Bad Day at Black Rock
Bryan’s Misguided Search for a Green-Approved Legacy
by Gerald Hillier
Nevada Journal
Sen. Richard Bryan's proposal to create a new National Conservation Area (NCA) in Nevada's Black Rock Desert is not in the public interest, and certainly not in the interest of Nevadans. Actually, the senator's proposal would negatively affect precisely the area he claims he is seeking to protect. The plan would highlight these remote locations, give them public attention and attract more people to them. Other public lands in Nevada would be negatively affected also.
This is my considered view as a professional land and natural resources manager who for 16 years ran the largest NCA in existence—the California Desert Conservation Area. For 35 years I worked for the Bureau of Land Management, assigned for 21 of those years as a district manager. Thus my knowledge of the management and administration of national conservation areas is first-hand.
From my frame of reference, there are several areas where one can see a major disconnect between the explanations being given by Bryan and other NCA supporters and the actual circumstaces of this proposal.
First, although it is being offered in the name of "protection," and a purported need for it, that is an outright misstatement. The public lands are already managed and protected. It does not take designation to give BLM land "protection." The authority to regulate and manage use already exists and is being exercised. After all, the Federal Land Policy Management Act (FLPMA) has been in effect for some 24 years now.
BLM Already Has Authority
Over Applegate-Lassen Trail
The BLM has rangers in all areas, it has applied the management authority granted it under the act, and it is doing comprehensive land and resource planning. There is nothing missing from that equation. And whatever historic value does exist in the Applegate-Lassen Emigrant Trail, clear authority to manage and protect it is already in place under the BLM's existing multiple-use planning process.
But even if there were a need for additional protection, the NCA designation does not provide any.
One big reason is that there are no standards for NCAs. What, really, is a "National Conservation Area?" What standard of behavior is called for by users?
I can tell you—as someone who was an original supporter of the concept in the '70s when the NCAs began—that there is none. NCA status will not give protection purposes any more teeth. Fundamentally the NCA designation itself does not work. Essentially it is today only an interim step, on the way to something else.
How the Restrictions Come
Consider what Californians saw happen with the California Desert Conservation Area. With 12.5 million acres of public land in the southern part of the state, the CDCA became a proving ground and pilot program for the NCA concept. For its time and place, that was good—but it showed that the model does not need repeating.
Here's an example. At the end of the planning process, we found we had a special area—the high-elevation East Mojave—which was remote enough to escape urbanization and had lots of uses. It had important mining and grazing as well as hunting and rock hounding. All were valid uses—some economic and others involving outdoor recreation.
It needed a name, and what we came up with was "National Scenic Area." Our intent was to highlight both its true multiple use character and its heritage values.
What it became, however, was a stalking horse for preservationists who wanted to end multiple use on the land. The outcome was a National Preserve in the CDCA, in the name of "protection." Next, under the U.S. Park Service, came more restrictions on grazing and hunting, with the NPS announcing an ultimate goal of removing them. Mining and rock hounding were simply prohibited. And of some 500,000 acres of private lands that are or were within the East Mojave area, most soon will be conveyed to the federal government.
The bottom line is that the very values the public valued and which the BLM itself had intended to protect were virtually lost.
Now, Sen. Bryan and the environmentalists pushing for NCA status for the Black Rock have, of course, offered assurances that the designation will have no effect upon existing uses like grazing and hunting. Unfortunately, however, those assurances are empty. It is not up to the senator nor to the advocacy groups what will happen under the plan they are pushing. Indeed, their plan itself gives complete control to the Secretary of the Interior. This raises the question of whether the intention behind these platitudes is to lull local folks to sleep. Actually, if the assurances that the grazing, hunting and private property will not be affected were truly valid, there would exist no reason to propose the NCA.
Of course, everyone in the West today has had too much experience with the federal agencies to trust them to keep their promises, or even be bound by them. Sadly, that's with good reason. The nation is now littered with broken federal promises, whether one looks at Voyagers National Park in Minnesota, where lake access was "assured" until the National Park Service applied wilderness management rules, or to California, where miners were promised protection of "valid existing rights" but had to prove them and then were faced with no way to move ore out of the wilderness.
Ongoing Mischief
We are all familiar, of course, with environmentalists eagerly emphasizing the stress that visitors place on an area. Yet the preservationists advocate NCA status for the Black Rock desert—a course they know will attract more visitors there. Is their goal to create a need for even greater restrictions? This is the danger with NCAs—they set up a framework for on-going preservation mischief in the name of "protection." What that turns out to mean, practically, is "get rid of everything we do not approve of."
That has been the effect of the NCA designation—helped along by application of the Endangered Species Act—in California's San Bernardino County.
There the residents and citizens are losing much control of and access to what had been the county's resources and resource-based industry and employment. Almost 500,000 acres of private land tax base are on the way to being lost to the county, as "conservation interests"—wielding federal Land and Water Conservation Fund appropriations—move to purchase the acreage and "donate" it to the federal government.
In Southern California the California Desert Protection Act has already placed almost 9 million acres—much of it highly mineralized—off-limits for any future development and even recreation activity such as rockhounding. This represents a real loss to the county's tax base. Not only are taxable lands lost, but public lands, too, are blocked from ever being able to generate business, economic return or employment.
Because San Bernardino County is already beyond the ceilings set by law for payment in lieu of taxes (PILT), county officials there find themselves facing a substantial net loss in revenue with no decrease in the demand for services and infrastructure in the area. Indeed, much of the infrastructure use—e.g., county roads, solid waste disposal, flood control—is a direct result of federal acquisitions!
The Latest Version of the Bill
After reading the latest draft of Bryan's legislation, posted on his Senate website, I see that the bill still seeks to enact into law numerous non-NCA bells and whistles of the preservationist wish list. These include mineral withdrawal, cancellation of geo-thermal steam leasees and designation of wilderness—and it seeks to do this without the normal public planning processes.
For example, while the bill now at least in part addresses on-going uses, it also clearly sets the stage for very restrictive management. After withdrawing the entire area from mining location and leasing, and establishing the eleven Wilderness Areas, what's left to plan?
This departs from the procedures followed in other, earlier, NCAs, such as the case of the California Desert. There it was up to the agency to develop planning recommendations for wilderness. It is true that Congress later ignored the input and took the recommendations of environmentalists, but that does not negate the public record that was made and which still has validity.
Another difficulty is the bill's language on roads:
Existing Public Roads.—The Secretary is authorized to maintain public roads within the boundaries of the conservation area in a manner consistent with the purposes for which the conservation area was established ....
Does the senator propose to extinguish any road claims under RS 2477? Although those are valid existing rights, his language seems to ignore it and say that the federal government is taking over everything. I suspect that out there within the WSAs there are roads and trails—available to jeeps and other forms of access and used by miners, ranchers, hunters and others—that do not qualify as a "road" under the very technical language the agencies have lately begun using. Now they are trying to exclude from the definition of "road" anything that does not receive "regular and continuing maintenance by mechanical equipment."
Under current law, Congress can do virtually whatever it wants—including designate land area as wilderness under the 1964 Wilderness Act. The legislators are not constrained nor are there any requirements they have to meet prior to such designation.
However, if a federal agency recommends an area for Wilderness status, the federal government is required, under law, to both inventory the "roadless" areas and—more critically—complete U.S. Geological Survey mineral inventories. This is to document what mineral values may be lost if the area is withdrawn. All this data is then available to the Congress, if its members care to consider it. It is also available to the public, for its input into the decisions.
Now, in the Black Rock case, it is my understanding that such inventories have not been done. The areas are Wilderness Study Areas, but have generally been classified by the BLM as Not Recommended as Suitable for inclusion in the National Wilderness System. Apparently, because the BLM considered the areas unsuitable for Wilderness status, no inventories were ever authorized. This would mean that passage of the senator's bill, as currently written, would violate existing national policy, as embodied in the Wilderness Act.
The Issue of Legacy
To many observers it appears that Sen. Bryan, now in his last year in the U.S. Senate, has naturally been thinking in terms of his personal legacy to the citizens of Nevada. When approached by preservationists making disingenuous claims about the need to "protect" the Black Rock Desert and the mountains around it, the senator then agreed to seek the legislation they desired.
But legacy should not, must not, be wrapped up with implementing agendas which are not in the public interest—or which adversely affect the livelihoods of those who can ill afford to battle powerful environmental interests to maintain their income, employment and stewardship of resources.
Gerald Hillier is owner and principal, Public Land Users Services. He lives in Riverside, Calif.
by Gerald Hillier
Nevada Journal
Sen. Richard Bryan's proposal to create a new National Conservation Area (NCA) in Nevada's Black Rock Desert is not in the public interest, and certainly not in the interest of Nevadans. Actually, the senator's proposal would negatively affect precisely the area he claims he is seeking to protect. The plan would highlight these remote locations, give them public attention and attract more people to them. Other public lands in Nevada would be negatively affected also.
This is my considered view as a professional land and natural resources manager who for 16 years ran the largest NCA in existence—the California Desert Conservation Area. For 35 years I worked for the Bureau of Land Management, assigned for 21 of those years as a district manager. Thus my knowledge of the management and administration of national conservation areas is first-hand.
From my frame of reference, there are several areas where one can see a major disconnect between the explanations being given by Bryan and other NCA supporters and the actual circumstaces of this proposal.
First, although it is being offered in the name of "protection," and a purported need for it, that is an outright misstatement. The public lands are already managed and protected. It does not take designation to give BLM land "protection." The authority to regulate and manage use already exists and is being exercised. After all, the Federal Land Policy Management Act (FLPMA) has been in effect for some 24 years now.
BLM Already Has Authority
Over Applegate-Lassen Trail
The BLM has rangers in all areas, it has applied the management authority granted it under the act, and it is doing comprehensive land and resource planning. There is nothing missing from that equation. And whatever historic value does exist in the Applegate-Lassen Emigrant Trail, clear authority to manage and protect it is already in place under the BLM's existing multiple-use planning process.
But even if there were a need for additional protection, the NCA designation does not provide any.
One big reason is that there are no standards for NCAs. What, really, is a "National Conservation Area?" What standard of behavior is called for by users?
I can tell you—as someone who was an original supporter of the concept in the '70s when the NCAs began—that there is none. NCA status will not give protection purposes any more teeth. Fundamentally the NCA designation itself does not work. Essentially it is today only an interim step, on the way to something else.
How the Restrictions Come
Consider what Californians saw happen with the California Desert Conservation Area. With 12.5 million acres of public land in the southern part of the state, the CDCA became a proving ground and pilot program for the NCA concept. For its time and place, that was good—but it showed that the model does not need repeating.
Here's an example. At the end of the planning process, we found we had a special area—the high-elevation East Mojave—which was remote enough to escape urbanization and had lots of uses. It had important mining and grazing as well as hunting and rock hounding. All were valid uses—some economic and others involving outdoor recreation.
It needed a name, and what we came up with was "National Scenic Area." Our intent was to highlight both its true multiple use character and its heritage values.
What it became, however, was a stalking horse for preservationists who wanted to end multiple use on the land. The outcome was a National Preserve in the CDCA, in the name of "protection." Next, under the U.S. Park Service, came more restrictions on grazing and hunting, with the NPS announcing an ultimate goal of removing them. Mining and rock hounding were simply prohibited. And of some 500,000 acres of private lands that are or were within the East Mojave area, most soon will be conveyed to the federal government.
The bottom line is that the very values the public valued and which the BLM itself had intended to protect were virtually lost.
Now, Sen. Bryan and the environmentalists pushing for NCA status for the Black Rock have, of course, offered assurances that the designation will have no effect upon existing uses like grazing and hunting. Unfortunately, however, those assurances are empty. It is not up to the senator nor to the advocacy groups what will happen under the plan they are pushing. Indeed, their plan itself gives complete control to the Secretary of the Interior. This raises the question of whether the intention behind these platitudes is to lull local folks to sleep. Actually, if the assurances that the grazing, hunting and private property will not be affected were truly valid, there would exist no reason to propose the NCA.
Of course, everyone in the West today has had too much experience with the federal agencies to trust them to keep their promises, or even be bound by them. Sadly, that's with good reason. The nation is now littered with broken federal promises, whether one looks at Voyagers National Park in Minnesota, where lake access was "assured" until the National Park Service applied wilderness management rules, or to California, where miners were promised protection of "valid existing rights" but had to prove them and then were faced with no way to move ore out of the wilderness.
Ongoing Mischief
We are all familiar, of course, with environmentalists eagerly emphasizing the stress that visitors place on an area. Yet the preservationists advocate NCA status for the Black Rock desert—a course they know will attract more visitors there. Is their goal to create a need for even greater restrictions? This is the danger with NCAs—they set up a framework for on-going preservation mischief in the name of "protection." What that turns out to mean, practically, is "get rid of everything we do not approve of."
That has been the effect of the NCA designation—helped along by application of the Endangered Species Act—in California's San Bernardino County.
There the residents and citizens are losing much control of and access to what had been the county's resources and resource-based industry and employment. Almost 500,000 acres of private land tax base are on the way to being lost to the county, as "conservation interests"—wielding federal Land and Water Conservation Fund appropriations—move to purchase the acreage and "donate" it to the federal government.
In Southern California the California Desert Protection Act has already placed almost 9 million acres—much of it highly mineralized—off-limits for any future development and even recreation activity such as rockhounding. This represents a real loss to the county's tax base. Not only are taxable lands lost, but public lands, too, are blocked from ever being able to generate business, economic return or employment.
Because San Bernardino County is already beyond the ceilings set by law for payment in lieu of taxes (PILT), county officials there find themselves facing a substantial net loss in revenue with no decrease in the demand for services and infrastructure in the area. Indeed, much of the infrastructure use—e.g., county roads, solid waste disposal, flood control—is a direct result of federal acquisitions!
The Latest Version of the Bill
After reading the latest draft of Bryan's legislation, posted on his Senate website, I see that the bill still seeks to enact into law numerous non-NCA bells and whistles of the preservationist wish list. These include mineral withdrawal, cancellation of geo-thermal steam leasees and designation of wilderness—and it seeks to do this without the normal public planning processes.
For example, while the bill now at least in part addresses on-going uses, it also clearly sets the stage for very restrictive management. After withdrawing the entire area from mining location and leasing, and establishing the eleven Wilderness Areas, what's left to plan?
This departs from the procedures followed in other, earlier, NCAs, such as the case of the California Desert. There it was up to the agency to develop planning recommendations for wilderness. It is true that Congress later ignored the input and took the recommendations of environmentalists, but that does not negate the public record that was made and which still has validity.
Another difficulty is the bill's language on roads:
Existing Public Roads.—The Secretary is authorized to maintain public roads within the boundaries of the conservation area in a manner consistent with the purposes for which the conservation area was established ....
Does the senator propose to extinguish any road claims under RS 2477? Although those are valid existing rights, his language seems to ignore it and say that the federal government is taking over everything. I suspect that out there within the WSAs there are roads and trails—available to jeeps and other forms of access and used by miners, ranchers, hunters and others—that do not qualify as a "road" under the very technical language the agencies have lately begun using. Now they are trying to exclude from the definition of "road" anything that does not receive "regular and continuing maintenance by mechanical equipment."
Under current law, Congress can do virtually whatever it wants—including designate land area as wilderness under the 1964 Wilderness Act. The legislators are not constrained nor are there any requirements they have to meet prior to such designation.
However, if a federal agency recommends an area for Wilderness status, the federal government is required, under law, to both inventory the "roadless" areas and—more critically—complete U.S. Geological Survey mineral inventories. This is to document what mineral values may be lost if the area is withdrawn. All this data is then available to the Congress, if its members care to consider it. It is also available to the public, for its input into the decisions.
Now, in the Black Rock case, it is my understanding that such inventories have not been done. The areas are Wilderness Study Areas, but have generally been classified by the BLM as Not Recommended as Suitable for inclusion in the National Wilderness System. Apparently, because the BLM considered the areas unsuitable for Wilderness status, no inventories were ever authorized. This would mean that passage of the senator's bill, as currently written, would violate existing national policy, as embodied in the Wilderness Act.
The Issue of Legacy
To many observers it appears that Sen. Bryan, now in his last year in the U.S. Senate, has naturally been thinking in terms of his personal legacy to the citizens of Nevada. When approached by preservationists making disingenuous claims about the need to "protect" the Black Rock Desert and the mountains around it, the senator then agreed to seek the legislation they desired.
But legacy should not, must not, be wrapped up with implementing agendas which are not in the public interest—or which adversely affect the livelihoods of those who can ill afford to battle powerful environmental interests to maintain their income, employment and stewardship of resources.
Gerald Hillier is owner and principal, Public Land Users Services. He lives in Riverside, Calif.
