On April 18, the Bureau of Land Management (BLM), the federal government’s largest land manager, promulgated a rule explaining how the agency will carry out its longstanding statutory obligation to conserve the 245 million acres of lands it regulates.
This so-called “public lands rule” includes a significant, if long overdue, recognition that the agency’s “multiple use” mission includes a conservation mandate. More than 90% of the 216,000 public comments BLM received support the new rule.
Nearly a half-century ago, in the Federal Land Policy and Management Act (FLPMA) of 1976, Congress declared that BLM land management was to protect the “long-term needs of future generations,” including the lands’ “natural, scenic, scientific, and historical values.”
These values were to inform multiple-use management, which was not to avoid the “permanent impairment of the productivity of the land and the quality of the environment.” However, for nearly a half-century the agency’s rules failed to explain how the agency should achieve its conservation purpose.
Nor did BLM take consistent action to establish and maintain “areas of critical environmental concern” (ACECs), which the 1976 statute expressly directed BLM to prioritize and protect for their ecological, historic, scenic, or cultural values. BLM never promulgated a rule to implement this provision.
The new public lands rule addresses both oversights, clarifying that conservation is a multiple use that includes maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions. To help foster ecosystem resilience the rule authorizes “restoration or mitigation” leases to protect, manage, or restore natural environments, ecological communities, or cultural and historic resources.
Areas of critical environmental concern designation — which federal law required to prevent “irreparable damage to important historic, cultural or scenic values, fish and wildlife resources . . . or to protect life and safety from natural hazards” — will be standardized under the new rule. The rule asks for public nominations of ACECs, establishes designation criteria, and curbs BLM’s discretion to remove designated ACECs.
Another important feature of the new rule is the agency’s extension of “fundamentals of rangelands health,” developed a quarter-century ago for lands subject to BLM grazing leases, to all BLM lands.
These rangeland health standards call for maintaining or restoring watershed health, ecological processes, and species habitat, as well as compliance with state water quality standards. Intact landscapes will be inventoried and, where appropriate, managed to preserve intactness.
The rule is well within BLM’s statutory authority to manage public lands for multiple use and sustained use and the statutory directive to avoid “permanent impairment,” while providing the long-term needs of future generations. Achieving sustained yield requires the agency to achieve multigeneration management “in perpetuity.”
The rule does not claim to prioritize conservation over other multiple uses, but rather to place it on an “equal footing” with other uses. No valid existing public land rights to mining, grazing or oil and gas development are affected.
More than 60% of BLM lands are now subject to grazing leases. And the overwhelming majority — something close to 90% — is available for oil and gas leasing. Almost 24 million acres are subject to existing leases, as compared, for example, to more than 37 million acres protected as “national conservation lands.”
The Biden administration approved more oil and gas leases during its first two years than did the Trump administration in its first two years. But over 47% of leased lands are not used by the leases for non-regulatory, economic reasons. The new rule offers the prospect of a more balanced agency approach to multiple use, sustained yield.
The Public Lands Rule provides an important response to the threats imposed by climate change, which the Interior Department has acknowledged widely affects the lands, waters, and natural and culture resources it manages, resulting in landscape degradation, habitat fragmentation, and biodiversity loss.
Since future environmental conditions will not mimic the past, the new rule gives BLM the tools to meet an uncertain and potentially hazardous future. Managing for ecological resilience will not eliminate the threats posed by climate change, but BLM now has a framework to prepare its public lands to maintain the values that FLPMA long ago recognized as fundamental national land policies.
Mark Squilliance is the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado Law School. Michael Blumm is a professor and was a founder of the environmental and natural resources program at Lewis and Clark Law School. Sandi Zellmer is a professor and director of the natural resources and environmental law at the University of Montana Law School.
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