Republicans are looking to force a House vote on a Bureau of Land Management plan to allow the issuance of conservation leases on land the agency controls. 

Over Democratic objections, Republicans on the House Natural Resources Committee recently advanced a bill that would require the BLM to withdraw the proposed rule and bar the agency from issuing any other proposals that are “substantially similar.” A similar bill has been introduced in the Democratic-controlled Senate.

Republican concerns largely center on language in a proposed rule allowing for the agency to issue conservation leases to individuals, businesses, nongovernmental organizations or tribal governments for up to 10 years to protect or restore habitats and ecosystems. The rule would deem “conservation” as a use for BLM lands, adding it to a list that also includes grazing, energy production, mining and recreation.

While the BLM emphasized in the rule that the conservation leases should not disturb existing authorizations or preclude land from being used for other purposes, the bill’s Republican sponsors worry it could still disrupt the grazing, mining and energy production that takes place on BLM lands.

“This rule would devastate rural economies across the West under the guise of conservation,” Arkansas GOP Rep. Bruce Westerman, the chairman of the House Natural Resources Committee, said at a hearing last week.

However, Nada Wolff Culver, the BLM’s principal deputy director, told the committee the GOP bill, H.R. 3397, would “unnecessarily interfere with the rulemaking process” and “limit BLM’s ability to manage for the challenges facing public lands today.” The BLM “strongly opposes” the bill, she said.

Wolff Culver, in her testimony, said under the proposed rule, public land managers would be directed to identify unhealthy landscapes, using “the best available science and data,” and look at ways to restore them, while also considering the “appropriate balance of uses within the multiple-use framework on every acre.” 

Through the proposed rule, the BLM could issue conservation leases of up to 10 years for one of two uses: restoration or mitigation. She emphasized that the rule does not necessarily mean BLM would be “requiring” conservation leasing, but instead would review applications from third parties and “ensure the proponent is experienced in and qualified to achieve the proposed restoration or mitigation outcomes” using their own funds.

Companies could also use conservation leasing to “offset their impacts on private lands,” she said.

The BLM would have to follow procedures required under the National Environmental Policy Act when making decisions to issue conservation leases, Wolff Culver said.BLM-lands.png

The Federal Land Policy and Management Act, the statute governing administration of BLM lands, directs the agency to manage its lands “under principles of multiple use and sustained yield,” according to a Congressional Research Service report. Multiple use, according to the report, requires the agency to ensure lands are “utilized in the combination that will best meet the present and future needs of the American people,” though it also allows for the agency to make adjustments to keep up with “changing needs and conditions.”

Sustained yield, according to language from the statute, is defined as “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.”

The CRS report says “the text of the proposed rule focuses on the ‘sustained yield’ aspect of BLM’s obligation.” The BLM says the rule is necessary to “effectively manage for multiple use and sustained yield in the long term,” in part by protecting and restoring habitats, according to the CRS report.

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Republican lawmakers and other critics of the rule have questioned whether the agency is overstepping congressional authority through the proposal. Defenders of BLM argue Congress granted the agency the authority to do so through FLPMA. The CRS report notes that the “multiple use” and “sustained yield” definitions do offer the agency “some latitude to interpret the subjective concepts” within the law and says some courts have been “deferential to agency evaluations and interpretations related to land management,” pointing to one court opinion that argued these provisions “breathe discretion at every pore.”

Kaitlynn Glover, the executive director of the Public Lands Council, a rancher group affiliated with the National Cattlemen's Beef Association that focuses on public lands issues, called the rule “problematic” and expressed concern that conservation leases could displace grazing. She also said she was concerned the agency was not considering conservation efforts being undertaken by ranchers that use their land for grazing.

“They have separated the concept of conservation from every other multiple use, which is effectively saying they don’t believe that any other multiple-use is doing conservation,” Glover said.

Glover also said she was disappointed in how the agency has handled the rule up to this point. She said the five public listening sessions BLM held “were not particularly helpful” and “left permittees feeling like they were telling them and other stakeholders what was going to happen rather than asking for feedback.”

“There was a right way and a wrong way to have this conversation, and at every turn the BLM made the wrong choice,” Glover said.

Wolff Culver, in her testimony, noted that the final rule could include modifications. She also said the agency will look at the more than 120,000 public comments it received before finalizing the rule.

Bailey Brennan, a public lands attorney for the National Wildlife Federation, told reporters that conservation leasing would allow sporting organizations and members of the public to “take an active role” in restoring public lands. She emphasized that these agreements would be term-limited and be issued for a “specific discreet purpose relating to restoration or mitigation.”

“I think it’s also important to remember that conservation leasing and similar mechanisms have been used by the U.S. Department of Agriculture and in the private sector for decades,” she said.

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