Public Lands
Public Lands Publications
BLM's Conservation Rule and Conservation as a "Use" (2023)
Critically analyzing arguments against the BLM's proposed Public Lands Rule and concluding that conservation is inherent in 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.
Exploring the 30 x 30 target and the America the Beautiful (ATB) Initiative and arguing 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.
Offering recommendations for creating the Conservation and Stewardship Atlas in a way that acknowledges a continuum of conservation, while transparently disclosing the ecological benefits and durability of various conservation projects. The comments also suggest a methodology for measuring baseline environmental conditions using the Terrestrial Ecological Unit Inventory (TEUI) developed by the Forest Service.
Describing 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.
Arguing 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)
Offering a primer on western public land management law
The Rise and Fall of Planning 2.0 and Other Developments in BLM Land Management Planning (2017)
Reviewing the legal authorities motivating the BLM’s amendment of its planning regulations in a rule commonly referred to as “Planning 2.0,” then exploring the concerns raised by opponents of Planning 2.0, its ultimate demise through the Congressional Review Act, and implications for future BLM land management planning.
A report prepared for the Department of Energy explaining the historic roots of land ownership patterns in the west, how current controversies over management of federal public land with wilderness character could affect access to unconventional fuel resources, and how land exchanges could improve management efficiency.
The Future of Federal-State Land Exchanges (2014)
Land ownership in the West is fragmented. Often no single owner (states, private entities, or the Federal government) owns enough contiguous land to allow effective management of land holdings, which generates a plethora of disputes over access and similar problems.
Beyond the Antiquities Act: Can the BLM Reconcile Energy Dominance and National Monument Protection? (2019)
On December 4, 2017, President Donald J. Trump carved more than 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments. He also directed federal land managers to prepare management plans for both monuments. Draft plans have been released, and the preferred alternative under both plans promotes right-of-way development, minerals exploration, livestock grazing, and other traditional uses over protection of monument resources. Our paper argues that this approach violates both the Federal Land Policy and Management Act and the Omnibus Public Lands Act of 2009 because these statutes require the Bureau of Land Management to emphasize protection of monument resources over more impactive uses.
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.
A Response to “Dismantling Monuments” (2019)
Refuting the main arguments made in Dismantling Monuments, which was published in the Florida Law Review in 2018. National monument designations have been used to protect large landscapes for more than a century, and that no legal challenge to a monument’s size has ever succeeded. The weight of evidence suggests that Congress, in passing the Antiquities Act, intended to endow the President with the power to designate national monuments; but that Congress did not intend to vest the President with the power to dramatically reduce them.
Bears Ears National Monument—An Ongoing Effort to Protect Heritage on a Landscape Scale
A book chapter in PUSHING BOUNDARIES published by the University of Colorado Press (2023), which examines the status, history, and prospects of Bears Ears National Monument through the lens of archeological inquiry.
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.
National Monuments and National Conservation Areas: A Comparison in Light of the Bears Ears Proposal (2016)
Comparing two proposals over how to protect areas in Southeastern Utah. Congressmen Rob Bishop and Jason Chaffetz propose to protect the region via two adjacent National Conservation Areas (NCA): the Bears Ears NCA (857,603 acres), and the Indian Creek NCA (434,354 acres). In contrast, a group of five Native American tribes is urging President Obama to proclaim a Bears Ears National Monument spanning 1.9 million acres, which would include the land from the two NCAs noted above plus an additional 608,000 culturally-sensitive acres. This paper compares and contrasts congressional NCA designations, and presidential national monument proclamations. Our aim is to compare the two mechanisms as they relate to this common landscape, and to inform the public’s understanding of each.
The Transfer of Public Lands Movement: The Battle to Take ‘Back’ Lands That Were Never Theirs (2018)
Providing historical context and legal analysis of a recently passed piece of Utah legislation demanding that the federal government turn millions of acres of public land over to the state. Though the legislation was backed by a multi-million-dollar budget, it is unlikely to succeed in court due to its weak legal foundation. 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 we believe 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.
The Transfer of Public Lands Movement: Taking the “Public” Out of the Public Lands (2015)
This white paper addresses how a public lands takeover would impact land management and access. While we focus on Utah’s Transfer of Public Lands Act, the lessons learned have broader applicability, first because the Act serves as the model for other state's Transfer efforts, and second because the Act will likely be the first such effort to face a legal challenge.
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.