National Public Lands

941 E Ridgecrest Boulevard

Ridgecrest, California 93555


May 20, 2016



Director (630), Bureau of Land Management, U.S. Department of the Interior, 1849 C Street, N.W., Room 2134LM, Washington, DC 20240, Attention: 1004-AE39.

U.S. Department of the Interior, Bureau of Land Management, 20 M Street, S.E., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003.


Federal Rulemaking Portal:




Director Kornze:


On February 11, 2016, the Bureau of Land Management (“BLM”) introduced (“new 2.0 rules”) to “enable the BLM to more readily address landscape-scale issues . . . and to respond more effectively to environmental and social change.” The statutory authority for the BLM to adopt these new planning regulations is FLPMA.  However the above words are not in FLPMA which is law. 


NPLNews and myself have been active in most aspects of the BLM comment periods since pre-FLPMA.  I, personally, sent a four page letter regarding FLPMA, commented on the CDCA Plan, and most amendments.  We have been commenting on EA’s, EIS’s, joint EIS/EIR’s, County Plans, EPA, Fish and Wildlife, Forestry, EPA, BIA, military agencies, to name a few, and although I have no legal training, feel very comfortable bringing forth legitimate and in your words substantive comments.  The first six comments are actually a history lesson as we feel that perhaps maybe the BLM history that makes up many of these decisions and laws were not used in these New Rules.   Laws are made by Congress and rules are made by agencies.


After reading the new rules, we believe some of the following will happen, but not limited to:

  Public advisory committees will be seriously harmed,

  Transparency Laws are seriously compromised,

  Per NEPA, EA’s, EIS’ and RMP’s need to be based on Purpose and Need, not Directives,

  State Governors will have to sign local plans in order for the BLM to recognize it,

  Local and tribal government will be deprived in working collaboratively with BLM,

  New rules are inconsistent with local plans and other agencies,

  No public notification of resource management plans,

  Only landscape regional boundaries will exist (Congressionally drawn boundaries are not called out),

  Deprives government to government (sovereign nations) to work together on land use plans,

  Changes cooperating agencies to BLM eligible agencies with new definitions and word changes,

  Each county will have to file with the BLM (did not specify state or Washington DC),

  Contradicts other laws, such as but not limited to APA, FLPMA, NEPA, Water and Transparency Laws

  Comment period for review of draft land use plans is shortened from 90 days to 60 days

  Comment period for review of land use plan amendments is shortened from 90 days to 45 days.

“status quo” or “no action alternative” reflecting the current baseline seems to be left out in the analysis procedure that accurately describes exactly the conditions as they exist. 



I.  APA - The Administrative Procedure Act, Pub. L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions.


The APA applies to both the federal executive departments and the independent agencies. Title 5 of the United States Code, beginning at Section 500 gives the appropriate actions that federal departments and independent agencies must adhere to.


Agencies are unique governmental bodies, capable of exercising powers characteristic of all three branches of the United States federal government: judicial, legislative and executive. An individual agency typically will possess only the power of the branch that set it up, or possibly powers characteristic of two branches, but the separation of powers doctrine dictates that all three powers should not be vested in one body. To provide constitutional safeguards, the APA creates a framework for regulating agencies and their roles. According to the Attorney General's Manual on the Administrative Procedure Act, drafted after the 1946 enactment of the APA, the basic purposes of the APA are:  1)to require agencies to keep the public informed of their organization, Federal Register Notices, Procedures and Rules; 2) to provide for public participation in the Rulemaking process;

3) to establish uniform standards for the conduct of formal Rulemaking and Adjudication;

4) and to define the scope of Judicial Review.


The APA's provisions apply to many federal governmental institutions. The APA in 5 U.S.C. 551(1) defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency", with the exception of several enumerated authorities, including Congress, federal courts.   


APA ensures that rules and regulations issued by federal administrative agencies are published chronologically in the Federal Register. Rules and regulations are then organized by topic in a separate publication called the Code of Federal Regulations. In comparing publication of regulations to publication of statutes, the Federal Register is analogous to the United States Statutes at Large and the Code of Federal Regulations is analogous to the United States Code.


II.  NEPA - NEPA is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970. As the bill was an early step towards the development of the United States’ environmental policy.


NEPA's most significant outcome was the requirement that all executive federal agencies prepare environmental assessments (EAs) and environmental impact statements (EISs). These reports state the potential environmental effects of proposed federal agency actions.


As such, NEPA has specific language that all federal agencies comply with, ie; cooperating agencies, specific time limits for land use planning, tiering, tribal consultation, nation to nation, state and county consultation, social justice, sensitive receptors, etc.


III. FLPMA - The Federal Land Policy and Management Act, or FLPMA (Pub.L. 94–579), is a United States federal law that governs the way in which the public lands administered by the Bureau of Land Management are managed. The law was enacted in 1976 by the 94th Congress and is found in the United States Code under Title 43.  FLPMA phased out homesteading in the United States by repealing the pre-existing Homestead Acts.  FLPMA was ratified by the Senate, the House and the President.


FLPMA (1) changed the BLM’s mission from the disposal of public land to retention of these lands, (2) required the BLM to prepare land and resource management plans (“RMP”) which govern all activities on the BLM-managed lands, and (3) required that BLM lands be managed for “multiple use and sustained yield.”  Congress recognized the value of the public lands, declaring that these lands would remain in public ownership. The Bureau of Land Management is commissioned in FLPMA to allow a variety of uses on their land while simultaneously trying to preserve the natural resources in them. This concept is best summarized by  'Multiple use' and “Sustainable Yield” and is defined in the Act as "management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people." FLPMA addresses topics such as land use planning, land acquisition, fees and payments, administration of federal land, range management, mining, grazing and right-of-ways on federal land. FLPMA has specific objectives and time frames in which to accomplish these objectives, giving it more authority and eliminating the uncertainty surrounding the BLM’s role in management.


Sec. 202. [43 U.S.C. 1712] (a) The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, set aside, or otherwise designated for one or more uses.


Sec. 309. [43 U.S.C. 1739] (a) The Secretary shall [P.L. 95-514, 1978] establish advisory councils of not less than ten and not more than fifteen members appointed by him from among persons who are representative of the various major citizens’ interests concerning the problems relating to land use

planning or the management of the public lands located within the area for which an advisory council is established. At least one member of each council shall be an elected official of general purpose government serving the people of such area. To the extent practicable there shall be no overlap or duplication of such councils. Appointments shall be made in accordance with rules prescribed by the Secretary. The establishment and operation of an advisory council established under this section shall conform to the requirements of the Federal Advisory Committee Act (86 Stat. 770; 5 U. S.C. App. 1).


IV. CDCA – California Desert Conservation Area- Sec. 601. [43 U.S.C. 1781] (a) The Congress finds that–

(1) the California desert contains historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources that are uniquely located adjacent to an area of large population;


(c) (1) For the purpose of this section, the term “California desert” means the area generally depicted on a map entitled “California Desert Conservation Area—Proposed” dated April 1974, and described as provided in subsection (c) (2).


(2) “As soon as practicable after the date of approval of this Act, the Secretary shall file a revised map and a legal description of the California Desert Conservation Area with the Committees on Interior and Insular Affairs of the United States Senate and the House of Representatives, and such map and description shall have the same force and effect as if included in this Act. Correction of clerical and typographical errors in such legal description and a map may be made by the Secretary. To the extent practicable, the Secretary shall make such legal description and map available to the public promptly upon request.”


Congress set requirements for the CDCA Plan.   It stated the plan must be based on the concepts of multiple use, sustained yield, and maintenance of environmental quality. Congress directed BLM to prepare and implement a comprehensive, long-range plan for the management, use, development and protection of the public lands within the CDCA.  The 1980 California Desert Conservation Plan was enacted and is considered the mother of all RMP’s.


V.  DAC – (g) (1) The Secretary, within sixty days after the date of approval of this Act, shall establish a California Desert Conservation Area Advisory Committee (hereinafter referred to as “advisory committee”) in accordance with the provisions of section 309 of this Act.

(2) It shall be the function of the advisory committee to advise the Secretary with respect to the preparation and implementation of the comprehensive, long-range plan required under subsection (d) of this section.


VI. CDCA Plan - The public was given an opportunity to be involved and extensive outreaches to the residents were part of the CDCA Program and a wide variety of public involvement techniques were used. Many draft documents were distributed for public review, including 18,000 copies of the draft plan with its various management alternatives. Some 70 meetings and hearings were held in the desert, 9,000 written responses were received, and more than 40,000 individual comments were analyzed and used in the decision-making process.


BLM spent about $8 million for research, plan preparation, and public involvement.  The final result was a plan that met all of Congress' requirements and that balanced the diverse public demands and needs. The plan was widely endorsed.  How much did the DRECP cost?


The CDCA Plan was approved by both outgoing Secretary of the Interior Cecil Andrus in 1980 (Democrat) and incoming Secretary of the Interior James Watt in 1981 (Republican).  The Desert Plan was working until Congress started cutting implementation costs of the Plan and then cut the area up into bio-regions contrary to Section 601.


I bring up these laws as within the last two years, almost all of them have been ignored by the BLM.  When making comments on the California DRECP, ACEC’s and WEMO; the federal notices that pertain to this area have many inconsistencies.  For instance the area marked as the CDCA as congressionally mandated by Congress was increased in size to include Bishop and Bakersfield without legally going through the hoops.  When brought to the Bureau’s attention, they finally put out another federal register notice but did not provide full disclosure on purpose and need.  Although these areas were within the same area, the public got further confused by being told that WEMO was going to go first, and then DRECP first, then back to WEMO and then they forgot the ACEC’s and threw them together in a manner that was totally disregarding to any public comment.  To make matters, worse, the federal notices had different addresses for the public to make “substantive” comments.  One was to the District and one to Sacramento.  These Federal Register Notices were never reviewed for accuracy or correct time allocations for the public to make “substantive” comments, however at public meetings the audience was told it was due to landscape-scale issues, which had not been approved as new Rules.  Many of the ACEC’s had no qualitative descriptions and any roads that had been in existence in WEMO were no longer depicted on the maps.  The first DRECP meetings were actually held outside the CDCA area in Sacramento which the Desert Plan stated would never happen.  The public was not notified for almost a year that these meetings were taking place without transparency.


The public has repeatedly told the CDCA District Manager that the notices are inadequate and does not provide the information that is part of the APA.  Please check the transcripts as I have probably said it fourteen times with different District Managers, which implies the action is at a higher level.   


FLPMA and current BLM regulations mandate the involvement of State and local governments and Indian Tribes (collectively “local governments”) in the BLM’s decision making process. The new 2.0 rules say they do not change the BLM’s “practice” in developing RMPs, but the intent in the new language of the agency’s previous planning rules is a departure for the agency’s interpretation of FLPMA.  We believe these changes are harmful and limit local governments’, tribal and public involvement in the BLM planning process.


A. General Comments:

1. The 2.0 new rules would eliminate the mandatory notification requirements from the BLM to impacted local governments and replace them with a requirement that the BLM only notify those local governments “that have requested to be notified or that the [BLM] responsible official has reason to believe would be interested in the resource management plan or plan amendment.” In other places, the new regulation replaces the required notification requirements with the requirement for notification to only those local governments the BLM believes would be “concerned with” or “interested in” the federal land use plan.


2. The BLM proposes to replace the word “shall” and replace it with the word “will” which denotes a mandatory action.


3.  FLPMA requires management of BLM lands for multiple use and sustained yield. Nowhere in FLPMA does Congress allow the management of BLM lands for “social changes.” However, according to BLM new 2.0, “Goal 1” is to “improve the BLM’s ability to respond to social and environmental change in a timely manner.”  (Needless to say, they should change their process in Federal Register Notices.)


4. It is not clear how the new 2.0 rules mesh with the requirements for environmental, economic and “custom and culture” analysis pursuant to the NEPA. For example, the new 2.0 rules describe BLM’s planning as a two-step process with the first step being for the BLM and public to understand the current “baseline in regards to resource, environmental, ecological, social and economic conditions in the planning area.” NEPA also requires that baseline information be gathered and additionally, that the status quo management be the “no action alternative”.


5. The comment period for review of draft land use plans is shortened from 90 days to 60 days and the comment period for review of land use plan amendments is shortened from 90 days to 45 days.


6.  This is interesting because it takes over 105 days to get a Federal Register document through the new contrived steps in Washington DC.  This does not even include the time from the Field, District and State Offices.  Every branch in Washington adds corrections on the Federal Register Notices.  Often these notices lay at desks for over fifteen days to provide comments, with at least seven divisions, and then it goes back to the State Office to fix.


7.  The new 2.0 rules represent a significant departure in the way that local governments can become involved in the BLM decision making process. Specifically the draft regulations provide less opportunity for local governments to have meaningful and significant input in violation of FLPMA.


8.  The new 2.0 rules limits the types of local government plans that the BLM will consider as part of its consistency review. Existing BLM regulations state that:  The BLM is obligated to take all practical measures to resolve conflicts between federal and local government land use plans. Additionally, the BLM must identify areas where the proposed [BLM] plan is inconsistent with local land use policies, plans or programs and provide reasons why inconsistencies exist and cannot be remedied.43 C.F.R. §§ 1610.3-1(d)(1), (2), (3)


a. The new 2.0 rules would eliminate any consistency review for local land use “policies, programs and processes” and only consider inconsistencies with “an officially adopted land use plan.” This change would require a local government to have a “land use plan,” and not just a land use policy or program for consistency review. This type of language will limit many local governments’ ability to take advantage of the consistency review requirements if they do not have an “officially approved or adopted land use plan.”  What is going to happen to rural counties, reservations, both military and tribal that do not have the correct words?


b. The new 2.0 rules eliminates this entire section from the existing regulations: “(d) In developing guidance to Field Manager, in compliance with section 1611 of this title, the State Director shall:

(1) Ensure that it is as consistent as possible with existing officially adopted and approved resource related plans, policies or programs of other Federal agencies, State agencies, Indian tribes and local governments that may be affected, as prescribed by §1610.3–2 of this title; (2) Identify areas where the proposed guidance is inconsistent with such policies, plans or programs and provide reasons why the inconsistencies exist and cannot be remedied; and (3) Notify the other Federal agencies, State agencies, Indian tribes or local governments with whom consistency is not achieved and indicate any appropriate methods, procedures, actions and/or programs which the State Director believes may lead to resolution of such inconsistencies.  43 C.F.R. § 1610.3-1(d).”


9.  In other words, local government involvement would be limited to ONLY BLM land use plans and not the guidance provided from the BLM State Director to develop such land use plans with County Supervisors, Commissioners, and Planning Departments.


10.  BLM is also proposing to weaken its review requirements by adding that consistency with local land use plan will only be “to the maximum extent the BLM finds practical and consistent with the purposes of FLPMA and other Federal law and regulations applicable to public lands, and the purposes policies and programs of such laws and regulations.” 


The existing regulations require that:  “(a) Guidance and resource management plans and amendments to management framework plans shall be consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of other Federal agencies, State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands, including Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise, and other pollution standards or implementation plans.”


“(b) In the absence of officially approved or adopted resource-related plans of other Federal agencies, State and local governments and Indian tribes, guidance and resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of other Federal agencies, State and local governments and Indian tribes. Such consistency will be accomplished so long as the guidance and resource management plans are consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands, including, but not limited to, Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise and other pollution standards or implementation plans.

43 C.F.R. § 1610.3-2(a), (b).”


11.  In California we have SB18 that recognizes both federal and non-federal recognized tribes. For the last year and half, Section 106 consultation has been occurring with both federal and non-federal recognized tribes.  Does the right hand know what the left hand is doing?


12.  In other words, under the existing regulations, so long as a local land use plan, policy or program was consistent with Federal statute, the local land use plan, policy or program would be included in the consistency review analysis by the BLM. Under new 2.0 rule, the local land use plan is required to be consistent with Federal law, and “the purposes, policies and programs of such laws and regulations.” Requiring that local land use plans be consistent with BLM policies and programs significantly diminishes the ability of local governments to influence these same BLM policies and programs. Under the new 2.0 rules, the local government would be prohibited from including a policy to achieve multiple use in a local land use plan that is different from the BLM’s policy for achieving multiple use. This new rule significantly limits the scope of what can be included in a local land use plan.


13.   Specifically, under the new 2.0 rules, the BLM will only consider inconsistencies with a local land use plan if the BLM is specifically notified, in writing, about a specific inconsistency.  However, it is difficult to assume that a County Planning Department can make a difference.


14.  The BLM is proposing to change the phrase “assist in resolving, to the extent practical and consistent with Federal law, inconsistencies between Federal and non-Federal government plans.”  The original word used on this section was “practicable” rather than “practical.” The two words have different meanings. Practicable is “capable of being put into practice.”  “Practical,” in this context, “means capable of being put to use.” In terms of the consistency review, the BLM then would propose to change the meaning of the requirements from, the agency must assist in resolving inconsistencies to the extent possible (practicable) to resolving inconsistences to the extent sensible or useful (practical).


15.  The BLM is eliminating the term “cooperating agency” as used in NEPA and replacing it with the term “eligible governmental entity” as described in the Department of the Interior regulations at 43 C.F.R. § 46.225(a). According to the BLM regulations, an “eligible governmental entity” can be considered as a “cooperating agency.” This is confusing to the public and different agencies that have incorporated this in their own Regulations.


16.  Of greater concern is the BLM’s addition of the term “as feasible and appropriate” given the eligible governmental entities’ “scope of their expertise.” Although BLM states that it intends no change from current practice or policy, this language could certainly be used by the BLM to strictly define a local government’s special expertise or to determine that local government participation is not “feasible or appropriate” if adopted by the new2.0 rules.


17.  The BLM authorized “Decider” would no longer be required to notify the BLM State Director if a request for “cooperating agency” is denied. Under the existing regulations, if a BLM authorized officer denies a request for cooperating agency, he shall notify the State Director who shall conduct an independent review to determine if the denial was appropriate. That State Director’s review would be eliminated under the new 2.0 rules.


18.  FLPMA requires that the BLM “coordinate” its plans and programs with those of State and local governments, although the statute is silent on how such “coordination” is to occur. Under any definition however, “coordination” implies some measure of input and trying to work together. In contrast, under the new 2.0 rules, “coordination” would only include the BLM providing to local governments “the opportunity for review, advice and suggestions on issues and topics which may affect or influence other agency or governmental programs.” Additionally, while currently “coordination” is to occur “consistent with Federal laws,” the new 2.0 rules would also add that “Coordination” would occur consistent with “the purposes, policies and programs of use [Federal] laws and regulations.” The policies under the Federal statutes can change with the President, Secretary of the Interior and BLM Director in control at the time. That may limit the ability of local governments to coordinate in some circumstances.


19.  An example of things to come, a new solar field is being proposed on federal land in a “water basin” that has been adjudicated or identified as critical over draft in California.  Washington calls it a SEZ, it goes out for bid and the solar field uses 600 acre ft of water per year, putting it over minimus water users.  The population that lives there or has lived there for over a hundred years will be severely impacted.  However, it is a rural county and did not have an existing Local Plan by the county.  The local people have wells but now they suck air.  Many western states are faced with this problem. 


19.  The new 2.0 rules place more work on the Governor during the “Governor’s Consistency Review.”

a. The Governor is required to identify inconsistencies between State and local government plans to bring to the attention of the Director of the BLM. The BLM will only consider “identified” inconsistencies between State and local plans and the proposed resource management plan if such inconsistencies are noted by the Governor and,


b. BLM will only accept the Governor’s recommendation if the BLM Director determines that the Governor’s recommendations “provide for a reasonable balance between the national interest and the State’s interest.”


In conclusion, we were looking specifically at just the California Desert Conservation Area.  We believe that this will happen in most of the western states.  California has 58 counties and if all of them filed with Washington on the same day it would seriously impact your system.  Do I believe that the Governor of this State has the time to ensure that all 58 County Plans will be authorized?  What happens to the Special District Plans that are authorized under the Agriculture Department?  BLM States and Districts were supposed to have mailing lists to apprise the public of new actions; they have not even successfully been able to do correct Federal Register Notices for less than 50 states in the last four years.


Personally, I am really offended by the word “The Decider” and how many times it is used in the new 2.0 Rules.  I also believe you have good people working at the local, district and state levels. I would also like to thank our CDCA District and Field Office.  Twice when I could not get the Washington links to work on a plan, Ms. Raml and acting Field Office rep forwarded my emails to make the deadline. Washington has become top heavy and has not rehired the worker bees at a compensatory level to do their jobs.  Instead people are hired in Washington with no track record from the agency and mostly through lobbyists at rates of pay far exceeding their knowledge.  How many in Washington have every written an EA, and I seriously have doubts whether Section 601 was ever read by the DRECP Dreamers in Washington.  Four years ago, I asked 14 questions and never received a reply after submitting them.  Thank you for your patience in reading through my comments.




Sophia Anne Merk (Sam)


Senate Energy and Natural Resources Committee Office

House Committee on Natural Resources

Senators Boxer and Feinstein

Rep Cook and McCarthy

Supervisors Gleason, Kingsley and Lovingood