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Federal lands rule is a good theory but poor proposal

Updated: Jul 21, 2023

Federal lands

The Bureau of Land Management (BLM) and Forest Service struggle to manage their lands efficiently and effectively. It’s an ongoing problem and both sides are frustrated. Resource-users (ranching and mining) are often kept from land that allows them to generate income. Natural resource groups repeatedly express disappointment for the lack of conservation efforts.

The Biden Administration’s recently proposed rule change would shift more focus to conservation efforts. In name, the rule proposal has a positive potential but in actual design the proposal undermines the law that designates the purpose of the Bureau of Land Management.

Conservation leases are an excellent market-based tool for prioritizing conservation as a ‘use’ of land. Effective projects have occurred on private lands that allow conservation groups to collaborate with resource-users to design and implement beneficial projects. PERC (Property and Environment Research Center) partnered with ranchers and landowners to form an Elk Occupancy Agreement in the Greater Yellowstone Area. This example of a conservation lease, paid the rancher to fence off winter range of migratory elk.

If conservation leases work on private lands, why will the proposed rule change not work?

#1: The rule stretches the codified law.

The Federal Land Management and Policy Act (FLMPA) in 1976 tasked the BLM to “manage the public lands under the principles of multiple use and sustained yield.” The proposed rule change conflicts with the law because the “principal or major uses” were specified as “domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production.”

The newly proposed rule strictly defines conservation as “restoration and protective actions.” Conservation as restoration and protective actions is outside the scope of the FLMPA. To progress conservation leases forward it would be best practices to include conservation within the law through Congress’s legislative power. The current proposed rule is likely to be protested through the judicial system because conservation is not specifically included as a use in the language of the law.

#2: The rule’s proposed implementation is vague.

The proposed rule does not specify how conservation leases will be designated, how long they will last, the pricing structure, and the possibility for future uses. Resource users are concerned about the lack of clarity, arguing it is a pathway to extensively limit them in the future. The BLM’s reputation for changing expectations leaves many resource-users uncomfortable with the extension of power the new rule would create.

#3: The rule could have negative economic and educational impacts

With this proposed rule, the executive branch is bypassing Congress, and the 535 voices of elected officials who will represent the interests of their constituents. As a result the rule, as written, will pull economic resources away from states, especially western states who have the highest percentages of federal lands.

The Congressional Western Caucus issued a strong statement against the proposed rule change. Representative Newhouse said:

“We already know the Bureau of Land Management’s proposed rule would be devastating to rural communities across America, not to mention counterproductive for the very goals they’re working to achieve. It is clear that this proposed rule was drafted without the input of stakeholders who will be impacted by this regulation, which is why BLM must extend their comment period and allow all perspectives to be addressed.”

Those state budgets that depend heavily on the taxes paid by mining and oil resource users, would struggle to fund important services, like education. Wyoming’s Superintendent of Public Instruction Megan Degenfelder submitted the following testimony regarding the rule change:

“Due to the nature of Wyoming’s intermixed state and federal land sections, with 50% of the surface estate and 65% of the mineral estate owned by the federal government, I know from my career in the coal and oil and gas industry that any ‘non-use’ has a direct negative impact on leasing and development of adjacent state lands, which will decrease the attractiveness and associated revenue generated to fund our public school. The proposed rule at hand directly jeopardizes education funding in our state, both from state and federal lands.”

From a policy perspective, conservation leases are valuable tools, allowing conservation uses to participate in a market dynamically with other resource users. Conservation leases have the potential of moving the current battle over environmental legislation from the court room to the board room. Using conservation leases, environmental interests can interact with other resource users in a fair open market, through voluntary negotiation.

However, this proposed rule is not the answer.

Conservation leases need to be proposed legislatively, to keep this valuable policy tool unhindered by judicial proceedings. Allowing all interested parties to fully weigh their opinion and putting the authority of Congress in its proper place as the legislative branch.

Photo Credit: BLM Wyoming

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