In September, the Bureau of Land Management (BLM) and US Forest Service (USFS) approved and adopted new regulatory schemes under their Greater Sage-Grouse Land Use Plan Amendment (LUPA).
Based on the widespread and critical harms the LUPA created in Eureka County and throughout Nevada, we joined eight other affected Nevada counties, mining entities, and ranchers in filing a legal challenge in federal district court in Nevada to the LUPA. Eureka County, among other counties, separately requested that Governor Sandoval and Attorney General Laxalt both take actions to challenge the flawed LUPA.
Attorney General Laxalt stepped up to join the legal challenge on behalf of the State of Nevada.
Immediately after the Attorney General joined the suit on behalf of the State, Governor Sandoval’s Office issued a press release claiming “litigation at this juncture threatens to compromise future collaborative efforts to implement the Nevada plan” and “a lawsuit now will chill ongoing discussions between the state and Department of Interior, divert resources from the current strategy of engagement and could actually undermine the ‘not warranted’ decision nearly every stakeholder has been working toward for over a decade….by pursuing litigation now, the Attorney General is acting in his personal capacity and does not represent the State of Nevada, the Governor, or any state agencies.” This press release ignores the fact that the legal challenge raises issues in a manner that is in lockstep, and does not conflict with, the very issues the Nevada Sagebrush Ecosystem Council raised during development of the Nevada State Sage-Grouse Conservation Plan, the Council’s comments during the LUPA process, and the issues the Governor raised during his consistency review and administrative appeal of the same LUPA. The litigation challenges the very same “one-size-fits-all” approach which the Governor asserted was unproductive “without specific analysis of the benefit provided to the species.”
The finding by US Fish and Wildlife Service (FWS) the Greater Sage-Grouse was not warranted for listing as an endangered or threatened species under the Endangered Species Act is certainly a welcome one.
However, just because the Sage-Grouse was not listed is not sufficient reason to allow ourselves to be lulled into accepting an overreaching and harmful LUPA. The LUPA is detrimental to our economy and community stability and provides inferior Sage-Grouse habitat conservation when compared to the State and local plans. We agree with the Governor’s statement in his appeal letter that the “LUPA/FEIS shows that national level policy replaced Nevada’s state and local planning efforts.” The litigation’s intent is to ensure the State and local plans, policies, and proposals for Sage-Grouse conservation are properly considered and implemented for management in Nevada. These localized plans and policies will conserve Sage-Grouse in Nevada and properly balance the needs of Sage-Grouse and the sagebrush ecosystem with our long-term socioeconomic stability and way of life.
Governor Sandoval’s pursuit of “collaborate efforts” and “strategy of engagement” with Department of Interior Secretary Jewell are private, behind closed doors, and unilateral, without the engagement of affected Nevada counties to provide a complete understanding of the LUPA’s outstanding issues and harms. On December 3, Governor Sandoval wrote Secretary Jewell and thanked her for “the ongoing dialogue…on the concerns the State of Nevada has” with the LUPA and highlighted “several concerns that still need to be addressed;” he commended the Secretary for her “commitment to work with me to find mutually acceptable resolutions.” The Governor’s Office press release the following day extolled an update on this “continued dialogue.” Despite the Governor’s previous comments that the litigation would hamper his dialogue with Secretary Jewell, his press release shows that the litigation has had no effect on his discussions with the Secretary to try to solve some high profile imminent harms. However, because these discussions are private and unilateral, they can offer no more than piecemeal, ad hoc solutions to a handful of high-profile issues, with no resolution of the adverse provisions of the LUPA that are harmful to Eureka County and rural Nevada.
The “resolutions” being reported by the Governor’s Office do not even mention the two top threats to Sage-Grouse – fire and invasive species. Nowhere is there mention of adequate measures to address the impacts on ranches from unnecessary restrictions, or the major threat of catastrophic fire due to increased fuels which result from reduced grazing. While there may be updated state maps forthcoming that Secretary Jewell committed to use with the LUPA, until we have a chance to see and review these maps, it is premature to claim they offer relief. In addition, the data for these maps were gathered prior to execution of the Record of Decision (ROD) on the LUPA but never disclosed to the public or Eureka County during the LUPA process even though we were a cooperating agency. Changing LUPA land use restrictions and prohibitions will require more than new habitat maps.
Changing the maps does not by itself change the LUPA. Former Nevada BLM State Director Lueders, during the November hearing on a Motion for Preliminary Injunction, testified that BLM would consider site-specific information for projects, but formal changes to maps impacting the area of a project likely would require NEPA analysis, and probably a LUPA amendment. Because the Nevada State Plan map is a landscape-scale map, the decision process for projects in concert with this map require site-specific habitat data, which is much different than the way the LUPA uses this map. Using the Nevada State Plan map without the underlying State Plan decision process is not a solution. The Nevada map defines management categories and was not meant to be used as hard-and-fast habitat designations to impose land use restrictions as it is being misused in the LUPA. The Governor may want the process outlined in the State Plan to be the process used by our federal partners, but that is not possible without a change to the LUPA’s reliance upon maps to identify land use allocations and management actions. For example, federal land disposal is critical to Nevada communities that are surrounded by public lands. Even if new maps fix the error of depicting already developed areas as habitat, without a change to the LUPA, most lands previously identified for disposal may remain unavailable for acquisition and interfere with community development plans, including long term infrastructure needs. The LUPA hampers and may preclude Eureka County’s ability to implement a rational water management plan. We have to address our water needs to supply two-thirds of the population of Eureka County in addition to industrial needs.
The LUPA restricts viable options for infrastructure emplacement, for alternative land uses to reduce groundwater allocations, and restricts our plans to transfer water from undeveloped areas to the needs of citizens, farms, and mines.
Another concern is the true value of assurances Secretary Jewell has made to the Governor about preservation of valid existing rights. Many rights that are on federally administered lands, such as RS 2477 roads, RS 2339 water storage and movement rights-of-way, and vested water rights are not recognized by federal agencies as valid because many of these rights have not been formally adjudicated in court. Even before the LUPA these rights have been impaired. Any assurances made using the right catch-phrase (“subject to valid existing rights”) should not be accepted as sufficient without a clear and confirmed understanding of these rights.
Negotiations by the Governor may legitimize a legally flawed process and may set a dangerous precedent for future land planning and management by the BLM and USFS for the 86% of land federally managed in Nevada. The time and proper process to get a LUPA right is before the Record of Decision is signed.
Unfortunately, before the Record of Decision, BLM and USFS chose to ignore the bulk of State and county input, and chose not to incorporate any meaningful portions of State and local plans, policies, and proposals for Sage-Grouse conservation. Now, outside and beyond any proper process, steps taken by the Governor to initiate post-decision negotiations may be wide open to challenge by any interests, including interests with ideologies counter to what is best for Nevada. The avenue made available by federal law—primarily the Federal Land Policy and Management Act (FLPMA) and the National
Environmental Policy Act (NEPA) process—to get the State Plan and county plans and policies for SageGrouse conservation implemented, was during the development of the LUPA, not after. Federal laws and regulations contain mandates for coordination and consistency with State and local plans, policies, controls, and programs. We identified concerns during the development of the LUPA, and offered valid proposals throughout the process. We continue to express our concern the MOU we have with the BLM was not being followed; we were not granted full authority as a cooperating agency. Litigation is therefore necessary; we cannot go back to the drawing board and coordinate to find solutions without restarting the process to ensure it is carried out as intended, and as required by law. It is simply impossible, as well as counter to a legally acceptable process, for the Governor to address the legion of outstanding concerns and issues through a post-process, private and unilateral dialogue.
The Governor’s post-process negotiation and our litigation highlight there is consensus among the Governor, Attorney General, local government, and public land users the LUPA is flawed and requires modification. While we may all agree the process by which the LUPA was created and the final product are flawed, the Governor may disagree that attempts to fix it outside the legal confines of proper process are legally and practically questionable. However, we should all consider that Governor Sandoval is not going to be the Governor of Nevada, and Secretary Jewell is not going to be Secretary of Interior, for the life of the LUPA. How many individual closed-door meetings addressing problems piecemeal, rather than getting to the heart of the flawed process, can we expect? Do we really believe meetings with selective agendas in private are the solution?
The State of Nevada must consolidate its efforts in a carefully coordinated manner that includes Governor Sandoval, Attorney General Laxalt, Nevada counties, and affected users, to challenge the entire volume of outstanding issues and harms stemming from the LUPA. The LUPA problems need to be addressed through a proper process, for all of Nevada, once-and-for-all, and not on an ad hoc, one-byone basis for only the most high-profile issues. Such a process excludes the bulk of Nevada and leaves many Nevada counties and public land users with great uncertainty about their futures. The Governor apparently has been promised some expedited but as of yet unclear and unproven administrative process for a select number of high profile harms. Instead, focus should be placed upon a global solution to address the significant flaws in the LUPA, perhaps by expedited action to commence a Supplemental Environmental Impact Statement to provide the public and the affected counties their opportunity to participate—an opportunity that has to date been denied.
We urge Governor Sandoval to be much more transparent in his efforts to correct the LUPA, engage in principled discussions with Nevada counties and public land users in a common path forward, and change his direction by supporting the Nevada legal challenge to ensure a proper process is followed and the final outcome provides deference to the State and local plans for Sage-Grouse conservation for all Nevadans.
The Eureka County Natural Resources Advisory Commission was created in November 1993 to assist the Eureka County Commission with issues and involvement relating to public lands and natural resources, including water quantity and quality, air space and air quality, wild horses, wildlife, grazing allotments, mining, and recreation. The Board consists of 9 members representing ranching, farming, mining, wildlife, business and recreation.