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.

I’m tracking how different groups are agreeing on certain points about the Rule. Please send any letters you run across or link them below. It’s kind of mind-boggling to search the comment website for names of groups.

Anyway, a TSW reader pointed me to the PEER comment letter, the press release was noted in this outlet.

Some groups that disagree on ends agree that this is not a particularly desirable means. And there are similar concerns about conservation leasing and selling carbon credits.

Some groups tend to agree that the BLM already has what it needs to do conservation work, and this may be an unnecessary addition from the employee capacity perspective. Conceivably, employee capacity and morale are still of concern, even when the potential source of the issue is a D administration.

Now PEER clearly sees “drilling, mining, logging, and grazing” as the bad guys.

So to them, one problem is that the Proposed Rule

• Would allow oil and mining interests to lease vacant land as an “offset” against adverse climate and other damage they are wreaking on their original holdings.

But don’t wind and solar also “wreak damage” to habitat? Especially considering their (much) larger footprint.

And some mining (strategic minerals) is actually good for climate, right?  The old order of good guys and bad guys seems to be breaking down before our eyes.

And “Giving BLM more regulatory discretion to issue more leases may, especially under future administrations, simply trigger a new corporate land grab, leaving little to ensure they are managed to provide real conservation value or public benefit.”

So in a sense they share my and others’ concerns about NGOs and corporations sitting around the table and divvying up the federal estate. Maybe it’s  also about trust in the sense that setting up something new to help one Admin’s buddies could be used by the next Admin’s buddies.

And while I think “BLM is doing a pretty good job but this is just extra paperwork that confuses everyone and is unlikely to help” PEER thinks “BLM is doing a really bad job and this will make more work for employees and be unlikely to help.”

PEER wrote a very thoughtful comment letter and here’s part of the section on capacity. I recommend reading the whole section if you are interested, in the interest of space I left parts out.

I. BLM Lacks the Capacity to Implement the Proposed Rule
We believe BLM lacks the staff and resources to implement the proposed rule. Specifically, we are concerned that without a significant addition of resources and the development of staff expertise, BLM will be unable to:
1. Conduct meaningful and scientifically defensible land health assessments;
2. Accurately assess the environmental impacts of land use decisions, including those in the conservation and restoration leases proposed in this rule; and,
3. Adequately engage the public in its decision-making processes.
Therefore, we recommend that BLM conduct a workforce analysis to specifically address the staffing and resource needs to implement this rule and share the information publicly. This will help BLM prioritize the agency’s conservation programs based on those that will deliver the most cost-effective results.
Without addressing workforce issues and agency priorities, we are concerned that:

1. Existing programs will suffer;
2. BLM will be unable to provide adequate oversight for the innovative programs in this proposed rule: and,
3. BLM will outsource important government functions to contractors and non-governmental organizations resulting in further capture of BLM by special interest groups that have an interest in obtaining leases.

Understaffing is already a genuine issue at BLM. …

They also agree with me on offsets, although they expressed it much better.  Again, this is only a part, so those interested should read the whole section.

III. The Rule Should Expressly Prohibit the Use of Conservation Leases to Generate Carbon Offset Credits

*****
We also question whether offsets generated on BLM lands can be real, additional, permanent, and verifiable. One problem with carbon offsets on BLM lands is that BLM should already be managing these lands for conservation purposes if they are not being used for grazing or resource extraction, such as mining. The problems of additionality would be significant on the land management by BLM. If BLM decides to allow the generation of carbon credits on the lands it manages, BLM must first propose a separate rulemaking that specifically addresses the legal, environmental and compliance issues associated with the offset program it is proposing.

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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.

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.

I’ve been thinking about the BLM Public Lands Rule, and why the coverage in the press has been so superficial. Stepping way back, I’ve noticed this dynamic.

A D Administration proposes something for federal lands that may have outsize impacts on parts of the West.  Republican elected officials from those areas respond negatively.   Discussion in media focuses on this as a political dispute (generally Red folks bad, Blue folks good, and hey, did we mention the Bundys?).    All the people in the middle who have concerns don’t seem to be included in the coverage. So those of us who want to dig into it deeper, say for our comment letter, don’t really get to hear from any of the other people who have concerns. Again, as I posted earlier, I’m looking for an example of coverage in which the reporter digs deeper on this topic.

Again, so far the only outlier on this I’ve seen  has been Sammy Roth’s coverage of the solar industry’s comments, with posts about it here and here. Sammy is fairly unique among reporters as he’s been following the tension between environmental protection and build-out of renewable energy infrastructure on federal lands for some time.

But today let’s turn our attention to another comment letter, that of the Public Lands Foundation, an organization of mostly current and former BLM employees.  Their letter is very thoughtful and quite comprehensive- they even answered each specific question.  They have a unique perspective based on their experiences of work that is already going on, and how a new regulation could contribute to, confuse or possibly hamper existing efforts. I recommend reading the entire letter, but will try to highlight some of their points here. Note: the folks at PLF have not reviewed my interpretation of their letter nor my choice of what to highlight. Their conservation leasing/mitigation comments will be in another post.

If I were to summarize their letter, I’d say:

1. BLM works with a variety of partners, within a very complex context of statutes that everyone more or less understands. Why mess around with terminology and confuse the public?

As a final but important point, when engaging in such complex collaborative efforts, it is important that all parties understand and agree on the terms being used to describe conservation goals and outcomes. In a few places, changes in terminology might be considered. For example, Section 6102 of the Proposed Rule describes and relies upon the conservation values which the FLPMA identifies for protection (Section 102(a)(8)). Then the Proposed Rule introduces scientific terms such as “intactness” and “resilience” that, while common and consistent with scientific methods and measures for assessing and protecting those same values, may cause confusion because they are not in general public use in relation to public lands. It may be helpful to:

o Replace “ecosystem resilience” with “achieving sustainability,” a concept long accepted as an outcome or measure of resilience and landscape health. With this shift in wording, the Proposed Rule would be substantively similar. It would state achieving sustainability requires that “ecosystems… have the capacity to maintain and regain their fundamental structure, processes, and function when altered by environmental stressors such as drought, wildfire, nonnative invasive species, insects, and other disturbances.”

o Similarly, the “intactness” concept might be replaced with “proper functioning” terminology which represents the state of physical processes that include interactions among hydrology, vegetation, and geomorphology (soils and landform). The use of more broadly understood terminology might avoid some unnecessary arguments over semantics already in evidence in media coverage of the Proposed Rule

Sharon’s take:

Since BLM is not an island, but rather part of a complex ecosystem of Tribes, federal and state agencies, local folks, visitors, permittees and NGOs of all shapes, sizes, and inclinations, and wants to be a good partner (presumably) they should try to make things simpler rather than adding more abstractions that complexify things with the public. Someone more cynical than I might harken to these words of George Orwell:

The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.

I’ve been thinking of Orwell quite a bit while considering this rule, since it started with the concept of “non-use is use.”  Actually,  I think the declared aim.. to put a permanent finger on the scale for non-use, is pretty clear.  But the additional  language around “you current (and future potential) users have nothing to worry about” appears to be a word-swamp conducive to  mistrust-breeding.

2. ACECs- this is a paperwork reduction concern, but capacity is important...

The ACEC section would also benefit from more clarity concerning treatment of proposals in the NEPA portion of the planning process. The requirement that planning documents include one alternative “that analyzes in detail all proposed ACECs” should be modified to state that BLM would have an alternative that “lists all ACEC proposals and identifies that they will be analyzed in detail or discloses the rationale why any proposal is not carried forward for further analysis.” Such a change would protect the principle “to provide for informed decision-making on the tradeoffs associated with ACEC designation.” Most proposals would be analyzed while the time and expense of carrying clearly unreasonable proposals through the analysis process, could be avoided. With disclosure, BLM could also be held accountable for any determination not to carry a proposal forward.

3. They already have lots of data to make “wise decisions” and if they need more, should work with partners to get it.

Recognize that extensive regional data sets and assessments already exist. The BLM should build on this existing work. Where these data sets and assessments need to be augmented with more fine-grained, local information, the BLM should work with its partners to pull together the required information as efficiently as possible. In many instances, the Ecological Site Inventories of the 1980s were conducted by crews that operated across Districts or regions within a state. Current available technology, including remote sensing, can also greatly expedite this work.

***
Given the way the Proposed Rule is written, it would be easy to assume that the identification of intact ecosystems, the identification of restoration priorities, and the application of land health fundamentals are discrete “activities” and that these activities can or should be conducted field office by field office. From PLF’s perspective, both of these assumptions would be wrong. The identification of resilient ecosystems and restoration priorities are interconnected activities as is the application of the land health fundamentals, especially at larger landscape or geographic scales. Given the fact that multiple spatial scales are involved, it would be counterproductive to approach all parts of this work field office by field office. Significant improvements in the efficiency, quality and usefulness of these activities can be achieved by designing processes that involve multiple levels of the agency and cooperating with other agencies as this work is conducted. Integrating and focusing these inventories, assessments and planning activities will better facilitate implementation of the rule, while also enabling the BLM to make more efficient use of its limited resources.

 

Sharon’s take: It doesn’t take a regulation to collect more info.  Some people think collecting more info will make decisions go their way more. I don’t know how it works in practice.. it certainly makes more work for employees, and maybe some contracting opportunities for favored info sources.

4. Potential for More Public Involvement in Implementation

The BLM treat implementation steps as another opportunity for further public engagement. This approach would give the agency access to a broad set of practical ideas, based on the forty-plus years of experience since conservation standards were established in FLPMA, that could work well in various regions, states, and localities. The same approach might also help identify what has not worked and steps to avoid unnecessary controversy. There is precedent. In the late 1980’s, on the advice of the Solicitor’s Office, the BLM provided the public with an opportunity to comment on the “draft” land use planning manuals. In 2015 the BLM also provided the public with an opportunity to comment on the “draft” Instruction Memoranda implementing the Greater Sage-grouse land use plan amendments.

Sharon’s take:

If the proposal goes forward, as seems likely, this looks like a potential peace-making gesture, and could help make up for the relatively restricted current public involvement compared to the FS MOG ANPR. Being gracious in winning is a thing, except perhaps not in politics.

5. Capacity Issues.

Sharon’s take: The PLF is not the only source to bring this up.  Folks at our Denver public meeting did as well.  Much of this might be extra work for employees, who are currently hard-pressed to do what is currently required by law. Not to speak of funding that might be used to conduct restoration activities directly instead of more analysis and developing more complex permitting processes.  I bet that each Field Office has a list of restoration needs to be met..  plus more solar and wind permitting, plus recreation and wildfire mitigation projects.. why not just shovel a bunch of that IRA and BIL $ directly into a jointly prioritized- with the public- list of activities?

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Next stop: Digging into Conservation Leases and Mitigation

Thanks to Rebecca Watson for clearing this up.. indeed the BLM has extended the time period for comments.  There’s a great deal that can be said about this regulation, so I’m very glad they did this.

From E&E News..I’m sure there is partisan disagreement, but as I said in the previous post,the renewable energy industry also has concerns. And aren’t we all for “robust public involvement”?

At the end there’s a quote from Kathleen Sgamma saying it should’ve been an ANPR… Let’s see, what Department put out an ANPR AND extended their comment period for 30 days?  I suppose they’ll also have a better array of public meetings when it comes time for the actual rulemaking.  Way to go, USDA!!!

BLM offers extra comment time on public lands rule

E&E NEWS PM | The Bureau of Land Management has agreed to give the public until next month to weigh in on a hotly debated draft public lands rule that has sparked fierce partisan debate over the proposal’s emphasis on conservation in the face of increasing threats from climate warming.

BLM announced Thursday it is extending the 75-day public comment period, set to run through June 20, by 15 days, or until July 5.

The draft rule, which BLM unveiled in March, is designed to protect and restore rangelands so that they are able to be used in the future for multiple purposes in the face of a warming climate that has sparked drought conditions and extreme wildfires across the West.

But the proposed rule has stirred concern among various stakeholders, particularly congressional Republicans, who say it is a veiled attempt by the Biden administration to remove potentially millions of acres from public use in the name of conservation.

To date, more than 121,000 comments have been submitted to BLM, according to Regulations.gov.

“The proposed Public Lands Rule is essential to our work, to ensuring we can respond to changes on the landscape,” said BLM Director Tracy Stone-Manning.

“We appreciate the useful public input we’ve already received through five public meetings and the first 75 days of the comment period,” Stone-Manning added. “This extension will allow us to continue to work with the public to make sure that the final rule is durable and effective.”

Interested parties, including the ranching industry and congressional Republicans, pressed Interior Secretary Deb Haaland and BLM to extend the deadline, and to hold additional public hearings in more rural areas to allow more landowners to comment on the draft rule.

But some were disappointed Interior extended the comment period just 15 days.

The Public Lands Council, a ranching industry trade group, requested a much longer extension.

“While we appreciate the additional 15 days, it seems unlikely that two extra weeks over a holiday will give BLM time to facilitate the kind of dialogue needed to address the mountain of concerns that have already been expressed on the rule,” said Kaitlynn Glover, PLC’s executive director. “We are disappointed that BLM doesn’t appear to have taken our request for more meetings and a full 180 days to comment seriously, but we remain committed to leading the conversation to ensure this rule doesn’t destroy federal land management in the West.”

BLM is working to finalize the rule by the end of the year, according to the spring Unified Agenda the White House released Wednesday.

The announcement that BLM would extend the public comment deadline came just hours after a contentious, hourslong House Natural Resources Committee hearing during which Republicans sharply criticized the rule.

The legislative hearing Thursday featured only Utah Republican Rep. John Curtis’ H.R. 3397, which would require BLM to withdraw the rule and “not take any action to finalize, implement, or enforce the proposed rule.”

Congressional Republicans, who had previously asked Haaland for a 75-day public comment period extension, weren’t enthusiastic about the extension either.

“Given the level of resounding opposition we heard at our hearing today and for weeks prior, extending a comment period by only 15 days does not even begin to address our concerns,” according to a statement from Natural Resources Republicans.

Kathleen Sgamma, president of the Denver-based Western Energy Alliance, an oil and gas industry trade group, said the extension “is helpful for finishing up our comments, but this shouldn’t even have been a proposed rule at this time.”

Sgamma testified at Thursday’s Natural Resources legislative hearing against the proposal.

“As I said in my testimony, there are so many nebulous concepts and more questions than answers that this should have been an advanced notice of proposed rulemaking or request for information at this stage,” she said. “This rule is in no way going to be ready to be finalized as the next stage.”

As far as I’m concerned, abstractions are hatchways to hokum.. and portals to privilege- because you can be pretty sure you won’t be in the room when the details of who benefits and who loses from the definition is hashed out. There’s a common concept of “over-thinking” something; perhaps there should also be a concept of “over-wording.” It would include

1. Making up new words when all the concepts already exist,

2. Using plain English words to mean something else,

And for feds in particular

3. Making up new meanings for words already used by other federal agencies.

In this rule, a few abstractions that raise red flags:

“FLPMA’s (Fip-ma) declaration of policy and definitions of “multiple use” and “sustained yield” reveal that conservation is a use on par with other uses under FLPMA.” Hmm.. somehow this revelation.. that “conservation” is a “use” lay unrevealed for lo these 47 or so years. So let’s start with the definition of conservation:

Conservation

The proposed rule would define “conservation” in the context of these regulations to mean maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions…. Within the framework of the proposed rule, “protection” and “restoration” together constitute conservation.

That’s not what partner agency on intermingled private lands, the Natural Resources CONSERVATION Service might mean by conservation.

Let’s check out what USDA means by the word “conservation”.

The protection, preservation, management, or restoration of natural environments and the ecological communities that inhabit them. Conservation is generally held to include the management of human use of natural resources for current public benefit and sustainable social and economic utilization.

Whoa! Major #3 (other federal agency) foul. Yes, says the BLM,  we want to work as partners, yes we want the public to be involved, but we can’t help but define commonly used words differently. Our behavior does not seem to match our words.  Our behavior seems to say “we want people to be confused about what we are trying to do.”

So a “conservation lease” is a protect and restore lease, not at all like the Conservation Stewardship Program at USDA..nor the Forest Service Conservation Finance Program (which is pretty interesting to check out).

Intact Landscape

means an unfragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species. Intact landscapes have high conservation value, provide critical ecosystem functions, and support ecosystem resilience.

That seems like any large tract of federal land.. “Permanently or significantly disrupt” it could be argued, I suppose that while oil and gas rigs are not permanent, they could be  “significant” and solar arrays and wind turbines could be decided to be permanent, but not “significant.”  So what’s a landscape?

Landscape

means a network of contiguous or adjacent ecosystems characterized by a set of common management concerns or conditions. The landscape is not defined by the size of the area, but rather by the interacting elements that are relevant and meaningful in a management context. Areas described in terms of aquatic conditions, such as watersheds or ecoregions, may also be “landscapes.”

So an entire ecoregion might be an intact landscape depending on judgments of “permanent” and “significant.” People might wonder who exactly will be making those judgments..

Land health: The idea is to take land health- a concept from the grazing program and apply it to renewable resources (should meet at the watershed scale). They want comments on how it will interact with non-renewable resources.

§ 4180.1 Fundamentals of rangeland health.

Standards and guidelines developed or revised by a Bureau of Land Management State Director under § 4180.2(b) must be consistent with the following fundamentals of rangeland health:

a) Watersheds are in, or are making significant progress toward, properly functioning physical condition, including their upland, riparian-wetland, and aquatic components; soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform and maintain or improve water quality, water quantity, and timing and duration of flow.

(b) Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, are maintained, or there is significant progress toward their attainment, in order to support healthy biotic populations and communities.

(c) Water quality complies with State water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives such as meeting wildlife needs.

(d) Habitats are, or are making significant progress toward being, restored or maintained for Federal threatened and endangered species, Federal proposed or candidate threatened and endangered species, and other special status species.

and related standards and guidelines to all renewable-resource management, instead of just to public-lands grazing. Broadening the applicability of the fundamentals of land health would ensure BLM programs will more formally and consistently consider the condition of public lands during decisionmaking processes. Renewable resources on public lands should meet the fundamentals of land health overall at the watershed scale. The proposed rule recognizes, however, that in determining which actions are required to achieve the land health standards and guidelines, the BLM must take into account current land uses, such as mining, energy production and transmission, and transportation, as well as other applicable law. The BLM welcomes comments on how applying the fundamentals of land health beyond lands allocated to grazing will interact with BLM’s management of non-renewable resources.

To implement the fundamentals of land health, the proposed rule directs BLM programs to use high-quality information to prepare land health assessments and evaluations and make determinations about the causes of failing to achieve land health. Such information is derived largely from assessing, inventorying, and monitoring renewable resources, as well as Indigenous Knowledge. The resulting data provides the means for detecting trends in land health and can be used to make management decisions, implement adaptive strategies, and support conservation efforts to build ecosystem resilience.

I’m not exactly sure what “renewable resources” are in this context, maybe someone from BLM could help out?

Look at all the BLM land across the West. The meetings are in Nevada, New Mexico and Colorado, and yet Utah, Wyoming, Idaho and eastern Oregon also have large chunks of BLM.  What do the States of NM CO and NV have in common that aren’t shared by WY UT and ID? Let me think…

Anyway, thanks, Greg Beardslee, for this link!

Burr: Bureau of Land Management has it wrong with new conservation rule

Landscape Health and Conservation Rule would allow conservation leases on potentially all of the 247 million acres of land managed by BLM.

Ben Burr is Executive Director of BlueRibbon Coalition

This rule is problematic and should be withdrawn. At the BlueRibbon Coalition we are working to unite public land users of all types to oppose this rule for the following reasons:

• First, the Bureau of Land Management doesn’t have the authority to create this rule out of administrative thin air. FLPMA doesn’t contemplate a conservation lease scheme, and if Congress wanted the BLM to administer such a program, they would have expressly authorized it. This scheme would also likely raise revenue for the government, which again, is something BLM doesn’t have authority to do. Only Congress, can authorize a new program like this that raises revenue for the government.

• Second, this rule won’t work. I have reviewed BLM project files where the agency and high-minded conservation organizations have entered into agreements to manage land towards conservation priorities. In these cases, all parties to the agreement flagrantly neglected to uphold the terms and conditions of the agreement. If the conservation leases don’t have any teeth for non-compliance, then they could cede management control of public lands to 3rd parties at the same time the public will have few if any tools to hold the 3rd parties accountable for non-compliance.

• Third, this rule is unnecessary. The BLM is already required to comply with dozens of other laws and executive orders to prioritize conservation on public lands. Scores of environmental lawsuits that get filed every year ensure that the compliance with these laws is taken seriously. Despite the statutory requirement the BLM has to manage public lands for multiple use, conservation is prioritized above all other uses on a regular basis.

• Fourth, this rule could easily lead to unintended intervention into public land management by foreign governments. If the government of Brazil wanted to further monopolize the American beef industry, it could funnel dark money to organizations that oppose public land grazing that could use the funds to acquire conservation leases on public grazing allotments to interfere with those grazing operations. If China wanted to kill an American lithium industry in its infancy, it could fund wildlife protection organizations to acquire conservation leases in areas rich with lithium.

As a leading national non-profit that works to protect recreation access to public land, at the BlueRibbon Coalition we are worried that this rule will be used to limit motorized recreation, dispersed camping, and all other forms of outdoor recreation on public lands. This rule will be a way for conservation organizations to create de facto wilderness, where they have failed to get Congress to make such restrictive designations. The $800 billion outdoor recreation industry thrives because of BLM’s careful efforts to balance conservation with other uses. By prioritizing conservation even more than it already is, we will undermine an industry that is fueling the livelihoods of many who live in the West.

We are grateful for the leadership of Representative John Curtis, who has introduced HR 3997. This legislation instructs the BLM to withdraw this rule. The rest of the Utah delegation has supported this legislation with Senators Lee and Romney supporting a Senate companion bill. We are encouraging everyone who supports public access to public land and a strong American economy to join Utah’s congressional delegation in telling the Bureau of Land Management to withdraw this rule by visiting sharetrails.org/withdraw-the-rule/.

Benjamin Burr is the Executive Director of the BlueRibbon Coalition – a national nonprofit that has been working since 1987 to protect public access to public land