BLM conservation rule likely to survive challenges, advocates say

The rule will allow the BLM to consider “mitigation restoration leasing” equally with other uses like grazing, mining and oil and gas development.

The rule identifies conservation tools to keep natural landscapes intact and restore them where degraded, a move advocates say marks a shift from what the BLM has considered or ignored when setting frameworks for use of its 18.4 million acres in Wyoming.

“This is not an attempt by the federal government to take away activities on public lands.”

Although Republican U.S. Sen. John Barrasso, a staunch advocate for the energy industry, has said he would use the Congressional Review Act to block the rule, U.S. Rep. Melanie Stansbury, a Democrat from New Mexico, said that’s not going to happen.

The review act, successfully employed by former U.S. Rep. Liz Cheney to block another BLM planning effort in 2017, is subject to time limits and deadlines that make its successful use improbable in this instance, Stansbury said. “This rule being finalized now should protect it from a rollback by Congress,” she said. “It should be fine in terms of making it ineligible for Congressional Review Act repeal.”

Wyoming native Jordan Schreiber, a lobbyist for The Wilderness Society, said she was “very confident” about defending the rule. “I’m not losing sleep over it,” she said of congressional discomfort.

A durable measure

To thwart the rule, Barrasso last year introduced a bill that targets the BLM initiative. Nine senators, including U.S. Sen. Cynthia Lummis, another Republican, joined as sponsors. The bill has not advanced.

Industrial users also have challenged the plan, as has Gov. Mark Gordon, who questioned the constitutionality of the BLM action. The Petroleum Association of Wyoming called it “a new, extra-legal, executive branch authority.” That suggests lawsuits will be filed.

BLM supporters said the rule will survive such legal challenges. “We are confident that the rule will prove durable over time and we intend to strongly defend the rule … in the courts,” said Michael Carroll, BLM campaign director with The Wilderness Society.

New Mexico’s Stansbury also dismissed misinformation. “This is not a land grab,” she said, blaming Republicans for inaccurate spin.

“This is not an attempt by the federal government to take away activities on public lands,” including utilizing resources “that we use in everyday life,” Stansbury said. “This is really about modernizing the way that we do land management. It’s about putting conservation and cultural uses on par with extractive uses.”

Congress stated that the BLM “should not emphasize the greatest short-term economic element,” when outlining how to manage its 30% of Wyoming’s land and 245 million acres nationwide, said Chris Winter, a professor at the University of Colorado Law School. The U.S. 10th Circuit Court of Appeals has said that “conservation to protect environmental balance” is one of the uses the BLM must weigh along with oil and gas development, grazing and so on, Winter said.

Lander resident Bailey Brennan, an attorney and farmer, said her 3-year-old daughter has been with her on three pronghorn hunts on public lands, all possible because of intact migration corridors. With the rule, restoration leases will allow the National Wildlife Federation she works for to help fight cheatgrass and restore riparian areas along those routes.

That type of work will ensure daughter Frances could have the same pronghorn hunting experience “when she is a grown-up with her children,” Brennan said.