The Public Lands Rule: An Overview
The United States contains roughly 2.27 billion acres of land, from sea to shining sea (including those purple mountains majesty and fruited plains). For reference, a regulation-sized football field is approximately 1.3 acres. Of that total, the federal government retains ownership and management of 672 million acres, nearly 30 percent. This land was acquired, in disregard of Native American claims, through the donation of western lands by the original colonies, the Louisiana Purchase of 1803, the Oregon Compromise of 1846, and other elements of the 19th century’s manifest destiny project. While most of that land was “disposed” of through the creation of states, the promotion of settlement through railroad concessions and the Homestead Act of 1862, a movement began in the early 1900s to “retain” some of the remaining lands in federal ownership. Proponents of retention included familiar figures like John Muir and Gifford Pinchot, who advocated for creating national parks and forests under federal ownership. Today, some 611 million acres (about 90% of all federal land) are administered by four agencies:
- Bureau of Land Management (245 million acres)
- U.S. Forest Service (192 million acres)
- U.S. Fish and Wildlife Service (95 million acres)
- National Park Service (79 million acres)
Of the four, the Bureau of Land Management (BLM) manages the largest amount of federal land, with nearly 40% of public land under its jurisdiction.
What Does the Bureau of Land Management Do?
The BLM was created in 1946 by merging two agencies: the General Land Office and the U.S. Grazing Service in the Department of the Interior. The General Land Office, created by Congress in 1812, helped convey lands to pioneers settling the western lands. The U.S. Grazing Service was established in 1934 to manage the public lands best suited for livestock grazing, in accordance with the Taylor Grazing Act of 1934. Post merger, the BLM did not have a clear or unified direction or mission. Congress spent decades debating whether to retain or dispose of the remaining public lands, and how best to coordinate their management. This debate culminated in the 1970 report of the Public Land Law Review Commission entitled One-Third of the Nation’s Land. This report led Congress enact a comprehensive public land law entitled the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. §§1701, et seq.) FLPMA consolidated and articulated the agency’s responsibilities so comprehensively that it is sometimes called the BLM Organic Act.
Under FLPMA, the BLM was given the mission to “sustain the health, diversity, and productivity of public lands for the use and enjoyment of present and future generations.” In practice, BLM manages its lands pursuant to the principles of “multiple use” and “sustained yield,” meaning that its management must satisfy the varied needs of diverse resource users, including:
- Rangeland — Livestock grazing is permitted on an estimated 162 million acres of BLM land. In some western states, more than half of all cattle graze on public rangelands during at least part of the year.
- Energy & Minerals — The agency is responsible for approximately 700 million acres of federal subsurface minerals, including oil and gas and hard rock minerals like gold and silver. The agency also leases public land for renewable projects like wind, geothermal, and solar.
- Recreation — More than 22 million people live within 25 miles of BLM lands, and two-thirds of these lands are within 50 miles of an urban area, making them a popular recreation destination. Visits to recreation sites on BLM lands regularly exceed 50 million/year
- Fire Management — Recent fire seasons have been severe due to long-term drought, build-up of fuels, and increased population in the wildland-urban interface. BLM carries out fire management on approximately 370 million acres of federal and nonfederal lands.
Other multiple-use priorities include wild horse and burro management, forest management (including timber sales), and wildlife conservation. With so many competing (and often conflicting) demands among its users, the BLM has long faced criticism and controversy. From the so-called Sagebrush Rebellion of the 1980s to the Bundy Ranch Standoff of 2014, these seemingly intractable debates have largely been framed in terms of local vs. federal control, or between conservation and development.
Even as the traditional debates over public land management have persisted, new concerns have emerged or sharpened in the nearly fifty years since the passage of FLPMA. Climate change, a history of prioritizing extractive development, population growth, and habitat fragmentation are all putting pressure on these public lands to deliver the ecosystem services and values the public expects. Responding to the challenge of climate change and managing directly for conservation are more pressing concerns today than they were when FLMPA was drafted.
What’s the Public Lands Rule?
It is in this context that the BLM issued the Public Lands Rule, a new regulatory framework designed to reshape federal land management practices and create new tools for land managers to use in fulfilling BLM’s mission. In its April 18, 2024 announcement of the final rule, BLM described the rule’s purpose as to “help improve the health and resilience of public lands in the face of a changing climate; conserve important wildlife habitat and intact landscapes; facilitate responsible development; and better recognize unique cultural and natural resources on public lands.”
At its core, the rule seeks to:
- Advance conservation efforts, ensuring the preservation of natural landscapes, wildlife habitats, and cultural resources.
- Facilitate responsible development of energy resources, including oil, gas, and renewable energy projects.
- Enhance public participation in land management decisions, aiming for greater transparency and inclusivity in policy-making processes.
Key Provisions of the Public Lands Rule
Among its many notable innovations, the Public Lands Rule creates new conservation-focused leasing programs that serve as analogues to existing natural-resource-development leases (such as oil and gas leasing). These programs include “restoration leases,” where a third party (such as a citizen group, non-profit organization, or state or local agency) can apply for a lease to help restore the health of a designated area of public land. Thus, for example, a local Audubon chapter could seek a lease to restore bird habitat, putting its volunteers to work in a structured way on federal land. The BLM Public Lands Rule also provides for “mitigation leases,” which are designed for companies seeking to offset or compensate for development impacts elsewhere. Thus, for example, a mining company might secure a restoration lease to invest in habitat or recreation improvements to offset the impacts of its surface mining activities. Both of these new lease programs create powerful management tools that can benefit public lands within a clear and consistent legal framework.
Another key provision is that the rule clarifies the steps in designating and protecting Areas of Critical Environmental Concern (ACECs). These include lands with unique ecological, historic, scenic, or cultural values. FLPMA directs the BLM to give priority to designating and protecting ACECs but left the agency with some discretion on how to achieve that goal. The new rule establishes clear mechanisms for identifying, evaluating, and addressing the needs of ACECs in the overall land use planning process. It sets important criteria for formalizing an ACEC, including relevance, importance, and need for special management attention. The rule also clarifies that an ACEC can be designated for the purpose of maintaining ecological intactness and connectivity across habitats, emphasizing the importance of these areas in maintaining resilient lands and waters.
The Road Ahead: Implications for the Future of Public Lands
While the Public Lands Rule represents a step towards more balanced and inclusive land management practices, its ultimate impact will depend on how stakeholders navigate and negotiate the complexities inherent in managing America’s public lands. Within weeks of the publication of the final rule, multiple energy and industry groups filed lawsuits seeking to stop the implementation of its provisions. The litigation will likely take months if not years to resolve. In the meantime, however, the BLM will continue to work to modernize its approach to managing the 245 million acres under its care, seeking to ensure the long-term sustainability of its lands and waters for current and future generations.
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Written by Zach Falcon, Professor of Conservation Law & Policy
