Update: Congress Cuts Public Out of Early Input on Public Lands
On March 7, the Senate voted 51-48 to nullify the BLM Planning 2.0 rule, which updated the decades-old planning process for our public lands, gave the public greater input, and improved the outlook for countless cultural resources and archaeological sites on public lands. The House of Representatives passed the measure (H.J. Res. 44) in February by a vote of 234-186. President Trump signed it into law on March 27, overturning the rule in its entirety and prohibiting a similar rule in the future. This action by Congress and the President is a disappointing step backward for efforts to preserve and celebrate the rich heritage of our public lands.
We’re big on preserving the past around here, but some things are worth modernizing. The Bureau of Land Management (BLM) planning process is one of them. In December the BLM updated its overall planning process for the first time in more than 30 years through its new Planning 2.0 rule, and the National Trust applauded the effort.
But the new planning rule is under fire in Congress. In February the House of Representatives passed a resolution (H.J. Res. 44) under the Congressional Review Act to nullify the rule in its entirety and essentially lock in the old, inefficient rules. The Senate is expected to take up that resolution this week.
We need your help! As an advocate for protecting cultural and historic resources on public lands, join us in contacting the Senate today and urging opposition to H.J. Res. 44.
What is the BLM Planning 2.0 Rule?
Basically, it’s a rule about how to write a plan. The Federal Land Policy and Management Act (FLPMA) of 1976 requires the BLM to manage public lands for multiple uses—including historic resource values—to serve current and future generations. To do so, Congress requires the BLM to seek public input while developing individual resource management plans to guide decisions regarding the lands that the BLM manages. The new planning rule updates the policies and procedures for developing those plans.
Why does it matter?
The rule makes a number of broad improvements to the planning process because it:
- Provides more opportunities for public involvement. The rule adds a “planning assessment” step at the outset that gives the public new opportunities to provide data, information, and suggestions for consideration before a draft plan is developed. The rule also requires the BLM to initiate government-to-government consultation with Indian tribes while preparing or amending resource management plans, which better fulfills federal responsibilities to tribes and helps identify important historic and cultural sites. The rule maintains existing coordination and partnerships with states, local governments, and tribes.
- Streamlines the process for writing new or amending existing resource management plans. Under the old rules, resource management plans took an average of eight years to complete. Due to changing conditions or information discovered late in the process, plans often required costly and time-consuming supplemental analysis or encountered litigation. Involving more stakeholders earlier in the process and improving information increases efficiency and cuts down the execution time.
- Ensures that decision-makers have better information when writing plans. Despite requirements under the FLPMA and the National Historic Preservation Act, the BLM has only surveyed about 10 percent of the lands it manages to identify and evaluate cultural resources. Although the new rule could have done more to prioritize and improve baseline data on cultural resources, it does move information and data collection into the new assessment phase at the start of the planning process, which avoids or minimizes conflicts with cultural resources and leads to better preservation outcomes.
- Encourages the BLM to look at common management challenges at a broader, landscape scale when appropriate. In addition to management challenges like wildfire or invasive species, cultural landscapes often cross political or field office boundaries. Allowing for planning across those boundaries can help the BLM better consider indirect and cumulative effects of ground-disturbing activities.
What’s at stake for historic preservation and cultural resources?
The BLM manages nearly 250 million surface acres of public lands, primarily in 12 western states, and more than 700 million acres of subsurface minerals. Those lands contain the largest, most diverse, and most scientifically important body of cultural resources managed by any federal agency, including more than a million historic and cultural artifacts. The BLM’s management of the lands and decision-making regarding their many different uses matters a lot for those cultural resources.
What is the National Trust’s take on the rule?
The National Trust participated extensively during the rulemaking process, including providing scoping comments in January 2015, as well as in May 2016. While the final rule did not make all of the changes we suggested, the BLM responded to our and other stakeholders’ comments in an extensive document.
The rule adds much-needed efficiency, predictability, and transparency to the BLM’s management of public lands. While the rule is not perfect, the National Trust supports these improvements to the planning process and strongly opposes overturning the rule. Recently, the National Trust led a letter —which was cosigned by 25 national, regional, and local organizations that support cultural resources on public lands—urging Congress to uphold the BLM planning rule.
What is the Congressional Review Act, and why is it being used?
Under the CRA , any federal rule can be overturned within a certain timeframe if Congress passes, and the president signs, a resolution of disapproval. The act is a particularly blunt tool: resolutions of disapproval overturn rules in their entirety and prohibit the affected agency from issuing future rules that are “substantially the same,” which can have a chilling effect on efforts to regulate. Using the Congressional Review Act to address concerns with a rule is sort of like using a bulldozer to clear away brush from a sensitive archaeological site. There’s a lot of collateral damage, and there’s no going back.
With majorities in the House and Senate and a new administration, Republicans are in a unique position to successfully push through disapproval resolutions on recent rules. Within 60 session days of a rule being received by Congress and published in the Federal Register, the Senate can consider disapproval resolutions under expedited procedures, including limitations on debate time and requiring a simple majority to pass. That window resets at the start of a new Congress.
Isn’t there a better way?
Yes! Rather than passing this resolution, members of Congress and stakeholders should work with the Department of the Interior—as the National Trust plans to do—on implementing the rule and on the BLM’s forthcoming updates to its land use planning handbook. More substantial changes to the rule itself can also be made through the formal, and public, rulemaking process.
How can I help?
Join us in urging senators to oppose the Congressional Review Act resolution that overturns the BLM’s planning rule.
- Customize and send a letter to your senators urging them to support more public involvement in public lands management by opposing H.J. Res. 44 to overturn the BLM Planning 2.0 rule.
- Call your senators’ offices and ask to speak with the natural resources staff member to urge opposition to H.J. Res. 44. The United States Capitol Switchboard, reachable at 202-224-3121, can connect you with your senators’ offices.
- Use Twitter, Facebook, and other social media to publicly encourage your senators to oppose this resolution. Use a list of senators’ official Twitter accounts to tweet at them directly.
Janelle DiLuccia is the associate director of public lands policy at the National Trust for Historic Preservation.
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