The Bureau of Land Management has finalized a rule that will allow conservation leases on its land by giving land protection and restoration equal footing with grazing, energy development and other long-standing uses of the 245 million acres the agency controls.
In the rule announced Thursday, BLM staunchly defended its authority to consider conservation in its management of 245 million acres of mostly western land, but also tried to allay concerns that it would be prioritizing conservation over other uses.
Perhaps most significant, BLM responded to comments that said it was reaching beyond its authority to consider conservation as one of the uses authorized under the Federal Land Policy and Management Act, and said it doesn't believe the rule would be vulnerable to legal challenges under the “major questions doctrine” recently given new life by the Supreme Court.
“To ensure the resilience of public lands, FLPMA provides the BLM with ample authority and direction to conserve ecosystems and other resources and values across the public lands,” the rule says. But the rule “doesn’t prioritize conservation above other uses,” it said.
“Instead, it provides for considering and, where appropriate, implementing or authorizing conservation as one of the many uses managed under FLPMA, consistent with the statute’s plain language.”
“The overarching purpose of the rule is to help facilitate the use of conservation to support ecosystem resilience, and in doing so the final rule clarifies conservation as a use within the BLM’s multiple use framework, including in decision-making concerning land use planning and proposed projects,” the rule says.
Criticism of the rule came swiftly from western lawmakers. Sen. John Barrasso, R-Wyo., and ranking member of the Environment and Public Works Committee, said he would be introducing a Congressional Review Act resolution to block the rule’s implementation.
“This rule subverts the multiple-use requirement under the Federal Land Policy Management Act and will block access to federal lands,” Barrasso said.
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And Congressional Western Caucus Chairman Dan Newhouse, R-Wash., said, “Once again, President Biden and [Interior] Secretary [Deb] Haaland are confusing ‘conservation’ for ‘preservation’ with this illegal final rule that violates the multiple-use mandate established by FLPMA. Let’s be clear, this is just another way to lock up America’s abundant natural resources, end grazing on federal lands, and limit public access to our public lands for the sake of climate alarmism.”
The National Cattlemen’s Beef Association and Public Lands Council said the rule “runs counter to the agency’s multiple use mandate” under FLPMA, which says BLM must “balance the multiple uses of public lands including recreation, energy, mining, timber, and grazing. The ‘Conservation and Landscape Health rule’ rearranges agency priorities by putting a new, single use on equal footing with long established uses that Congress explicitly directed.”
On the other side of the aisle, House Natural Resources Committee Ranking Member Raúl M. Grijalva, D-Ariz., called the rule “a win for the American people who overwhelmingly want to protect our nation’s rich natural and cultural heritage and ensure a safer, healthier climate future for our children and grandchildren. Oil, gas, and mining companies have had the upper hand on our public lands for far too long.”
Conservation groups also were pleased.
“BLM lands make up the biggest slice of the federal estate, and now the Biden administration is putting it on the books officially that they will no longer be neglected or treated as just a source of oil and coal,” said Jamie Williams, president of The Wilderness Society.
The rule retains a conservation leasing program from the proposal but divides it into two categories – restoration and mitigation leasing.“
While restoration and mitigation leases are specific new tools for managing the public lands, FLPMA provides clear and broad authority to manage the public lands at the discretion of the Secretary [of Interior], including for conservation use,” the rule says.
“Restoration and mitigation leases would not disturb existing authorizations, valid existing rights, or state or tribal land use management,” the final rule says. “If the proposed activities in a restoration or mitigation lease would conflict with existing authorizations, such as if a specific type of restoration would not be compatible with grazing and the proposed location is already subject to a grazing authorization, then the restoration or mitigation lease could not be issued on those particular lands unless the proposal were modified to eliminate the conflict.”
BLM says the rule “does not identify or limit public lands that could be leased for restoration or mitigation purposes. … [It] requires the BLM to identify restoration priority landscapes, intact landscapes, and landscape-scale mitigation strategies, and these areas would be logical locations for leases to support restoration and mitigation efforts the agency is prioritizing.”
BLM also said that although the rule requires it to take “appropriate action” where “a specific land use is a factor in failing to achieve land health,” what constitutes such action “may be constrained in a given case both by law and the applicable resource management plan.”
As an example, BLM said that where lands are available for solar development under an RMP, “options for taking ‘appropriate action’ to address land health would not include prohibiting solar development, but may include measures to avoid, minimize, or compensate for impacts from solar development.”
The rule, which is called the Conservation and Landscape Health Rule, “establishes the policy for the BLM to build and maintain the resilience of ecosystems on public lands in three primary ways: (1) protecting the most intact, functioning landscapes ; (2) restoring degraded habitat and ecosystems; and (3) using science and data as the foundation for management decisions across all plans and programs.”
In addition to the leasing program and a mandate to manage the land for landscape health, the rule “clarifies the designation and management of [Areas of Critical Environmental Concern],” BLM said in a release.
BLM administers about 245 million acres of lands in the U.S., about one-tenth the land mass of the country.“
These lands have become increasingly degraded in recent decades through the appearance of invasive species, extreme wildfire events, prolonged drought, and increased habitat fragmentation,” the rule says. “Degradation of the health of public lands threatens the BLM’s ability to manage public lands as directed by FLPMA.”
“A number of comments that object to including ‘conservation’ alongside other uses in FLPMA’s multiple use framework, including a letter from the Small Business Administration, Office of Advocacy, point to the absence of the word ‘conservation’ from FLPMA’s definition of ‘principal or major uses,’” the rule says.
BLM disagreed with the interpretation, saying that the “courts have confirmed [that] FLPMA’s animating principles of multiple use and sustained yield embrace conservation use as an integral component of the BLM’s stewardship of the public lands.
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This story was updated with links and additional reaction.
