An Historical Look at Planning for Federal Public Lands: Adding Marine Spatial Planning to the Field 2014 Shapiro Environmental Law Symposium: The Role of Planning in Federal Land Management The George Washington University Law School March 13.14, 2014 Robin Kundis Craig William H. Leary Professor of Law University of Utah S.J. Quinney College of Law

Terrestrial Federal Lands

A Brief Legal History of Planning in the National Forests Multiple Use Sustained Yield Act of 1960 (MUSYA) & Planning Rules: National Forests are managed for “recreation, range, timber, watershed, wildlife, and fish purposes.” Forest & Rangeland Renewable Resources Planning Act of 1974: Required long-term resource planning through land management plans for the National Forests. National Forest Management Act of 1976 (NFMA): Requires the Forest Service to develop and maintain Land Resource Management Plans (“Forest Plans”).

But WHY Plan for National Forests? Prior to the NFMA, there were 7 federal statutes governing National Forest management. Federal courts were interpreting these statutes to limit timber harvesting. Congress reacted to allow greater timber harvest, to modernize procedures, and to allow for varying resource management in difference locations while protecting ecological values. Congress also underscored that one agency—the U.S. Forest Service—was in charge of planning.

Map courtesy of the U.S. Forest Service

A Brief Legal History of Planning on BLM Lands Classification & Multiple Use Act of 1964: Created the Public Land Law Review Commission and required BLM to begin to classify federal public lands. Expired Federal Land Policy & Management Act of 1976 (FLPMA): Charges BLM with maintaining an inventory of federal public lands and their resources, which become the basis of land use planning. – Planning follows 9 criteria. – BLM must coordinate with the Forest Service & Tribes.

But WHY Plan for BLM Lands? The Land Law Commission concluded that federal lands that had not been designated for specific federal purposes (e.g., National Forest) were being neglected. Over 3000 laws affected federal public lands. Many of these laws reflected outdated federal policies to dispose of federal lands to private ownership, such as the Homestead Acts. The public was putting increasing demands on the federal public lands for a variety of purposes, creating a need for effective land management.

And Now: A Brief History of Marine Planning Post-World War II: The United States claims a 200-mile Exclusive Economic Zone off its coasts, primarily for fishing, and parallel exclusive control over the continental shelf, primarily for oil and gas development. As a result, the U.S. has more ocean and continental shelf territory than it has lands, primarily because of our island territories. Submerged Lands Act of 1953: In the wake of litigation giving the federal government exclusive title to the offshore submerged lands, Congress gave coastal lands, generally out to three miles, to the states.

Map courtesy of the U.S. Geological Survey The United States’ EEZ

Ocean Planning, con’t May 2000: President Clinton’s Marine Protected Areas Executive Order. Aug. 2000: Ocean Act of 2000 required the President to appoint a Commission on Ocean Policy. Summer 2001 (Bush): MPA Advisory Committee selection process starts, followed by NOAA’s MPA web site. In July 2001, President Bush appointed the Commission on Ocean Policy. Jan. 3, 2003: MPA Advisory Committee finally appointed.

Ocean Planning History, con’t May 2003: Pew Oceans Commission Report, America’s Living Oceans: – The oceans are in trouble, and from a variety of threats. – “U.S. ocean policy is a hodgepodge of individual laws that has grown by accretion over the years, often in response to crisis. More than 140 federal laws pertain to the oceans and coasts.” – Somebody needs to be in charge. – The country needs ecosystem-based marine spatial planning.

More Ocean Planning History July 2004: U.S. Commission on Ocean Policy Report, An Ocean Blueprint for the 21 st Century: – The U.S. depends heavily on its ocean resources and use of the ocean. – The oceans face numerous threats. – The U.S. needs a clearer ocean governance structure, including a National Oceans Council and clearer roles and more coordination among other players. – Just at the federal level, 11 departments, 4 independent agencies, and 46 sub-agencies and offices have some jurisdiction over ocean activities. – The oceans need ecosystem-based, precautionary, and adaptive management, including MPAs and planning.

An Interim Example of Marine Spatial Planning in the U.S.

Latest Ocean Planning History June 2009: President Obama creates the Interagency Ocean Policy Task Force to develop a National Oceans Policy and an implementation strategy, including coastal and marine spatial planning. July 19, 2010: Task Force recommends its National Ocean Policy, the first two objectives of which were to adopt ecosystem-based management and to implement coastal and marine spatial planning (CMSP). July 19, 2010: President Obama issues his Ocean Stewardship Executive Order, adopting the Task Force’s recommendations, creating a National Ocean Council, and ordering federal agencies to implement CMSP. Early 2012: National Ocean Council’s Draft Implementation Plan. April 2013: National Ocean Council’s Final Implementation Plan.

A Comparison of the Draft & Final Implementation Plans DRAFT Ecosystem-based management dictated. CMSP is the 9 th of 9 priority objectives. CMSP will occur through 9 regional planning bodies. Goals of CMSP: – Protect and preserve sustainable uses of the oceans. – Reduce cumulative impacts on environmentally sensitive resources and habitats. FINAL Ecosystem-based management remains a prominent goal as a “common-sense” approach. CMSP became “marine planning” and was relegated to “Local Choices.” Despite continued federal support, participation in regional marine planning bodies are not mandated, especially if the states do not participate, and the focus is local interests and priorities.

Current Status Northeast Regional Ocean Council formed with a Ocean Planning Council that is working toward a regional ocean plan. Mid-Atlantic Regional Planning Body formed and has a draft planning framework open for comment until 04/15/14. Governors’ South Atlantic Alliance formed and is engaged in recovery planning, but not MSP. Gulf of Mexico Alliance formed and is having marine planning meetings; it also emphasizes land use planning. West Coast Governors’ Alliance formed and has created a data portal to inform planning; individual states are actively engaged in MSP. Council of Great Lakes Governors established. Caribbean Regional Planning Body held its inaugural meeting on 11/14/13. Pacific Islands Regional Planning Body was established in April 2013 and had its first meeting in July No regional planning groups as yet for the Alaska Region.