Conserving American Public Lands

The Conservation and Landscape Health Rule, issued by the U.S. Department of the Interior’s (DOI) Bureau of Land Management (BLM) this June, marks a notable shift in the management of federal public lands. The new rule puts conservation on par with recreation, grazing, oil and gas development, and other resource extraction as a valid use of BLM-managed lands.

Currently, BLM manages more federal public lands than any other government agency: 245 million acres of surface land—more than 10 percent of the country’s land base—and 700 million acres of subsurface mineral resources.

The BLM’s authorizing statute, the Federal Land Policy and Management Act of 1976 (FLPMA), mandates the agency balance multiple land uses, managing for productive use such as grazing and mining while also preserving public lands for future generations. The BLM indicates that the key provisions of its new rule—such as allowing for landscape mitigation and restoration leases—are authorized by the FLPMA’s multiple-use mandate. The executive summary published with the rule suggests that the intent is not to prioritize conservation, but rather to balance conservation with other preexisting valid uses for BLM federal public lands.

The DOI argues that the rule is necessary to build climate resiliency, fight biodiversity loss, and preserve the natural, cultural, and economic value of public lands for future generations. The rule complements the Biden Administration’s America the Beautiful Initiative, which aims to conserve 30 percent of America’s lands and waters by the year 2030.

In addition, the new rule directs BLM to prioritize Tribal co-stewardship—cooperative agreements between DOI bureaus and Tribes for land management and conservation. The new rule streamlines the process for native peoples to designate cultural and subsistence lands as Areas of Critical Environmental Concern.

BLM-managed lands include areas rich in timber, grazing land, and mineral and fossil fuel deposits. Representatives of affected industries argue that the new rule exceeds the agency’s authority under FLPMA. Last year, states such as Wyoming and Utah and ranching, oil, logging, and mining industry groups filed several suits challenging the rule for exceeding BLM’s statutory authority to regulate land use and claiming, instead, that conservation is land non-use. Recently, the U.S. House of Representatives passed by a narrow margin a bill that, if it becomes law, would rescind the new BLM rule.

Many environmental groups, however, strongly support the new rule, with several filing a joint motion to intervene in the ongoing litigation last week. These groups claim that the new rule will honor the original FLPMA mandate and allow for more effective wildlife and wild lands conservation while facilitating, through mitigation and restoration leases, the development of clean energy. Most pan-Tribal and Tribal organizations, including some involved with the drafting process, also praise the rule for prioritizing ecological resilience and respecting Indigenous political agency.

In this week’s Saturday Seminar, scholars discuss the legal foundations of BLM’s Conservation and Landscape Health rule, its implications for the conservation of federal public lands, and some potential improvements to the rule.

• Courts should interpret FLPMA to endorse—if not outright require—the BLM to change its land-management practices to build climate resilience and prevent biodiversity loss, suggests Sandra B. Zellmer of the University of Montana Alexander Blewett III School of Law in an article in the Arizona Law Review. The plain language of FLPMA requires the BLM to weigh the needs of future generations and adapt land management approaches to meet changing conditions, argues Zellmer. Zellmer suggests, therefore, that FLPMA should be interpreted to mandate land management for conservation in addition to other uses. Because this interpretation is, Zellmer argues, unambiguous, she explains that the new rule is well-positioned to survive legal challenges without judicial deference to the BLM’s interpretation.
• In a recent white paper, Jamie Pleune and Wesley Peebles of the University of Utah S.J. Quinney College of Law and Chris Winter of the University of Colorado Law School argue that the concept of “sustained yield” in FLPMA provides an independent source of authority—in addition to the multiple use mandate—to manage public lands for conservation. To manage lands for a sustained yield, the authors argue, means taking steps to provide key resources and a clean environment in perpetuity. To meet this requirement, the authors note, requires taking steps to preserve renewable resources and a clean environment. Pleune, Peebles, and Winter thus conclude that the FLPMA expressly includes public land conservation as a goal in land management decisions.
• In a forthcoming article, Robert L. Glicksman, professor at The George Washington University Law School, and Sandra B. Zellmer, professor at University of Montana School of Law, argue that the BLM’s past resource management plans are inadequate to meet the challenges of climate change. One under-used tool, Glicksman and Zellmer suggest, is the designation of Areas of Critical Environmental Concern—areas within public lands of particular scenic, historical, cultural, or ecological importance in danger of irreparable harm absent additional protection. The protection of these areas, the authors note, is prioritized even above the above the BLM’s responsibility to manage public lands for multiple uses. Glicksman and Zellmer argue that such prioritization makes this designation a powerful land conservation tool.
• In a comment on the BLM’s new rule, Jamie Pleune of the S.J. Quinney College of Law and several coauthors argue that the new rule is justified in part by the emerging market for commercial conservation. FLMPA, the authors explain, authorizes the BLM to adapt its land management practices to changing market conditions to maximize the value of federal public lands. Accordingly, the authors argue that the new rule is an appropriate adaptation to growing global demand for mitigation and conservation leases—agreements to conserve or restore public lands to offset other commercial activities with negative ecological or climate effects.
• In a recent article, Drew McConville of the Center for American Progress argues that the BLM’s use of innovative management tools in its recent rule promotes more efficient deployment of clean energy projects. The rule adopts conservation leasing—a tool enabling private entities or Tribes to enact compensatory mitigation on public lands to offset the environmental impact of clean energy projects, McConville explains. He notes that conservation leasing benefits clean energy projects and natural resources by creating mitigation incentives. For clean energy developers, McConville argues, conservation leasing reduces costs by providing affordable mitigation options. Allowing mitigation projects on public lands will therefore lead to a reduction in clean energy’s impact on local habitats and natural resources, McConville suggests.
• In an article in the Public Land & Resources Law Review, John D. Leshy, a professor at the UC San Francisco School of Law, argues that recent federal prioritization of co-stewardship with native Tribes in public land management is promising but faces meaningful challenges. Among these challenges, Leshy notes, are a lack of Tribal governance capacity, unwillingness of agencies to surrender control over land management decisions, and conflicts between native entities with distinct interests. Leshy nonetheless contends that a gradual approach combining philanthropic and government support for building Tribal capacity and the negotiation of co-stewardship agreements is the best way to ensure meaningful Indigenous participation in public land management decisions.