Top Line: The nation’s largest land manager is proposing a new “conservation” rule that might result in improved land management but more likely will serve as a shield for the agency to continue to degrade public lands at the expense of this and future generations.
Figure 1. Though the agency rebranded itself in 1964 (see Figure 2) from its 1952 version, the original—alas!—more accurately represents the ethos of the BLM in 2023. Source: Bureau of Land Management.
The nation’s largest landowner is the federal government, and the Bureau of Land Management (BLM) administers more federal land than any other agency. The Biden administration has recently published in the Federal Register a draft “conservation” rule for the BLM, with a public comment period now under way. The draft rule was carefully drafted to not actually do anything—so much so, that the proposed rule doesn’t even require an environmental impact statement, since the rule itself would have no impact on the quality of the human environment. The theory is that the environmental impact assessment will come at the local planning level when the rule’s provisions are implemented.
The draft rule can and should be improved, and that’s where public comments come in.
Make it stand out
Figure 2. A 2023 refresh of the BLM’s 1964 logo would lose the snow due to global warming. The tree would be replaced by a stump and solar panels on one side of the stream and an open-pit mine on the other. The stream doesn’t need refreshing as it’s still devoid of riparian vegetation due to domestic livestock grazing. Source: Bureau of Land Management.
BLM DNA and History
President Truman established the BLM in 1946 by merging several federal bureaucracies, primarily the General Land Office (GLO, est. 1812) and the Grazing Service (est. 1937). The primary purpose of the GLO was to give away or sell the federal domain to private ownership. The Grazing Service serviced grazing on the public domain. (Notice it wasn’t named the Range and Grassland Service, which would have been analogous to the Forest Service. Imagine if the Forest Service were named the Logging Service.) Now almost eight decades later, the DNA of the GLO and the Grazing Service are still way too abundant in the ethos of today’s BLM.
The “Bureau of Livestock and Minerals” has long been a bastard stepchild alongside the other federal land conservation agencies: Forest Service, National Park Service, Fish and Wildlife Service. The “Bureau of Lumbering and Mining” is merely a bureau rather than a service. The “Bureau of Large Mistakes” only received its congressional organic act in 1976 with the enactment of the Federal Land Policy and Management Act (FLPMA), while the other land management services received theirs at or shortly after their creation.
At the time, FLPMA was bold reform (the second piece of legislation I ever lobbied for, the first being the Hells Canyon National Recreation Area Act of 1975). In general, Congress finally decided that most, but not all, of the nation’s unreserved public lands should remain in public ownership. FLPMA established a multiple use and sustained yield management mandate. FLPMA also mandated that resource management plans were to be the vehicle to both conserve and develop the public lands.
The vast majority of the conservation that has been achieved on BLM lands has been achieved by Congress protecting the lands from the BLM’s predilections for exploition and often over the objections of the BLM. Although empowered and required by Congress to do so, the agency has done precious little itself to actually conserve any of its own lands. This was brought home when I perused the BLM’s 227 (so far) albums on Flickr, containing 8,734 photos so far (all in the public domain and free to use) taken by the BLM of BLM land. Only one of the albums featured areas of critical environmental concern. The vast majority of photos featuring conservation areas were of national monuments, wilderness study areas, wilderness areas, national historic trails, and other things that are in the National Landscape Conservation System—all areas that have been specifically protected by acts of Congress. To illustrate this post, I decided to use just images of nature-degrading activities taken from the BLM albums on Flickr.
Figure 3. The Biden administration—with the support of some so-called public land conservation organizations—is opening up BLM lands to further Industrial development. If you’re a desert tortoise, you’re dead even if this concentrated solar power plant in your habitat is producing renewable green energy rather than nonrenewable energy. Source: Bureau of Land Management.
The Proposed Rule and Its Legislative Context
Article IV, Section 3, Clause 2 of the US Constitution grants all power over federal lands to Congress. The president can proclaim national monuments out of public land only because Congress said so in the Antiquities Act of 1906. The secretary of the interior (often acting through the BLM director) has the authority to administer public lands only because Congress has granted such power.
In the matter of federal land, the term law (as in “according to law,” “against the law,” and “rule of law”) means both statutes enacted by Congress and regulations issued by federal agencies. A regulation either carries out a specific statutory mandate or fills out a general statutory mandate. An administrative rule is a regulation. While it is possible for a later administration to revise or eliminate an administrative rule, it far more difficult than undoing BLM resource management plans.
Late in this first quarter of the twenty-first century, the Biden administration has announced in the Federal Register that it is proposing a new “conservation” rule that would “provide an overarching framework for multiple BLM programs to promote ecosystem resilience on public lands.” According toBLM, the proposed rule would allegedly
• 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,
• protect intact landscapes, restore degraded habitat, and make wise management decisions based on science and data,
• apply land health standards to all BLM-managed public lands and uses,
• clarify that conservation is a “use” within FLPMA’s multiple-use framework, and
• revise existing regulations to better meet FLPMA’s requirement that the BLM prioritize designating and protecting Areas of Critical Environmental Concern (ACECs).
Sounds good, but how good really? Will this new rule likely change the BLM’s land management for the better? As drafted, I’m afraid not.
The View from 30,000 Feet
I believe Tracy Stone-Manning—for whom this rule will be, for better or worse, her legacy as the BLM director—is sincere in wanting to elevate conservation on BLM lands. I also believe that even in the Biden administration she faces immense push back from below by BLM state directors (that in theory she can easily hire and fire but in reality cannot) and push down from the White House (to ramp up fossil fuels [as if that were even possible] to keep gas prices low for the next election).
Disappointingly, the rule as written would do nothing to dial back chronic and acute degradation of BLM lands. It would only direct—but not require—BLM field officers to consider doing better things for conservation in resource management plans and other actions. Similar to the Forest Service with its 2012 planning rule, the agency would have to consider many good things and document bad things they are doing, but would not actually be required to protect good things. Rather than dialing back development, the BLM is proposing to double down on “conservation” by requiring its field managers to engage in more consideration that it is hoped, but not realistically, will result in the elevated conservation of public lands.
Fundamentally, there is a zero-sum tension between conservation and development of public lands. The BLM continues its long-held belief and practice that one can have one’s ecosystem and eat it too. While this rule suggests that more conservation activities can offset the harms of development, there is no such thing, just as there is no fat-free hot fudge sundae. Just because something is fervently longed for doesn’t mean that something does or can ever exist. The single most important thing BLM could do to elevate conservation on its lands is to dial back logging, grazing, roading, drilling, mining, and the other multiple (ab)uses it is now engaged in, and this rule would do nothing to advance that goal.
Figure 4. A bovine bulldozer in the BLM’s Agua Fria National Monument in Arizona. Source: Bureau of Land Management.
Major Elements—and Shortcomings—of the Proposed Rule
Areas of Critical Environmental Concern
The rule purports to elevate areas of critical environmental concern (ACECs), which are a creature of FLPMA, but really doesn’t.
Congress defined ACECs as
areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards.” (43 USC 1702(a) [emphasis added]
Further, FLPMA commands the BLM to “give priority to the designation and protection of areas of critical environmental concern.”
Compare these clear statutory mandates to the draft BLM regulatory language:
In the land use planning process, authorized officers must identify, evaluate, and give priority to areas that have potential for designation and management as ACECs. Identification, evaluation, and priority management of ACECs shall be considered during the development and revision of Resource Management Plans and during amendments to Resource Management Plans when such action falls within the scope of the amendment. [emphasis added]
Notice that Congress in FLPMA mandates “priority . . . designation and protection” while the proposed BLM rule downgrades such to a “consideration” of priority “management.” These written sleights-of-hand are not accidental.
Achieving Ecosystem Resilience
Much of the verbiage in the proposed rule is to achieve “ecosystem resilience,” a concept that most can be in favor of but that is impossible to implement while the BLM still has its development pedal to the metal. To the BLM, “resilient ecosystems”
means ecosystems that have the capacity to maintain and regain their fundamental structure, processes, and function when altered by environmental stressors such as drought, wildfire, nonnative invasive species, insects, and other disturbances.
Interestingly, environmental stressors such as logging, grazing, roading, mining, and drilling are not called out.
Protection of Intact Landscapes
The draft rule defines “intact landscape” as
an unfragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species. Intact landscapes have high conservation value, provide critical ecosystem functions, and support ecosystem resilience.
In agency plans, BLM field managers would have to identify and manage to protect intact landscapes. However, the identification and management are left to bureaucrats with bureaucratic incentives to fragment intact landscapes by allowing development. If anything should be an ACEC it is an intact landscape, but the draft rule implies otherwise.
Conservation Leasing
The draft rule states:
The BLM may authorize conservation use on the public lands by issuing conservation leases on such terms and conditions as the authorized officer determines are appropriate for the purpose of ensuring ecosystem resilience through protecting, managing, or restoring natural environments, cultural or historic resources, and ecological communities, including species and their habitats.
Leases would be for “conservation use” that either (1) “involves restoration or land enhancement” or (2) “involves mitigation.” The former would have a ten-year term with a five-year review, while the latter would have a term “commensurate with the impact it is mitigating and reviewed every five years for consistency with the lease provisions.”
The latter would be in support of the draft rule’s mitigation scheme (see below), while the former would offload to private parties conservation measures that the BLM is required to take anyway. Someone has been drinking some libertarian Kool-Aid®. While I’m flexitarian enough to not rule out the concept, I would suspect that not much private money will be invested in public lands where a subsequent hostile administration can simply revoke or not renew one’s conservation lease.
Mitigation
The general scheme proposed by the draft rule is that harms of development on public lands are to be mitigated. If a wetland is drained here, a former wetland is un-drained somewhere else. If sage grouse habitat is wiped out here, sage grouse habitat somewhere else is restored. (A huge difference in these two examples is that re-wetting a dried wetland often works, but recreating sage grouse habitat just doesn’t work). Mitigation can either be “no-net-loss” or “net-conservation-gain.” Either form takes place in a context where habitats have already been greatly destroyed or degraded. Mitigation on public lands is akin to providing a wheelchair to someone after unnecessary amputation of their legs.
Fundamentals of Land Health
In regulation, the Clinton administrations (1993–2001) required BLM field managers to evaluate the fundamentals of rangeland health and to take steps to address unhealthy rangelands. While the goal is noble, in practice the BLM field evaluators are essentially evaluating themselves, as they are the responsible parties. Grading one’s self tends to result in unjustified high grades (see the Dunning-Kruger effect). As long as a rangeland condition (riparian health, soil erosion, stubble height, whatever) is improving even a bit, then the rangeland health standards are met because the trend is positive. This is akin to considering that if spouse beating is reduced from four to three times weekly, the fundamentals of marriage health are improving and no further steps need to be taken.
Figure 5. Industrial development is industrial development. Wildlife habitat is lost and scenery is marred. Source: Bureau of Land Management.
Ways to Improve the Proposed Rule
It’s a draft rule, so the final rule could be much improved. Here are some suggestions to the BLM directorate on how to improve it.
• Require field managers to actually (a) curtail abusive land management practices, and (b) designate and fully protect natural areas.
• Mandate specific levels and kinds of protections for ACECs everywhere and not limit it to discretion in the field.
• Expressly define particular kinds of ACECs, including but not limited to research natural areas, national natural landmarks, outstanding natural areas, forest carbon reserves, sagebrush sea preserves, municipal watershed areas, and intact landscape areas—and then require field managers to designate more of all of them and to protect all of them better.
• Protect mature and old-growth forests, as required by Biden’s executive order.
• Use FLPMA authority to define additional “multiple uses,” such as—to name a few—archeological, air and atmospheric, ecological, ecosystem carbon storage and sequestration, quiet, and darkness.
• Quantify the “sustained yield” of all multiple uses as is already done for the multiple uses of timber (logging) and range (grazing). One cannot manage what one does not measure.
• Expressly define in the rule—as FLPMA requires—the “combination [of multiple uses] that will best meet the present and future needs of the American people.” Relying on the sum of decisions made by low-level bureaucrats in the field who are under immense pressure to defile nature (“I don’t want my kids beat up in school”) does not add up to what is in the national interest for BLM lands. Present and future needs include carbon storage and sequestration, where public lands can play a vital role in addressing climate change. Only 1.3 percent of the nation’s forage and feed for livestock come from public lands. Only 0.34 percent of the nation’s wood supply comes from BLM lands. Nonfederal lands could easily fill the voids, but nonfederal lands cannot fill the voids in biological diversity; only federal lands can.
• Require BLM field managers to establish new wilderness study areas as authorized by FLPMA.
• Ensure that any area of public lands established for conservation receives an FLPMA withdrawal from mining and other development. Where such withdrawals are not explicitly made, mining can occur in these areas without BLM approval.
• Additionally, ensure that any area of public lands established for conservation receives an FLPMA withdrawal for nature conservation and restoration. Where such withdrawals are not explicitly made, a subsequent hostile administration can easily gut any such protections.
Figure 6. Industrial development is industrial development. Wildlife habitat is lost and scenery is marred. Source: Bureau of Land Management.
What You Can Do
The BLM is now accepting public comments until June 20. Tell the BLM what you think by leaving a comment at regulation.gov.
Figure 7. Industrial development is industrial development. Wildlife habitat is lost and scenery is marred. Source: Bureau of Land Management.
For More Information
Bureau of Land Management. Undated. FACT SHEET: Proposed Public Lands Rule (pdf).
Federal Register. April 3, 2023. Conservation and Landscape Health: Proposed Rule.
Kerr, Andy. 2016. Abolish the BLM and Replace It with a U.S. Desert and Grassland Service. 2016. Public Lands Blog.The Larch Company.
———. 2016. The Constitutionality of Federal Public Lands. Public Lands Blog. The Larch Company.
———. 2017. BLM Areas of Critical Environmental Concern: Crown Jewels Open to Theft. Public Lands Blog. The Larch Company.
———. 2022. The Forested Estate of the Bureau of Land Management. Public Lands Blog. The Larch Company.
Bottom Line: The Biden administration could issue a final BLM conservation rule that truly aids conservation, but the draft rule is going to need a serious rewrite.