by Karen Budd-Falen
Remember the huge backlash in 2017 over the Bureau of Land Management’s (BLM) “Planning 2.0 regulations?” One of the major concerns was that the BLM could use those planning rules to eliminate all use by creating ambiguous standards for multiple use that were left to absolute agency discretion. There was so much outcry that Congress passed a bill (under the Congressional Review Act), which the President signed, repealing the BLM Planning 2.0 regulations.
Rather than learning its lesson, the BLM is at it again. While the BLM claims the 2023 proposed planning regulations are needed for “conservation and landscape health,” the proposed rules are no more than a thinly veiled elimination of economic use on BLM lands. While no one who relies on the use of the BLM lands wants to see environmental degradation, the proposed rules do nothing more than:
1. Create a whole new “multiple use” called “conservation use” which has no basis in statute (can you say “major questions doctrine” which the Supreme Court has used to strike down agency regulations that are outside their statutory authority);
2. Allow radical environmental groups to nominate and acquire “conservation leases” on BLM multiple use lands for purposes like “restoring public lands,” “providing mitigation for a ‘particular action’” or ensuring “resilient public lands” (whatever that means);
3. Eliminate valid existing rights that are not “compatible” with a conservation lease. Instead, the proposed rule states that the only use guaranteed on a conservation lease is “casual use,” which is defined as a non-economic use;
4. Require the BLM to take the “precautionary approach” when authorizing land uses that may impair “ecosystem resilience.” Given the proposed planning rule is based, in part, on Biden’s 30 x 30 and climate change Executive Orders (EO), doesn’t everything impair “ecosystem resilience” and contribute to climate change? Remember that Biden’s 30 x 30 EO opines that only land in its “natural state” meets the 30 x 30 requirements. Since this administration believes that ecosystem resilience is necessary to defeat climate change and only land in its natural state will meet the country’s climate goals, I am assuming that the protection of the natural state means no use of multiple use lands;
5. Extort money from those who are wealthy enough to pay “third party mitigation fund holders.” This seems like another easy way to send funds to radical environmentalist organizations with little to no public review;
6. Further slow down the permitting process for activities on BLM lands. Currently every metric shows that the BLM is woefully behind on completing term grazing permit renewals because of the monitoring and paperwork that has to be completed including completion of the Fundamentals of Land Health. Now imagine the backlog the BLM will have for its permit review, even for valid existing rights, as every use on the BLM lands has to go through a Fundamentals of Land Health review prior to authorization. Use of multiple use lands won’t stop because of concern over legitimate environmental harm; it will stop because the BLM simply does not have the money, manpower or time to complete the analysis (which appears to be the goal anyway).
The proposed rules also don’t mention any of the other statutes mandating use of BLM lands such as the Taylor Grazing Act, the Mineral Leasing Act and the 1872 Mining Law. While there is a long way to go before these proposed planning regulations are completed, looking at my crystal ball, I see a Congressional Review Act battle all over again. I just hope it will not be too late to save the family rancher who relies on the use of his grazing permit for his livelihood.
Karen Budd-Falen is a senior partner in the Budd-Falen Law Office in Cheyenne, WY. She served in the Trump Administration, Department of the Interior, as the Deputy Solicitor for Wildlife and Parks. Karen grew up as a fifth generation rancher on a family-owned ranch in Big Piney, Wyoming. She is currently representing the Montana Stockgrowers Association in its litigation against the BLM regarding American Prairie’s grazing allotments.