Public Lands Committee Report

The year 2024 saw numerous administrative and judicial actions and opinions affecting public lands and resources, including: Bureau of Land Management (BLM) issuance of a conservation and landscape health rule pursuant to the Federal Land Policy and Management Act (FLPMA); decisions regarding R.S. 2477 roads; decisions regarding the Wild Free-Roaming Horses and Burros Act; decisions regarding the Quiet Title Act; and BLM’s position regarding its new conservation rule and the Taylor Grazing Act.

I. BLM Final Rule Regarding Conservation and Landscape Health

BLM is a federal agency within the Department of the Interior. “BLM manages more than 245 million acres of public land located primarily in 12 western states, including Alaska,” and “administers 700 million acres of sub-surface mineral estate throughout the nation.” BLM’s management responsibility is governed by, among other statutes, FLPMA, which provides for the general management of federal public lands, and the Mineral Leasing Act (MLA), which governs mineral development on federal public lands.

Under FLPMA, BLM must manage federal public lands under the principle of multiple use and sustained yield. This allows many competing uses to be put to the public land, including recreation, range, timber, minerals, watershed, fish and wildlife, and uses serving scenic, scientific, and historical values.

In fulfilling its FLPMA mandate, BLM is required to “develop, maintain, and, when appropriate, revise land use plans,” known as resource management plans (RMP), to control its management of public lands.

On May 9, 2024, BLM issued a final rule entitled The Conservation and Landscape Health Rule, more commonly known as the “Public Lands Rule.” The Public Lands Rule is intended “to advance the BLM’s multiple use and sustained yield mission by prioritizing the health and resilience of ecosystems across public lands.” BLM stated that the Public Lands Rule

[E]stablishes the policy for the BLM to build and maintain the resilience of ecosystems on public lands in three primary ways: (1) protecting the most intact, functioning landscapes; (2) restoring degraded habitat and ecosystems; and (3) using science and data as the foundation for management decisions across all plans and programs.

In so doing, the Public Lands Rule: (1) amends the Part 1610 RMP rules for designation of areas of critical environmental concern and (2) creates a new subpart for “Ecosystem Resilience.” Among other things, the amendment of the Part 1610 RMP rules:

• Requires authorized BLM officers to identify, evaluate, and give priority to areas that have potential for Areas of Critical Environmental Concern (ACEC) designation.
• Provides that ACEC is “the principal [] designation for public lands where special management is required to protect and prevent irreparable damage to important historic, cultural, or scenic values; fish and wildlife resources; or natural systems or processes or to protect life and safety from natural hazards.”
• Provides that BLM designates ACECs when issuing RMPs. “To be designated as an ACEC, an area must meet” certain criteria regarding relevance, importance, and special management attention.

Among other things, the new Part 6101 Ecosystem Resilience rules:

• Provide that the object of the part is to “[a]chieve and maintain ecosystem resilience when administering [BLM] programs; developing, amending, and revising land use plans; and approving uses on the public lands.”
• Define “conservation” as “the management of natural resources to promote protection and restoration.”
  • In this regard, BLM, in the Preamble to the Rule, states that “[t]he definition of ‘conservation’ was updated in the final rule to make clear that conservation is a use [under FLPMA] and that protection and restoration are tools to achieve conservation.”
  • Likewise, BLM in the Preamble states that “[t]his rule clarifies that conservation is a use on par with other uses and responds to the direction inherent in FLPMA’s multiple use and sustained yield mandate to manage public lands for resilience and future productivity and to mitigate resource impacts.”
• Require that BLM authorized officers “conserve renewable natural resources at a level that maintains or improves future resource availability and ecosystem resilience, in a manner consistent with multiple use and sustained yield,” through, inter alia, implementation of “[c]onservation as a land use within the multiple use framework.”
• Require BLM to maintain an inventory of landscape intactness as a resource value.
• Require BLM to make every effort to avoid authorizing uses that permanently impair ecosystem resilience and require BLM to justify decisions that may impair ecosystem resilience.
• Require BLM to respect Indigenous Knowledge in land use planning.
  • “Indigenous Knowledge” is defined as “a body of observations, oral and written knowledge, innovations, technologies, practices, and beliefs developed by Indigenous Peoples through interaction and experience with the environment.”
• Require BLM to identify priority landscapes for restoration and to review and update that prioritization every five years.
• Create a program for BLM to authorize “restoration leases or mitigation leases . . . for the purpose of restoring degraded landscapes or mitigating impact of other uses.”
  • “Subject to valid existing leases and applicable law, once the BLM as issued a lease, the BLM shall not issue new authorizations to use the leased lands if the use would be incompatible with the authorized restoration or mitigation use.”

The Public Lands Rule became effective June 10, 2024.

II. Revised Statute 2477

Federal Revised Statute 2477, commonly referred to as “R.S. 2477,” was passed in 1866 and provided for public access across unreserved public domain by granting rights-of-way for the construction of highways. R.S. 2477 presented a free right-of-way that takes effect as soon as it is accepted by a state. Although repealed in 1976 by the passage of FLPMA, any valid, existing R.S. 2477 rights-of-way are preserved.

In Kane County, Utah v. United States, and as part of long-running litigation between Utah and the United States regarding several claimed R.S. 2477 roads, the Tenth Circuit Court of Appeals considered the fourth attempt by several environmental organizations’ (SUWA) to intervene in the action as a matter of right. Before analyzing the request to intervene, however, the court first distilled its numerous previous holdings into a “legal framework” governing R.S. 2477 claims.

The court held that “such disputes involve two issues: title and scope, which the district court is to address in ‘separate steps.’” First, “the court makes the ‘binary determination of whether a right-of-way exists at all.’” Second, “the court determines the ‘the pre-1976 uses of the right-of-way.” Third, “the court decides whether, based on the pre-1976 use, the right of way should be widened to meet the exigencies of increased travel.”

In the first (title) step, “the court evaluates whether the grant of the alleged R.S. 2477 right-of-way was accepted through continuous public use before [the effective date of FLPMA] October 21, 1976.” If [the proponent of the R.S. 2477 right-of-way] proves such pre-1976 acceptance, the court must quiet title to the identified travel surface – i.e., the beaten path – in favor of [the proponent]. “But otherwise, [the proponent’s] claim must fail.”

If the R.S. 2477 right-of-way (i.e., title) exists, the litigation turns to the second and third steps to determine the “scope” of the right-of-way. Here, scope means the width based on pre-1976 use.Width is not limited to the actual pre-1976 beaten path, but it “is that which is ‘reasonable and necessary under all the facts and circumstances.’” The reasonableness and necessity of any expansion beyond the actual pre-1976 beaten path “must be read ‘in the light of the traditional uses to which the right-of-way was put.’” Thus, “[a]t step two, the court ‘determine[s] the pre-1976 uses of the right-of-way’ based on historical evidence,” and “at step three, based on the pre-1976 use, the court must decide, under [state] law, whether [the proponent] is entitled to widen the scope of the rights-of-way beyond the beaten path existing before October 21, 1976.”

Working within this legal framework for R.S. 2477 claims, the court then considered whether SUWA could intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. Rule 24(a) states that for a movant to intervene as of right, the movant must (1) “claim[] an interest relating to the property or transaction that is the subject of the action” and (2) be “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest,” unless (3) “existing parties adequately represent that interest.” With regard to adequate representation, the court ruled that “[w]hen a would-be intervenor’s and representative party’s interests are ‘identical,’ we presume adequate representation,” thus precluding Rule 24(a) intervention as of right.

The court then noted that Kane County had previously prevailed on its title claim, thus leaving the issue of scope and the permitted use and width of the right-of-way to be litigated. In this regard, even though the United States had asserted that it would argue for the narrowest width possible for any such right-of-way, this did not render its and SUWA’s interests “identical” because, as the court had held in a previous decision in the litigation, “SUWA is focused on pursuing the narrowest scope,” while “many of the stakeholders involved may want wider roads,” and “the United States represents these ‘competing interests.’” As a result, and because “SUWA’s interests were therefore not ‘identical’ to the United States’ interests,” the Court of Appeals ruled that no presumption of adequate representation applied and reversed the district court’s denial of SUWA’s motion to intervene on the issue of scope.

III. NEPA Wild Horses and the Wild Free-Roaming Horses and Burros Act (Wild Horses Act)

The Wild Free-Roaming Horses and Burros Act (Wild Horses Act or Act) protects and manages unbranded and unclaimed horses and their descendants found on federal public lands that were identified in 1971 as having been used by a wild herd. BLM (which administers the Act) is obligated to maintain a current inventory of such animals, and to define appropriate management population levels of such animals.

In carrying out its duties under the Act, BLM creates herd management area plans (HMAP) and administers herd management areas (HMA), in each of which BLM determines an appropriate management level for wild horse and burro populations in conjunction with the agency’s broader land use plan for the area. By statute, where BLM determines that an overpopulation exists and that action is necessary to remove excess animals, BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.” This process is known as a “gather.”

All BLM decisions must, in turn, be made in accordance with the National Environmental Policy Act (NEPA), which requires federal agencies to thoroughly evaluate the potential environmental impacts of any major federal action significantly affecting the quality of the human environment. In assessing the environmental impacts of a proposed major federal action, federal agencies prepare an “environmental assessment” (EA) or a more thorough “environmental impact statement” (EIS) when significant environmental impacts are found.

In Leigh v. Raby, BLM determined that a 1.2 million acre HMA was at least 2,300 horses above its appropriate management level and, after conducting an EA, gathered and removed approximately 2,030 horses from that HMA. No HMAP had been prepared for the HMA prior to the gather. The plaintiff animal rights advocates (Plaintiffs) sued BLM, claiming that an HMAP was required before the gather could have been carried out and that the HMAP had, therefore, either been unlawfully withheld or unreasonably delayed in violation of the standards of the federal Administrative Procedure Act.

The court first considered whether the HMAP had been unlawfully withheld, which would require that there be a firm statutory or regulatory deadline for preparing HMAPs. Plaintiffs had argued that, under the Act’s regulations, “BLM must have an approved HMAP before performing management activities on an HMA.” Otherwise, “the mandate to manage wild horses and burros ‘at the minimum level necessary to attain the objectives identified in approved land use plans and [HMAPs]’ would be rendered superfluous.”

The court, however, noted that the statute requires that “[i]f the Secretary [of the Interior] determines an area is overpopulated, she must fulfill her duty to maintain ecological balance by ‘immediately remov[ing] excess animals from the range.’” From this, the court reasoned that “[r]eading the regulations as Plaintiff’s request would force BLM to put gathers on hold for months, years, or perhaps even decades until an HMAP is approved, instead of conducting immediate removals.” As a result, the court ruled that “BLM may conduct management activities on HMAs which do not yet have an approved HMAP” and that the HMAP at issue had, therefore, not been unlawfully withheld.

The court then turned to whether BLM’s delay in preparing an HMAP had been unreasonable. Utilizing a multi-factor balancing test formulated by the D.C. Circuit Court of Appeals in Telecommunications Research & Action Center v. FCC, the Leigh court held, inter alia, time for agency action – which is the most important factor – strongly favored Plaintiffs because “BLM’s decades-long delays in developing and approving HMAPs have . . . been ‘nothing short of egregious’ and clearly violate the rule of reason.” The court held that there was “little question” that BLM’s delay in preparing the HMAPs at issue had been unreasonable and therefore ordered that BLM must develop and approve one or more HMAPs for the HMAs in question within the next year.

IV. The Quiet Title Act

The United States is generally immune from suit absent a waiver of sovereign immunity. The federal Quiet Title Act (QTA) establishes a limited waiver of sovereign immunity, providing that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.” The QTA provides the exclusive means by which claimants can challenge the United States’ title to real property.

The QTA’s statute of limitations (SOL) is twelve years. The SOL begins to run against any plaintiff other than a state “on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” With regard to states, however, a QTA action “shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands.” The statute defines “notice” as either “public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands” or “the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious.”

In Animal Welfare Institute v. Romero, a federal district court considered a suit brought by an animal advocacy organization and a wildlife preserve against the National Park Service (NPS) that raised the issue of the QTA’s 12-year limitations period. The case concerned restrictions on property that were created when several tracts of land on Fire Island, New York were conveyed by the preserve and ultimately to the United States, and which were managed by NPS. The conveyance was subject to a reversionary condition that the tracts “shall be maintained in its natural state” and be “undisturbed by hunting, trapping, fishing or any other activities that might adversely affect” the environment or the animal population.

In 1966, NPS entered into a cooperative agreement in which a six-foot chain-link fence topped with barbed wire was erected in portions of the tracts to limit visitor access to the preserve. In 2016, NPS finalized a plan to protect native vegetation from the local deer population through “a combination of lethal and nonlethal actions to reduce and maintain deer density at a target level,” including sharpshooting, capture, and euthanasia. The plan also included the use of exclusion fencing, with the elimination of deer remaining inside the fenced area. In 2017, the plaintiffs filed an action pursuant to the QTA, requesting that the court issue a declaratory judgment that the plan violated the deed restriction and that the tracts immediately reverted to the preserve as a result of enactment of the plan.

NPS filed a motion for summary judgment arguing, inter alia, that plaintiffs’ QTA claim was time-barred by the Act’s 12-year statute of limitations. Addressing the issue, the court first held that “the statute of limitations began to run on the date that [the preserve] kn[ew] or should have known that a reversionary interest in the [tracts] was triggered.” The preserve argued that its reversionary interest was triggered in 2016 when NPS issued a record of decision (ROD) requiring enactment of the plan mandating lethal deer management and construction of the exclusion fence. NPS argued that the reversionary interest was triggered in 1966 or 1967 when the tracts were conveyed to NPS under the agreement that they be enclosed with a chain-link and barbed wire fence and when the fence was constructed, or at the latest in 1988 when the preserve gained notice of that fence through testimony in a related prior lawsuit.

The court agreed with NPS, finding (1) the 1966 fencing of the tracts was at odds with the deed’s restriction to maintain the tracts in their natural state, and the fencing was therefore sufficient to trigger the preserve’s reversionary interest for QTA statute of limitations’ purposes and (2) that the preserve should have known about the fence based on the 1988 testimony in the prior lawsuit. As a result, the court held that “[the preserve], as a reasonable party, should have known that a fence surrounding the donated land could conflict with the deed restrictions,” and therefore, “the QTA claim accrued by 1988, and [the preserve] had, at the latest, until 2001 to bring a timely claim.”

Alternatively, the preserve argued that the 2016 ROD and plan was conduct regarding the tracts that triggered a separate QTA claim that was timely brought with the 2017 lawsuit. The court disagreed, holding that “the statutory language of the QTA makes no exception or condition for claimants seeking to resurrect time-barred title disputes due to different government conduct” and that “[r]ather, the QTA allows a party to ‘adjudicate a disputed title to real property in which the United States claims an interest’ within twelve years of when the United States’ claim accrued.” The preserve was barred from resolving title to the tracts accordingly.

The QTA’s 12-year limitations period was also at issue in Gambrell v. United States. In the 1950s, the United States purchased land from several landowners in Missouri, and surveys were subsequently conducted on those lands. A 1974 survey revealed discrepancies in prior surveys of where the true centerline of the property was, and in 1977, the United States brought a quiet title action against some, but not all, landowners in the area. The district court entered a judgment regarding the dispute in 1979, finding that there had likely been a mutual mistake as to where the true centerline of the property was, but did not resolve the centerline issue. The United States filed the judgment with the county recorder in 1989.

In 2019, plaintiff landowners purchased land at issue in the 1979 judgment and approached the United States to obtain a land-clearing permit. At that time, the United States notified the plaintiffs of its understanding that the true centerline was marked in a way with which plaintiffs disagreed. Plaintiffs filed an action under the QTA in 2021, arguing that “the Act’s 12-year statute of limitations could not have been triggered until the United States took some action after 1979 that was inconsistent with [plaintiffs’] interpretation of the 1979 judgment.”

The Eighth Circuit Court of Appeals disagreed. As an initial matter, the appeals court noted that the trigger for the statute of limitations is light and that even invalid claims “may start the limitations period and courts may not demand a high level of either clarity or claim merit when considering the issue of constructive notice.” The court then explained that “[i]n our view, this light trigger makes perfect sense” and that “because evidence may grow stale and government personnel frequently change, the light trigger cabins the risk that the United States might be hailed into court involuntarily, long after the true genesis of a land dispute.” The court concluded that “the 1979 judgment provided constructive notice of a qualifying and unresolved claim,” for several reasons, including that the 1979 judgment was not entirely clear as to the boundaries of the lots at issue.

Further, the appeals court noted that “a statute of limitations ruling on a QTA claim does not resolve the underlying real estate dispute” and that ‘“[n]othing prevents the claimant from continuing to assert his title, in hope of inducing the United States to file its own quiet title suit, in which the matter would finally be put to rest on the merits.”’ Thus, the United “remains free to bring a quiet title action. And [plaintiffs] remain free to accept the risk of acting upon their view of the boundary in an effort to get what they want, induce negotiations, or induce the United States to file suit.”

A. The Taylor Grazing Act

The Taylor Grazing Act of 1934 (TGA) was passed to stop injury from livestock overgrazing of public lands and authorizes the Secretary of the Interior “to divide public rangelands into grazing districts and to issue permits to private parties to graze livestock on the land.” Along with FLPMA, the TGA provides that individuals who control land within or near a grazing district may receive a ‘preference’ or ‘priority’ to stand first in line in applying for a grazing permit.”

In May 2024, BLM issued its final rule on Conservation and Landscape Health on public lands (Public Lands Rule), which is also discussed in section I above. Among other things, the Public Lands Rule created a program for BLM to authorize “restoration leases or mitigation leases . . . for the purpose of restoring degraded landscapes or mitigating impact of other uses.” In this regard, the Public Lands Rule provides that “[s]ubject to valid existing leases and applicable law, once the BLM as issued a lease, the BLM shall not issue new authorizations to use the leased lands if the use would be incompatible with the authorized restoration or mitigation use.”

In the Preamble to the Public Lands Rule, BLM noted that several comments to the proposed rule suggested “that the decision in Public Lands Council v. Babbitt [] would prohibit the restoration and mitigations rules available under this rule.” In response, BLM disagreed, stating that

The present rule, in contrast to the grazing rule at issue in Public Lands Council v. Babbitt, is an exercise [of BLM’s general] authority to take conservation measures. It does not rely on the Taylor Grazing Act, nor does it modify the terms and conditions available for grazing permits or authorize the BLM to issue grazing permits approving non-grazing uses.

Further, in response to comments regarding whether grazing can be used as a land health solution under the Public Lands Rule, BLM in the Preamble stated that

This rule focuses on conservation as a land use within the multiple use framework and develops the toolbox for conservation use that enables some of the many conservation strategies the agency employs to steward the public lands for multiple use and sustained yield. Grazing as a management tool may fit within these strategies.