State of Utah Files Suit Against Federal Government to Set Aside “Wild Lands” Order
April 29, 2011
Secretarial Order 3310 was issued by Secretary of the Interior, Ken Salazar, and the Department of the Interior on December 22, 2010. Order 3310 creates a new land management category entitled “Wild Lands” and elevates this category above all uses of public lands, without any timeline for completion of studies to determine a proper and final designation.
“The Department of Interior sought no input from me – nor any other Governor – before they issued this order,” said Governor Herbert. “The order undid years of collaborative and costly work. State and county officials, environmental organizations, natural resources industries, citizens, and local Bureau of Land Management (BLM) offices have labored to create Resource Management Plans – the legal and proper way to determine the designation and use of our public lands. This order circumvents that system, and Congressional authority, to designate lands by bureaucratic fiat.”
“In Utah, we have beautiful and resource-rich land. Our lands have supported both a strong energy development industry and a vibrant outdoor recreation industry for years,” continued Governor Herbert. “They can continue to do so if all stakeholders are allowed to collaborate within a proper legal framework to determine the best use for our lands. The Department of Interior, by their own admission, had no statutory authority for this order. We’re seeking judicial relief so we can pick up our work where we left off rather than letting the federal government arbitrarily change the rules at the end of the game.”
“This Order will harm Utah’s economy, especially in our rural communities. Corporations will not invest the time or resources to prepare new bids and engage in new explorations in an unsteady regulatory environment,” continued Governor Herbert. “This order is bad policy, it’s bad for Utah, and it’s bad for the entire nation.”
The lawsuit will ask the federal court to declare Order 3310 null and void, set BLM manuals created pursuant to the order set aside, and prevent the Department of Interior from managing public lands in a manner contrary to existing BLM Resource Management Plans.
“Federal law makes it clear that wilderness designation is reserved to Congress, not the executive branch, and the time has passed to designate additional wilderness,” said Utah Chief Deputy Attorney General John Swallow. “We believe Secretary Order 3310 is an attempt to unlawfully create new wilderness areas and violates the settlement agreement between the Department of the Interior and the state of Utah. The Utah Attorney General’s Office will stand up and defend the critical rights to multiple-access on federal lands.”
The suit was filed by the office of Utah Attorney General Mark Shurtleff today in the U.S. District Court for the District of Utah in Salt Lake City today (Case 2:11-cv-00391-DB). The language of the complaint is included below.
Language of Complaint
On December 22, 2010, Secretary of the Interior Ken Salazar and the Department of the Interior (“Department of Interior” or “DOI”) issued Secretarial Order 3310 (“Order 3310”). Shortly thereafter, BLM issued Manuals 6301, 6302, and 6303 (together, “Manuals”) pursuant to Order 3310. This procedurally flawed Order-which constitutes a new rule-departs from BLM’s established practice by (1) creating a new public land designation of “Wild Lands;” (2) creating additional steps in the implementation of land management decisions, independent of statutory or regulatory authority; and (3) superseding existing land use management plans.
Order 3310 establishes and defines a new land management category called “Wild Lands” without following rulemaking procedures. Even absent compliance with rulemaking, implementation of Order 3310 as promulgated requires a land use plan amendment because the implementation of the new “Wild Lands” category and its accompanying new procedural steps are not authorized or contained within existing land use plans.
Order 3310 is unlawful because it is ultra vires and violates the following statutes: The National Environmental Policy Act (NEPA), the Administrative Procedures Act (APA); and the Federal Land Policy Management Act (FLPMA).
Order 3310 represents a major federal action which, pursuant to the NEPA, requires DOI to take a hard look at the environmental consequences of the action and to prepare an Environmental Impact Statement (“EIS”). Without the preparation of an EIS, NEPA requirements were unmet.
Order 3310 violates the APA because it constitutes: (1) an arbitrary and capricious departure from the contemporaneous interpretation of BLM’s management mandate under FLPMA; and (2) rulemaking without compliance with the APA. DOI’s failure to provide any contemporaneous legal interpretation to explain or support this obvious reversal of policy renders the issuance of Order 3310 arbitrary, capricious, and not in accordance with the law. Order 3310 also violates DOI’s own policy of following mandatory notice and comment rulemaking procedures.
Order 3310 violates FLPMA because it: (1) constitutes a plan revision or amendment without following the mandatory statutory and regulatory procedures; (2) disregards the deadline for designating Wilderness Study Areas (“WSAs”) set forth in section 603 of this Act; (3) requires all lands subject to the Order be managed according to the non-impairment standard reserved for WSAs until released by the new procedure; and (4) establishes a new requirement for management for purposes of establishing lands for recommendation to Congress of Wild Lands as suitable for inclusion in the National Wilderness Preservation System.
Watch a recording of the Governor’s press conference. Please skip to 11:50 in the recording for the beginning of the press conference.