by Greg Walcher, E&E Legal Senior Policy Fellow
As appearing in the Daily Sentinel
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.
