‘Conservation’ questioned as a legitimate use in ongoing public lands debate

The Department of the Interior announced in September its intention to rescind a 2024 rule that made “conservation” one of the multiple uses allowed on public lands.

“The rule recognizes conservation as an essential component of public lands management, on equal footing with other multiple uses of these lands,” reads the rule’s description on the BLM webpage.

“The BLM knows the importance of balancing the use of our natural resources with protecting public lands and waters for future generations.”

Prior to what’s dubbed the Public Land Rule — which is also referred to as the Conservation and Landscape Health Rule — the acceptable use for public land mostly fell into three broad and non-exhaustive categories: extractive, scientific and recreational. The inclusion of conservation into the broad definition of “multiple use,” put a whole new category of use — or “no use” as it’s been referred to by the Trump administration — into play.

What might appear to be a small addition to the casual observer, however, was a sea change for the agencies responsible for land management and those with immediate interests on those vast swaths of territory. Some applauded its inclusion as a recognition of a necessary and virtuous perspective, while others denounced it as an illegal application of ideology applied undemocratically onto standing law.

One specific reason why some interests did not like the change was that the so-called “no use” use would limit the proliferation of the others on indicated parcels of land. That prevention of other uses was not well received by the oil and gas industry.

“The 2024 Conservation and Landscape Health Rule was a radical and unlawful departure from nearly 50 years of established public lands policy, attempting to fundamentally rewrite FLPMA through executive, regulatory fiat (sic)," wrote the Mountain State’s Legal Foundation in an amicus brief or friend-of-the-court letter supporting the Interior Department’s decision.

Congress passed the Federal Land Policy and Management Act or FLMPA in 1976 to establish guidelines for how public lands are managed, protected, developed and enhanced.

“You can’t have the unelected portion of the federal government — or one of them — deciding to lock up lands," said Ivan London, a senior attorney at Mountain States Legal Foundation and an author of the brief.

“It takes public lands away from the public.”

That same limiting factor was what Interior Secretary Doug Burgum cited when he announced the planned rescission of the rule.

“The previous administration’s Public Lands Rule had the potential to block access to hundreds of thousands of acres of multiple-use land — preventing energy and mineral production, timber management, grazing and recreation across the West,” Burgum said in a statement.

What the public says about the rule

In order to change the rule, however, the Interior Department must follow the Administrative Procedure Act, which makes removing a rule, in practice, less straight-forward than a stroke of a pen or the issuing of a decree.

One of the steps required prior to a rule change is a public comment period. The Public Land Rule was given 60 days for comment, which ended last week.

In a review of those comments, the Center for Western Priorities — a conservation advocacy group that supports the rule — found that less than 2% of comments agreed with the Interior Department’s plan to get rid of it. One of them was the letter from Mountain States Legal Foundation that represents 11 different energy trade organizations including the Western Energy Alliance, New Mexico Federal Lands Council, American Lands Council and the American Energy Institute, among others.

The remaining 97.9% opposed the rule being rescinded, a figure that has grown since the last public comment period in 2023, when 92% supported the rule. (The center stipulated that the analysis has a margin of error rate of plus or minus 1.3%).

“Westerners have once again spoken with one voice in support of our public lands. Conservation is a core use of our public lands, and everyone who lives, works, and recreates on and near public lands knows it,” Aaron Weiss, the deputy director of the Center for Western Priorities, said in a statement.

“This analysis shows that support for conservation on public lands has only grown over the last two years ... Interior Secretary Burgum and President Trump should reverse course now and leave the Public Lands Rule in place. The rule was developed thoughtfully, with ample public input, and implements the intention that Congress expressed in FLPMA 50 years ago. The Public Lands Rule is legal, enjoys immense public support, and will help ensure public lands remain healthy and productive well into the future.”

What is multiple land use?

The Federal Land Policy and Management Act established guidelines for how public lands are managed, protected, developed and enhanced. It includes a mandate for public lands to be made available for “multiple use and sustained yields.”

Subsequently, those two terms carry a lot of weight and significance in public land discourse. That’s partially due to the contentious nature of land use in American history but it’s also because those terms can cover quite a bit of ground.

The broad definition in the statutes stipulates that the multiple uses and sustained yields are including, “but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.”

“Conservation” may not be explicitly listed, but it’s not excluded either. Regardless, the inclusive approach means that those who want to extract natural resources and those who want to recreate and preserve both claim “multiple use” as their own. In some cases, both uses can coexist.

The legalese also stipulates that those uses are not bound to the present in the way it is written — “takes into account the long-term needs of future generations for renewable and nonrenewable resources” — and stipulates that longevity is a priority above financial gain.

“Harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment,” the law reads, “with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”

This perspective of longevity is part of the argument that those who support the Public Land Rule reference when they explain how conservation is indeed a use.

What people in the West say

The Mountain Pact, a local government lobby in the West representing scores of municipalities and advocates for the outdoor recreation economy, conservation and climate action, put the future and the “quality of the environment” at the heart of the matter.

It submitted a letter to the Interior Department signed by 180 county commissioners and supervisors, mayors, and council members from Western states in support of the rule.

“Western communities depend on well-managed public lands to support our economies and our outdoor way of life, and the BLM Public Lands Rule ensures that conservation of these irreplaceable landscapes is given equal consideration,” Anna Peterson, the director of the Mountain Pact, said in a statement.

“This critical tool conserves key lands and waters for residents, wildlife, and future generations, and brings much needed balance to BLM management.”

By conserving certain public lands, the argument goes, they retain their renewable use of recreation and science, both of which have their own economic benefits. The outdoor recreation industry in the United States generates around $1.2 trillion in annual revenue.

The Mountain Pact also highlighted how more than 80% of BLM land remains eligible for natural resource extraction, that 92% of comments supported it when it was first considered in 2023 and that there is broad support in the West — and across the aisle — for conservation to be a priority for public lands.

A November 2024 Deseret News poll found that 87% of respondents in Western states thought that conservation should be a medium to high priority. An annual Colorado College poll titled “State of the West,” found that 72% of Western respondents in 2024 agreed that conservation should be a high priority of public land management.

“Putting conservation on the same playing field as other uses like mining, grazing, and drilling is a common-sense approach that invites collaboration and lets Western communities like mine have a say when it comes to our most important resource — our public lands,” Grand County (Utah) Commissioner Trisha Hedin said in a statement.

“Our community depends on the health of public lands to attract visitors from all over the world. It is the backbone of our economy. ”

It comes down to civics and semantics

The Mountain States Legal Foundation — which represents a large coalition — questions whether the rule’s implementation was legal to begin with. Its argument is multifaceted but ultimately comes down to civics and semantics.

The way FLPMA was written made clear that both multiple use and sustained yields be the priority of public land management, which was the decision of an elected body — Congress. The foundation argues that an established law made by elected officials should not be altered by unelected federal bureaucrats in the Interior Department.

“We have a representative democracy — including people from states who are not in the West — who together voted to make the law what the law is ... the laws represent the public interest," London, the foundation’s attorney, said.

“It might not be an individual’s interest. It is the public’s interest. And not because one person said so, right? Because of this whole elaborate, difficult, burdensome process that’s required to make a law in the first place.”

London and the Mountain States Legal Foundation praised Burgum’s intentions to rescind the rule.

“BLM now and correctly rejects the fundamental premise of the 2024 Conservation and Landscape Health Rule, which was that unelected federal regulators could ignore the public interest in furtherance of their own ‘conservation’ aims,” reads the Mountain State Legal Foundations amicus brief.

The semantics part of their argument hinges on the definitions of “multiple use” and “sustained yields.”

As the conservation use case protects the land and seeks to maintain its natural form (no development), it necessarily prevents other uses and also blocks the potential for extractive use. They argue that, by putting it on the same list as others listed in the law — a use, allegedly, that does meet the basic requirements of FLPMA — it does not fall under the already broad definition of multiple use.

“A non-use is not a use, and if Congress said you have to allow multiple uses, then then you can’t turn a non-use into a use,” London said. “Congress said public lands are for the public to use and the BLM has to manage them accordingly ... even if conservation is a use, how can you do that and have a sustained yield? Unless you’re doing mental gymnastics to have a sustained yield of nothing.”

Which is the other part of the semantics issue presented by including conservation.

“What does sustained yield mean?” London asked. To his understanding, “yield” indicates that the lands are going to be used for something, or as a means to extract. But he did say that, at first, “sustained yield sounds very pro-conservation.”

“Is it conservation, as in continuing something or growing something in that sense? Or is it taking lands away and restricting them from any use?”

There is a way for conservation to be made the preferred use case of public lands, London said, but using Public Land Rule was not the way to do it. “There is a statutory process for doing that,” he said, ”which is not the same as the regulators just get(ting) to make it up."

What’s next for public lands?

As of earlier this year, Deseret News confirmed that no conservation leases had yet been issued.

Yet, even if it was not a rule implemented over the year-and-a-half of its existence, the contested decision to rescind it is now under review by the Interior Department.

The Interior Department will review the comments and legal documents received during the 60-day period, do its own internal analysis of the impacts of the rule, all in advance of finalizing a decision. In the Federal Register, the department also explained that it will be reviewing the comments from the rule’s implementation to make sure that nothing submitted then was overlooked.

No date has yet been publicly set for a final decision — a spokesperson suggested Deseret News “check back with us on this in the coming weeks and months.”

For some, though, it appears the Interior Department has already made up its mind.

“The administration is saying that public lands should be managed primarily for the good of powerful drilling, mining and development interests,” Alison Flint, the senior legal director at The Wilderness Society, said in a statement.

“They’re saying that public lands’ role in providing Americans the freedom to enjoy the outdoors, and conserve beloved places for future generations, is a second-class consideration.”