In 1976, Congress finally adopted a national policy—known today as the Federal Land Policy and Management Act of 1976 (FLPMA)—that the vast area of federal public lands administered by the Bureau of Land Management (BLM) should generally stay in public ownership. It also mandated a management framework for those lands, including a strong mandate for the agency to consider, designate, and protect what this organic act for the agency called areas of critical environmental concern (ACECs). Today these crown jewels are open to theft because of a crippling flaw in the FLPMA relating to mineral exploitation. The flaw has a fix that Congress should undertake to protect these special public lands for the benefit of this and future generations.
The Mandate: Clear Enough
FLPMA declares that it is the policy of the United States that “regulations and plans for the protection of public land areas of critical environmental concern be promptly developed.” The act defines ACECs as
areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards.
Congress specified that the BLM has a continuing duty to inventory potential ACECs:
[The BLM] shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values. [emphasis added]
A few years after enactment of FLPMA, a wise conservation elder told me that the ACEC provision was first suggested during congressional consideration of FLPMA as a gambit to knock out another provision being considered that would require the BLM to do a comprehensive wilderness review of its lands. Histories of the legislation rely exclusively on the official record of hearings, drafts, amendments, debate, and such, and generally do not reflect underlying political intent. Nonetheless, if this is true, I do love the irony that both provisions were included in the final Act of Congress.
The Administrative Rules: Raising a Barrier to ACEC Status
To carry out its ACEC mandate, the Interior Department has published administrative rules pertinent to ACECs in the Code of Federal Regulations that specify that ACECs will be considered and approved in the regular BLM resource management planning process. The rules require that both of the following criteria be met for an ACEC to be considered for designation:
(1) Relevance. There must be present a significant historic, cultural, or scenic value; a fish or wildlife resource or other natural system or process; or natural hazard; and
(2) Importance. The value, resource, system, process, or natural hazard described in paragraph (a)(1) of this section must have substantial significance and values. This generally requires qualities of special worth, consequence, meaning, distinctiveness, or cause for concern. A natural hazard can be important if it is a significant threat to human life or property.
The BLM Manual details each step of the ACEC consideration process, and as part of this it further states four specific criteria for relevance and five for importance. In particular, the definition of significance is more detailed and more narrowing. This increased specificity has the effect of raising the bar for what the agency considers worthy of ACEC status beyond what Congress simply stated.
A maxim of any bureaucracy is that no bureaucrat willingly gives up bureaucratic discretion. An ACEC imposes constraints on the BLM, so the bureaucracy invents a gauntlet to minimize its loss of discretion.
It is my belief that the BLM has rejected far more ACEC nominations than it has accepted. As one example, in June 2015, eight organizations proposed to the BLM that it establish a 7,415-acre Rogue Valley Foothills Area of Critical Environmental Concern. A year later, the BLM rejected the proposal, concluding the area was unworthy of ACEC status. Half a year after that, President Obama included the lands in an expanded Cascade-Siskiyou National Monument.
The Reality: Protection Undermined by a Crippling Flaw
Despite the raising of the bar, nearly 21 million acres of BLM lands are presently designated as ACECs in more than 1,100 units in thirteen states (Table 1). Oregon has 192 ACECs totaling more than 835,000 acres (Table 2; these numbers don’t precisely comport with the Oregon numbers in Table 1, but the nuances of the 0.7-percent discrepancy bore even me; it’s good enough for government work) More information on these special areas can be found on the BLM’s ACEC web page.
When an ACEC is declared, the area on the map changes to a prettier color, but the reality is that no actual protection is afforded ACECs against the grave threat of mineral exploitation. An ACEC management plan approved by a BLM field office can restrict logging, grazing, off-road vehicles, and other such threats to protect the purposes for which the ACEC was established, yet one mine or mineral lease can wipe out all such purposes.
While ACECs are generally established at the level of BLM field offices, the decision to withdraw any area of public land, including an ACEC, from the application of the federal mining laws can only be made at the highest levels of the Interior Department by the secretary of the interior or a few other cabinet-level officials confirmed to their jobs by the Senate. So while a local BLM manager can recognize and seek to protect critical environmental concerns, the manager does not have the power to prevent their destruction by gold or coal mining and/or oil, gas, or geothermal exploitation.
FLPMA specifies a series of high hurdles for obtaining a mineral withdrawal, and then only for a maximum of twenty years before the withdrawal has to be renewed. The practical result of this statutory silo is that the vast majority of ACECs are not withdrawn from mineral exploitation.
Despite their shortcomings and limited application on BLM lands, ACECs are an important tool in the conservation toolbox.
Congress should provide that any and all ACECs are protected as National Conservation Lands (a part of the National Landscape Conservation System), as are some of the best of the rest of BLM holdings. This would ensure their protection from mineral exploitation as well as generally ensure their enduring conservation for the benefit of this and future generations of Americans.