Public Lands
Public Lands Publications
Our public lands serve needs as diverse as the nation and the lands themselves. They are home to vast energy resources ranging from oil, natural gas, and coal to renewables like wind, solar, and geothermal. Our public lands also offer unmatched recreation opportunities, from off-road vehicle use to developed ski areas, to wilderness recreation like mountain climbing and backpacking. They are rich in history and ecologically diverse, and they include the watersheds that provide drinking water to millions of Western residents. Our public lands—and how we choose to manage those lands—define who we are and who, as a nation, we want to be.
The Stegner Center engages on a range of issues involving our public lands. We provide option-centered scholarship regarding public land management that focuses on adherence to the rule of law, that is grounded on the best available science, and that allows for meaningful and transparent public engagement. Recent scholarship includes:
When making land management decisions, the definition of multiple use requires the BLM to take into account “the long-term needs of future generations.” Those resource needs include “recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” Despite this directive, BLM’s practice over the last fifty years prioritized extractive uses, often to the detriment of other land values listed in the Federal Land Policy and Management Act (FLPMA). This imbalance, combined with other ecological stresses, has caused widespread degradation of public lands. Degraded landscapes cannot fulfill FLPMA’s mandate to ensure a sustained yield of natural resource values like healthy rangelands, productive forests, abundant fish and wildlife, and functioning watersheds. The BLM's Public Lands Rule responds to these challenges in a manner that is consistent with BLM's statutory duties.
A Legal Analysis of the Public Lands Rule, White Paper (2024)
Providing an objective analysis of the final version of the BLM's Public Lands Rule, this White Paper, co-written with the Getches-Wilkinson Center, summarizes the policy tools and initiatives included in the Public Lands Rule. It explores the legal foundation for the rule with a focus on multiple use and sustained yield mandate in FLPMA. And it discusses the conditions on BLM land that warrant the management approaches embodied in the rule.
BLM's Conservation Rule and Conservation as a "Use" (2023)
This paper critically analyzes arguments against the BLM's proposed Public Lands Rule and concludes that "conservation" is a "use" within the statutory duties assigned to BLM by the Federal Land Policy and Management Act. Deteriorating land health on public lands, which is forecasted to be exacerbated by climate change, justifies BLM’s prioritization of ecological resilience, intact landscapes, restoration, mitigation, and land health. Additionally, emerging market opportunities for conservation and mitigation also justify BLM’s exercise of discretion to develop conservation leases, which are consistent with BLM’s statutory authority and existing regulations.
This paper explores the 30 x 30 target and the America the Beautiful (ATB) Initiative and argues that while different forms of conservation should be recognized, they should not be treated as equal. Instead, the ATB Initiative should adopt a transparent methodology to disclose the efficacy of different projects in achieving ecological benefits. Similar reporting methodologies are already available and being utilized in the voluntary carbon credit market. Adopting a transparent methodology would preserve the credibility of the ATB Initiative and facilitate future conservation by transparently disclosing the goals, management protocols, outcomes, and durability of projects included in the ATB Initiative.
This paper describes the chilling effect that the Congressional Review Act can have on federal agencies, looking at the Bureau of Land Management’s Planning Rule, which was struck down in 2017 as an example of how an agency that is statutorily obligated to enact a broad regulatory program can proceed following a joint resolution of disapproval.
This paper argues that the BLM has a statutory duty to respond to climate change, which includes the duty to avoid exacerbating climate change. The article then moves the legal discussion from aspiration to action by proposing a legal strategy, using the existing legal framework, by which the BLM can achieve net zero emissions from all new mineral development activity. While the article focuses on oil and gas development, the same methodology could be applied to coal mining, tar sands, and other sources of GHG emissions.
A Road Map to Net-Zero Emissions for Fossil Fuel Development on Public Lands (2020)
The BLM has a statutory duty set forth in the Federal Land Policy and Management Act (FLPMA) to coordinate management of various resources “without permanent impairment of the productivity of the land and the quality of the environment.” Continuing to permit fossil fuel development without adhering to a carbon budget violates this statutory duty. The article proposes a legal strategy for requiring that all new onshore oil and gas wells that tap federal resources, including those on existing leases, achieve net zero GHG emissions (for upstream and downstream emissions) as a condition of operational approval.
Western Public Lands and the Evolving Management Landscape (2020)
These book chapters offer a primer on western public land management law.
The Trump Administration and Lessons Not Learned from Prior Monument Modifications (2019)
Undertaking a historical survey of prior presidential monument reductions and concluding that history does not support the argument that prior presidential actions reducing monuments support the congressional acquiescence argument. Prior monument reductions have been different in size, purpose, and consequence.
Up for Grabs: The State of Fossils Protection in (Recently) Unprotected National Monuments (2018)
On December 4, 2017, President Trump removed 2 million acres of land from the Bears Ears and Grand Staircase-Escalante national monuments. President Trump justified the reductions in part by claiming that many of the objects contained in the original monuments were already protected by other federal laws, and that the protections previously afforded to sixty-three percent of the land in the two original monuments were “unnecessary for the care and management of the objects to be protected within the monument[s].” This article explains why, contrary to the President’s assertions, plant and invertebrate fossils on the more than two million acres of land that were excluded from the monuments now receive less protection than when they were included in the monuments.
The Transfer of Public Lands Movement: The Battle to Take ‘Back’ Lands That Were Never Theirs (2018)
This article provides historical context and legal analysis of Utah legislation demanding that the federal government turn millions of acres of public land over to the state. This article critiques the legal and policy arguments favoring compulsory public land disposal, summarizing the unintended consequences that would flow from public land transfers, identifying the frustrations driving transfer efforts, and offering constructive alternatives to transfer that address the underlying frustrations.
Alternatives to the Transfer of Public Lands Act (2016)
This white paper argues that state time and resources would be better spent on collaborative efforts to improve management resources than litigating a piece of legislation with a shaky legal foundation. This paper discusses five of the main problems that give rise to the frustration driving the public lands transfer movement. We then present seven possible alternatives to demanding title to federal lands that we believe respond to these problems and that are likely to produce lasting and tangible land management improvements.
This white paper addresses state claims to the minerals underlying federal lands and arguing that even if states overcome extremely long odds to convince a court that the federal government is obligated to dispose of more public land, and that such a disposal obligation necessitates giving the public domain to the states, well established legal principles would prevent grants of most mineral lands to the states. Mineral title is important because Utah’s best, and perhaps only, hope of covering management costs involves mineral development. Indeed, during 2013, federal mineral leasing (primarily oil, natural gas, and coal) produced 93-percent of all revenue derived from the targeted public lands. Taking on the management of millions of acres of new land without simultaneously securing a source of funding to fulfill those obligations would be contrary to the state’s best interests.
This white paper compares and contrasts the Endangered Species Act (ESA) compliance requirements that would apply under federal versus non-federal land ownership scenarios. We show that transferring lands out of federal ownership would make ESA compliance more complex and costly, with costly implications for operators and the state. For example, it would invalidate Incidental Take Permits covering over 3,200 producing oil and gas wells in Utah alone, while complicating efforts to process pending drilling applications for over 1,100 additional oil and gas wells.
A Legal Analysis of the Transfer of Public Lands Movement (2014)
Analyzing Utah’s legal claim that it has a right to federal lands and concluding that they lack legal authority. The federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership. Statutes authorizing Western states to join the Union required those same states to disclaim the right to additional lands and that disclaimer cannot be spun into a federal duty to dispose. Statehood enabling acts’ guarantee of equal political rights also cannot be spun into a promise of equal land ownership. Furthermore, though statehood enabling acts guarantee states a share of the proceeds resulting from federal land sales, that guarantee is not an obligation to sell.