The FLPMA explicitly encompasses conservation. Management of public lands is to be accomplished to “best meet the present and future needs of the American people.” Id. § 1702(c) (emphasis added). As defined, “multiple use” management includes:
[A] combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.
Id. The FLPMA’s congressional declaration of policy is in accord—public lands are to be managed
in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.
Id. § 1701(8). As prominent conservation law scholars have put it, “FLPMA’s history, purpose, and plain language demonstrate that protecting public lands from environmental degradation and conserving specific ecological attributes, like watersheds, and wildlife habitat, has always been a part of BLM’s authority.” Faculty Members of the Wallace Stegner Ctr. for Land, Res. & Env’t, Comment Letter on BLM Proposed Rule, Conservation and Landscape Health Portal 1004-AE-92 (July 3, 2023).
And yet, BLM has long reckoned with a reputation for management practices favoring unsustainable and damaging short-term development uses. Historically, according to the Pew Charitable Trusts, “BLM policy has prioritized extractive activities, such as mining, oil and gas exploration, and other development, over conservation and outdoor recreation” and, as “a result, more than 90% of BML lands were open to development as of the end of 2023.” Pew Charitable Trusts, A Look at BLM’s New Public Lands Rule and Other Management Policies, Pew Trusts Rsch. & Analysis, Apr. 25, 2024. More harshly put, some BLM critics continue to dub the agency the Bureau of “Livestock and Mining” and view its management approach as sanctioned “rape, ruin and run” land development. See Jonathan Thompson, A “Seismic Shift” for Public Lands?, High Country News, Apr. 13, 2024; Sally K. Fairfax, The Differences Between BLM and the Forest Service, in James Muhn & Hanson R. Stuart, Opportunity and Challenge: The Story of BLM (1988).
Announcing the 2024 Public Lands Rule, Secretary of the Interior Deb Haaland declared, “Today’s final rule helps restore balance to our public lands.” Press Release, BLM, Biden-Harris Administration Finalizes Strategy to Guide Balanced Management, Conservation of Public Lands (Apr. 18, 2024) [hereinafter Conservation Press Release]. The rule attempts to reestablish balanced management in several ways. Notably, the rule recognizes that “conservation” is and has always been a land use on par with other uses of public lands within FLPMA’s multiple use framework. 89 Fed. Reg. at 40,308, 40,310. The rule defines “conservation” as “management of natural resources to promote protection and restoration.” Id. at 40,317, 40,339. BLM clarifies, “In this rule, conservation is a use; protection and restoration are tools to achieve conservation” and “[p]rotection is not synonymous with preservation; rather, it allows for active management or other uses consistent with multiple use and sustained yield principles.” Id. at 40,308 n.2. The new rule facilitates conservation use by instituting leasing options for entities willing to restore degraded lands (restoration leases) or mitigate impacts from other public land uses (mitigation leases). Id. at 40,310, 40,321–22. Going forward, qualified lease applicants may obtain authorization to carry out conservation activities on public lands in a manner akin to existing mechanisms authorizing grazing, mining, and oil and gas development activities.
The 2024 Public Lands Rule also expands application of BLM’s fundamentals of rangeland land health. These standards, “developed a quarter-century ago for lands subject to BLM grazing leases,” address maintenance and restoration of “watershed health, ecological processes, and species habitat, as well as compliance with state water quality standards.” Mark Squillace et al., Finally, the Bureau of Land Management Acknowledges Its Conservation Mandate, Denver Post, May 13, 2024. With the new rule, “all BLM program areas” must be managed in accordance with the fundamentals of land health. 89 Fed. Reg. at 40,323. Toward this end, the rule requires adoption of “national land health standards across all ecosystems” to provide “consistency and conformance with the fundamentals of land health and facilitate progress toward meeting land health.” Id.
Additionally, the 2024 Public Lands Rule reaffirms BLM’s obligation to prioritize designation and protection of Areas of Critical Environmental Concern (ACEC). ACECs are public lands BLM deems in need of special management to protect and prevent irreparable damage to important cultural, historic, scenic, and ecological resources. 43 U.S.C. § 1702(a). “Although prominently featured in the declarations of policy, definition, and planning sections of the FLPMA,” ACECs have been “largely ignored in agency regulations and guidance, and frequently overlooked or disparaged by land managers, scholars, and even environmental lawyers as an important tool for conservation.” Karin P. Sheldon & Pamela Baldwin, Areas of Critical Environmental Concern: FLPMA’s Unfulfilled Conservation Mandate, 28 Colo. Nat. Res., Energy & Envtl. L. Rev. 5 (2017). The 2024 Public Lands Rule contains four notable elements to reinvigorate ACEC use. First, the rule requires BLM to consider “ecosystem resilience, landscape-level needs, and rapidly changing landscape conditions” when it designates and manages ACECs. 89 Fed. Reg. at 40,313. Second, the rule establishes a “management standard” to ensure ACEC values are appropriately conserved.” Id. Third, the rule allows BLM, in its discretion, to implement “temporary management for potential ACECs” identified outside of ongoing planning. Id. Fourth, the rule codifies “research natural areas” as a type of ACEC. Id.
Also notable, the 2024 Public Lands Rule recommits to Tribal collaboration and co-stewardship efforts. Specifically, the 2024 Public Lands Rule “reiterates the importance of meaningful consultation” with tribes and Alaska Native Corporations, requires BLM to “respect and incorporate Indigenous Knowledge” into management decisions for ecosystem resilience, and directs BLM to “seek opportunities for Tribal co-stewardship” of public lands consistent with applicable guidance. Id. at 40,309, 40,312.
According to BLM, the final rule will help guide the “balanced management” of America’s public lands by providing tools to help “improve the health and resilience of public lands in the face of a changing climate; conserve important wildlife habitat and intact landscapes; facilitate responsible development; and better recognize unique cultural and natural resources on public lands.” Conservation Press Release, supra. It remains to be seen whether future administrations will scrap the new rule or follow through and put conservation firmly on par with other public lands uses. Perhaps, in the future, public lands management will come to align with Doc Brown’s famous quote: “Roads? Where we’re going, we don’t need roads.”
