Sweeping BLM Proposed Public Land Rule
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Sweeping BLM Proposed Public Land Rule

Brownstein Client Alert, June 14, 2023

Rule would have significant new implications for traditional multiple-use management and conservation uses of public land

The Bureau of Land Management (BLM) recently unveiled its proposed Conservation and Landscape Health rule, which identifies “conservation” as a use of public lands on par with other extractive and non-extractive uses under the Federal Land Policy and Management Act of 1976 (FLPMA).

FLPMA requires the Secretary of the Interior to manage public lands under the principles of “multiple use and sustained yield.” The statute lists “recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values” while also the need to manage the lands for “domestic sources of minerals, food, timber, and fiber” as part of the suite of uses that fit within multiple-use management. The proposed rule would seek to promote conservation by changing FLPMA’s implementing regulations to define conservation as a use on par with these other multiple uses and to permit conservation leasing that would prioritize conservation over other multiple uses on areas subject to the leases.

If finalized in its current form, the proposed rule is expected to have far-reaching impacts. FLPMA is the central statute governing BLM’s management of over 245 million acres of public lands, covering about one-tenth of the United States.

Why This Matters

BLM’s multiple-use mandate under FLPMA is broad, requiring BLM to manage lands for a vast range of uses. The BLM asserts that the proposed rule would “raise conservation up to be on par with other uses under the principles of multiple use and sustained yield” and otherwise grant BLM new tools to pursue the Biden administration’s conservation and ecosystem preservation objectives, including by:

  • Adding new or revising existing definitions for concepts such as “conservation,” “disturbance,” “resilient ecosystems, “sustained yield,” “mitigation” and “unnecessary or undue degradation”;
  • Requiring BLM to include a restoration plan in any new or revised Resource Management Plan to address degraded areas of land;
  • Modifying BLM’s existing regulations for identifying, designating and managing Areas of Critical Environmental Concern (“ACECs”); and
  • Authorizing BLM to issue “conservation leases,” a new tool that would permit BLM to lease public lands to qualified individuals, businesses, non-governmental organizations and tribal governments for restoration or protection purposes (maximum term of 10 years with option to renew) or for mitigation (term tied to the related impact).

Opponents of the proposed rule are concerned that it would accelerate the degree to which multiple uses are being minimized on public land in favor of conservation becoming the predominant management priority. They would argue that this runs counter to the original intent of Congress under FLPMA and that the hundreds of millions of acres already withdrawn from the public domain were to ensure that there were indeed landscape-level conservation protections in the form of national parks, wildlife refuges, national monuments, wilderness areas and other special designations, including those protected through land use planning actions. Further, it would be highly unusual to expect that any lands that are designated to be managed for conservation purposes are ever subsequently available for multiple uses, including any extractive purpose. Thus, they would argue, it is very reasonable to believe that any lands designated for conservation leasing will never again be managed for another purpose. Finally, they would highlight the juxtaposition of the administration proposing to permit conservation leasing while at the same time advocating a position of no new oil and gas leasing. Proponents are enthused at the prospect of elevating conservation to the same level as extractive uses. Some may also see the proposed rule playing a valuable role in the “30x30” effort, which seeks to conserve 30% of federal lands and waters by 2030 as a part of President Biden’s America is Beautiful Initiative.

Notable Unanswered Questions

The proposed rule includes several proposals that would fundamentally alter the management of public land and leaves many questions unanswered, including:

Conservation Leasing and Multiple Use Impacts: The proposed rule would allow third parties to propose areas for conservation leasing. Any uses considered incompatible would be precluded on leased lands during the term of the conservation lease. It is unstated whether these lands would then be available for other, non-conservation uses after the lease term runs. The history of federal land management would show that, with few exceptions, once lands are designated for a conservation purpose, management for that purpose becomes permanent. Thus, it is reasonable to question whether a decision by the agency to lease for conservation purposes is, in effect, to retire the lands from broader multiple-use management. If this is not the intent of the agency, it will likely need to provide clear direction otherwise in a final rule.

Use of Areas of Critical Environmental Concern (ACEC) for Precautionary Interim Management: BLM’s existing regulations authorize it to designate ACECs during the land use planning process and apply special management requirements to these areas via a Resource Management Plan. The proposed rule would permit BLM, when lands are nominated by the public, to begin to manage the lands on an interim basis to protect the resources in such a way as to allow for its future consideration as an ACEC when a plan revision is considered. This could preclude broader multiple uses of the lands during this “interim management.”

Compensatory Mitigation: Some stakeholders are concerned that the proposed rule signals that broader compensatory mitigation will be necessary for the authorization oil and gas production, mining, and renewable energy development. While it has long been expected that BLM will seek to minimize, avoid and reduce impacts through a range of mitigation strategies on site, it has not been the case that project proponents must mitigate all impacts for the agency to provide authorization, though BLM must always avoid unnecessary and undue degradation. Stakeholders worry that compensatory mitigation introduces a greater degree of uncertainty and potential for delays in the project approval process, particularly if there are differences in understanding and approach among field, district and state offices across BLM even with the same activities or industries.

Comment Period is Open Until June 20, 2023

BLM is accepting public comments on the proposed rule until June 20, 2023. BLM specifically requested comments on several specific elements of the Proposed Rule, including:

  • What is the appropriate default duration for conservation leases?
  • Should the rule constrain which lands are available for conservation leasing?
  • Should the rule clarify what actions conservation leases may allow?
  • Should the rule expressly authorize the use of conservation leases to generate carbon offset credits?
  • Should conservation leases be limited to protecting or restoring specific resources, such as wildlife habitat, public water supply watersheds, or cultural resources?
  • How would fair market value be determined in the context of restoration or preservation?
  • Are there opportunities for the proposed rule to incorporate specific direction to conserve and improve the health and resilience of forests on BLM-managed lands, including old and mature forests?

Looking Ahead to the Broader Battles

On May 3, 2023, Wyoming Sen. John Barrasso (R) introduced a bill that would require BLM to withdraw the proposed rule and prohibit it from finalizing any similar rule. A similar bill was introduced by Rep. John Curtis (R-Utah) in the House of Representatives.

If the proposed rule is adopted, we anticipate legal challenges will follow. As summarized in this alert, in May, the Supreme Court agreed to review of a case, Loper Bright Enterprises, Inc. v. Raimondo, in which the court has been asked to weigh in on the continuing validity of Chevron deference. Chevron deference is a highly significant legal doctrine in administrative law, under which courts defer to reasonable agency interpretations of ambiguous statutes, thus affording them greater discretion in administrative actions. Depending on how the timing plays out, the proposed rule could be among the first major federal agency rulemakings challenged after the Supreme Court hands down its decision in Loper.

Stakeholders currently have until June 20 to submit public comments, but BLM may choose to extend the deadline. If BLM decides to extend the public comment deadline, it will not be for lack of interest: to date, BLM has received more than 80,000 comments. Brownstein’s policy and legal teams are closely following the progression of this proposed rule and are available to help you craft an effective engagement strategy.

This document is intended to provide you with general information regarding the BLM's proposed Conservation and Landscape Health rule. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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