Gianforte urges BLM to withdraw conservation proposal, alleges ‘boneheaded decisions’ will result

Governor says rule is ‘not supported by law’ and amounts to ‘excessive federal overreach’

By: - June 28, 2023 5:51 pm
Gov. Greg Gianforte discusses his public lands agenda in November 2022.

Gov. Greg Gianforte discusses his public lands agenda in November 2022. (Photo provided by Montana Governor’s Office)

Montana Gov. Greg Gianforte is the latest Republican to ask the Department of Interior to withdraw a proposed rule that would allow for conservation leases on Bureau of Land Management lands, saying in a 10-page letter this week he believes the proposal violates law and amounts to “excessive federal overreach.”

The governor wrote to Interior Secretary Deb Haaland and Bureau of Land Management Director Tracy Stone-Manning on Monday with his thoughts on the rule proposed in April. The rule has drawn opposition from other western Republican governors and members of Congress, including Montana Republican Rep. Matt Rosendale.

The public comment period for the proposed rule is set to close on July 5, and Gianforte urged the BLM to withdraw it and go back to states, energy developers and livestock owners for more discussion in what he said would be a more “transparent and inclusive” process.

The proposed rule would allow the BLM to add conservation as one of multiple uses under the Federal Land Policy and Management Act (FLPMA), to apply land health standards to BLM lands, and to prioritize protecting Areas of Critical Environmental Concern (ACEC) – usually areas of significant historical or cultural value or which have important fish, wildlife or other natural resources.

When the Department of Interior released the proposed rule earlier this year, it said the conservation use and conservation leases would protect conservation and recreational efforts on public lands while working with the energy and livestock sectors so they can continue using the lands as well. The department said the effects of climate change combined with other land use is threatening the country’s more sensitive public lands.

Supporters say the rule, if adopted, would put conservation on equal land use footing with extractors. They have pushed back against opposition from Republicans and others who say the rule violates several laws and puts ranchers who have grazing permits on BLM lands at risk of losing access.

“The proposed rule explicitly states it does not undermine or impact any valid existing rights,” Conservation Lands Foundation senior legal and policy director Danielle Murray said in a press call last month.

Indeed, the rule states: “This provision is not intended to provide a mechanism for precluding other uses, such as grazing, mining, and recreation. Conservation leases should not disturb existing authorizations, valid existing rights, or state or Tribal land use management. Rather, this proposed rule is intended to raise conservation up to be on par with other uses under the principles of multiple use and sustained yield.”

Rosendale said in a May congressional hearing that the proposed rule threatened Montanans’ access to public lands for the Biden Administration “to advance their own environmentalist agenda.” He and other Republicans have argued in recent weeks that Congress is the only body with the authority to make changes to land uses under the FLPMA. But supporters of the rule, including Murray, say some of the opposition stems from false claims about the rule and qualms with the Biden administration.

Meetse Area of Critical Environmental Concern. (Photo by Bob Wick, Bureau of Land Management. This work is licensed under a Creative Commons Attribution 2.0 Generic License.)
Meetse Area of Critical Environmental Concern. (Photo by Bob Wick, Bureau of Land Management. This work is licensed under a Creative Commons Attribution 2.0 Generic License.)

Gianforte’s comments on the rule sent to the DOI and BLM echo some of the others’ comments surrounding the legality of the proposal, the BLM’s authority, and what the governor described as its vagueness in definitions and conflicts with Montana’s public land use strategies.

“After reviewing the Rule, the State of Montana concludes that the Rule is not supported by law and constitutes significant and excessive federal overreach,” Gianforte wrote.

His 10-page letter outlines eight different reasons he believes the rule is either illegal or should be withdrawn, including that he believes the BLM should be addressing forest health instead of drafting definitions.

Gianforte argues the creation of conservation leases under the proposed rule conflicts with the FLPMA, the Taylor Grazing Act, and Public Rangelands Improvement Act – arguments also made by Rosendale and other Republicans.

Their argument generally is that those laws only authorize the Secretary of Interior to issue livestock grazing permits on BLM lands – not conservation leases.

Gianforte argues that the BLM’s reading of the FLPMA that the secretary may regulate, as they deem appropriate, the use, occupancy and development of public lands is incorrect.

“To read this as the basis for issuing conservation leases is a stretch, given the development context of the provision,” he wrote.

Gianforte said he believes the BLM is trying to “crown ‘conservation leases’ the de facto king” when considering its multi-use land approach under the FLPMA and is elevating conservation above all other uses. The state is currently awaiting a district court judge’s decision as to whether a portion of state law prohibiting the state from analyzing the impacts of greenhouse gas emissions and climate change when evaluating energy project permits is constitutional.

“The multiple uses that occur on BLM lands support economies and livelihoods, which will be damaged if those multiple uses are deemed to conflict with ‘conservation’ and removed from the landscape,” the governor wrote. “Additionally, the checkerboarded ownership of federal, State, and private lands amplify the exclusion of existing multiple uses on State and private lands.”

He argued that the rule could limit rights-of-way across BLM land, “landlocking private and State surface and mineral interests,” and says the definition under the proposed rule of sustained yield conflicts with statutory language defined by Congress.

The governor also wrote that the rule’s “terminology and criteria are so ill-defined and lacking in quantifiable metrics that agency overreach is inevitable.”

He said aspects of the proposal surrounding ecosystems, landscapes, degradation, restoration, and other definitions are broad and confusing and he believes they would “lead to inconsistent, half-hearted implementation at best and controversial, divisive litigation between an over-reaching agency and stakeholders at worst.”

The BLM asked state and local governments to comment on the rule as to whether they should be able to hold the conservation leases. The proposal directs BLM state directors to produce annual reports on Areas of Critical Environmental Concern. It also outlines a process for state directors on how to manage plans, actions, recordkeeping and reporting.

And the proposal allows for state, tribal and local agencies to serve as joint leads or cooperating agencies when developing environmental impact statements and environmental assessments on projects.

But Gianforte balked at what he said was a more national approach in the proposed rule.

“For the BLM to think that it can apply the same ‘fundamentals of land health’ and ‘national indicators’ in both Alabama and Montana is naïve, creates an unjust paradigm in which all lands are managed to the lowest denominator, and will result in boneheaded decisions,” Gianforte wrote.

The governor said the state objects to inclusions of references to a 2022 federal executive order in which the Biden administration said its policy was to pursue sustainable forest and land management and conservation policies on old-growth forests, because he said the order is “being rammed into this rulemaking” and some definitions from the order cannot apply so broadly in the rule.

Gianforte also took issue with the ACEC designation and removal process, questioned if the BLM has the authority to acquire other land within or adjacent to certain ACECs, and said the rule would enable “a heavy-handed land grab” that should not be excluded from review under the National Environmental Policy Act.

Gianforte’s public comment is among more than 164,000 already submitted for the proposed rule so far ahead of next Wednesday’s deadline. While many supporters agree with the BLM’s rule, many have also given the BLM parameters they want met to ensure some of the potential conflicts described by Gianforte and other opponents do not happen.

The Bozeman-based Property and Environment Research Center, an environmental conservation law and policy group, submitted comments saying if the proposal is “properly amended and implemented,” it could reduce conflicts surrounding public lands and benefit wildlife, watersheds, and people who use the lands.

The Center urged the BLM to consider three “key principles” when considering revisions: Honoring existing rights and leases; having markets set the price for conservation leases to ensure fair market value; and establish mechanisms for conflict resolutions between land with conservation leases and other uses.

The organization’s comment offers that conservation lease holders could work with ranchers on grazing animals on less land or at different times to boost other species – perhaps through compensatory agreements – as part of a way to reduce conflicts and still have multiple uses for land, something that has also been suggested by the BLM’s deputy director of policy and programs.

The group also says the BLM needs to ensure that people’s existing rights, privileges and leases are honored so as to avoid any further conflict should the rule be adopted amid an already tense discussion.

“If conservation leasing is perceived as a political or administrative tool for imposing costs on existing rights-holders without their consent, it will simply provoke more conflict,” the group said in its cover letter for the comment. “Moreover, any erosion in the security of grazing privileges and other existing rights may provoke future efforts to erode any rights or privileges created by conservation leases.”

The public comment period for the proposal closes next Wednesday, July 5. To read the proposed rule and accompanying information and comments, click here.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.