by
Gail L. Achterman
Director, Institute for Natural Resources
Oregon State University

2003 Annual Meeting
Eugene, Oregon

Introduction

Thank you for inviting me to join you today.

Never has that common greeting been more heartfelt. I was thrilled when George Lea called and invited me to speak. What a great chance to see old friends. And for me, what a great excuse to reflect on my career's beginning as I start a new career.

I just started work full time at Oregon State University on Monday as the Director of the Institute for Natural Resources. The Institute was created by the Legislature as a bridge linking the research and data management capabilities of the state university system to public policy makers-federal, state, tribal and local. As with any job change, it's meant packing up and moving my office.

I don't know about you, but when I do that, all my memories come back as I pick up books and the junk that accumulates in desk drawers-books like The Closing of the Public Domain by E. Louise Peffer, Paul Gates great History of Public Land Law and Samuel Trask Dana's Forest and Range Policy. The desk drawer junk includes a campaign pin promoting Idaho's Jim McClure for President in 1976 and the poster that BLM folks gave me when I left Washington D.C. in 1978 to come home to Oregon.

But the two items that provided the springboard for my talk today are two "books" in old-fashioned spring binders: (1) FLPMA with its Congressional reports; and (2) my master's thesis, Judicial Control of Administrative Discretion in the Development of BLM Land Classification Policy.

Starting Work

I started work in the Solicitor's Office in January 1975 fresh from passing the Oregon bar examination and completing the course work for my master's degree in natural resource policy and management at the University of Michigan. I was 26.

I was in the honors program in the Solicitor's office, rotating between the various divisions and working nights in the old Interior main library to finish my thesis. By June I was assigned full time to the Lands Branch of the Energy and Natural Resources Division. Jack McHale was my boss and BLM was my client. Those were the heydays of the energy boom and I worked hard to avoid the Minerals Branch. I wanted to work on traditional public lands problems like grazing, resource planning, reservations, withdrawals and land entries. And I got to do so.

There weren't many women lawyers in 1975, nor were there many women in BLM. I now realize how incredibly lucky I was to be able to work with Eleanor Schwartz. http://www.blm.gov/flpma/eleanor.htm . But I am also amazed at age 54 at the opportunities and responsibilities I was given at age 26. I can assure you that at my advanced age now, I would never let someone like I was then do what I did. I can only thank those of you here today-you who were my first clients-for teaching me how to be a lawyer.

Grazing Regulations

Since I was an "expert" on the Taylor Grazing Act after writing my thesis about Section 7, one of my first assignments was to advise the Bureau on the first major rewrite of the grazing rules in over 20 years. That's when I first remember meeting George Turlock and George Lea. Between George Lea teaching me about cows and sheep and Jack McHale and Eleanor teaching me how to write regulations, I learned a lot. I think we also produced a really good set of revised rules-at least they lasted a long time before they were revised again. See 43 Federal Register 29067 (July 5, 1978).

The Federal Land Policy and Management Act of 1976

While working on my thesis, I found a letter in the archives. It was written on 5x8 paper from Harold Ickes to Franklin D. Roosevelt. That one letter with no enclosures requested permission to pursue passage of the Taylor Grazing Act in Congress. What a contrast to what we do today!

I must have done all right on the grazing regulations, because Eleanor asked me to help her on FLPMA. I was enthusiastic-a chance to go to the Hill and attend hearings and work with Congressional staffers like Steve Quarles and Mike Harvey. It made my law school seminar study of One-Third of the Nation's Lands, the Public Land Law Review Commission ("PLLRC") Report, come alive. For once it helped that I knew the difference between the Stockraising Homestead Act and the Carey Act and the history of the O&C Lands Act.

The Rules Task Force

As I mentioned, I still have a springbinder from 1976 holding my copy of FLPMA, along with the committee reports. Its well-worn now, but the old scotch tape still holds the cover label: "Return to Gail Achterman Office of the Solicitor Branch of Lands," a label typed with a manual typewriter. When I look at my copy of the statute, I see my notations highlighting sections on land use planning, public involvement, withdrawals, land exchanges, grazing and rights of way. Reviewing them is a review of my career as a lawyer.

A review reminds me of my most intense work with George Lea and other BLM staff. After the Act passed, it had to be implemented. George decided to set up a rulemaking task force so that the work could be coordinated. That started a series of weekly meetings and set priorities for years of work. In my binder, there is still a handwritten list of "Issues-BLM Organic Act 11/29/76." I think it was the first issues list we prepared. Looking at the questions is fun:

"Does the Act affect the President's authority to designate (proclaim) national monuments under the Antiquities Act?"

"Are cost recovery procedures now applicable to all applications? What is reasonable management overhead?"

"What does 'equitable' mean in the context of grazing fees?"

"What constitutes an existing right-of-way under section 509(a)?"

"Can the O&C lands be excluded from the wilderness study section on the ground that such management would be inconsistent with the multiple use mandate of the O&C Act?"

It's clear that the courts have answered some of these questions over the last twenty-seven years, but some of them remain unresolved.

Looking back on the task force work, I am struck by how fortunate the BLM was that Congress built FLPMA on the work of the PLLRC. FLPMA has proven to be more effective "organic" legislation than the National Forest Management Act ("NFMA") which passed on the same day. NFMA is very prescriptive with Congress trying to micro-manage forest management. FLPMA gives the agency much more discretion.

Reflections

That difference prompts me to reflect on the role of the courts and administrative discretion. I reread the conclusions I reached in my master's thesis. In 1975 I thought Congress should make sure the courts could review BLM land use decisions. Today, I continue to believe that the courts have a role to play, but that judicial management of public lands has gone way too far. Litigation will never solve resource management problems; only resource managers will.

Looking at my old copy of FLPMA also prompted me to recall the question that Joe Sax asked us in the first public land law seminar ever taught at the University of Michigan. It was Fall 1974 and the PLLRC Report had just been printed. He asked us, "Why should the federal government retain the public lands?" I was shocked at the question. As a westerner, it was like asking why support public schools or build public roads. To me, public lands were part of the essence of why we need and have government-a key community resource, the special place that defined our communities. Yet the asking of the question stimulated my thinking. It was good to have to articulate why the public domain, the lands no one wanted, mattered.

Today, I still find the question provocative. Now, more than ever, we need to develop new tools and management systems for addressing the challenges we face. We have moved from a period of land disposition, to land retention, land conservation and land management, but what does effective management demand today?

Section 302 of FLPMA gives the Secretary of the Interior broad authority to manage the public lands, including the authority to issue long-term leases to permit individuals to use the lands for habitation, cultivation and the development of small trade or manufacturing concerns. I wonder whether use of this and other provisions of FLPMA could help promote community-based land management and break the gridlock Congress and the courts have now imposed on active resource management. After all, ownership or land tenure has always defined people's relationship to the land.

Today's community forestry movement is looking at new forms of land tenure and a wide variety of other tools to empower the local communities most affected by federal land management decisions. FLPMA, more than other laws, should provide a firm foundation for the new types of collaborative resource management the future demands. See, Mark Baker and Jonathan Kusel, Community Forestry in the United States: Learning from the Past, Crafting the Future , Island Press, 2003.