BLM Proposed Regulation: Governor of Montana Really Not on Board- A Flip Too Far


Let’s take a look at the Montana Governor’s comments.  I’d like to have a beer with the folks who wrote this letter.

Some of my fave quotes..

The Rule’s otiose terminology and subjective criteria are breeding grounds for agency overreach.

And, if I may add, a full-employment program for legal professionals in the fields of natural resources and environment? Feature or bug?

Finally, to alleviate existing “confusion” in 43 C.F.R. § 1610.7-2, the Rule would replace the term “value” with the phrase “resources, values, systems, processes, or hazards.” Id. at 19593. The Rule’s rationale is head-scratching, given that the “confusing” term continues on in the new rule’s phrasing, just accompanied by more “confusing” words, like “systems” and “processes.” Id. at 19596 (see, 43 C.F.R. § 1610.7-2(c)(l)).

I also liked the idea of flipping FLPMA. “In addition to flipping FLPMA’s multiple use paradigm on its head.”

This sounds like it could have been from a Forest Service MOG ANPR comment:

I would ask that the BLM refocus its efforts away from drafting definitions and instead work to address degraded forest conditions so that Montana will have stands left to classify into old-growth.

It confuses me that the Biden Admin touts the BIL and IRA when they send out money (e.g. “Delivering Results from President Biden’s Bipartisan Infrastructure Law), but also propose regulations that tie up employees’ and partners’ time in abstractions and analysis-  instead of doing the work on the ground that the Bipartisan Congress funded in those bills.  Someone really important must want this stuff.

Anyway.. there’s much legal stuff and legal history in the letter, which I don’t have the background to comment on.


While I’m not necessarily a fan of large planning processes, people understand them and randomly (or is it arbitrary and capricious?) placing decisions outside them, and changing management based on a nomination without any public process  seems like a bad idea.

Involve the Public Before You Change Management pre ACEC Designation

The Rule eliminates this public notice and comment requirement for ACEC identification on the basis that the “general public involvement” processes associated with land use planning are sufficient. 88 Fed. Reg. at 19593. However, the Rule creates new provisions that allow for ACEC designation outside the land use planning process and, by extension, the “general public involvement” processes associated therewith. Id. at 19596-19597 (see, 43 C.F.R. § 1610.7-2(c)(3)) (“If nominations are received outside the planning process, interim management may be evaluated, considered, and implemented to protect relevant and important values until the BLM completes a planning process to determine whether to designate the area as an ACEC, in conformance with the current Resource Management Plan.”) In other words, upon nomination (which, problematically, can come from any entity), this Rule allows the BLM to treat an area as an ACEC without any formal land use planning, stakeholder engagement, or public process.
Aside from being legally rife, such an impenetrable, dictatorial procedure is just bad policy.

Not Appropriate for CatX

The import of this Rule requires the BLM to put its best foot forward with regard to NEPA, and the agency’s attempts to institute a rule of this magnitude, sans public participation and analysis, is disingenuous at best. The unforthcoming nature of such a move is only underscored by the fact that the BLM has undertaken NEPA review on other priority rulemakings, specifically the agency’s revision of its grazing regulations (43 C.F.R. Part 4100). While that rulemaking similarly deals with “administrative, financial, legal, technical, or procedural” regulations, the agency has waived CatEx in that rulemaking, recognizing that future decision-making under that regulatory paradigm may affect the quality of the human environment.

Extensions of Conservation Leases Semi-Automatic

The special consideration afforded “conservation leases” is pervasive throughout the Rule. For example, 43 C.F.R. § 6102.4(a)(3)(iii) removes an authorizing officer’s discretion in the issuance of conservation lease extensions, mandating that such extensions “shall” issue “if necessary to serve the purpose for which the lease was first issued.” 88 Fed. Reg. at 19600. Such singular treatment is not supported by statute.

Who remembers the 1995 Conservation Rule?

This Rule is nothing more than a revival of the 1995 conservation use rule, already stricken by the courts as unlawful. While the code section may have changed, this Rule would still provide an avenue for the issuance of “conservation” authorizations to the exclusion of public lands grazing. This Rule should be withdrawn as it suffers from the same fatal flaws as the 1995 prov1s1on.

How Were States and Tribes Involved in the Development of the Proposed Rule?

The final sentence says:

I ask that the BLM reconsider its inconsistent position here, withdraw the rule, and engage with States and stakeholders in a transparent and inclusive NEPA process they deserve.

The tone of these comments is a little cranky.  I guess I would be kind of cranky too,  if I were a Gov and our State had not been consulted on a federal regulation that fundamentally affects the lives of my constituents.

5 thoughts on “BLM Proposed Regulation: Governor of Montana Really Not on Board- A Flip Too Far”

  1. I’m surprised and pleased that something as thoughtful as this came from the Montana governors office.
    I submit that this proposed rule came from someone in the agency. Maybe from
    Tracy Stone-Manning herself. This is typical of the sort of deception she promoted while working in Montana. It seems to have her fingerprints on it.

  2. You can count on the Gianforte administration to distort the facts and provide misinformation. An example:
    “… interim management may be evaluated, considered, and implemented to protect relevant and important values until the BLM completes a planning process to determine whether to designate the area as an ACEC, in conformance with the current Resource Management Plan.”

    This simply documents BLM’s existing authority to not take actions that would foreclose possible changes in its plan, or to take actions in conformance with both the current plan and possible changes. This is far from their interpretation of “treat an area as an ACEC.” View their views with skepticism.

    • If the BLM has an existing authority to “not take actions that would foreclose possible changes in the plan”.. given that a range of potential actions ranges from covering it with solar panels to not doing anything.. then, just logically, the BLM couldn’t do anything at all. Suppose a solar installation is proposed.. but potentially that area would be changed in some future plan for … say, OHV use, so they shouldn’t permit the solar installation? What exactly is the language in the current reg?

      I think perhaps the term “misinformation” is being used too broadly here..

      • I think you’re interpreting “possible” too broadly. There would have to be some kind of proposal on the table to be able to justify “interim management.”

  3. Sharon, I will admit that initially I did not have much interest in this potential rule, but your posts have drawn me in. I have tried to understand it and you have shed some light on the whole thing. I have also read some other articles, etc. I really did not understand what the BLM was trying to accomplish with this. It does seem that they already have the tools and authority to accomplish the things they are hoping for.

    I got to thinking, do some within the agency feel that BLM’s focus has always been on oil and gas, mining, ranching, timber, etc. and they are wanting to gain some conservation credentials? Is that what this is about? The Forest Service has always had a tough time balancing the whole multiple use thing, but I think most inside the agency would consider that conservation is still a major focus.

    So, I still don’t know what to think about this rule. I don’t think the BLM did a good job of explaining the need for it and it has had a bad roll out. I think that those politicians opposed to it, have not done a good, honest job of explaining why it’s a bad thing. My Governor and Senators (Noem, Thune and Rounds) have all said it puts conservation above other uses and will severely harm our State. South Dakota only has about 0.1% of BLM’s land and everything I have read from BLM says it will just put conservation on equal footing with other uses, not above them.

    I appreciate you providing your perspective on this issue.


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