It often takes a generation to change the world, or even a part of it.

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The November 2016 Election: Processing the Five Stages, Then Moving On

There are those days where one is reminded, by a proverbial kick in the gut, that life is not fair. Such was the day of the general election of November 2016.

I take solace in the fact that this was not an election about public lands or climate change. Nonetheless, the consequences to public lands and climate change will likely be grave....

The ultimate backstop for public lands and climate change is the American electorate. I am confident that most care about public lands and enough care about climate change so that we can persevere and—in the end—be victorious on both

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Keep It in the Ground

Keep It in the Ground

Fundamentally, we need to dramatically reduce—and then reverse—fossil-fuel carbon emissions into the atmosphere. In short, we need to keep it in the ground.

Keeping it in the ground means discouraging or prohibiting new fossil fuel development and production anywhere. It means no new infrastructure such as pipelines, roads, and refineries. It means divestment of stocks in fossil-fuel companies, taxing fossil fuel use at or above the social cost of carbon (SC-CO2), and more. No single silver bullet will achieve the necessity of keeping all fossil fuels safely in the ground. Rather it will be numerous courses of action—silver buckshot if you will—that will prevent the end of life on Earth as we have known and enjoyed it.

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A Public Lands Conservation Agenda for the New President

The climate, the oceans, species, watersheds, ecosystems, landscapes, cultures, and economies that depend on federal public lands all depend upon the 45th president of the United States having a bold public lands conservation agenda.

While the Property Clause (Article 4, Section 3, Clause 2) of the United States Constitution vests the power over federal public lands with Congress, as the legislative branch Congress cannot be expected to oversee the day-to-day operation of the federal public lands. Therefore, Congress has broadly set policies and then directed specified entities in the executive branch to carry them out. For example, the vast number of congressional statutes pertaining to the National Forest System make reference to the secretary of agriculture (or in some cases the chief of the Forest Service) as the responsible official empowered and directed by Congress to carry out the statute. As most federal public lands are under the jurisdiction of the Department of the Interior, the secretary of the interior (and occasionally the director of the Bureau of Land Management, the Fish and Wildlife Service, the National Park Service, and so on) is similarly empowered or directed.

Though these cabinet officers or agency heads are appointed by the president, they must be confirmed by the Senate before they can assume the office. When it comes to federal public lands, these public land officials have two masters, the president who gave them their job and the Congress—in particular the committees of jurisdiction (the House of Representatives’ Committee on Natural Resources and the Senate’s Committee on Energy and Natural Resources)—who gave them their marching orders.

In some cases, Congress has granted the president certain powers over federal public lands, most notably to proclaim national monuments or to allow or disallow the development of offshore oil and gas. The president and her cabinet and agency heads should use these and other powers granted to them by Congress to advance the cause of conservation of the public lands for the benefit of this and future generations.

What follows is a public lands conservation agenda that the next president could implement without any additional Acts of Congress. It’s unfortunate to have to assume Congress missing in action when it comes to the conservation of federal public lands, but it is. (I hear Congress was more dysfunctional just before the Civil War, but I wasn’t there.)

1. Keep it in the ground.

Federal public lands account for about a quarter of all U.S. fossil fuel production and therefore one-quarter of the carbon dioxide pollution from those sources. To help avert the worst effects of climate change, an immediate ban on new federal fossil fuel leases should be imposed, nonproducing current leases should be allowed to expire, and existing producing leases should be bought back. Doing such will not only help mitigate climate change, it will also prevent harm to the nature that depends on federal public land. Several conservation organizations, including the Center for Biological Diversity, are leading the Keep It in the Ground campaign for federal public lands.

2. Ban renewable energy development on federal public lands.

While less damaging to the climate, the supposed “green” electrons that come from renewable energy projects on federal public lands are better thought of as “light brown” electrons. Concentrated production of renewable energy from wind, solar, and geothermal is as damaging to nature as concentrated production of nonrenewable energy from coal, oil, and gas. Poxing the federal public lands with wind towers or covering them with photovoltaic panels renders that public land parcel worthless for conservation. Public lands have a higher and better use than industrial sites for any kind of energy development. For example, both the desert tortoise and photovoltaic panels find suitable habitat in the California desert. However, solar panels can live—better actually—on roofs in town, while the desert tortoise cannot.

3. Double the National Wildlife Refuge System.

Under existing congressional authorities, the secretary of the interior by secretarial order or the president by executive order can establish new or expand existing national wildlife refuges. These expansions can come from federal public lands currently administered by the Bureau of Land Management or encompass an area of nonfederal land so that the lands can later be acquired by donation or purchase from willing sellers.

4. Proclaim more national monuments.

In the Antiquities Act of 1906, Congress gave the president authority to proclaim national monuments. Hundreds of millions of acres of federal public lands in the U.S. Exclusive Economic Zone and many tens of millions of acres of onshore public lands are worthy of national monument designation. Most presidents have mostly proclaimed national monuments as they were leaving office; but given the general dysfunction of Congress, national monuments should be proposed and proclaimed early and often. For some onshore areas, it may be appropriate for the president to announce her intention to proclaim a national monument well in advance in order to spur Congress to act to conserve an area in ways that can be superior to a national monument proclamation. For example, President Obama’s interest in proclaiming a national monument in Idaho in 2015 prompted Congress to establish 275,000 acres of wilderness in central Idaho—a bill that had been languishing for nearly a decade.

5. Save Wyoming and Alaska federal public lands in other creative ways.

Part of the 1950 congressional deal to combine Grand Teton National Monument (est. 1929) and Jackson Hole National Monument (est. 1942) to create Grand Teton National Park excluded Wyoming from any future presidential proclamations of national monuments. In Alaska, since enactment of the Alaska National Interest Lands Conservation Act of 1980, the president’s authority to proclaim new national monuments is limited to ones less than 5,000 acres in size. Much of the 73 million acres of BLM holdings in Alaska and the 18 million in Wyoming are in need of elevated conservation. With the Antiquities Act rendered useless in these two states, the president could establish new national wildlife refuges or direct her secretary of the interior to do so. In addition, the president could issue executive orders directing the BLM to manage particular areas of public lands for conservation purposes and to prohibit harmful activities.

6. Keep it in the forest.

A very large fraction of the excess atmospheric carbon came not from the burning of fossil fuels but from the conversion of native forests to cities, farmlands, and clear-cuts. Forests on federal public lands need to be protected in order to remove excess carbon from the atmosphere and store it securely.

The United States owns tens of millions of acres of “moist” (not subject to frequent fire) forest types in southeastern Alaska, western Washington, western Oregon, northern California, northern Idaho, and northwestern Montana. These moist forests act as huge and secure stores of carbon, and they also sequester additional carbon back to the biosphere from the atmosphere. Most are within the National Forest System, but some significant areas are administered by the BLM. By executive order, the president could direct the secretaries of agriculture (Forest Service) and interior (BLM) to set aside “carbon reserves” that contain moist forests to conserve already-stored carbon and to maximally sequester additional carbon to help ameliorate the effects of climate change. Many of these moist forest stands consist of older (mature and old-growth) trees that are best suited to resist and adapt to climate change.

7.Keep it in the grass.

Temperate grasslands store more carbon on average than temperate forests, according to a report from the Intergovernmental Panel on Climate Change. The difference is that most of the carbon in a forest is aboveground, while most of the carbon in a grassland is belowground. Livestock grazing and other destructive agricultural practices have not only severely reduced aboveground carbon stores (otherwise known as plants) but also allowed the release of much belowground carbon. Carbon reserves such as those recommended for moist forest types could also be established to protect public land deserts and grasslands.

8. Raise royalties on federal energy revenues.

While the best thing for the world’s climate is for the federal government to collect no royalties from fossil fuel production on federal public lands as it should no longer be allowed, until that time the taxpayers should receive a fair return on something private entities are allowed to sell. A report by the Center for Western Priorities notes that the royalty paid to the federal treasury for fossil fuel production from federal lands is 12.5 percent of revenues. Compare this to the 16.75 percent charged by Wyoming, Utah, Montana, and Colorado, or the 18.75 percent charged by New Mexico and North Dakota, or the 25 percent charged by Texas for fossil fuel production from state lands. The federal government receives 18.75 percent for offshore oil and gas.

Besides representing a fair percentage of revenues, the royalty should factor in the social cost of carbon (SC-CO2). SC-CO2 is measured in $/tonne and includes—but is not limited to—the cost of changes in net agricultural productivity, adverse impacts on human health, property damage from flooding, and changes in the energy system due to climate change. It is the cost to society of placing CO2 in the atmosphere. Burning a barrel of oil (42 U.S. gallons) emits 0.43 tonnes of CO2. West Texas Intermediate (WTI Crude Oil, a benchmark for oil prices) is trading for around $50/barrel. Ifthe SC-CO2 is $36/tonne CO2, adding the social cost of carbon to the price of a federal barrel of oil would increase its price by ~$16. It probably wouldn’t offset the special tax breaks afforded to fossil fuel producers that are permanently embedded in the U.S. tax code, but it would help level the playing field for sustainable and renewable forms of energy.

9. Withdraw all scenic- and recreation-classified wild and scenic rivers from mining.

In its wisdom (pronounced “compromise”), Congress specified in the 1968 Wild and Scenic Rivers Act (WSRA) that only the segments of wild and scenic rivers classified as “wild” would be withdrawn from the application of the federal mining laws. Those segments classified as “scenic” or “recreational” are not protected by WSRA from mining. The difference is that a “wild” segment generally has no roads in its corridor, whereas a “scenic” segment may have a road crossing its corridor and a “recreational” segment a road along its corridor. If a stream is worthy of inclusion in the National Wild and Scenic Rivers System (NWSRS), it’s worthy of not being mined. Some—but far from all—such stream segments have been withdrawn from mining by the secretary of the interior under the 1976 Federal Land Policy and Management Act withdrawal provision for the maximum allowed twenty years. All of the NWSRS should be so protected from mining.

10. Link mineral withdrawals to management plans.

The Forest Service and the BLM develop land and resource management plans under the authority of the National Forest Management Act and the Federal Land Policy and Management Act (FLPMA), respectively. In such plans the agencies designate lands for conservation and sometimes prohibit such things as logging, road building, grazing, off-road vehicles, fluid mineral leasing, and other activities that would harm the values for which the area is being managed. However, under the Mining Law of 1872, an area of federal land may only be protected from hardrock (gold, etc.) mining if the area has been “withdrawn” pursuant to the withdrawal provision of FLPMA. The president should direct the BLM and the Forest Service to promptly apply to the secretary of the interior for such mineral withdrawals, and she should direct the secretary to promptly withdraw them.

If you have built castles in the air, your work need not be lost; that is where they should be. Now put the foundations under them.
— —Henry David Thoreau, Walden: A Life in the Woods (1854)

A National Desert and Grassland System

It’s time for the BLM to have its own comprehensive land conservation system: a National Desert and Grassland System. Congress should place appropriate BLM lands into a system of national deserts and national grasslands similar to the National Forest System.

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Abolish the BLM and Replace It with a U.S. Desert and Grassland Service

Abolish the BLM and Replace It with a U.S. Desert and Grassland Service

Born in 1946 out of a merger between the federal General Land Office (est. 1812) and the U.S. Grazing Service (est. 1934), the present-day Bureau of Land Management (BLM) reflects its parentage by continuing to serve as partner or handmaiden to exploiter interests. For most of its history the BLM has been a mere custodian of the federal public lands left over from the great historic giveaways to homesteaders, railroads, loggers, ranchers, and miners, and after the creation of the national forests, wildlife refuges, parks, and military reservations. However, these remaining public lands are valuable for wildlife habitat, watershed protection, carbon sequestration, and recreation and should no longer be left in the domain of the extractive industries.

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The National Park System

National parks are commonly called our nation’s best idea. (Actually, public lands, which include the national parks, are America’s best idea.) Today the National Park System has 413 units (which you can see in a map that is interactive or one that is suitable for framing), all established by or through an Act of Congress. Besides the 59 national parks, there are 84 national monuments, 19 national preserves, 50 national historic parks, 78 national historic sites, 1 international historic site, 4 national battlefield parks, 9 national military parks, 11 national battlefields, 1 national battlefield site, 30 national memorials, 18 national recreation areas, 10 national seashores, 4 national lakeshores, 15 national rivers, 2 national reserves, 4 national parkways, 3 national trails, and 11 sundry other units. The diversity of designations reflects the diversity of natural, historical, and cultural features being protected for this and future generations.

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The Bipolar State of Utah and National Monument Designation

Most change comes through funerals. As the rabid opponents of national monuments shuffle off their mortal coils, the next generation will come to see the benefits of national parks. The history of public lands conservation in Utah is still being made.

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Judge John B. Waldo: Oregon’s John Muir

Judge John B. Waldo: Oregon’s John Muir

Republican legislator, lawyer, chief justice, granger, sportsman, conservationist, explorer, and scholar John B. Waldo read and quoted Thoreau, Shakespeare, Emerson, Aurelius, Goethe, and Wordsworth. He made twenty-seven summer sojourns in Oregon’s Cascades. From July through September and from Mount Hood to Mount Shasta, Waldo explored and was nourished and educated by Oregon’s mountain wildlands.

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Statehood and Federal Public Lands: A Deal is a Deal

In 2012, the Utah State Legislature enacted the Transfer of Public Lands Act (TPLA), which demanded that the federal government hand over the state’s ~30 million acres of national wildlife refuges, national forests, and other public lands by the end of 2014.

This did not happen, but Utah is still trying. It seeks to set up a legal test case, and the legislature has appropriated $4.5 million of the $14 million it will likely cost to do so. In 2010, Utah considered trying to use its power of eminent domain to seize the federal land. When it realized that it would have to pay real money for the land it condemned—and perhaps also remembering that the federal government has all the nuclear weapons—Utah decided to seek a judicial ruling instead.

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