I am wondering, like many others, about the latest efforts by the Bureau of Land Management (BLM) to regulate activities on the vast acreages in its jurisdiction. By now, most readers will have heard about the BLM’s proposed Public Lands Rule. I think the word proposed is misleading because in the webinar in which I participated, the in-person meeting I attended, and the materials I have read published by the BLM even where the word “proposed” is used I get the feeling this is a done deal and frankly I feel patronized. The definition of patronize is to “adopt an air of condescension toward”. In other words, if you were with me in attendance at one of three meetings nationwide in Reno you would have not been a participant where the BLM sought input from the public, but a recipient of the BLM point of view on this major rule.
You would not have been involved in a discussion. You would have been talked at, not talked with. The two speakers moderating the meeting spoke at length in the webinar and in Reno about how the Federal Land Policy and Management Act (FLPMA) of 1976 contained inherent authority for the BLM to add conservation to the list of multiple uses the BLM could manage on public lands.
My review of FLPMA reveals my skepticism about the inherent authority the BLM purportedly has to add conservation as a multiple use under FLPMA. Conservation is defined by Webster’s as “a careful preservation and protection of something”. Particularly, it is also the “planned management of a natural resource to prevent exploitation, destruction or neglect”. Interestingly, it is not defined in FLPMA. And it is not specifically listed as one of the principle or major uses. Those uses listed in the law include and are limited to: “domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production”.
There are references in FLPMA to protecting natural resources and the mandate for sustained yield in the use of public land into the future by the listed principle or major uses. However, conservation is not mentioned in FLPMA in this context. Seemingly out of whole cloth the rule creates a new tool – conservation leases and attempts to provide clarity to an existing management tool – Areas of Critical Environmental Concern (ACECs)
It is ironic the BLM sees a need to create a conservation rule. For almost fifty years FLPMA has been implemented by the agency without the need for a specific reference to conservation. ACECs have been designated where determined by the agency to be needed with public consultation. In the example of a grazing permit issued by BLM, there are significant conditions the permittee must abide by to continue the permit for the full term. Many of these conditions relate to sustaining the yield of the resource and conserving the resource values that will necessarily be impacted by the permitted use. These are the exact goals the BLM is expressing as the need for the new rule. Furthermore, these conditions in existing permits are the supposed rationale for this new rule according to what I heard and read from the BLM.
It begs the question- if there is inherent conservation authority in FLPMA and grazing permits, for example, already have conservation conditions that must be adhered to for the permit to continue, why do we need this rule at this time when we have operated for almost fifty years without a conservation rule? There is no question in my mind that this rule will be promulgated. The impact on existing grazing permits and other permitted uses on public lands remains to be determined.
Using one example from the written materials available at the public meeting, a couple of questions were asked and answered. What is conservation leasing and will the rule impact an existing grazing permit?
The answer to the former question is the rule will not impact an existing permit because valid existing rights and other authorized uses are protected by the rule according to the BLM. The agency says the rule “would build on BLM and grazing permittee… efforts to maintain healthy public lands that can support grazing well into the future”. I guess we will just have to hold the agency to this promised protection of public lands and existing rights. I would suggest this statement be a predicate to every future meeting a permittee has with the BLM.
As to “conservation leasing” the BLM says they “would be designed on a case-by-case basis to carry out specific purposes”. The BLM also says: “If the BLM receives an application for a conservation lease that conflicts with an existing grazing permit…, that conservation lease would not be approved”. There certainly is more to the rule than these short quotes and I recommend the reader to check out the rule for themselves. For now, we must take a wait and see, proof is in the pudding attitude it seems to me because this rule is a done deal.
One other thing perplexes me about this rule. I have discussed this with others who share this concern. Those of us who deal with the BLM on a regular basis are sympathetic to the lack of adequate resources, money, manpower and sufficient time to fulfill statutory dictates the agency currently faces to do its job correctly. This is not just an idle concern. Decisions that should take days, weeks or months sometimes take years because the BLM is saddled with too many rules and regulations already. They now seek to add yet another regulatory burden on themselves.
Pay attention out there folks and hold the BLM’s feet to the fire.
I’ll see you soon.