The Conservation Lease Thing in the Proposed BLM Rule: A Case Not Really Made

This concept (conservation leasing) certainly makes for strange bedfellows.  Let’s start with our libertarian friends at PERC.

PERC believes that creating markets for conservation on public lands would allow resources to be managed for their highest-valued uses, whether that means consumption or conservation. Open markets that give everyone a seat at the table would be a cooperative way to make trade-offs in land use decisions and reduce conflict through voluntary exchange.

To my mind, managing for the public is not exactly the same as the richest people sitting around a table in a bidding war.  I wouldn’t be comfortable with goals for federal lands being determined by the highest bidder, for example. And that’s not the way I read the federal lands statutes; but we can talk about the legal arguments in a later post.  I think it’s safe to say that when the Biden Admin and PERC are on the same side..and many current public land users are not.. it deserves a deeper dive.

Not to pick on these folks, as a possible example, but they do have a nice website.

An Admin can put their fingers on the scale of protectionism, renewable energy, strategic minerals or whatever.. Right now, the Biden Admin is doing exactly that with Monumentizing and reducing fees (by 80%) for renewable energy. Both of which are likely to last beyond their term. It’s not really clear to me why they need another mechanism.. so let’s look at what they say in the Proposed Reg.

Section 6102.4(a)(3) would specify that conservation leases may be issued either for “restoration or land enhancement” or “mitigation.” The proposed rule would only authorize issuance of conservation leases for ecosystem protection where that protection is related to a restoration or land enhancement project or to support mitigation for a particular action. For example, as part of authorizing a renewable energy project on public lands, the BLM and the project proponent may agree to compensate for loss of wildlife habitat by restoring or enhancing other habitat areas. A conservation lease could be used to protect those areas. Similarly, the BLM may require compensatory mitigation for residual impacts that cannot be avoided. A conservation lease could be used to put compensatory mitigation dollars to work restoring compromised landscapes.

At the Denver public meeting, they told us that conservation leasing was requested by “industry partners.” Now oil and gas folks seem to be doing fine with the current processes, so what partners exactly? Perhaps the wind and solar folks. Based on the BLM’s fact sheet

Carrying out compensatory mitigation on public lands has faced many challenges due to questions about durability – whether mitigation will be effective for the duration of the impacts resulting from the associated public land use. Conservation leases provide a reliable approach to facilitate development, responding to feedback from state, local, and industry partners, by ensuring that compensatory mitigation carried out on public lands would be a viable option.

So I’m imagining a sage grouse habitat improvement project as mitigation for some renewable energy development.  Who exactly is concerned about the duration and why?  It’s BLM’s to manage the mitigation, so if something would interfere with it, wouldn’t it make more sense for BLM to stop the interfering thing/people that to issue a lease to a third party?

Apparently folks of all kinds (States, feds, NGO’s, locals) are, in fact,  restoring things without leases with rather large chunks of change from the feds.
For example, today in the Center for Western Priorities monthly:

The Biden administration announced plans to direct $161 million into ecosystem restoration projects on public lands as part of President Joe Biden’s Investing in America agenda, which funds job creation in industries that boost U.S. competitiveness, rebuild infrastructure, strengthen supply chains, and help build a clean energy economy. The Bureau of Land Management will use the funds on 21 “restoration landscapes” across 11 Western states, for ecosystem restoration in the sagebrush-steppe, wetland meadows, and watersheds on former industrial timberlands. These landscapes were chosen based on ecological need as well as importance to local communities.

Let’s turn our attention to mitigation. Apparently right now the BLM does require mitigation in places and has processes to require it.

In the FAQs here the question “Has BLM Ever Used Conservation Leasing Before?”

While the name conservation leasing is new, the tool and the goals it achieves are not. In the Desert Renewable Energy Conservation Plan, the BLM allows use of its National Conservation Lands to satisfy California Department of Fish and Wildlife compensatory mitigation requirements.

This is a bit puzzling. If the BLM can already do it, why does it need a new “tool”?

We can think about mitigation in terms of who and what.



Project on BLMProject on Private Land (or Carbon Credits)
Mitigation on BLM
Mitigation on Private Land

Now, to understand better, let’s go back to the Public Lands Foundation letter and check and see what BLM already has done:.

Other examples of conservation instruments being used to accomplish mitigation and restoration work include Pathfinder Ranches in Wyoming; Department of Transportation in South Dakota; Kuukpik Corporation in Alaska; and Las Cienegas Conservation Area in Arizona. There are four circumstances in which we think it makes sense for the Bureau to consider using such conservation “instruments”:
1. Where an entity is interested in leasing the public lands to sell mitigation credits generated on the public lands,
2. Where an entity is interested in investing mitigation funds to restore degraded areas on the public lands,
3. Where an entity is interested in investing non-mitigation funds in restoring degraded areas on the public lands, and
4. Where an entity is interested in investing funds to help manage a specific tract of public land by, for example, designing and implementing a systematic monitoring program for a specific tract of land

I’m not a fan of leasing federal lands for entities to sell mitigation credits.  That’s just too weird to think about.. when we think of carbon credits we think of the difference between how acres would have been managed versus how they will now be managed- that’s the difference that’s the credit.  If you change the management from the RMP, then..that’s not the RMP. Plus plants have a habit of dying in fires or due to other causes that all the paperwork in the world can’t influence.  .

As to 2, 3 and 4, I don’t see that a lease is needed to invest money or restore degraded areas. The only reason would be if you thought that other people doing things might mess your restoration work up, and so you want to keep them out. The proposed reg kind of says that..

A conservation lease could be used to protect those areas.

But you can’t keep out people with existing rights (some would say that’s how they got degraded in the first place…) then who are you keeping out? Other renewable energy folks? I guess recreation is not a valid existing right, though.  Hence, perhaps, the clause about recreation.

So people want to restore or are required to mitigate.  According to this proposed reg, instead of just restoring or mitigating, they pay a tidy sum to the US Treasury for the lease, and on top of that get an opportunity to restore or mitigate. It sounds a bit like “privatizing federal lands”? Way beyond the actual footprint of any developed area.

I’m not saying that conservation leasing might not be a good idea… but I don’t think the case made so far is very compelling.  Imagine that you’re a wind energy company and need to make up some sage grouse habitat.  Can’t there simply be an agreement to do whatever on a particular other piece of land to increase habitat?  What about paying a private entity for habitat as is currently being done?  What does getting a lease do for you, other than costing you the lease fees and causing more work for BLM employees? I’m scratching my head a bit on this one.



4 thoughts on “The Conservation Lease Thing in the Proposed BLM Rule: A Case Not Really Made”

  1. It’s pretty obvious what the actual purpose of these conservation leases is, despite all the obfuscation by the BLM and their environmentalist masters. The purpose is to privatize management authority over federal lands, overriding existing resource management plans and bypassing NEPA to allow big environmental groups to directly control management and dictate what activities are allowed on those lands and who is allowed entry.

    This is the gloves coming off, allowing the environmental groups that have long played puppet master and controlled the BLM behind the scenes to come out of the shadows and take full control of those lands themselves. It’s the last stage of regulatory capture where the BLM openly cedes its management authority to the groups that have had de facto control of public lands for a long time.

    That’s the only thing that makes sense given how positively giddy the big environmental orgs are about this rule while they are simultaneously insisting that it’s a nothing burger that won’t really change anything.

    I think it’s also clear that recreation is the main target of this rule. Other existing users have at least some protections in the rule while recreation really doesn’t, other than the vague assertion that “casual” recreation access will still probably be allowed. It’s completely unclear what types of recreation qualifies as “casual”, nor does the rule have any protections that would prevent conservation leases from being used to close existing roads, trails, and OHV areas. I think it’s pretty likely that motorized recreation would not be considered “casual” and that conservation leases could be used to override existing travel management plans and OHV area designations, and that is probably their primary intended use.

    The way I expect conservation leases to be used in practice is something like this. The Southern Utah Wilderness Alliance (SUWA) has been trying to close the Factory Butte OHV Area near Hanksville for decades. The BLM designated it as an open OHV area in the 2008 Price Field Office RMP over SUWA’s protest. SUWA then petitioned the BLM to close it under emergency authority to protect some endangered cactus, which the BLM did for over 10 years. A few years ago during the Trump administration, the BLM determined that impacts to the cactus had been sufficiently mitigated and that the cactus could be adequately protected going forward, so there was no longer a need to keep the OHV area closed and reopened it. SUWA lost its subsequent legal challenge to reopening it.

    I strongly suspect that one of the first uses of the conservation leases will be that SUWA buys a conservation lease covering the entire Factory Butte OHV Area, for the purpose of “restoring OHV damage”, and then permanently closes it to vehicles, the RMP notwithstanding. SUWA will likely do the same with other high priority OHV areas and trails they have long sought to close around Utah, such as Arch Canyon near Blanding or the Labyrinth Rims region west of Moab, closing roads, ATV trails, and even mountain bike trails. Over time, I expect them to buy up enough conservation leases to essentially replicate the wilderness areas they have long been lobbying Congress to designate without any success, only directly managed by SUWA itself instead of the BLM.

    In the future, environmental groups will no longer have to bother lobbying Congress or participating in NEPA processes to get their preferred management of public lands. All they have to do is use their unlimited funding from overseas billionaires and buy the right to dictate the management of those lands directly. That’s the real value proposition for them in this rule, and is why they are lobbying so hard for it.

    • As I read it, this is not a way around the land management planning process, since conservation designations would have to be made through that process, and subsequent conservation leases would have to conform to that designation in the plan.

      • That’s not at all clear. To me it looks like granting conservation leases is done completely separate from the management planning process (it’s unclear if it will even require NEPA), then once a lease is granted the lessee gets to manage the land how they wish. I don’t see any language in the proposed rule requiring that management to even be consistent with the RMP, much less other implementation level management plans such as travel plans.

        • This is not clear to me either, Patrick. I thought they said at the meeting the uses would have to be consistent with RMPs.. but blocking other uses would not be consistent. But I don’t see that in the reg itself. It’s a bit of a puzzle.. I’ll look into it further.
          I did see this in the FAQs “In addition, conservation leases would generally preserve public access for casual use such as recreation.” “Generally” is not a trust-enhancing expression.. and I didn’t see it more clearly (not at all) in the reg itself. Although I might have missed it.


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