The Human-Powered Travel in Wilderness Areas Proposed Senate Bill

screen-shot-2016-09-19-at-9-14-20-pmBy Arie Mielkus

Utah Senators Mike Lee and Orrin G. Hatch recently introduced Senate Bill 3205 that would allow biking in wilderness areas. The Human-Powered Travel in Wilderness Areas Act was met with a mix of concern and support.

The Wilderness Act of 1964 banned mechanized travel in wilderness areas. The purpose of the Act was to ensure the growing population of the US did not leave its citizens’ without preserved areas in their natural condition. Additionally, the Act addressed concerns about the increase of mechanized forms of travel, and the need to set aside lands for solitude. To address these concerns, and others, mechanized travel was banned on lands designated as Wilderness.[1]

The Bill would require the Secretary of the Interior and Secretary of Agriculture to authorize local officials to decide if non-motorized forms of recreation should be permitted in their jurisdictions. A decision is required within 2 years of the Bill’s enactment; failure to make a decision results in the Wilderness area being opened to non-motorized recreation. It remains unclear what factors would be considered in this determination, but the Bill states the decision shall “accommodate all forms of non-motorized transportation, to the maximum extent practicable.” The Bill also includes a section on maintenance, proposing motorized trail access to amend the current Wilderness Act, by allowing “small-scale motorized equipment” (such as chainsaws and wheelbarrows) to maintain trails. “Small-scale motorized equipment” is not defined by the Bill.[2]

There is concern that the Bill supports a public land seizure. Utah and other Western States have been the site of efforts to transfer federal public lands to state control. Most recently in 2014 a Utah State Senate measure became effective, requiring the US to “extinguish title” to public lands and transfer title of the lands to the State of Utah.[3] A spokesperson for Senator Mike Lee says that this is just a “cuckoo conspiracy theory,” emphasizing the Bill’s goals “to open up more public lands for enjoyment by Americans.”[4]

Sustainable Trails Coalition (STC), a non-profit that supports human powered travel in wilderness areas to ensure trails can be enjoyed by all, supports the Bill. The group’s website states the bill is narrowly written, with no hidden agenda. Additionally, STC claims local land managers are empowered with making the determination if biking on trails is allowed, based on “current usages, the sources available for trail maintenance, and the possibility of repairing a neglected trail.”[5]

The Bill was referred to committee on July 13, 2016. Govtrack.us, a website that tracks bills, gives Senate Bill 3205 a fourteen percent chance of making it out of committee and ultimately being passed. The site lists several factors for this prognosis including: (1) The Bill’s sponsor, Mike Lee, is a member of the Senate Energy and Natural Resources committee to which it was referred; (2) Sponsor Mike Lee is a member of Republican party, the majority party in the Senate; and (3) Co-Sponsor Orrin Hatch is high within the leadership of the Republican party.[6]

[1] The Wilderness Act of 1964, 16 U.S.C §1133 (2014).

[2] S. 3205, 114th Cong. 2016.

[3] H.B 148, 2012 Gen. Sess. (Utah 212).

[4] New York Times, Bill Opening Wilderness Areas to Bikes Also Opens Debate, http://www.nytimes.com/2016/08/20/us/bill-opening-wilderness-areas-to-bikes-also-opens-debate.html?_r=0 (last visited Sept. 13, 2016).

[5] Sustainable Trails Coalition, FAQ/Resources, http://www.sustainabletrailscoalition.org/resources/#faq (last visited Sept. 13, 2016).

[6] Govtrack.us, S. 3205: Human Powered Travel in Wilderness Areas Act, https://www.govtrack.us/congress/bills/114/s3205 (last visited Sept. 13, 2016),

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Modern Day Warriors

By Lillian Alvernaz

There are estimates of up to 4,000 Indians gathered in Cannonball, North Dakota to protest the construction of a $3.8-billion-dollar pipeline, “Dakota Access” or “DAPL.” Though, the hundreds of Indian tribes from over twenty states supporting the Standing Rock Sioux Tribe in their complaint against the United States Army Corps of Engineers is about much more than this project alone. With no intent on leaving, tribes have peacefully occupied the great plains of North Dakota since April.

Dakota Access is a proposed pipeline that would run from North Dakota, through South Dakota and Iowa, and end in Illinois. This 1,168-mile-long project would cross numerous water sources, such as the Missouri River and Lake Oahe. The Standing Rock Sioux Tribe’s suit against the U.S. Army Corps of Engineers asserted that the Corps failed to consult with the tribe under Section 106 of the National Historic Preservation Act (“NHPA”) before beginning construction of DAPL. Standing Rock further argued that the land that Dakota Access is being built on is sacred and culturally significant to area tribes and threatens their drinking water.

The United States District Court for the District of Columbia denied the tribe’s motion for a preliminary injunction, and found that the Corps complied with the NHPA and the tribe failed to show that preventing Dakota Access would protect the tribe from injury.

While Dakota Access’s construction will continue, as will the spirit of the tribes’ protest. The Department of Justice and Department of Interior acknowledged several issues raised by the tribal protest regarding Dakota Access and other related projects. Through this acknowledgment, the DOJ and DOI have agreed to cease construction around Lake Oahe until the Corps can reconsider their prior National Environmental Protection Act assessment of Lake Oahe.

Beyond Dakota Access, DOJ and DOI recognized the need for improving tribal consultation efforts. DOJ and DOI would like to move forward by asking tribes to formally consult, government-to-government, the statutory framework already in place and how the federal government would be able to improve the process to fully respect and honor tribal voice, tribal lands, treaty rights, and tribal resources. Further DOJ and DOI would like to consider any new proposed legislation that would improve the current statutory framework to ensure tribes be heard.

http://www.nativetimes.com/index.php/news/federal/13657-doj-army-doi-issue-joint-statement-on-standing-rock

http://www.narf.org/nill/bulletins/dct/documents/memorandum-opinion-09_09_2016.pdf

http://heavy.com/news/2016/09/dakota-access-pipeline-protests-video-photos-dogs-map-dapl-routes-north-oil-mace-standing-rock-sioux-native-american-indian-energy-transfer-kelcy-warren-bakken-lawsuit/

http://www.nytimes.com/2016/08/25/opinion/taking-a-stand-at-standing-rock.html?_r=1

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Welcome to New Staff Members

The Public Land & Resources Law Review editors are excited to welcome the new staff members for the 2016-17 academic year:

Ben Almy

Lillian Alvernaz

Jonah Brown

Caitlin Buzzas

Sarah Danno

Jody Lowenstein

Arie Mielkus

Jake Schwaller

Kirsa Shelkey

Emily Slike

We had an incredible selection of talented students to choose from last spring, and we are confident that each staff member will play a significant role in shaping our annual publication, lectures, and future conference. For more information concerning our new staff, visit this link: http://scholarship.law.umt.edu/plrlr/editorialboard.html.

This year, in addition to our annual publication, we will publish a special publication in honor of Professor Emeritus Ray Cross. Professor Cross’ guidance of the Public Land & Resources Law Review was instrumental to its development as a leading publication focused on public lands, natural resource law, and federal Indian law. We will also help organize the 2016 Jestrab Lecture on Water, which offers a unique opportunity for students and community to learn from a nationally recognized expert in the field of water law.

– Kathryn Ore

Editor-in-Chief

Public Land & Resources Law Review

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Bipartisan Support Pushes Energy Bill Through Senate

By Nicholas Vandenbos

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With a vote of 85-12, the Senate on Wednesday passed Senate Bill 2012, the Energy Policy Modernization Act of 2016. The bill now goes before the House, which has already passed a significantly different version, one that President Obama has threatened to veto. Sponsored by Sen. Lisa Murkowski (R Alaska), the Senate bill would amend the Energy Policy Act of 2005 to “revise or prescribe requirements for loan and loan guarantee incentives for innovative technologies,” and would “establish an e-prize competition or challenge pilot program to implement community and regional energy solutions to reduce energy costs in high-cost regions.”[1]

Broad energy issues aside, the bill contains a number of public land related measures. Noteworthy among these is a provision that would permanently authorize the Land and Water Conservation Fund. The Fund, which directs up to $900M of offshore oil and gas leasing revenues to federal and state conservation projects, was allowed to expire for the first time in its 50-year history last October before being reauthorized for a term of three years in a last-minute spending bill in December. In Montana, the PLRLR’s home state, the Fund has provided more than $11.4M since 2011 alone. In Utah, home of republican representative Rob Bishop, the architect of the Fund’s short-lived demise, that number is closer to $12M.

Also attached to Sen. Murkowski’s bill is a measure known as the Sportsmen’s Act, legislation designed to open federal land to recreational users. Federal lands make up broad swathes of the American West, but are often locked in by private landowners who block public access across their lands. The Sportsmen’s Act would direct the Forest Service and BLM to identify problem areas of this sort and work to develop public access plans. The legislation is not without its critics, some of whom oppose the inclusion of a provision exempting lead ammunition and tackle from the Toxic Substances Control Act.

Finally, another rider would create two new wilderness areas in New Mexico’s Rio Grande Del Norte National Monument, while yet another would implement the Yakima River Basin Water Enhancement Project Phase III Act, which would provide much-needed funding for the Yakima Basin Integrated Plan, a long-term water management effort. That plan is the product of years of negotiation between stakeholders in Central Washington’s Yakima Basin, and aims to both improve river flows, habitat, and fish passage as well as increase water storage.

[1] S. 2012 – Energy Policy Modernization Act of 2016, Summary (https://www.congress.gov/bill/114th-congress/senate-bill/2012) (last viewed Apr. 23, 2016).

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The Buzz About Pesticides

By Lindsay Ward

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Honeybees occupy a vital role in pollination and ecology, transferring pollen from one flower to another and inadvertently aiding in plant procreation. Pesticides, used to control pests, serve another role in agriculture. As concern grows over the recent disappearance of honeybees, the tiny insect and pesticide use are increasingly seen as interrelated.

In early November of 2015, a federal appeals court vacated the registration of pesticide sulfoxaflor and remanded to the EPA to conduct more studies and data looking at the effects of the pesticides on bees, as mandated by the EPA regulations. Pollinator Stewardship Council v. United States E.P.A., No. 13-72346, 2015 U.S. App. LEXIS 19945, at *1 (9th Cir. Nov. 12, 2015). The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) bans the sale of pesticides that have not been given approval and registration by the EPA. Among other reasons, the EPA is permitted to deny approval if the pesticide has an unreasonable and adverse effect on the environment. 7 U.S.C.S. § 136(bb) defines these impermissible effects as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use.”

When a pesticide or insecticide is likely to be a danger to pollinating insects, such as honeybees, the EPA is required to conduct pollinator field testing under 40 C.F.R. § 158.630(d), (e). Studies revealed that the insecticide sulfaxaflor was incredibility toxic to honeybees. In response, the EPA first proposed to conditionally register the insecticide and requested that more studies be conducted. Only months later and with no additional information or studies, the EPA unconditionally registered sulfaxaflor, requiring minimal mitigation measures. The group Earthjustice brought suit, stating that the EPA did not satisfactorily study the pesticide. The 9th Circuit agreed, finding EPA’s assessment rested on “flawed and limited data,” and vacated the registration of sulfaxaflor.

In the 1940s, the total number of managed colonies was 5 million; today, they have dwindled to 2.5 million colonies. Neonicotinoid insecticides, including sulfaxaflor, are thought to play a role in the disappearance of honeybees. Another factor is Colony Collapse Disorder (“CCD”), a syndrome that poses a serious risk to the honeybee population. CCD is defined as a colony consisting of a live queen and immature bees, yet mysteriously lacking adult bees or dead bee bodies. While the cause of CCD is still unknown, pesticide effects are more easily studied and therefore prevented. Pesticide use is ubiquitous in conventional farming methods. While it perhaps plays a necessary role, honeybees are indispensable to the American food system.

For more information:

http://www.ars.usda.gov/News/docs.htm?docid=15572

http://agr.mt.gov/agr/Programs/Bees/pdf/BeeGuide07.pdf

http://www.cdapress.com/news/national_news/article_2921216f-50c9-57cd-9210-5d38c2ce0831.html

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Delisting Proposal for the Yellowstone Grizzly Bear

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Photo Courtesy: yellowstonepark.com/wildlife/bears

By Hallie Bishop

On March 3, 2016, the United States Fish and Wildlife Service (“USFWS”) announced plans to delist the Yellowstone grizzly bear from the Endangered Species List. Delisting the grizzly bear would hand management back to the States of Montana, Wyoming, and Idaho. The grizzly bear would still be protected inside the Yellowstone National Park, but this could potentially pave the way for trophy hunts.

The Yellowstone grizzly bear was first listed as threatened under the Endangered Species Act in 1975, with as few as 136 bears in the greater Yellowstone ecosystem. Today, the USFWS estimates that the grizzly bear has rebounded in population to approximately 700 within that same area. The Yellowstone grizzly bear population has remained stable since 2002.

If this delisting proposal is approved the management of the Yellowstone grizzly becomes the responsibility of Idaho, Montana, Wyoming, and tribes. All three states have praised the delisting proposal. These states and tribes would determine if and when trophy hunting would begin of the grizzly bear. The states would have the authority to address grizzly bear depredation concerns, as they would any other trophy game species. In the delisting proposal, the USFWS and the states would not allow the grizzly bear population for fall below 600 grizzlies within the greater Yellowstone ecosystem. The trophy game status for grizzly bears would sustain them well above recovery goals and still allow states to have control of bears.

The proposal appears to be a great success for conservation efforts of the Yellowstone grizzly bear, but there are some doubters. Environmentalists and wildlife advocates are weary of the delisting proposal. Many argue that it is too soon for the Yellowstone grizzly to be delisted. Although they recognize the great success of grizzly bear recovery, they believe that the USFWS is not taking into account all the factors. These factors include the declining food source of the Whitebark pine nuts due to wildfires and mountain pine beetle infestations, which has been exacerbated by the warmer temperatures in the area. The declining food source of the Whitebark pine has caused bears to eat more meat which has caused more conflicts with humans and increased grizzly mortality.

Have the Yellowstone grizzlies come back from almost extinction? Undeniably. But the question is, do the numbers tell the real story? The grizzly bear recovery is a success for the administration but delisting the grizzly too early could put them right back on the endangered species list. Removing the federal ESA protections, adding hunting pressures, and declining food sources could send the grizzly bear back into a spiral of extinction. Only time will tell if delisting the Yellowstone grizzly bear and putting management back in the hands of states is the right choice or a grisly mistake.

If you want to know more about the USFWS delisting proposal you can visit the following website: http://www.fws.gov/mountain-prairie/es/grizzlyBear.php

 

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Polar Bear Habitat Protected by Ninth Circuit

By Taylor Rose Thompson

On February 29, 2016, the Ninth Circuit held lawful that the designation of 187,000 square miles along the northern coast of Alaska as critical habitat for polar bears by the U.S. Fish and Wildlife Service (“USFSW”).[1] The critical habitat for threatened polar bears in located on Alaska’s northern coast and includes marine waters. Polar bears are the first animal to be listed in the Endangered Species Act (“ESA”) as “threatened” due to climate change.

Unit 3 Picture Unit 1 Polarbear

The State of Alaska and the Alaska Oil and Gas Association, a coalition of native groups and other oil and gas groups, sued USFWS after USFWS designated the land as critical habitat as part of its polar bear recovery plan. They argued that this designation was an “overreach.”

This decision came to the Ninth Circuit on appeal from a 2013 decision from the Alaska District Court invalidating the designation. The district court held that USFWS did not show that the land would be appropriate for polar bear habitat and rejected the plan in its entirety. The Ninth Circuit disagreed, and held that the designation of the land did not have to be proven habitat, but rather that the areas were “critical to the conservation of the species.” According to the court, the designation stands because USFWS used the best available science.

The holding is certainly a win, but the holding does draw some concerns over the potential consequences on future development in the Arctic. Currently, Alaska is facing serious budget issues. Not only is the price of oil significantly lower, offshore development of oil has all but halted A critical habitat designation of this size will impact federal approval of future offshore development. It is important to consider what the larger effects of a designation of this size can do to a resource dependent state such as Alaska. However, it is also important to protect a species as important to Alaska as the polar bear.

[1] Alaska Oil & Gas Association v. Jewell, No. 13-35619, ___ F.3d ___, 2016 U.S. App. LEXIS 3624, 2016 WL 766855 (9th Cir. Feb. 29, 2016).

 

 

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