Headed for Court – Where Else?
The debate may soon turn to litigation on the Administration’s proposed new rule allowing public land to be leased for “conservation,” which is to say, for no use. The proposal was the subject of over 215,000 official comments from groups, businesses, local and state governments, and others, mostly objecting to it. Now that the comment period is over, it seems certain that the scheme is headed to federal court. So says Montana’s Attorney General, apparently speaking for himself and his counterparts in numerous other states.
The issue is that the Federal Land Policy Management Act (FLPMA) of 1976, which governs Bureau of Land Management (BLM) lands, authorizes specific uses, and the agency is directed to issue leases for those purposes. They include grazing, mining, timber, production of oil, gas, coal or other minerals, pipelines, transmission lines, ditches, canals and water systems, roads, trails, and other specified public interests. As noted here previously, FLPMA contains the word “lease” 49 times, none of which contemplate leasing public land for no use.
Since BLM seems determined to finalize the rule, the group of Western states led by Montana is preparing to file suit as soon as the rule is final, in the next few months. The lawsuit will argue that issuing leases on public lands for no use violates federal law.
Montana’s Attorney General, Austin Knudsen, describes the proposed conservation leases as a “flagrant violation” of the law. He and others insist that only Congress can authorize other uses or change the meaning of FLPMA, not a federal agency acting on its own. Knudsen says, “If the Biden administration and [BLM]… want to change federal law, to put conservation on the same footing as other federal land uses, then they should go to Congress to try to do that.” He added that, “Federal courts have been very clear on this; you don’t get to issue sweeping rule changes like this that are tantamount to a major law change.” The U.S. Supreme Court said almost exactly that when ruling against EPA on its proposed new definition of “navigable waters of the U.S.” Perhaps that’s why Knudsen is “very confident” that federal courts would block this proposal, too. I’m not sure I like BLM’s chances in court, either.
Montana and its allies have much at stake, since the federal government owns 30 percent of Montana, 60 percent of Alaska, 63 percent of Idaho, and over 65 percent of Utah. It also owns 35 percent of New Mexico, 36 percent of Colorado, 38 percent of Arizona, and more than 80 percent of Nevada, mostly managed by BLM. Those latter states have not yet weighed in on the likely lawsuit, but the issue is vital to all, as those federal lands are rich in the resources that drive their economies – minerals, energy, forest products, wildlife, water, and more.
That is not to say that conservation isn’t important to the people of those states. It is a high priority for their citizens, too, so the question comes down to how one defines conservation as a “use” of public lands. In Colorado, outdoor recreation is a $35 billion industry, but it is unclear how that relates to the proposed “conservation leases.” Here’s how BLM itself defines the term: “A conservation lease is a land use authorization that the BLM can issue to an external entity to help achieve restoration or mitigation outcomes on public lands.” Interesting and perhaps important. It’s just that FLMPA does not mention restoration or mitigation among the leasable uses Congress authorized.
Ironically, the BLM proposal is substantially the same as one blocked by Congress in 2016, under the Congressional Review Act, which also bars agencies from reissuing substantially similar rules again without congressional approval. That will undoubtedly be part of the lawsuit, as well. It has already been raised by the Montana Natural Resource Coalition, a group of seventeen Montana counties, in a letter requesting congressional hearings.
Westerners certainly differ on appropriate uses of public resources, but many will be disturbed if the Montana coalition is right in claiming the proposed rule would allow “international trading” of natural resources belonging to the United States. Indeed, twenty-four state legislatures are considering laws barring foreign ownership of private land. Would they be pleased with foreign entities leasing large tracts of public land?
We should regret that so much important public policy must be decided by courts these days, instead of elected representatives. But if administrative agencies persist in writing their own laws, that is the foreseeable future.