Implementing the Public Lands Rule consistent with BLM’s statutory authority under FLPMA


Oct 21, 2024 | Faculty

by Jamie Pleune

Sunset over golden hills in fall
Photo courtesy Bureau of Land Management

On Friday, the Bureau of Land Management opened a 30-day nomination period to fill a new federal advisory committee. The committee, appropriately titled Public Lands Rule Advisory Committee, will help inform implementation of the BLM’s newly minted public lands rule. According to the Federal Register notice, the BLM is seeking nominations for 15 members to serve two-year terms on the advisory committee. The group’s charter directs that the committee will provide recommendations on several topics, including ongoing public engagement and partnership opportunities; examples of successful implementation and best practices; input on policy guidance, and ways to improve awareness and understanding of the public lands rule.

In an effort to obtain diverse feedback, the charter requires that the 15 members will be drawn from specific constituencies and stakeholders. These include state, tribal, and local governments, as well industry representatives (energy or mineral development, grazing, and commercial recreation), non-governmental representatives (environmental, hunting, fishing, conservation, watershed, or recreation), and two representatives of “the public at large.”

This is the latest step in BLM’s implementation of the public lands rule. Last month, several policy and guidance documents were issued, advising how the public lands rule should be implemented. Review those documents, along with presentations summarizing the main points of each policy.

For those wanting to get up to speed on the public lands rule, this white paper summarizes its provisions.

The public lands rule has sparked controversy, with its opponents claiming that prioritizing conservation over other uses will “lock up” federal lands. When the draft rule was published, I considered some of those arguments in an article published by Environmental Law Reporter, BLM’s Conservation Rule and Conservation as a “Use.”

In a forthcoming paper, I take a deeper dive into the statutory authority for the final version of the public lands rule, focusing particularly on whether the BLM’s recognition of conservation as a “use” exceeds its statutory authority under the Federal Land Policy and Management Act (FLPMA).

In order to answer that question, I consider the current conditions facing land managers on BLM lands. These include a long history of policies prioritizing extractive uses, as well as newer ecological stressors like invasive species, urban encroachment, wildfires, biodiversity loss and climate change. These pressures do not occur in isolation. They often interact, compounding the stress imposed on natural systems. Changing conditions, including climate disruption, make it increasingly difficult for BLM to achieve FLPMA’s directive that “public lands be managed in a manner that will protect the quality of scientific, historical, ecological, environmental, air and atmospheric, water resource and archeological values.” 43 U.S.C. § 1701(a)(8). Failing to adjust land management strategies in response to these changing conditions would risk “permanent impairment of the productivity of the land and the quality of the environment,” contrary to the definition of multiple use. 43 U.S.C. § 1702(c).

The public lands rule responds to these risks with tools to ensure that land-use decisions protect and restore functioning ecosystems; make science-based, data-driven decisions; and manage for resilient landscapes that support multiple uses and sustained yield.  In other words, the public lands rule was adopted in response to changing needs and circumstances to ensure that public lands continue to benefit human communities now and in the future, consistent with the definition of multiple use. 43 U.S.C. § 1702(c). It is also consistent with FLPMA’s directive that BLM “take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b).

Although much of the public debate has characterized the rule as “establishing” conservation as a use, reality is more nuanced. The preamble notes that “FLPMA has always encompassed conservation as a land use . . . . [and] the BLM has been practicing conservation of the public lands throughout the agency’s history.” The preamble also distinguishes between “conservation” and “preservation,” emphasizing that conservation “allows for active management or other uses consistent with multiple use.”

Rhetoric aside, many elements of the public lands rule mirror the multi-stakeholder-derived land-management strategy developed and endorsed by the Western Governors’ Association for managing invasive species in the West by prioritizing the preservation of intact landscapes. The purpose of the public lands rule is not to “lock up” public lands but instead to provide “clear, consistent, and informed direction” for promoting ecosystem resilience, which in turn facilitates the multiple uses protected by FLPMA.

Jamie Pleune, a white woman with blonde hair wearing a pink blouse and light-grey blazerJamie Pleune is an associate professor of law (research) and a member of the Law and Policy Group in the Wallace Stegner Center.


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