ACTION ALERT

Opportunity to Comment on BLM Proposed Rule on Conservation and Landscape Health (aka the “Public Lands Rule”)

Comments Due: July 5, 2023

Overview: On April 3, 2023, the Bureau of Land Management (BLM) proposed new regulations that, pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and other relevant authorities, claims to 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. The proposed rule provides that the BLM will protect “intact landscapes”, restore degraded habitat, and make wise management decisions based on science and data. To support these activities, the proposed rule seeks to: apply land health standards to all BLM-managed public lands and uses (currently applied only to grazing); establish “conservation” as a new land use under under FLPMA, including creating “conservation leases” as a tool for the proposed new “conservation use” concept; and revise existing regulations for designating and protecting Areas of Critical Environmental Concern (ACECs). The proposed rule also adds a new set of regulations to address “ecological resilience”. If adopted, the proposed rule would require BLM to prioritize the use of conservation and maintaining “intact landscapes” (a new term) in the agency’s management decisions.

While titled the “Conservation and Landscape Health” proposed rule; BLM has dubbed it the “Public Lands Rule” and has a website with additional information. The entire Federal Register, including the proposed rule, can be found here. BLM is currently seeking public comment on the proposed rule. You can submit public comment electronically here. The deadline to comment is Wednesday, July 5, 2023.

Background: In 1976, Congress adopted FLPMA “to establish public land policy; to establish guidelines for its administration; to provide for the management, protection, development, and enhancement of the public lands; and for other purposes.” (43 U.S.C. 1701 note.) It has been described as BLM’s Organic Act as it established the BLM’s mission to manage federal public lands. In establishing the public lands policy of the United States under FLPMA (43 U.S.C. 1701), Congress declared, among other things, that public lands must:

be managed on the basis of multiple use and sustained yield and in a manner that recognizes the nation's need for natural resources, including domestic sources of minerals, food, timber, and fiber, from those lands;
provide for outdoor recreation, human occupancy and use;
provide food and habitat for fish and wildlife and domestic animals;
allow certain public lands to be protected and preserved in their natural condition;
protect the quality of the scientific, scenic, historical, ecological, environmental, water-resource, and archaeological values of the nation's lands; and
provides for the protection of public land areas of critical concerns (ACECs).

Congress expressly reserved the authority to withdraw or otherwise designate federal lands for specific purposes under FLPMA; including delineating the extent to which the Executive Branch may withdraw lands without legislative actions. (43 U.S.C. 1701(a)(2).)

FLPMA does not address “conservation” as a “use” to be managed by BLM. However, the proposed rule would establish “conservation use” as a “use” under FLMPA and establish “conservation leases” as a tool to implement such use, including use of conservation leases on public lands by private parties. Such leases have terms up to 10 years or longer depending on the purpose for which the conservation use is sought and are renewable.

BLM concludes that the proposed rule is not a “major rule” requiring further scoping and public input even though the proposed rules creates a new category of land use (conservation) to be managed under FLPMA and new framework to prioritize economic resilience through the promotion of the conservation use and maintaining intact landscapes. BLM also concludes the proposed rule would not have a significant impact on the economy even though there is insufficient analysis on economic impacts prioritizing the conservation use would have compared to the loss of other uses, including extractive resource uses, timber harvest, commercial recreational uses and more.

Nationwide, BLM manages 244 million acres of public lands. According to its website, this includes 1 in every 10 acres of land in the United States, and approximately 30 percent of the Nation’s minerals. These lands and minerals are found in every state in the country and encompass forests, mountains, rangelands, arctic tundra, and deserts. In Alaska, BLM manages more surface and subsurface acres than any other state with BLM-managed lands. This includes approximately 70 million surface acres and 220 million subsurface acres (Federal mineral estate). When you count other public lands (such as national park land), 145 million acres of land in Alaska is already designated for federal conservation purposes, including 106 million acres already placed in conservation system units. In 1980, Congress adopted the Alaska National Interest Land Claims Act of 1980 (ANILCA) in which Congress specifically recognizes that the federal government’s interests in conservation in Alaska were satisfied. The so-called “no more” clause of ANILCA means that any future public land withdrawal for a conservation purpose requires an act of Congress, not rulemaking.

ACTION REQUESTED: RDC encourages all members and supporters to submit comments questioning the validity of and request that the BLM rescind the proposed rule. Please use the information in this alert, including the additional points below, for inclusion in your comment. Please also include Alaska-specific examples to the extent possible in your comments. It is critical to share how this proposed rule will not work for Alaska.

The deadline to comment is Wednesday, July 5, 2023.

Submit your public comment electronically here.

Additional Points to Consider:

Congress did not include conservation as a use to be managed under FLPMA. Therefore, BLM lacks the authority under FLPMA to establish a “conservation use” as a “use” to be managed under FLPMA through regulatory rulemaking.

Even assuming conservation could be a proper use under FLPMA, the proposed rule improperly elevates conservation above other uses in violation of its multiple use and sustained yield management principles of FLPMA. This appears several times throughout the proposed rule mandating land managers to prioritize conservation as a use to manage public lands.

The proposed “conservation use” and conservation leases to be created by the proposed rule inherently conflict with the actual stated uses recognized in Congress’s declaration of land management policy in FLPMA.

Conservation leases are often used as a means of preventing other uses on lands subject to them. This conflicts with the stated policy of FLPMA.

By preventing other uses and access on public lands for decades or more, conservation leases represent “de facto” land withdrawals not authorized by FLPMA.

The new “intact landscape” standard is overly vague and could apply to all of Alaska. Alaska is known for its natural beauty, including mountain ranges, plains, tundra, glaciers, waterbodies, and other scenic wonders. By suggesting that any development should be avoided in such areas, the proposed rule is overly broad, vague, violates the multiple use and sustained yield mandates and results in a de facto land withdrawal.

Alaska is unique and federal land management is different in Alaska than in other states. This rule fails to recognize the unique relationship between landowners and land management in Alaska.

In Alaska, BLM manages more surface and subsurface acres than any other state with BLM-managed lands. This includes approximately 70 million surface acres and 220 million subsurface acres (Federal mineral estate).

Additional withdrawals of BLM managed public lands in Alaska is unnecessary as more than 145 million acres of land in Alaska is already designated for federal conservation purposes, including 106 million acres already placed in conservation system units.

Further withdrawals, including de facto withdrawals, of public lands in Alaska violate the “no more” clause of the federal Alaska National Interest Land Claims Act of 1980 (ANILCA). In ANILCA, Congress specifically recognized that the federal government’s interests in conservation in Alaska have been satisfied.

Any future public land withdrawal for a conservation purpose in Alaska requires an act of Congress, not rulemaking.

The proposed rule has been fast-tracked with few public meetings, no consultation with stakeholders in Alaska, including the State and many Alaska Native entities.

Creating a new category of land use under FLPMA through the regulatory process is a significant agency action that should be treated as a major rulemaking.

The proposed rule lacks sufficient economic analysis to adequately consider impacts on small businesses and improperly concludes this is not a major rule. The creation of a new category of land use to manage is a major action.

For example, the proposed rule provides that casual use for recreation could be allowed within a conservation lease but does not address the loss of access for other uses, including access to mineral resources, timber, fiber, food, or commercial recreation.

With more than 2.2 million visitors to Alaska each year, recreational tourism is important to our local economy, including many small business operators. The proposed rule fails to address how potential lack of access for commercial recreation and tourism would be impacted.

The proposed rule should be rescinded. At a minimum, more time to assess the complete impacts on public lands in Alaska is needed and the BLM should extend its public comment period and engage in Alaska-specific consultation, outreach, stakeholder engagement and consultation.

Thank you,

Resource Development Council for Alaska