“The Cow Boy” by John C. H. Grabil, 1888.
The Law Wranglers:
How Litigation Impacts Public Land Management
By Matt Christenson
Legal arts have existed for as long as human civilization. Wherever people have lived and worked together, there’s been a need for peaceful means to maintain justice and social order without resorting to physical conflict.
The United States’ own legal legacy has long helped shape American policies. From voter rights and the end of segregation to the management of public lands and beyond, judicial actions have had as much impact as free elections.
But how has litigation specifically influenced the management of public lands in the modern era following the 1976 passage of the Federal Land Policy and Management Act (FLPMA)? Jay Carlson, BLM district manager in Roseburg Oregon; Tim Reuwsaat, former BLM district manager in Medford, Oregon; Roger Nesbit, former attorney for the U.S. Department of the Interior (DOI); and Brad Grenham, attorney/advisor for the DOI share their observations about these legal actions—and their impacts:
Carlson: If you go way back to the late 1960s, back before FLPMA was passed, the BLM was still working from a lot of land laws passed in the mid-1800s. The BLM was mostly a custodial organization. But once major law policies were enacted in the 1970s, that legislation served as an organic act to help define and embrace the BLM’s multiple-use mission.
Reuwsaat: The reason I was actually hired was after the Natural Resources Defense Council sued the BLM—I think it was 1976—about the livestock grazing program. In response, the BLM was required to complete about 150 environmental impact statements (EISs). And so they hired a bunch of range conservationists. Since I had a degree in range and forest management, I got hired. The BLM experienced a substantial growth period in terms of staffing as a result of all that litigation.
Nesbit: Interestingly, one of my early jobs was working for the Northwest Environmental Defense Center to prepare for a timber sale protest. I was the one who discovered a regulation that allowed persons aggrieved by BLM timber sales to protest them and attain standing to file suit against them in court. Then I became an attorney for the BLM where I spent much of my time defending BLM timber sales. Some say this is my karma, others that I certainly made a career for myself.
Reuwsaat: Later in the 1980s, there was concern about the northern spotted owl. The result of this particular legal action was to inspire the BLM to take a more global look at forestry planning in western Oregon. Whereas previously, individual district offices largely developed their own forestry plans, after litigation the BLM—with the Forest Service—developed the Northwest Forest Plan to provide a comprehensive vision for the entire range of the spotted owl.
Grenham: I began working for the BLM more recently—in 1995. So for me, frequent litigation has always been my reality. It’s not ramping up or down, but instead a continual part of the BLM’s mission in the Pacific Northwest.
Nesbit: Litigation and lawsuits have also forced the BLM to look more closely at its decisions and management plans. Due to this litigation, the BLM in western Oregon increased transparency in decisionmaking and improved its explanation of the facts, science, and reasoning in its management decisions.
Grenham: From my experience, litigation spurred the BLM to become a leading agency when it comes to addressing legal developments under the National Environmental Policy Act. BLM documents are among the most frequently challenged in court. And so the BLM has long been on the cutting edge when it comes to management of the public lands under judicial scrutiny.
Carlson: No matter how good the compromise, someone’s always going to be disappointed. That’s just the way it is these days. You have a lot of positions. And someone will be willing to entrench themselves in the legal process and use litigation to help influence the final outcome—even after a decision has been made.
Reuwsaat: In some ways, the biggest difference today is the sheer amount of paper. In the 1970s, the result of the National Environmental Policy Act was to create a 15-page environmental assessment (EA) to help the BLM make informed decisions and determine if an EIS was required in the management of the public land for its multiple uses. But towards my retirement in 2010, an EA grew to 300 and 500 pages or more. Perhaps returning to the simple approach along with direct collaboration with all interested parties would actually be more effective.
Grenham: At the end of the day, litigation absolutely requires both time and resources. But we’re fortunate to live in a nation where we have a traditional rule of law that allows for peaceful means to settle disputes. So despite the undeniable costs and delays, our system still works on a larger scale—especially in light of the unrest we’re seeing in other parts of the world.
Matt Christenson has been a writer/editor for the BLM in Oregon and Washington since 2008. Previously he worked as a dog wrangler, musician, production assistant, and designer, producing print and radio advertisements. Matt is also a decorated military veteran.