This is the first of a two-part Public Lands Blog post. Part 1 examines the specifics of legislation that is an existential threat to more than four million acres of federal public lands in Oregon’s Malheur County. Part 2 will provide backstory and analysis pertaining to the legislation.
Figure 1. The Malheur County legislation is all about livestock. BLM charges $1.35/month to graze a cow and calf. It costs more to feed a cat. Domestic livestock have wrought more ecological havoc than the bulldozers and chainsaws combined. Source: Bureau of Land Management.
Malheur is the French word for adversity, misfortune, and/or tragedy. It is also, among other things, the name of a county in Oregon, a national forest, a national wildlife refuge, and a river.
Thought named for the county, Senator Ron Wyden’s proposed Malheur Community Empowerment for the Owyhee Act is also a misfortune and a tragedy. S.2828 is an appalling piece of public lands legislation that offers a very small fig leaf of faux wilderness designations (and a small wild and scenic river designation) to legitimize an effective handover of millions of acres of federal public lands to local livestock and development interests. The bill is cosponsored by Senator Jeff Merkley.
The bill reflects a grand (in the sense of “large or ambitious in scope or scale,” not “magnificent”) bargain brokered by Senator Wyden. (See the section-by-section summary for more detail.) At the negotiating table were American Rivers, Oregon Natural Desert Association, and the Pew Charitable Trusts, as well as development and livestock interests, the latter two groups represented by the Owyhee Basin Stewardship Coalition (OBSC).
While some such bargains can be a win for both sides, it should give pause to those at the negotiating table when one side is merely happy with the legislation and the other side is insanely happy with the legislation. The OBSC is ecstatic about the bill. Livestock interests have good reason to be ecstatic, as the bill would further expand their already privileged position on federal public land at the expense of nature and taxpayers.
The Bill’s Purpose and Scope
The bill summary is very telling:
To require the Secretary of the Interior to prepare a programmatic environmental impact statement allowing for adaptive management of certain Federal land in Malheur County, Oregon, and for other purposes.
In this case, “adaptive management” is code for more livestock more of the time.
The “purpose” of the bill is “to promote the long-term ecological health of the federal land to support communities and natural resources.” Who could be against that?
The legislation addresses five major areas:
1. livestock grazing;
2. the restoration of “ecological health” using livestock grazing as a tool (but never the tool of no livestock grazing);
3. the establishment of wilderness areas (and a wild and scenic river) in which livestock grazing is exalted and the loss of interim protection for other wilderness-quality lands;
4. the provision of infrastructure to support local economic development because livestock grazing isn’t really cutting it in the modern economy of Malheur County; and
5. the interests of the Burns Paiute Tribe, including the transfer two of BLM livestock grazing allotments to the tribe.
A closer look at what the legislation proposes in each of these five areas gives a clue as to who could possibly be against it.
1. Livestock Grazing
In the following legislative language, “Federal land” means BLM and Bureau of Reclamation lands in Malheur County:
To further the purpose described in subsection (a), the Secretary shall manage the Federal land for the benefit of present and future generations—
(A) to support and grow local communities and economies;
(B) to protect the cultural resources and western traditions for which the Federal land is known;
(C) to maintain grazing on the Federal land—
(i) for the economic well-being of the County; and
(ii) as a tool to improve the ecological health of the Federal land; [emphasis added]
To be fair, other listed objectives for which the lands are to be managed are good ones (for example, “ensure the conservation and improved management of the ecological, social, and economic environment, including geological, biological, wildlife, fish, riparian, and scenic resources”). However, read in its entirety, the bill is almost exclusively about livestock grazing on federal public lands: maintaining it everywhere, intensifying it, and further exalting it above the other statutory multiple uses of BLM lands.
2. Restoration of “Ecological Heath” Through Livestock Grazing
The overall conceit of the bill is that the “ecological health” of the federal public land in Malheur County is not good. In fact, it is generally horrible.
In the bill, ecological health is defined as “the ability of the ecological processes of an ecosystem to function in a manner that maintains the structure, composition, activity, and resilience of the ecosystem over time, including an ecologically appropriate diversity of plant communities, habitats, and conditions that are sustainable through successional processes.” Who could be against “ecological health”?
The further conceit is that ecological health is best and only restored through active management, most often using livestock as the preferred tool. The tool of removing the ecological and hydrological irritants that are bovines is implicitly left off the table in the legislation.
A huge monitoring process would be established to inform the preparation of a “programmatic” environmental impact statement that will propose a decade’s worth of active restoration (pronounced “livestock as a tool”) in the name of restoring “ecological health.” No site-specific project analysis—as now required under the National Environmental Policy Act and its regulations—would be conducted. Statutory exceptions would be made to the Wilderness Act and the Wild and Scenic Rivers Act to facilitate active restoration and/or the planting of non-native seed for the benefit of livestock.
Most important, after the legislation is enacted into law, fantastically fanciful gobs of federal money would have to rain down upon Malheur County to do all of this monitoring and bovine-centric management, all in the name of “ecological health.”
The bill would provide for a “native seed center,” which sounds good at first glance. However, the Owyhee Basin Stewardship Coalition sees the center as “an opportunity to turn Malheur County into a provider of native and non-native but ecologically appropriate rangeland restoration seed for the entire Western U.S.” (emphasis added). No non-native seed is ecologically appropriate on federal public lands.
3. Faux Wildernesses and Wild and Scenic River Subservient to Livestock Grazing
Let’s examine the supposed conservation gains in the legislation, which are limited to some wilderness, a single segment of a wild and scenic river, and making permanent a ban on mining in the Leslie Gulch Area of Critical Environmental Concern.
Wilderness
The total wilderness resource is not well served by the Malheur bill. The wilderness resource consists of those lands that are wilderness in fact, if not (yet) in law. Wildlife, for example, cannot tell the difference. The wilderness resource includes
· wilderness areas designated by Congress;
· BLM wilderness study areas (WSAs) designated by Congress, which under the 1976 Federal Land Policy and Management Act (FLPMA) are to be managed “in a manner so as not to impair the suitability of such areas for preservation as wilderness” . . . “until Congress has determined otherwise”; and
· lands with wilderness characteristics (LWCs), a BLM administrative determination embedded in their resource management plans, implicitly authorized by Congress in the FLPMA.
Some wilderness areas established by Congress have come at the expense of WSA protection being lost for other areas, and such would be the case with S.2828. According to ONDA, the bill would release 209,291 acres of BLM WSAs (Bowden Hills WSA, Saddle Butte WSA, Clarks Butte WSA, and Cedar Mountain WSA, described in my book Oregon Desert Wilderness: 70 Hikes) from interim protection that maintains their suitability for wilderness designation.
The legislation would also release 856,199 acres of LWCs from protection. I believe this would be the first congressional “release” of LWCs, a very bad precedent.
According to Senator Wyden’s office, the proposed bill would add 1,133,481 million acres of wilderness to the National Wilderness Preservation System. At the same time, Wyden says it would cause 1,104,555 acres to lose the option to be added to the National Wilderness Preservation System. (ONDA’s estimated loss of total wilderness resource is 1,065,490 acres [see above]; the difference is attributable to mapping discrepancies and/or haste in negotiating.) While the bill would be a gain to the National Wilderness Preservation System, it would be a net loss to the total wilderness resource. Sacrificing de facto wilderness in this manner to establish de jure wilderness is quite costly, ecologically, hydrologically, and politically.
The Malheur bill would also make the grazing loophole bigger for wilderness areas. To get the Wilderness Act through Congress in 1964, concessions to the livestock industry were necessary. Where already established, livestock grazing in wilderness could continue. (In the 1960s, conservationists were most worried about the acute threats to wilderness posed by logging, roading, mining, and motorized vehicles, not the annual clear-cutting of deserts and grasslands by bovine bulldozers or meadow maggots, aka sheep.)
The FLPMA of 1976 was in many ways designed to broaden the multiple use concept for public lands and to place livestock grazing in a more balanced context of multiple uses. As WSAs were to be managed “in a manner so as not to impair the suitability of such areas for preservation as wilderness,” WSA status generally limits grazing to existing levels. By contrast, in 1980 Congress started incorporating into every wilderness bill that affected livestock grazing what is effectively statutory language that further exalts livestock in wilderness areas.
The rather perverse, but nonetheless useful to conservation, effect of all of this is that expanding grazing—either by increasing numbers of livestock or providing additional infrastructure (fences, water tanks, and such)—is more possible in established wilderness areas than in BLM WSAs. Such is not the case for the threats of roading, off-road vehicles, and logging. As for the mining threat, while WSA status is not a full mineral withdrawal, it is a quasi-withdrawal in that the BLM must severely limit surface disturbance (see Table 1).
The Malheur bill not only allows the continuation of livestock grazing in the wilderness areas designated in the bill but also includes an even-worse must-graze provision—and also makes livestock grazing in the wilderness areas subject to “(iv) any other Federal law that applies to livestock grazing on Federal public land.” The intensity of livestock grazing envisioned and required by the Malheur bill would undoubtedly mean even more domestic livestock impacts in what is supposedly to be preserved as a wild landscape. This would set another horrible precedent that could become known down the road as the Wyden Weakening.
The naming of wilderness areas proposed by the bill is a mixed bag. Senator Wyden’s office says that 95,000 acres of wilderness will be named for Mary Gautreaux, an Oregon conservationist and longtime aide to Senator Wyden—something I heartily endorse (see Public Land Blog post #137). In fact, the introduced legislative language would establish both the Mary Gautreaux Owyhee River Canyon Wilderness of 223,586 acres and the Mary Gautreaux Lower Owyhee Canyon Wilderness of 79,947 acres.
On the other hand, how enticing does the Little Groundhog Reservoir Wilderness sound? Or the Coyote Wells Wilderness? I like coyotes and groundhogs, but reservoirs and wells are not natural features. The bill would also establish the Jordan Crater Wilderness, when every map ever made calls the geological feature Jordan Craters. Could there not be a better name than the Cairn C Wilderness, which sounds like it honors a human-created pile of rocks?
Was anyone paying attention?
Figure 2. A portion of the Owyhee River below Owyhee Dam would be added to the National Wild and Scenic Rivers system with a provision exalting livestock grazing over wild and scenic river values. Source: Bureau of Land Management.
A Wild and Scenic River for Livestock
In general, additions to the National Wild and Scenic Rivers System are “clean” (having no special exceptions to the Wild and Scenic Rivers Act of 1968). However, the quite modest 14.7-mile addition to the Owyhee Wild and Scenic River proposed by the Malheur bill would come with statutory baggage that weakens protections for the stream segment in favor of livestock.
In particular, the bill would
• lock in wild and scenic river management as of the BLM manual in effect today (so that if the manual is improved, it would not apply to this segment of the Owyhee river),
• require the maintenance of existing livestock grazing infrastructure in the wild and scenic river “protective” corridor,
• allow new livestock grazing infrastructure, and
• expressly authorize the use of pesticides in a wild and scenic river.
Along with the legislative mandate in the bill “to maintain grazing on the Federal land” in Malheur County, this national wild and scenic river would be established for bovines, not humans. Such would set a horrible precedent and would make future wild and scenic rivers subject to a plethora of statutory exceptions—as has already become the case for wilderness areas. This provision, if enacted into law, would be the beginning of the end of the Wild and Scenic Rivers Act as a meaningful method for the conservation of free-flowing streams for the benefit of this and future generations.
Figure 3. The Leslie Gulch Area of Critical Environmental Concern would receive a permanent ban on mineral mining, but cow-bombing would continue. Source: Gary Halvorson, Oregon Archives.
A Ban on Mining in Leslie Gulch . . . Only
There is a disconnect in the FLPMA: it requires the BLM to protect areas of critical environmental concern (ACECs) but doesn’t allow the the agency to actually withdraw them from the application of the federal mining laws. S.2828 would permanently withdraw 12,426.43 acres of federal public land known as the Leslie Gulch ACEC. This is a good thing. However, twenty-eight other BLM ACECs that are affected by this bill, totaling 194,490.57 acres (but who’s counting?), would remain open to mining.
Was anyone paying attention?
4. Local Economic Development Schemes to Supplant Livestock Grazing
As the Owyhee Basin Stewardship Coalition notes:
Malheur County is the poorest county in Oregon. There is no reason that should continue. Boise, Idaho is growing by leaps and bounds providing over a million people looking for recreation opportunities, many of whom are already coming to Malheur County in an unorganized manner.
All true. However, the hordes of Idahoans coming to Malheur County to enjoy the great outdoors (and to purchase legal marijuana) are coming to see the scenery and enjoy the wildlife—in spite of the livestock. Yet S.2828 would result in more livestock, more livestock feces, more flies from those livestock feces, less wildlife, and filthier water.
Under S.2828, “loop roads” would be developed to facilitate tourism (Map 1). Notwithstanding that the current right-of-way agreement across BLM land prohibits it, the county road to the Owyhee Reservoir would become a toll road.
The bill would authorize federal money to study the feasibility of
• building “not more than 2” marinas on Owyhee Reservoir,
• repairing existing Oregon state parks on the reservoir,
• establishing a “paddle bar” on Owyhee Reservoir,
• establishing “a network of hostelries in the County using former hotels and bunkhouses that are not in use,”
• carrying out “improvement to private camps” on the shore of the reservoir,
• establishing a “dude ranch,”
• upgrading the Jordan Valley airstrip,
• etcetera etcetera etcetera.
Wait! A “paddle bar” on Owyhee Reservoir? Apparently, it is just what it sounds like. Paddlers in rubber rafts and perhaps kayaks would paddle up to the bar for an adult beverage. (Why not marijuana as well?) I can see the review on a kayaking website: “While it’s on a reservoir and not a real lake and there are swarms of motorboats and one has to watch out for the bait-flinging anglers and inebriated water skiers, at least one can get a drink (or a joint) without having to get out of the craft. Be sure to bring your credit card!”
Figure 4. It is unclear if a federally promoted “paddle bar” would serve motorboats. Source: Gary Halvorson, Oregon Archives.
Gone, at least, is the economic development scheme in an earlier piece of legislation proposed by Senator Wyden that would have provided federal funds to study establishing commercial air service out of Ontario Municipal Airport. It was never clear where this commercial air service would connect to. The Boise airport, which accomodates full-sized jets, is a fifty-minute drive from downtown Ontario via I-84. It takes longer to get from Beaverton or Salem to fly out of PDX.
5. Benefits to the Burns Paiute Tribe
The proposed legislation would give the Burns Paiute Tribe control of the Malheur River Wildlife Mitigation Site, established to mitigate at least some of the multiple sins of the dams on the Snake and Columbia Rivers. (Salmon once made it back to the Malheur River.) The tribe would also receive 21,248 acres in two federal grazing allotments that surround the mitigation site. If the tribe intends to help wildlife by removing livestock from the allotments (which presently support the full-time equivalent of 223 cows and calves, wallowing, urinating, defecating, and eating forage that would otherwise be used by native wildlife), such would be a net gain for nature. However, if the tribe goes for the grazing revenue, even if supposedly used to aid wildlife conservation and restoration, it will not be a net gain for nature.
In Part 2 of “L’Affaire Malheur,” we’ll provide backstory and analysis of the Wyden legislation.