The First 100 Days: At Interior, Several Positive Developments, but the Jury is Still Out

by Dan Tarlock

April 29, 2009

This post is written by CPR Member Scholars Dan Tarlock and Holly Doremus


How has the Department of Interior fared during the first 100 days? If history is any guide, the issue may be more important than many people assume. With one major and one minor exception, Secretaries of the Interior stay put in Democratic administrations. Franklin Lane served from 1913 until the last year of the Wilson Administration. Harold Ickes was FDR's only Secretary and he served until his 1945 registration in the Truman Administration. Stuart Udall served during the entire Kennedy and Johnson Administrations; Cecil Andrus did so under President Carter, and Bruce Babbitt lasted for the full two terms of Bill Clinton's tenure in office. Harry Truman is the exception, but he had only two secretaries during his nearly 8 years in office.

The short answer to the question is the record is mixed and the jury is still out, although the Department is moving away from some of policies of the Bush Administration DOI. Given the sorry record of the Department from 2000-2008, the improvement bar is a very low one. But the burden is still on the DOI and the relatively unknown Secretary Salazar to prove that it will adopt policies that are responsive to the unmet need for natural resource management grounded in science and 21stcentury economic realities.

There are several specific actions to note on the plus side. Just yesterday, Secretary Salazar and Commerce Secretary Gary Locke said in a press release that they were revoking the Bush Administration's midnight regulation on Section 7 of the Endangered Species Act. Those regulations undercut a requirement that federal agencies consult with the Fish and Wildlife Service and/or the National Marine Fisheries Service to be sure that actions they plan to take are not likely to jeopardize the continued existence of threatened and endangered species.

The DOI has also pulled back from aggressive off-shore drilling. Secretary Salazar's recent California trip to offer federal help for the ever-water-short state and especially its endless Bay Delta conflict did not promise the easy solution of convening a "God Squad" to lift Endangered Species Act restrictions on Delta diversions. Instead, he promised money for water transfers.

The Fish and Wildlife Service asked a federal judge in D.C. for a voluntary remand in a case involving challenges to the new recovery plan and critical habitat designation for northern spotted owls. This is a clear indication that the Obama Administration is making a break from the Bush era regarding ESA administration, even on controversial species. It is also a good indication that reality-based science will once again play a role in ESA decisions, given that two scientific peer reviews had been very critical of the new recovery plan.

One more indication that Salazar is doing some good, but not as much as we might like, was Monday's announcement that the Department of the Interior is requesting that the Bush Administration's stream buffer rule under the Surface Mining Control and Reclamation Act (SMRCA) be vacated and remanded. That's certainly a good thing, but there was little in the way of assurance that coal operators would actually have to stop doing valley fills.

On the con side, the Salazar DOI has removed the gray wolf from the list of endangered species in several regions, a move suggesting that they buy into the Bush administration's quite bad policies on defining significant portion of a species' range. The Department also did not appeal an injunction against a regulation that barred concealed weapons in the national parks. Now every park visitor is potential victim-character in a Nevada Barr mystery.

On the wait and see side, the biggest "if" is the Department's role in the Obama Administration's energy policy, itself very much a work in progress at best. Secretary Salazar, a Colorado native, has enthusiastically endorsed oil shale development. The deposits are primarily located in the Colorado portion of the water-stressed Colorado Basin and raise a wide range of environmental and economic issues. He and the Department may, as did the Ford and Reagan administrations, find that this dog will not hunt.

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Also from Dan Tarlock

A. Dan Tarlock is a Distinguished Professor of Law at the Chicago- Kent College of Law and Honorary Professor UNECSO Centre for Water Law, Science and Policy, University of Dundee, Scotland. His teaching and research interests include environmental law, property, land use controls, biodiversity conservation and water law.

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