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Volume 5, Number 1December, 1980ENVIRONS, a non-partisan environmentallaw/natural resources newsletter pub-lished by King Hall School of Law, andedited by the Environmental Law Society,University of California, Davis.

Designation of the employer or otheraffiliation of the author(s) of any article isgiven for purposes of identification of theauthor(s) only. The views expressed hereinare those of the authors, and do notnecessarily reflect the position of theUniversity of California, School of Law,Environmental Law Society, or of anyemployer or organization with which anauthor is affiliated.

Submission of Comments, Letters to theEditor, and Articles are encouraged. Wereserve the right to edit and/or print thesematerials.

Editor-in-ChiefMichael Endicott

Senior EditorWoody Brooks

Content CoordinatorGinny Cahill

Editorial CoordinatorBarb Malchick

Production ManagerAnne Frassetto

Financial ManagersRobert GoodrichGail Klein

ArtDee Hanlon

StaffJudith AndressBrad BenningWally BurtonBilly DaviesMark GinsbergLisa HaageJay LongClancy NixonLaurie SnyderWendy ThomsonKen TurnerEric Woychik

Special AcknowledgementHarrison C. Dunning

Faculty AdviserCopyright CDecember 1960 UCD Environmental Law Society

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theCALIFORNIA

DESERTPLAN

In the eastern half of Southern California, stretching from theMexican border in the south to Death Valley in the north, lies a vastexpanse of unbroken desert. Totaling over 25 million acres, this desertcomprises one-fourth of the land area of California. Far from being thewasteland that the label connotes, the California Desert is a land rich inbeauty, in natural resources, and in cultural heritage.

As with all public lands, use conflicts have inevitably arisen in thedesert. But the desert is unique in that the support systems upon whichlife depend are fragile and easily disrupted by human interference, thusrequiring special care. The U.S. Congress recognized this and man-dated the development of the California Desert Plan to guide themanagement of the desert into the next century.

The Federal Land Policy and Management ActIn 1976 Congress passed the Federal Land Policy and Manage-

ment Act (FLPMA) for the purpose of determining the managementfuture of 470 million acres of public lands throughout the westernstates managed by the Bureau of Land Management (BLM) of the Inte-rior Department. Of the California Desert's 25 million acres, 12.6 mil-lion come under the authority of BLM. In FLPMA, Congress statedthat "the California Desert environment is a total ecosystem that isextremely fragile, easily scarred, and slowly healed; . . . and itsresources including certain rare and endangered species . . . andnumerous archeological and historic sites, are seriously threatened byair pollution, inadequate Federal management authority, and pressuresof increased use." (43 U.S.C. 1701).

LETTER FROMTHE EDITOR

ENVIRONS is published by the studentsof University of California, Davis School ofLaw. It is edited by members of the Environ-mental Law Society. We strive to present aforum for a balanced discussion of substantiveissues in the environmental law/naturalresources field which are of interest to ourreaders.

As election time was here again, 1980 hasbeen a very active year for environmentalissues. For a few days they were at the fore-front of political debate. Certain offshore areasalong California's northern coast were recentlyremoved from current sale of oil leases. TheCalifornia Desert Plan's Final EnvironmentalImpact Statement came up for review on time.It has been the product of much public andprivate interaction, but some say that this sub-sequent review period is too short. Of course,locally the Peripheral Canal is the subject ofmuch debate. There are many topics to be dis-cussed and we hope to be able to cover themthis year.

In our next issue we will be focusing onLake Tahoe. It is an especially controversialarea because of the citizen/state, state/state,and state/federal concerns.

To those of you who have contributed inany donation amount, we are grateful. But weare still short of the necessary funding to putout our goal of four issues this year.ENVIRONS must receive the support of itsreaders. If you have not already done so,please help ensure the continued publication ofENVIRONS by making use of the subscriptionform in the back of this issue. Any help infinding new donators would be greatly appreci-ated.

As always, we encourage our readers tosubmit articles in their area of expertise. Arti-cles presenting the scientific or technical impli-cations of environmental regulations and poli-cies, or explaining the nature and significanceof the ecological systems which such policieswill affect (in a manner understandable by a layaudience) are welcome. All articles submittedshould either conform to our non-partisan for-mat, or be accompanied by suggestions of pos-sible authors who could effectively presentalternative views of the issues. We welcomeany comments concerning topics you would liketo see, or for improving our financial situation.

Michael Endicott

CALIFORNIA VS.ANDRUS

On August 1st of this year California and Alaskafiled suits against the Department of the Interior to haltits proposed Five-Year Outer Continental Shelf (OSC)Oil and Gas Leasing Schedule pending compliance withthe procedural requisites of the National EnvironmentalPolicy Act (NEPA) and, most importantly, sections 18and 19 of the Outer Continental Shelf Lands ActAmendments (OCSLAA). Section 19 requires thatInterior's offshore leasing program be based on consul-tation with affected State and local governments. Sec-tion 18 requires that the timing and location of oil leas-ing must be based on a clear checklist of factors whichinclude: a region's ecology, a risk-benefit balancinganalysis, an area's location relative to regional andnational energy markets, likely conflicts with other usesof the sea (e.g. fisheries), oil industry interests in dril-ling, affected states' laws and policies, and differentareas' marine life productivity and sensitivity.

Proposed Sale Off California CoastNorthern California coastal communities are espe-

cially concerned about Lease Sale 53 of Interior's Pro-posed Oil Leasing Schedule. Despite the environmentaldangers acknowledged in the successive EnvironmentalImpact Statements (EISs), Interior may soon start tosell drilling leases for the Sale 53 outer continentalshelf basins off the shores of Santa Barbara, SantaMaria, Humboldt County, Santa Cruz, Bodega Bay andPoint Arena.

While Governor Brown does support oil drillingoff the coast of Santa Barbara, Santa Maria and Hum-boldt Counties (where three-fourths of California'soffshore oil resources exist), the State seeks to sparethe other three basins-Santa Cruz, Bodega Bay, andPoint Arena (SC/BB/PA)-from Interior's proposedFive-Year Oil and Gas Leasing Schedule. "This leasingplan," said Brown, "risks oil spills and air pollution inareas of great scenic and natural importance," where the"meager" amount of oil does not warrant the great risksof irreparable damage to the coastal environment andeconomies.

The State's PositionCalifornia has continued to urge Interior to delete

the SC/BB/PA areas (and delay the Santa Maria and EelRiver basins leasing) on the grounds that Interior's Sale53 environmental impact statements have been grosslyinadequate, failing to comply with NEPA and theOCSLAA, in that Interior has:

- not analyzed seismic risks;

- not quantified on-shore air quality impacts;- not accurately assessed adverse effects on

marine mammals and other endangered species;

- used outdated and incomplete information abouteconomic impacts on tourism, fisheries and recreationaluses of the sea;

- used oil-spill trajectory and impact analysiswhich does not permit predictions of the size, natureand extent of probable oil-spill damage;

- summarily dismissed, rather than analyzed,conflicts among uses of the sea; and

- not properly consulted affected coastal Indiantribes and bands during the Sale #53 review process,and has ignored its own legal trust duties to protectIndians' cultural and economic interests in salmon-fishing.The state further contends that Sale #53 cannot beconstrued to be consistent with California's federallyapproved Coastal Zone Management Plan.

Opposing ViewsProponents of the lease sale contend that oil

development in the Sale 53 basins is necessary to meetthe nation's current energy demands and to reducedependence on foreign oil.

According to some United States Geological Sur-vey estimates, the amount of oil which might beextracted from all of the Sale 53 areas would providethe U.S. with less than one month's petroleum supplyat present rates of consumption. The oil industry main-tains that the nation's petroleum demands cannot bemet by big strikes alone, but must also take advantageof smaller finds. Lease opponents argue that concertedconservation alone can save as much petroleum as Sale53 may produce, and that sacrificing treasures for sucha small "fix' is reprehensible.

ConclusionInterior has insisted that, wherever an OCS area

has any oil resource potential, lease sales are inevitable.Secretary Andrus has admitted that Interior's view isthat environmental factors "are not to be viewed asconstraints which would preclude leasing in an area, butrather as ... factors which would affect the precise tim-ing of a sale." So long as Interior takes this position,further litigation seems inevitable.

Update[On October 16, Secretary Andrus announced a

tentative decision to delete tracts in basins off Hum-boldt County, Santa Cruz, Bodega Bay and Point Arenafrom Lease Sale 53, due to their minimal resourcepotential. This decision would not prevent Interiorfrom including these tracts in later lease sales.Interior's announcement does not resolve the underly-ing issue in California v. Andrus-whether the entireFive-Year Lease Sale Schedule complies with NEPAand the requirements of the OSCLAA. The Californiaand Alaska suits have been consolidated in the federaldistrict court in the District of Columbia. Oral argu-ment is not expected before March. Ed.]Judith Andress

RECLAMATION

LAW REFORM:a symposium

Almost everyone concerned with thecurrent dispute over interpretation,modification, and enforcement of the Reclama-tion Act agrees that the law is basically a goodidea, but in need of reform. As the followinggroup of articles illustrates, there is less agree-ment on the nature and goals of that reform.

The Reclamation ActThe Reclamation Act of 1902 was enacted

to facilitate large-scale settlement of the aridAmerican West. Settlement of this area wasdependent of massive water projects for irriga-tion which was far beyond the means of thefamily farmers who would be served by theprojects. Under the Act, money received fromthe sale of public lands in the western statesand territories were to be held in a special "rec-lamation fund." This fund would be used forthe investigation, construction, and develop-ment of irrigation storage, diversion, anddevelopment works for the reclamation of aridand semi-arid lands. During the period when aproject was under study, public lands in theproposed service area would be subject to entryonly under the homestead laws and only intracts of between 40 and 160 acres. ("Entry," aterm used in homesteading, mining, and otherpublic land law contexts, refers to the act of aprivate person who goes onto and puts toeconomic use, such as agriculture, a parcel ofpublic land, with an eye to eventually becomingits owner.) After a project was found to befeasible, the area per entry was to be limited toEthe acreage which, in the opinion of the Secre-tary [of the Interior], may be reasonablyrequired for the support of a family upon thelands in question..."

The owners of lands irrigated from theproject, were to be charged an amount, payablein up to ten annual installments, which wouldreturn the estimated construction cost to thereclamation fund. Under later amendatorylegislation, other project benefits were recog-nized. Like irrigators, beneficiaries of powerand municipal water supply functions of pro-

(see SYMPOSIUM, page 4)

Reclamation Law Symposium(continued from page 3)

jects are required to repay to the government the por-tion of project cost allocated to those purposes; thecosts of some other benefits, such as flood control,navigation, and recreation, are not reimbursable. Thisallocation of costs to nonreimbursable benefits is onesource of the reclamation subsidy for irrigation.

A second, and even more important source ofsubsidy under the 1939 Reclamation Project Act, isfound in the repayment of project construction costsallocated to irrigation which, unlike municipal supplyand power costs, is interest-free. That Act alsolengthened the repayment period to forty years. Thus,the interest cost of this forty-year loan from the recla-mation fund to project beneficiaries is paid fromgovernment revenues.

Acreage Limitation and Residency RequirementA major concern at the time of the Reclamation

Act's adoption was to spread the benefits of reclamationbroadly, and to prevent their concentration in the handsof speculators. The primary tool fashioned by theCongress to meet this concern, and the focus of thepresent controversy, is contained in Section 5 of the1902 Act, which contains the 160-acre limitation andthe residency requirement:

No right to the use of water forland in private ownership shall besold for a tract exceeding one hun-dred and sixty acres to any onelandowner, and no such sale shallbe made to any landowner unlesshe be an actual bona fide residenton such land, or occupant thereofresiding in the neighborhood ofsaid land...

The intent, interpretation, and continuing desirability ofthese restrictions, and their applicability to particularreclamation projects are the major issues in the currentdebate.

The Reclamation Program

Under the Reclamation Act and later amending anauthorizing legislation, numerous projects have beenbuilt. Projects serving California include the huge Cen-tral Valley Project, (CVP), which develops water on theTrinity, Sacramento, American, and San Joaquin Riversand serves large portions of the Central Valley and BayArea, the Boulder Canyon Project on the ColoradoRiver, including Hoover and Parker Dams, serving theproductive Imperial and .Coachella Valleys and tappedby the Metropolitan Water District of Southern Califor-nia, and the Solano Project on Putah Creek, impoundingwater at Lake Berryessa to serve farms and cities inSolano County. These projects were built and areadministered by the U.S. Bureau of Reclamation,recently renamed the Water and Power Resources Ser-vice (WPRS). In addition, several flood-control pro-jects were built by the U.S. Army Corps of Engineersand including irrigation conservation among their pur-poses, are now administered by WRPS. Included inthis list are projects on the Kings, Kern, and StanislausRivers.

The Reclamation ProblemA variety of problems has been encountered in

determining the applicability of the acreage limitationand residency requirement to different project serviceareas:0 The Imperial Valley was served by a privately con-structed project prior to construction of the BoulderCanyon Project. When the All-American Canal wasproposed, in part for diplomatic reasons, to replace the

Evolutionary, notRevolutionary Changeby William McFarlane

When California Westside Farmers was organizedin the Spring of 1976, its basic position was thatpresent reclamation law was working well and that anychanges should be evolutionary, not revolutionary. Amajor objective of the organization was-and is-tocompile and disseminate the facts on compliance withreclamation law and thereby counter the false and exag-gerated charges and attacks against farmers and lan-downers in Westlands Water District.

In explaining our position to the House Water andPower Resources Subcommittee at a hearing on Sep-tember 14, 1976, we pointed out that we did not objectto a limitation of "160 acres or some other figure, on

(see EVOLUTIONARY, page 6)

Abandonment of aProven Programby Congressman George Miller

The legislation currently before the House ofRepresentatives would virtually repeal the 1902 federalReclamation laws rather than reform them. Althoughthe "Statement of Purpose' in H.R. 6520 purports toreaffirm the original intent of the program-to utilizetaxpayer subsidies to support small, family farms in theWest-the actual provisions of the bill emasculatealmost every feature of that law and the 80-year Recla-mation program.

It is ironic that this effort to undermine the Recla-mation laws should come at a time when we knowmore about the real successes of the program than everbefore. Through the pioneering work of the San Luis

(see PROVEN, page 7)

C-29A =31

private canal, which ran through Mexico, the landown-ers received assurances that they would be exemptfrom the reclamation law restrictions. In June, the U.S.Supreme Court ruled in the case of Bryant v. Yellanthat, with minor qualifications, Section 5 of the Recla-mation Act did not apply to the Imperial Valley.* The Kings River service area was fully irrigated byprivate works before the Corps of Engineers built thePine Flat Project for flood control. Local interests haveargued that their pre-existing water rights were notaffected by this project. The government has applied

Restoring Stability tothe Reclamation Programby Tony Coelho

In considering the reclamation "reform!' contro-versy, it is important also to consider what the federal1902 Reclamation Act has accomplished in the far West(an aspect that, unfortunately, I have found to be rarelyconsidered).

It is my firm conviction that the reclamation Actof 1902 was one of the most farsighted, even inspired,domestic legislative accomplishments in the history ofthe United States Congress. The federal reclamationprogram has served our nation and the West exceed-ingly well in times of prosperity and depression, inpeace as well as war for more than three-quarters of acentury. It is a definite plus factor in our critical bal-

(see STABILITY, page 9)

the acreage limitation only to water stored for use attimes when it would not otherwise have been available.It is further argued that application of the limitation isimpractical in view of the frequent flooding of largeparts of the lower river area which occurs despite theproject, since large landowners are capable of with-standing the costs of having land out of production forperiods of a year or more, costs which would bankrupta small farmer. Congress has before it proposals toexempt the Kings River service area from the acreagelimitation.0 The Westlands Water District, served by the SanLuis Unit of the CVP, contains tens of thousands ofacres of excess lands (lands in single ownership inexcess of 160 acres). While much of this land is underrecordable contract (contracts permitting receipt ofwater if the owner agrees to sell the excess land within10 years), critics have charged that even when land issold, it is often purchased by "paper" owners who aremerely acting as agents of the original owner, and con-tinues to be operated as a single unit. The arguablyconflicting goals of economic efficiency and familyfarming are often cited by opponents in this debate.Congress is considering various proposals to increasethe number of acres which can be irrigated in singleownership, permit unlimited acreage to be irrigated ifthe owner pays the full cost of the water, to treat leasedland, for acreage limitation purposes, as land owned bythe operator, and to require that the buyers of excessland be chosen in a public lottery.

ENVIRONS asked four of the key participants inthe Reclamation Law reform debate to summarize theirviews on some of these issues for our readers. Theirarticles, written in August of this year, follow.

Woody Brooks

Landowner Monopoly andFederal Reclamation FoodPolicyby George Ballis

A running Congressional dogfight over reclama-tion law reform-in reality a key federal food issue-has been raging, almost invisibly, for the past threeyears. At stake is control of over 90% of the nation'scanning tomatoes, 30% of all other vegetables eaten inthis country, 20% of the cotton and over half theworld's supply of raisins-just as examples. How theissue is finally resolved will have staggering long-rangeimpact on America's farming structure, and on whatand how wve all eat.

On one side large California landowners havemounted a multi-million dollar campaign to legalize

(see MONOPOLY, page 11)

6

Evolutionary Change(continued from page 4)

deliveries of water from federal projects to a singleownership. Rather, our concern is that any such limita-tion be applied in such a way as to continue to farmefficiently and productively."

We also pointed out that it is a proper function ofCongress "to determine how best to distribute the sub-sidy involved in federal irrigation projects to the peopleof the country."

Our basic position has not changed. We believe,now, as we did then, that the limitation should be onthe amount of subsidy provided to any one individual,not on the size of a farming operation.

We also favor, as we did then, effective and rea-sonable antispeculation provisions to preventprofiteering on the resale of land purchased at low,government-controlled prices.

Fairness and EquityFrom the standpoint of California Westside Farm-

ers, the central issue in any major change in reclama-tion law is that of fairness and equity.

When landowners and farmers in the San Luisservice area were considering the alternative sources ofa supplemental water supply back in the late 1950's,their decision to seek the federal project-rather than toparticipate in the State Water Project-was based on theexplanations and interpretations of federal reclamationlaw by officials of the Interior Department, includinglegal opinions from the Solicitor's office. In reliance onthose explanations and interpretations, they decided toseek authorization of the San Luis Unit. Their under-standing was that they would be subject to the samelimitations and restrictions that had been required inother reclamation project areas for the preceding 30 or40 years.

On this basis, the landowners and farmers took aseries of irrevocable steps: They organized water andirrigation districts, thereby subjecting their land to taxa-tion regardless of whether they received water;through these districts they approved long-term waterservice and repayment contracts, thus further obligatingthemselves financially; and individual landownersentered into recordable contracts with their govern-ment, agreeing to sell land in excess of 160 acres perperson at controlled prices in return for the use of pro-ject water until the excess land was sold under the 10-year contracts.

Now, nearly 20 years after the "ground rules'were agreed upon, land owners have either sold or con-tracted to sell more than 350,00 acres of land at con-trolled prices, expended and obligated themselves torepay tremendous sums of money, and made arrange-ments for land ownership and farm operations basedupon assurances from federal officials as to what thelaw required and allowed.

They have done all this in complete compliancewith the law and its consistent interpretation. This wasacknowledged by the special San Luis Unit Task Forceappointed by Interior Secretary Cecil Andrus, whichconcluded that reclamation law has been interpretedand applied in Westlands just as it was in every otherreclamation project area over the past 50 years or more.(Reports from the Interior Department show that farless acreage receives water illegally in California than inpractically any other reclamation state.)

The report also conceded that reclamation lawrefers specifically to ownership, not size of farmingoperations, and that owners of excess land within West-lands have been required to sign recordable contracts inorder to become eligible to receive project water onthose lands. It further acknowledged that enforcementof the law has resulted in a significant breakup of largeownerships and the creation of many new nonexcessownerships, as well as many new smaller farmingoperations. The report even acknowledged that theadditional excess land that must be sold in comingyears will bring about further increases in the numberof landowners and farmers.

The major complaint of the Task Force report wasthat the present size of farming operations in Westlandsis too large, a factor which it admitted is not covered byreclamation law. This was stated despite the fact thatless than half of the excess land has been sold thus far.

Representatives of farmers and landowners inWestlands, including California Westside Farmers, haverepeatedly stated that they intend to fulfill their com-mitments to abide by the requirements of reclamationlaw as interpreted at the time those commitments weremade. We do not believe it would be either equitableor fair to impose a new set of requirements retroac-tively.

Compliance in Westlands

As shown in Figure 1, the amount of land inWestlands which is eligible to receive project water hasincreased from about 125,000 acres in 1965 (prior tothe first deliveries of project water) to some 525,000acres in 1979. As project water gradually became avail-able to more and more land, landowners placed nearly353,000 acres under recordable contract for sale to eli-gible new owners. About 135,000 acres of the landunder recordable contract has been sold so far and addi-tional acreage has been transferred voluntarily, increas-ing the amount of nonexcess land (ownerships of 160acres or less per person) from the original 125,000acres to more than 300,000. Some 218,000 acresremain to be sold under recordable contracts.

As a result of the sales and transfers thus far, thenumber of landowners benefiting from the project hasincreased from about 2,500 to more than 5,300. Thenumber of farming operations also has more than dou-bled, from 97 to 232. The average farm size in West-lands has been cut almost in half, from 4,640 acres toabout 2,400.

When the remaining 218,000 acres is sold in 160-acre parcels (assuming no change in the acreage limita-tion), the number of landowners benefiting from theproject will increase by at least another 1,361. Thenumber of farming operations can be expected toredouble, based on past experience, with a propor-tionate reduction in average farm size.

The Issue of Farm Size and LeasingProposals have been made to establish "small,

family-sized farms" in reclamation areas through arbi-trary and rigid limitations on leasing and the size offarming units. We believe such limitations areunnecessary to achieve the purpose of a reclamationprogram which are legitimate and proper for thedecades ahead: Continuing to encourage efficiency andhigh production and, at the same time, promoting widedistribution of project benefits.

As the U.S. Supreme Court pointed out in its1958 decision in Ivanhoe v. McCracken, the policy ofachieving wide distribution of project benefits "has beenaccomplished by limiting the quantity of land in a singleownership to which project water might be supplied."The Court added that the 160-acre limitation places a"ceiling' on the subsidy to any one person.

Under this long-standing interpretation of the law,individual landowners have been free to use their pro-perty as they choose. They could farm it themselves,lease it to someone else, or combine their ownershipwith others to form a larger farming unit. After all, theproject benefits ultimately go to the landowner,regardless of who is farming the land. Moreover, res-trictions on leasing would present barriers to new farm-ers and eliminate the flexibility farmers must have toadjust to changing economic conditions and to adoptnew technology. As a matter of principle, farmersshould have the same right to exercise their initiative asthose in other enterprises or endeavors.

Figure 1

[] ro 4,,:

w. ,,

Preservation of Farmland

At present, only a very small percentage of theland in the Westlands area is devoted to nonfarm uses,such as roads, farmsteads, etc. However, affidavits filedin the lawsuit brought by a number of California coun-ties and irrigation districts (County of Fresno v. Andrus)indicate that contrary to the need to preserve agricul-tural lands, implementation of the InteriorDepartment's proposed rules and regulations foracreage limitation would cause the loss of manythousands of acres of prime farmland.

For example, Fresno County Public Works Direc-tor Clinton D. Beery stated that the proposed ruleswould require the construction of at least 600 miles ofadditional paved roads and estimated that five acreswould be taken out of production for each mile ofroad-a total of at least 3,000 acres in just one county.

Mandating a small farm pattern would removeadditional land from production as well, for home sites,on-farm access roads, equipment parking areas, etc.

Because of a number of potential environmentalimpacts, the U.S. District Court in Fresno ordered theInterior Department to prepare an EnvironmentalImpact Statement before proceeding further with rulemaking. The Draft EIS is scheduled to be completed inDecember.

SummaryIn conclusion, California Westside Farmers has

supported reclamation legislation which would cure thereal problems, such as speculation, but which would notpunish whose who have complied with the law in goodfaith.

William F. McFarlane is president of California WestsideFarmers, an organization of farmers in Westlands WaterDistrict.

Abandonment of aProven Program(continued from page 4)

Unit Task Force and the Departments of Interior andAgriculture "Interim Report on Acreage Limitations,"we finally have the data which illustrates the widespreadcompliance with the goals of the drafters of the 1902law.

Widespread Compliance with Existing LawOver 97 per cent of all Reclamation farms are

today in compliance with the 960-acre limitation pro-posed by the Secretary of the Interior Cecil D. Andrus;nearly three-quarters of all farms meet the admittedlyantiquated 160-acre test. And, it should be noted,these farms are prospering while meeting the acreagelimitations.

(see PROVEN, page 8)

8

Abandonment of aProven Program(continued from page 7)

The problem arises out of the remaining 3 percent of all farms which are in excess of the 960-acreceiling. These farms, controlled by a relatively smallnumber of landowners, corporations, oil companies,land developers and other non-farming interests, con-stitute nearly one-third of all the land in the program.By maintaining their domination of these rich lands andthe public subsidies which generate their productivity,these special interests have perverted much of the Rec-lamation program into the "scheme of speculators andland grabbers (who seek) to loot the national treasuryfor private profit" of which opponents of the lawwarned during the 1902 debate.

These wealthy special interests, largely concen-trated in California, have sought to evade the clear leg-islative intent of the Reclamation program-to assistsmall farmers and prevent monopolization of publicbenefits- through legislative manipulation andlitigation. Having failed at their subtle attempts toundermine the program, they are now attempting topass H.R. 6520 and win virtual exemptions from theprovisions of the law.

Despite loose enforcement of the acreage test, thevast preponderance of Reclamation farms are less than960 acres, thus belying the opponents' claim that smallfarms are inefficient. In fact, a study by the Bank ofAmerica, which was sponsored by the large farminterests, concluded that the economies of scale in agri-culture peaked at 640 tO 960 acres, a conclusion sharedby six other studies of agricultural economics.

Costs of Noncompliance

Permitting the small number of special interest tomaintain their accumulated wealth would be contrarynot only to the spirit and letter of the Reclamation pro-gram, but to the interests of the American consumer aswell. The Department of Agriculture recently con-cluded that monopolization of the food productionindustry in this country costs consumers about $16 bil-lion a year today. Failure to implement the economicdiversification embodied in the Reclamation Act willencourage the further accumulation of economic andpolitical power into a limited number of hands.

It is important to note that one of the big lan-downers' most emphatic arguments, that enforcementof the law would jeopardize longstanding propertyrights, is wholly inaccurate. Nothing in Reclamationlaw requires a farmer to sell a single acre of land. Par-ticipation in the program has always been entirelyvoluntary. The limitation is imposed with regard to theamount of land which can be irrigated with federallysupplied, taxpayer-subsidized water. If a farmer wishesto avoid compliance with acreage limitations, all he

must do is withdraw his voluntary request for water,and permit the sizable subsidized benefits to flow tothose who are willing to comply with the law.

Reclamation land accounts for just 1 per cent ofall farmland in the United -States. The disputed "excessland", that which is held by a single operator beyondthe acreage limitation, constitutes just one-tenth of oneper cent of our Nation's agricultural lands. Anyfarmer, or any corporation or other interest, wishing toenter agriculture without having to comply with theReclamation law has many tens of millions of acres ofproductive lands on which to pursue his farming.

The Reclamation SubsidyAt the heart of the Reclamation program lie the

considerable subsidies which underwrite these farms.Over $5 billion in subsidies has already been enjoyed byprogram beneficiaries through low-cost water, reducedrepayment requirements, and interest-free constructioncharges. The few who seek to evade the law havegrudgingly accepted increased charges as a condition offarming land beyond the acreage limit. But this "fullcost" requirement hardly eliminates the public subsi-dies, and only amendments in the full Interior Commit-tee successfully defined "full cost" so as to reduce thesubsidies significantly.

Yet even the current "full cost" provisions of H.R.6520 would recover less than 40 per cent of costs fromhalf the Reclamation districts, and some would repay aslittle as 15 per cent while totally escaping from therequirements of the program.

H.R. 6520 not only weakens the tenants of Recla-mation law, but further exempts many of the largestsviolators from those weakened provisions. The lan-downers in the Kings-Kern-Tulare Lake areas of Cali-fornia have long disputed the applicability of the law totheir projects despite clear legislative history to the con-trary. Both the landowners and the federal governmentagreed to resolve the longstanding dispute through liti-gation in 1963 and to abide by the result. After theAppeals Court ruled the projects subject to the law in1976, and the Supreme Court denied a petition for cer-tiorari, the landowners abandoned their prior pledge andsought legislative exemption, which H.R. 6520 wouldprovide.

The biggest landowners in these service areasinclude J.G. Boswell (110,000 acres), Tenneco (65,000)Salyer Land (29,000), Southlake Farms (27,000),Chevron (13,000) and many other agribusinesses andcorporations. These interests, along with similar lan-downers in nearby districts, are behind the high-powered lobbying campaign behind H.R. 6520 whichthe respected legislative journal Congressional Quarterlyhas termed "among the best financed, most intensiveand most uncompromising anyone on Capitol Hill canremember."

H.R. 6520 also abandons the original concept thatthose benefiting from the Reclamation law should beactual farmers on the land. Not only does the billrepeal the explicit residency requirement, but its pro-ponents successfully gutted a more contemporaryrequirement that, irrespective of residency,beneficiaries actually participate in farming operations.The legislation similarly ignores economic and environ-mental reality by abandoning any pretense of establish-ing a more orderly and efficient basis for the use offederally developed or managed resources in the West.No priority is placed on efficient use; no conservationmandates or incentives are established; no limitationson destructive groundwater depletion or irrigation oflow quality, water consumptive marginal lands areincluded in the bill.

SummaryNo one disputes the need to modernize and refine

the 1902 law. But the wholesale abandonment of provi-sions and principles of the law, as contained in H.R.6520, serves only the interests of a select elite of cor-porate and agribusiness interests. This repeal of Recla-mation law is not needed by the 46,400 farmers whoconstitute 97.4 per cent of all farms which meet the 960acre test. This legislation is needed by, and has beendesigned by, the few hundred people who seek tomonopolize the public benefits which were intended forbroad public dispersal.

By seeking to overturn a successful public policy,by assaulting nearly 80 years of Reclamation programs,and by attempting to confer on the wealthy andprivileged few the public benefits intended for themany, H.R. 6520 embodies the very worst kind of spe-cial interest legislation. Congress should reject thisattempt to corrupt the Reclamation program, andredesign legislation which will serve the interests of thefamily farmer, the Reclamation program, and the entirenation by modernizing the program in conformity withits longstanding, and widely successful, legislativeintent.

Congressman George Miller, a member of the House Inte-rior and Insular Affairs Committee, has represented theSeventh District of California since 1975.

Restoring Stability tothe Reclamation Program(continued from page 5)

ance of trade. The 1977-78 total agricultural exportsfrom the United States amounted to approximately $13billion. Of that amount, approximately $1 billion, orslightly more than 7 1/2 %, came from federal reclama-tion projects.

The reclamation program is not just irrigationwater. It is flood control, power generation, and recrea-tion benefiting the entire Western region. To a greateror lesser degree, the federal reclamation program iswoven into the very fabric and economy of the 17Western reclamation states. Any modification-"reform"-of this program should certainly be madewith all of these factors in mind, not on a piecemealbasis, and certainly not in a charged political atmo-sphere that does not allow for perspective.

Restoring Stability to a Proven ProgramI agree with the original intent of the 1902 Recla-

mation Act, which was to promote settlement of theWest and to provide opportunities for individuals whowished to obtain land for farming and provide homesfor their families-in short, to promote a viable agricul-tural economy in the Western States that would benefitthe entire nation. As I have noted, the reclamationprogram has accomplished this marvelously.

The overriding consideration as I see it today is torestore stability to the reclamation program at the earli-est date. In the past several years, the ground rules,which have governed the program since its inception,have been tampered with. This has caused untold tur-moil, particularly in reclamation land financing. Somefunding entities, including insurance companies, com-mercial banks, the Farmers Home Administration, andthe Production Credit Administration, have been forcedto reevaluate participation in reclamation land financing

(see STABILITY, page 10)

10

Restoring Stability(continued from page 9)

for farmers. Some have even placed moratoriums onfurther funding in reclamation areas. To say the least,this has had an unsettling influence on the economy ofreclamation areas.

I might also add that the many and varied changesagainst the reclamation program and its participants-particularly the Westlands Water District, which islocated in the Congressional District that I represent-have not only served to thrust the reclamation programinto turmoil, but have biased the general public's per-ception and understanding of the reclamation program.

The Westlands Water District

The truth is, reclamation law is breaking up thelarge ownerships that most opponents of the presentsystem speak of. In the Westlands Water District, (themost commonly cited example of reclamation law "vio-lation"), the number of family farms has more thandoubled, from 97 farmers before the delivery of projectwater to 227 farm operations today. In addition, theaverage size of the reclamation farms in Westlands hasdropped from 4,640 acres to about half that amount,and will continue to drop even further once the court-imposed moratorium on excess land sales is lifted. TheWestlands Water District has never been and is not inviolation of any of the provisions of reclamation law. Inte-rior Secretary Cecil D. Andrus himself has publicly ack-nowledged this in testimony before Congress.

The large landowners in Westlands made an une-quivocal commitment to the Congress that they wouldsign recordable contracts and dispose of their excesslands in accordance with the provisions of reclamationlaw. They have done so. More than 350,000 acres inWestlands are under recordable contract, and morethan 130,000 acres of recordable contract lands havebeen sold to non-excess ownership status. The federalreclamation program is working just as Congressintended it to in Westlands.

One of Westland's harshest critics, CongressmanGeorge Miller of Contra Costa County, has time andagain pointed to the "huge subsidy' that Westlandsreceives. I find his charge interesting. Westlandscurrently pays $8 to $11 per acre-foot for agriculturalwater, and up to $21.80 for M&I (municipal and indus-trial) water. I have been advised by the Commissionerof Water and Power Resources Service that the"effective rates" for the Contra Costa County WaterDistrict are " $4.80 for M&I water, and 50 cents foragricultural water." The Commissioner added that ofthe "4.80 effective M&I rate, $4.30 is credited towardsrepayment of the Contra Costa Canal (CCC) capitalcosts, and 50 cents is for CVP power, which is onlysufficient to recover operation and maintenance costsfor power...the CCCWD is making no payments toward

the operation and maintenance and capital costs of CVPstorage facilities, nor toward the capital costs of CVPpower facilities..."

I note this not to throw brickbats into someoneelse's backyard, but to illustrate the kind of chargedpolitical atmosphere we are dealing with-an atmo-sphere totally lacking in perspective and responsibility.What are we really "reforming?"

Proposed Legislation

The legislation currently under consideration bythe Congress, at this writing, proposes resolution ofsuch controversial issues as 1) determination of eligibleacreage and eligible operators; 2) leasing; 3) residency;4) equivalency; 5) farm management; 6) prepayment ofproject costs; 7) multi-district ownership; 8) antispecu-lation; 9) buyer qualifications; and 10) the length of the"grace period' for farmer compliance with any new law.

I basically feel that residency should not berequired, that a more reasonable acreage limitation than160 acres should be applied, and that leasing should notbe restricted. The Bureau of Reclamation (now theWater and Power Resources Service) determined in1926 that residency is not a requirement. With regardto leasing, the key to tremendous productivity and via-bility of California's agricultural industry is flexibility,and leasing helps provide flexibility. I support a propo-sal to allow farmers to lease lands in excess of acreagelimitations by paying full cost for the extra water-including interest. Where there is no subsidy, thereshould be no restrictions. As Senator Alan Cranstonhas said,

"...I do not think the federalgovernment should have the rightto tell a farmer how much land hecould lease where no subsidy isinvolved. [My] amendment totallyeliminates the subsidy in leasedland in excess of acreage limita-tions by having the farmer pay thefull cost. The American taxpayerand the public interest are pro-tected in this amendment."

Senator Cranston was referring to an amendment heoffered to S.14, the Senate bill to revise reclamationlaw.

ConclusionMy primary concern is that the reclamation law

reform controversy is resolved in a manner that willachieve the greatest public benefit and equity. Thiswould be accomplished with consideration of the justdistribution of the benefits of publicly financed irriga-tion works, the best interests of the regional economiesinvolved, prudent support for family farmers in Amer-ica, and the rights of existing farmers and landownersin reclamation-area districts throughout the West who

have invested millions of dollars into their farms andcomplied uniformly and completely with reclamationlaw.

To state it further, my primary concern is that thereclamation program continues to benefit the legitimatefamily farmer, by providing him with the opportunity toobtain land for farming and to provide a home for hisfamily.

Congressman Tony Coelho, a member of the House Agri-culture Committee, represents the Fifteenth CongressionalDistrict of California.

Landowner Monopoly(continued from page 5)

their virtually unrestricted access to heavily subsidizedfederal irrigation water. Lobbyists, including presti-gious District of Columbia law firms and ex-congressmen, are being paid as much as $10,000monthly, plus expenses. During this year's session, oneCapitol Hill insider estimated these biggies are spendingas much as $250,000 monthly.

On the other side, National Land for People, asmall farm group out of Fresno, California, has beenspearheading a drive for new legislation, H.R. 7317, byCongressman Weaver (Dem.-Oregon), modernizingthe federal water-food policies to provide broad accessto the perpetually subsidized water and prevent mono-poly by large landowners. NLP has garnered generalsupport on most of its policy aims from National Farm-ers Union and other farm groups, the AFL-CIO, RuralAmerica, and various church lobbying groups.

As this is being written in mid-August, 1980, thelargely successful lobbying drive of the big Californiaoperators is bogged down in the House Rules Commit-tee. H.R. 6520 as passed by the House Interior Com-mittee grants to the biggies almost everything theywant. The bill's original author, Interior CommitteeChairman Mo Udall, was so displeased with what thecommittee did to his bill that he wrote a protestingletter in the committee's report, despite the fact that allthe committee did was marginally extend the big lan-downer benefits which Udall had put in the bill in thefirst place.

This issue is virtually unknown by most Ameri-cans because its long-range farming-food implicationsare camouflaged behind the reclamation law reformrhetoric and technicalities. Stripped down to its basics,however, the issue is disarmingly simple:(1) shall the wealth produced by the general taxpayersbe widely shared as the reclamation program intends, ornarrowly controlled by a few?(2) will the perpetually subsidized federal irrigationwater developed in the 17 western states be used for itsoriginal and continuing purpose of creating small-to-medium-sized family farm opportunities and healthyrural communities, or will these great resources be used

to further enrich big farm operators including multi-national corporations such as Dole, Chiquita, StandardOil, Getty Oil, Boswell (Los Angeles Times), SouthernPacific, and huge family plantations?(3) will the reclamation program be used to undergirdthe most efficient form of farming-one-to-two personoperations-or big, bureaucratic, inefficient corporatefarms?

("From the standpoint of efficiency,there is no effective substitute for thesmall-to-medium sized independent growerwho lives on or near his farmlands... ')

The answers are obvious and simple in terms ofwhat is best for the most people; however, decisions inCongress are based on political pressure and politicalpressures come from "most of the people" only whenthey know what is at stake and are fired up. Neither isthe case on the reclamation/food reform issue-at thistime; but as the dogfight drags on, the significance ofthis issue begins creeping into our collective awarenessaround the country. For our growing consciousness tobecome effective, we must familiarize ourselves withsome of the reclamation-food rhetoric and technicali-ties.

The Federal Irrigation SubsidyAccording to a 1979 study done at the University

of California, irrigators on federal projects repay (on theaverage) 6% of irrigation costs incurred by the federalgovernment, while taxpayers and, in some cases, elec-tric power users, pay the rest: 94%. The biggest subsidyis 40-60 year interest-free loans (which really run as longas 150 years, by Interior's own admission). Interiorlingo also hides subsidies from the casual observer.Examples:(1) Interior's "full cost of delivering project water"means "the actual cost to the United States of operatingand maintaining" the facilities which store and deliverthe water, but none of the capital costs or 150-yearinterest charges.(2) Interior's "construction charges" are "amounts ofprincipal obligations (interest free for up to 150 years)payable to the United States." These "obligations" aredetermined'not by construction costs, but by a compli-cated Interior guesstimate of the "irrigator's ability topay."

The Current Reclamation Food LawThe current reclamation law permits one lan-

downer to receive a permanent right to no more than160 acres worth of federally subsidized irrigation water.The law deals with water, not land. Land is involved

* Tenneco, operator of over 60,000 acres of land receivingfederally subsidized irrigation water.

(see MONOPOLY, page 12)

Landowner Monopoly(continued from page 11)

only as it uses federal water. A landowner may irrigateunlimited acreage with the federal water, if he or shedesires, if he or she signs a contract with the federal -

government in which the government agrees to deliverwater to the so-called "excess landg'-that over 160acres-and the recipient agrees to sell the excess landby the end of 10 years to small farmers, and at pricesassuming the project water was not available. Bothbuyers and land prices must be approved by the Depart-ment of Interior. The existing law is clear that the per-manent beneficiaries must be resident, family farmersand that each farm is limited to 160 acres worth ofwater.

Gradually over the years, this clear legislativeintent has been administratively eroded. Husband andwife have been allowed 160 acres each, then 160 acresfor one child, then other relatives, then anybody. Inte-rior then stopped enforcing the residency requirements,and finally allowed the transfer of huge parcels in oneblock, obviously controlled by one party, with "paper"farmer names on every 160 acres, and the "paper" farm-ers "leasing' to the real owner.

Interior's policies became so contorted that in themid-'70s it was able to approve a 160-acre-limit saleinvolving the transfer of 8,000 acres (12 square miles)financed by a Japanese trading corporation. In anotherInterior- approved transfer, involving 12 alleged buyers,NLP research led to the first indictment and first con-viction ever under reclamation law. It turned out thatthe so-called buyers had no interest in the property,other than that they were paid $1,000 each for the useof their names. The main indicted person's defensewas that he did only what Interior said he could do,and, "besides, everybody else is doing the same thing.Why pick on me?"

National Land for People's ProposalsNLP's first response was to go to federal court

and obtain an injunction (in August 1976) against Inte-rior approving any more excess land transfers until thepolicies were changed. Policies proposed in August1977 by Secretary of the Interior Andrus under thiscourt order were inadequate to handle the scandals wehad uncovered and to assure small farmer opportunitypromised by the program. So by early 1978, NLP haddrawn up a legislative proposal which reached its finalform in H.R. 7317. Its aim: assure small farmer oppor-tunity, healthy rural communities, a more democraticand nutritious food system, and prevent subsidies forfood monopoly.

H.R. 7317's main provisions include:

(1) lottery on the distribution of all reclamation landexcept for a family exemption of up to 640 acres, largerin colder climates and higher elevations;

(2) mandate Interior to divide reclamation lands to besold into parcels ranging from 20 to 640 acres with a150-200-acre average, higher in colder climates andhigher elevations;(3) flexible residency requiring all buyers of reclama-tion lands to live on or near their operation (15 milesor nearest incorporated town), but exempting currentnon-excess owners, retired farmers, and inheritors offamily farms. All buyers would have to be operatingfarmers with farming as their main occupation:;

(4) allow irrigators to use any legal entity as long as allofficers and owners were resident working farmers;(5) no exemptions from these limitations for KingsRiver, Imperial Valley, churches, charities, bankers,trustees, or state farms as contained in H.R. 6520;

(6) prohibit irrigators from having any interest in morethan 640 acres worth of water (higher in colder cli-mates), owned and/or leased. This does not limit landownership or leasing, only ownership and leasing ofland receiving federally subsidized water.

(7) prohibit speculation in reclamation lands for 60years.

As the dogfight drags on, NLP's policies stand abetter and better chance of passage, as the significanceof the issue becomes more widely known. At thepresent time, NLP's policies don't stand two chances inhell.

George Ballis represents National Land for People, anorganization which has led the fight for strict enforcementof the acreage limitation and residency requirement.

Desert Plan(continued from page 1)

Consequently, Congress established the CaliforniaDesert Conservation Area (CDCA) and directed BLMto develop a "multiple use and sustained yield manage-ment plan" to provide for the conservation andappropriate use of desert resources. After three yearsof study and plan development, BLM released a draftCalifornia Desert Plan and a draft environmentalimpact statement (EIS) on February 15, 1980. After a90-day public comment period, BLM developed a pro-posed plan and final EIS that was released on Sep-tember 30, 1980.

Desert Zoning

The draft plan and EIS present four managementoptions. Each option consists of a different mixture ofthe four "multiple use classes' developed by BLM:

C - Controlled Use. Areas assigned to this class will bepreserved in their wilderness state. They will berecommended to Congress for wilderness designationunder the Wilderness Act.

L - Limited Use. Priority protection will be given tosensitive resources of all kinds, but uses will be allowedwhere they do not seriously degrade these resources.Allowable uses include electricity transmission lines,off-road vehicles (ORVs) on designated roads and trailsonly, and limited livestock grazing and mining.

M - Moderate Use. These lands may receive a widevariety of moderately intensive uses, providing for miti-gation of damages caused by permitted uses such asgrazing, mining, electric power plants, and ORV use onall existing roads and ways.

I - Intensive Use. This is the most consumptive use-oriented class, permitting intensive uses with only "rea-sonable" mitigation of damages. This class allows allthe uses under Class M, but with fewer restrictions.Also, it provides for designation of "open" areas whereORV drivers will enjoy unrestricted use.

The Draft Alternatives

The four options presented by BLM in the draftplan and EIS allocate land to each of the four classes invarying proportions:

1. The no-action alternative would continue presentmanagement with little or no change. This alternativeexists only for comparison with the others.

2. The protection alternative is oriented toward max-imum preservation of sensitive desert values such asscenic quality, plants and animals, and cultural and his-toric resources. This alternative allocates 43%, or 5.2million acres, of BLM land to Class C; 49%, or 5.9 mil-lion acres, to Class L; 4.6%, or 552,000 acres, to ClassM; and 1.2%, or 141,000 acres, to Class I.

3. The use alternative favors maximizing consumptiveand intensive uses of the desert, maintaining onlyminimum environmental protection standards. 5% of

BLM lands are allocated to Class C, 17% to Class L,62% to Class M, and 13% to Class I.

4. The balanced alternative seeks to equalize considera-tion of economic and environmental values, presentingwhat BLM believes is a central position between theprotection and use alternatives. It allocates 15% of thelands to Class C, 43% to Class L, 36% to Class M, and3.4% to Class I.

Other Plan Components

Once an area is assigned to a class, many uses thatare consistent with the class may nonetheless conflictwith each other in the area. To help resolve potentialconflicts, BLM developed several Plan Elements, cover-ing specific resources and activities of public concern.The Plan Elements identify existing and possibleconflicts, set goals for each element, and help managersresolve specific conflicts within each area. The ele-ments, discussed separately under each alternative, are:Cultural Resources-Native American Values; Recrea-tion; Wilderness; Motorized Vehicle Access; EnergyProduction- Utility Corridors; Mineral Exploration andDevelopment; Livestock Grazing- Wild Horses andBurros; Wildlife; and Land Tenure Adjustment.

The draft plan also designates 50 specific areas ofcritical environmental concern (ACECs). Under alloptions, ACECs will receive special protection on acontinuing basis in order to protect specific environ-mental or cultural resources.

Public Reaction

Anticipating that the final plan would be based onthe balanced alternative, the public's attention duringthe period was focused on whether this alternative actu-ally strikes a fair balance. The conservation communityimmediately attacked the draft plan as biased againstpreservation and actually destructive of the resources itwas intended to protect. Other recreational users andresource developers attacked the draft plan as overlyrestrictive of consumptive uses. The major subjects ofcriticism included wilderness, wildlife, ACECs andORVs.* Wilderness. During the planning process, BLM madea list of 138 potential wilderness areas, or wildernessstudy areas (WSAs), totaling 5.7 million acres of desertland. BLM rated each area as "outstanding," "good,""fair," or "poor." From this list, BLM chose those areasit felt were most suitable for ultimate wilderness desig-nation under each option. Critics on both sides com-plain that BLM did not disclose how each WSA wasdetermined to be suitable or nonsuitable under eachoption.

Of the 5.7 million acres of WSAs, 72%, or 4 mil-lion acres, were rated "outstanding" or "good," but inthe balanced alternative only 32%, or 1.8 million acres,of the WSAs are recommended for wilderness designa-

(see DESERT, page 14)

14

Desert Plan(continued from page 13)

tion. In the protection alternative, 92% of the WSAsare recommended for wilderness designation and in theuse alternative 11% are recommended.

Conservationists argue that the low balanced alter-native figure does not reflect a balance between the pro-tection and use alternatives. In addition,conservationists believe that a high level of wildernessprotection is necessary to preserve the unique and fra-gile desert environment.

Those arguing for less wilderness areas claim thatthe harsh desert environment has little value for wilder-ness recreation, but has great value for resourcedevelopment. Both mining and grazing will be res-tricted under the balanced alternative. Miners wantmore mineral studies to be conducted in potential wild-erness areas before they are recommended for wilder-ness status.

OACECs. Desert Plan staff resource specialistsidentified over 200 critical areas. BLM managersrejected 115 and consolidated the remaining 87 into 50ACECs. Though FLPMA states that ACEC designa-tion is to be given priority in development plans, nospecific explanation is given as to why each rejectedarea was excluded from ACEC protection. Some of thepublic commentators feel that all of the originallyidentified critical areas should have been included,while other commentators think that many of the 50areas lack the proper criteria for ACEC designation.

0Endangered Wildlife. According to the draft plan,under the balanced alternative, eight officially listedendangered species would receive "substantial impactsto their habitats," possibly leading to extinction or extir-pation (elimination from the area). The Desert Tor-toise is predicted to be extirpated in three or four majorcrucial habitat areas. Of seventy special wildlife habitatareas identified, 71.4% would be negatively or severelyimpacted. Thirteen proposed sensitive species would beimpacted to the point of requiring official listing asendangered. Even under the protection alternative,seven officially listed species would have all or substan-tial portions of their habitats adversely affected. Nega-tive impacts would occur on 37.1% of the seventy spe-cial wildlife areas. Under the use alternative, ninelisted species would receive negative or severely nega-tive impacts. Negative or severely negative impactswould occur on 90% of the special wildlife areas.

O ORVs. Almost 40% of BLM lands come underClasses M and I in the balanced alternative. Class Iincludes areas totally open to ORVs, even if such areasinclude dunes and washes not specifically closed. Theseare often sensitive wildlife and rare plant habitats. AllClass M and I areas are open to ORV use on "existing'roads, trails, and ways, defined as any track that showsevidence of prior ORV use and was recorded as beingin existence by December 31, 1977. Conservationists

believe that this is an unenforceable definition becausetracks are easily made in fragile desert soils and anytrack can be interpreted by a driver as "existing." Theyalso believe the establishment of "open" areas violatesExecutive Order 11989, which states that wheneverORVs are causing or will cause considerable adverseimpacts on natural or cultural resources of an area, "therespective agency head shall .. . immediately closesuch area."

ORV users were equally critical of the treatmentof ORVs under the balanced alternative. Vehicle usersbelieve that the key to minimizing impacts of ORVs isnot to severely restrict their use, but to educate ORVusers in the proper use of their vehicles to avoid dam-age. Vehicle users criticize the balanced alternative forreducing the opportunities for "oped' ORV use. Theamount of land available for ORV free play will bereduced by 54% in the balanced alternative. Vehicleusers feel this is too restrictive and will only serve tointensify the damage in areas that will be open.

The Proposed Plan

BLM released its proposed plan and final EIS onSeptember 30, 1980. The public comment period is 30days. When the review of public comment is finished,BLM will complete the final plan, which will be pub-lished early in 1981.

As expected, the proposed plan is closest to thebalanced alternative in the amount of land allocated toeach of the multiple-use classes. In the proposed plan,17.1% of BLM lands are allocated to Class C (up from15.1% in the balanced alternative), 49% to Class L (upfrom 43%), 27.3% to Class M (down from 36%), and4.1% to Class I (up from 3.4%).

Though the amounts allocated to each class aresimilar to the balanced alternative allocation, BLMpoints out that "the geographical location of the classes

has been readjusted in response to public input andreevaluation of known and potential resource conflicts."BLM completely reanalyzed ORV "opein' areas, Wilder-ness Study Areas, and ACECs.

Some of the more important changes include: anincrease in the number of areas recommended for wild-erness designation from 39 to 43; inclusion of ananalysis of each Wilderness Study Area; an increase inthe number of ACECs from 50 to 73; strengtheningwildlife protection so that rare and endangered speciesare not significantly impacted; the addition of a Vegeta-tion Plan Element; an increase in the amount of landthat will be "open' to unrestricted ORV use; a changeof definition of "existing roads and ways' to "existingroutes of travel"; and permitting organized competitiveORV events to cross Class L areas. In general, BLMhas attempted to accommodate the demands of allrecreational users of the desert.

The FutureWhatever weaknesses the final plan may have,

early next year it will become the official guide bywhich the California Desert will be managed. Whetherit will satisfy the critics remains to be seen. Open ORVuse will still be reduced from present levels and wilder-ness recommendations will still make up only 37% ofthe WSAs (as opposed to 92% in the protection alterna-tive). Greater restrictions will also be placed on miningand grazing.

On the legal front, environmentalists believe thatthe plan may violate Executive Order 11989 and theEndangered Species Act. Also, because many feel therange of alternatives was inadequate and there was notsufficient site- specific analysis, the EIS might be sub-ject to attack as a violation of the National Environ-mental Policy Act in the same way as the ForestService's RARE II program. (See Vol. 4, No. 2,ENVIRONS. Ed.)

Congress can do what it wants with wilderness,whatever the recommendations of BLM. As withRARE II, wilderness proponents may simply bypass theadministration and take their proposals directly toCongress. Already, conservationists are proposingexpansions of the Death Valley and Joshua TreeNational Monuments and creation of an EasternMojave National Park.

As usual, the completion of a final land use planwill not be the last word. The California Desert Planwill assuredly provide grist for the judicial and legisla-tive mills for many years to come.

Wally Burton

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the californa desert plan page 1

letter from the editor page 2

andrus vs. california page 2

reclamation law reform: asymposium page 3

evolutionary, not revolutionarychange page 4

abandonment of a provenprogram page 4

restoring stability to thereclamation program page 5

landowner monopoly andfederal reclamation foodpolicy page 5