Congressional Update: Playing Defense in September

Following the August recess, a month when many families across America find a few days to visit and enjoy the nation's spectacular publicly-owned lands, Congress returned with a bang in September. The House considered several bills in the House Natural Resources Subcommittee on National Parks, Forests, and Public Lands that, taken together, would drastically reverse a century of laws and regulations affecting protection and management of our country's treasured lands. But action in the Senate may have the most far-reaching consequences for our public lands and environment.

On September 14, the Senate Committee on Homeland Security and Governmental Affairs held a business meeting (markup) to consider the Department of Homeland Security (DHS) authorization bill. While public lands issues are usually the purview of the Senate Committee on Energy and Natural Resources, Sen. John McCain (R-AZ) pushed the envelope somewhat. McCain offered an amendment to allow U.S. Customs and Border Protection (an agency of DHS) immediate access to all federal lands managed by the Departments of Interior and Agriculture within 100 miles of the U.S.-Mexico border—for activities such as motorized patrols and the construction of infrastructure, including roads and surveillance towers. The amendment was accepted by a vote of 12 to 4—with only Chairman Lieberman (I-CT) and Senators Levin (D-MI), Akaka (D-HI), and Tester (D-MT) voting against the ill-advised proposal. The only bright side to this action is that the amendment originally established a larger, 300-mile zone for DHS to operate.

A second amendment dealing with border security that would also have had severe negative effects on public lands was pending when the committee temporarily adjourned the markup. This amendment, prepared by Sen. Coburn (R-OK) was similar to Rep. Bishop's (R-UT) bill, H.R. 1505—a bill strongly opposed by Pew—to grant the DHS even more authority over our nation's parks, monuments, wildlife refuges, wilderness, and other public lands. The Coburn amendment would grant DHS access to all public lands across the country, whether near our borders or not, and provided for a 25-mile zone along both the Mexico and Canada borders in which more than 30 environmental and public safety laws would have been waived. Fortunately, this amendment was not offered when the Committee completed its markup on September 21.

We will continue to work to stop, or significantly modify, the McCain language as the Department of Homeland Security authorization bill works its way through the legislative process.

On the House side, a series of laws aimed at changing existing land law were heard.

On September 13, the Subcommittee held a hearing on six bills that would curtail or eliminate the President's authority under the Antiquities Act to proclaim public lands as national monuments. Since its enactment in 1906 during the administration of Theodore Roosevelt, nearly all presidents--Republican and Democrat alike—have used the Act to protect fragile national treasures from vandalism, development, oil and gas exploration, road building, and other types of ecological degradation. President Roosevelt used it to protect the Grand Canyon. Most recently, President George W. Bush protected millions of acres of coral reefs, atolls and undersea resources by proclaiming four national monuments in Hawaii and the Pacific trust territories.

The individual bills vary greatly. HR 302 by Rep. Virginia Foxx (R-NC) and a score of cosponsors would permit new national monuments only with the approval of a state's governor and legislature. HR 758 by Rep. Devin Nunes (R-CA) would permit designation only by a formalized procedure including passage of legislation by Congress, essentially nullifying the very reason that Congress entrusted the power to the President in the first place. And three measures would simply prohibit the use of the Antiquities Act in specific western states. Not surprisingly, the Administration opposed all of the bills.

Despite a line of attack claiming the Act restricted economic development of western land, Ray Rasker of Headwaters Economics, referred to a report completed by his organization that shows the creation of national monuments has actually reversed the downward economic trend in communities.

For instance, despite continued local opposition to former-President Bill Clinton's 1996 proclamation of the Grand-Staircase Escalante National Monument, the communities around the monument have seen population grow by eight percent and job growth has increased 38 percent between 1996 and 2008. Personal income also rose by 40 percent during this time period.

On September 19, the Subcommittee held a field hearing at the California State Capitol in Sacramento entitled, “Restoring Public Access to the Public's Lands: Issues Impacting Multiple-use on Our National Forests.” The Committee leadership invited rural county officials, leaders of motorized recreation groups and advocates for increased timber production on the national forests. According to the Sacramento Bee's coverage, “the event was stacked with witnesses who want the Forest Service to reverse a modern-day emphasis on protecting habitat and recovering costs through steeper fees. A major focus of complaint was a national effort to regulate off-road vehicle use.”

Rep. Tom McClintock (R-CA) stated that the “sum total of these [land management] policies seems more in line with the radical leftist agenda to dramatically limit access to these lands.”

But Randy Moore, Regional Forester for the U.S. Forest Service, responded that the agency was following federal laws that required private leasing of public lands to track more closely with private market rates. And Sam Davidson of Trout Unlimited stated: “Access is more than where you can or cannot drive…It's about maintaining quality habitat.”

These same themes of motorized use of land and quality wildlife habitat had clashed earlier at a September 9 hearing on the Recreation Fishing and Hunting Heritage and Opportunities Act (H.R. 2834), introduced by Rep. Benishek (R-MI). The bill seeks to “…facilitate use of and access to Federal public lands and waters for fishing, sport hunting, and recreational shooting…”

Since hunting is already allowed on federal lands, including wilderness, unless prohibited for good cause, the cryptically written bill seems duplicative of existing law. Indeed, Deputy Forest Service Chief Joel Holtrop announced that the Department opposed HR 2834 because it is “unnecessary and would not enhance or improve existing fishing, hunting and shooting opportunities on National Forests and Grasslands. Additionally, we are concerned that certain provisions in the legislation would be in conflict with existing statutes and agency policy, establish unnecessary analysis and reporting requirements, require consultation with Executive Order advisory councils that already occur, and establish annual Congressional notification and approval processes for closures of National Forests and Grasslands determined by local land managers to be necessary to protect public health and safety. And finally, this act contains provisions that would undermine the Wilderness Act of 1964.”

It is clear that the bill amends two specific subsections of the Wilderness Act, but the meaning of those changes was not readily apparent. Deputy Chief Holtrop, acknowledged his staff had not had time to fully evaluate the bill as it was introduced only three days before the hearing, but expressed concerns that it would permit motorized entry to wilderness. Later, bill supporter William Horn, a former Interior Department official under President Ronald Reagan, denied the concern, stating that it was intended to reverse a specific district court ruling affecting hunting. “The bill makes no reference to motorized vehicles and will not change existing limitations on motorized access on Wilderness lands,” Horn told a publication advocating for the bill.

Finally, on September 22nd, the House Committee on Natural Resources held a legislative hearing on two bills designed to increase natural resource extraction and development on our public lands.

The first, a bill not yet introduced or even completely drafted, and proposed by the committee majority, would require the Forest Service to produce a certain increased level of revenue with some combination of expanded mining, logging, grazing, and oil and gas drilling. That revenue would then be deposited into a trust account and distributed to counties to compensate for payments in lieu of property taxes on federal lands. While existing wilderness areas would be exempt from new development, this legislation could threaten any undeveloped and wild area that has no current statutory prohibition on development.

Undersecretary of Agriculture Harris Sherman testified for the Obama Administration in opposition. He acknowledged the need to continue supporting local counties, but said the proposed legislation sets “unrealistic expectations” for timber receipts and ignores other values. He pointed out that “[Forest Service] lands directly contributed an estimated $19 billion to GDP in 2005, less than a quarter of which came from timber harvest; recreation provided the largest contribution, at 43.8 percent.

Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, also testified that to achieve county funding levels under the current system, New Mexico's Gila National Forest would have to increase logging by more than 14,000 percent. Not only does the agency lack the funding and capacity for such a timber program, but the market could not support such increases.

Also on the committee's docket was H.R. 2852, the “Action Plan for Public Lands and Education Act,” sponsored by Representative Rob Bishop (R-UT). Mr. Bishop's bill would allow each western state to acquire—free of charge—five percent of the federal land located within its boundaries. Tens of millions of acres of some of our nation's finest public lands would be given to states to be managed to maximize profit. These lands, including undeveloped public lands now used by sportsmen, hikers, campers, and outdoor enthusiasts could be sold to developers, strip mined, clearcut, or otherwise treated as though their only worth is in possible development value. The Administration opposed this measure, as well.