BLM's Conservation Rule and Conservation as a 'Use

A R T I C L E S BLM’S CONSERVATION RULE AND CONSERVATION AS A “USE” by Jamie Pleune Jamie Pleune is an Associate Professor of Law (Research) and Wallace Stegner Center Fellow at the University of Utah, S.J. Quinney College of Law. SUMMAR Y In April, the Bureau of Land Management (BLM) proposed new regulations governing land management decisions on public lands. Dubbed the “conservation rule,” this rule seeks to protect intact landscapes, restore degraded habitat, and manage for ecosystem resilience. Detractors have attacked the rule as lacking statutory authority, particularly the provisions regarding “conservation leasing.” This Article responds by demonstrating that conservation is inherent in BLM’s statutory duties articulated in the Federal Land Policy and Management Act, and that the proposed rule is an appropriate exercise of BLM’s discretion. The deterioration of public lands, exacerbated by climate change, justif‌ies BLM’s prioritization of ecological resilience, intact landscapes, restoration, mitigation, and land health. Emerging market opportunities for conservation and mitigation also justify BLM’s discretion to develop conservation leases, which are consistent with statutory authority and existing regulations. When the Bureau of Land Management (BLM) was established in 1946, 1 its irst logo depicted ive men seemingly marching in a line, each carrying the tools of their trade. 2 A surveyor gripped his tripod closely, apparently eager to put it to use. Next to him, a logger shouldered an ax; an oil worker carried a large wrench; a cowboy gripped his lasso; and a miner sported a lantern. Behind them covered wagons labored forward. Ahead of them, factories, oil rigs, and skyscrapers dominated the landscape. 3 he logo seemed to draw inspiration from John Gast’s classic painting of American Progress , in which the maiden spirit of Manifest Destiny led stagecoaches, wag- Author’s Note: I would like to thank Bob Keiter, Heather Tanana, Beth Parker, and Brigham Daniels for their insights and observations in preparing this Article. 1. BLM, Our Public Land Heritage: From the GLO to the BLM (2016), https://www.blm.gov/sites/default/iles/About_historytimeline.pdf. 2. Id .; see also Charles H. Stoddard, A New Emblem for BLM , in James Muhn & Hanson R. Stuart, U.S. Department of the Interior, Opportunity and Challenge: The Story of BLM 116 (1988) [hereinafter Opportunity and Challenge]. 3. Id . ons, trains, and settlers westward, resolutely displacing Native Americans, bufalo, bears, and wild landscapes. 4 By the 1960s, shortcomings inherent in this style of land management became apparent. he U.S. Department of the Interior (DOI) began to speak of a “quiet crisis” facing America’s citizens due to “unplanned progress and explosive growth—something that threatened the nation’s natural resources and its citizens’ quality of life.” 5 In 1965, BLM adopted a new logo that it still uses to this day. Unlike the earlier logo, which heralded people and extractive uses, the new logo celebrates the landscapes that BLM manages. It depicts a winding river, grassland, a conifer tree, and a mountain. 6 his nature-based emblem symbolized BLM’s emerging land ethic, which included conservation as a strategy for managing public lands. 7 In 1976, with the passage of the Federal Land Policy and Management Act 4. John Gast, American Progress (oil on canvas) (1872). For a description and reproduction of the painting, see Martha A. Sandweiss, John Gast, American Progress, 1872 , Picturing U.S. Hist., https://picturinghistory. gc.cuny.edu/john-gast-american-progress-1872/ (last visited Sept. 19, 2023); Tony Hiss, Rescuing the Planet 128 (2021) (describing the painting and its implications). 5. Opportunity and Challenge, supra note 2, at 104. 6. Id . at 116. 7. Id . at 104-56. 53 ELR 10824 ENVIRONMENTAL LAW REPORTER 11-2023 (FLPMA), 8 the principles of multiple use and sustained yield solidiied a place for conservation within BLM’s duty to manage public lands “in the combination that will best meet the present and future needs of the American people.” 9 Over time, as the needs of the American people have changed, BLM’s management strategies have adjusted. In 2003, Bruce Babbitt, former Secretary of the Interior, observed, “he day is coming, I believe, when the BLM, so often dismissed as the Bureau of Livestock and Mining, will be better known as the Bureau of Landscapes and Monuments.” 10 his year, BLM continued that evolution. On April 3, it proposed new regulations that “would advance the BLM’s mission to manage the public lands for multiple use and sustained yield by prioritizing the health and resilience of ecosystems across those lands.” 11 he purpose of the proposed rule is to ensure that BLM will “protect intact landscapes, restore degraded habitat, and make wise management decisions based on science and data.” 12 Unsurprisingly, the proposed rule has generated mixed reviews. he prominent news outlet E&E News referred to it as a “seismic shift.” 13 he American Exploration & Mining Association called it “vague, counterproductive, and illegal.” 14 he Outdoor Alliance praised it as ofering “real ways for the BLM to balance conservation with extraction and development.” 15 his Article proceeds as follows. After this introduction, Part I provides a very brief background and description of the proposed Conservation Rule and arguments against it. Part II discusses FLPMA’s statutory language and a brief history of its passage, demonstrating that conservation is inherent in BLM’s statutory mandate. Part III argues that the proposed rule is an appropriate response to the current conditions on public lands. Deteriorating land health, exponential development, and the challenges of climate change justify BLM’s prioritization of ecological resilience, intact landscapes, restoration, and mitigation. Part IV focuses on the proposed creation of conservation leases. It argues that emerging market opportunities for conservation and mitigation justify BLM’s exercise of discretion to develop conservation leases, which are consistent with the principles of multiple use and sustained yield. Part V concludes. I. The Proposed Conservation and Landscape Health Rule Commonly referred to as the Public Lands Rule or the Conservation Rule, the rule’s preamble recognizes that BLM has “three primary ways to manage for resilient public lands: (1) protection of intact, native habitats; (2) restoration of degraded habitats; and (3) informed decisionmaking, primarily in plans, programs and permits.” 16 To support these activities, the proposed rule takes several actions. It establishes that land health standards apply to all 245 million acres managed by BLM, where previously they only applied to grazing leases. 17 It also clariies that conservation is a “use” within FLPMA’s multiple use framework, and it creates conservation leases as a tool to facilitate that use. 18 he rule revises existing regulations to better meet FLPMA’s requirement that BLM prioritize designating and protecting areas of critical environmental concern (ACECs). 19 Finally, it provides an overarching framework for multiple BLM programs by incorporating principles of ecosystem resilience, mitigation, and monitoring in planning, permitting, and management decisions. Not everyone greeted the rule with approval. In May, two bills were introduced in the U.S. Congress instructing BLM to withdraw the proposed rule. 20 On May 24, 2023, the Oversight and Investigations Subcommittee for the U.S. House of Representatives Committee on Natural Resources held a hearing on the “[Joseph] Biden Administration’s Eforts to Limit Access to Public Lands.” 21 he hearing memo asserted that the rule represented an “attempt to unlawfully circumvent Congress to rewrite FLPMA, expand its mandate, and restrict the American public’s access and use of federal lands.” 22 his theme resonated in editorials. In Utah, the BlueRibbon Coalition asserted that BLM “doesn’t have the authority to create this rule out of administrative thin air.” 23 A comment letter submitted by the American Petroleum Institute on behalf of itself and four other oil and gas 8. 43 U.S.C. §§1701-1785, ELR Stat. FLPMA §§102-603. 9. Opportunity and Challenge, supra note 2, at 158; 43 U.S.C. §1702(c). 10. Bruce Babbitt, he Heart of the West: BLM’s National Landscape Conservation System , in Michael P. Dombeck et al., From Conquest to Conservation: Our Public Lands Legacy 101 (2003). 11. Conservation and Landscape Health, 88 Fed. Reg. 19583, 19583 (Apr. 3, 2023) [hereinafter Proposed Public Lands Rule]. 12. Id . 13. Scott Streater, BLM Proposes Seismic Shift in Lands Management , E&E News (Mar. 30, 2023), https://www.eenews.net/articles/blm-proposes- seismic-shift-in-lands-management/. 14. Mark Compton & Sid Smith, AEMA: BLM’s Proposed Conservation Rule: Vague, Counterproductive, Illegal , Burgex Mining Consultants (June 27, 2023), https://burgex.com/2023/06/27/blms-proposed-conservation-rule/. 15. Tania Lown-Hecht, BLM’s Public Lands Rule Would Beneit Outdoor Recreation and Conservation , Outdoor All. (May 30, 2023), https://www.outdooralliance.org/blog/2023/5/30/blms-public-lands-rule-would-beneit-outdoor-recreation-and-conservation. 16. Proposed Public Lands Rule, supra note 11, at 19585. 17. Id . 18. Id . at 19586. 19. Id . at 19583. 20. A Bill to Require the Director of the Bureau of Land Management to Withdraw a Rule of the Bureau of Land Management Relating to Conservation and Landscape Health, S. 1435, 118th Cong. (2023); To Require the Director of the Bureau of Land Management to Withdraw a Rule of the Bureau of Land Management Relating to Conservation and Landscape Health, H.R. 3397, 118th Cong. (2023). 21. House Committee on Natural Resources, Hearings: Examining the Biden Administration’s Eforts to Limit Access to Public Lands , https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=413283 (last visited Sept. 19, 2023). 22...