[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 3397, TO REQUIRE THE DIRECTOR OF
THE BUREAU OF LAND MANAGEMENT TO
WITHDRAW A RULE OF THE BUREAU OF
LAND MANAGEMENT RELATING TO
CONSERVATION AND LANDSCAPE HEALTH
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Thursday, June 15, 2023
__________
Serial No. 118-40
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-531 PDF WASHINGTON : 2024
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COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
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CONTENTS
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Page
Hearing held on Thursday, June 15, 2023.......................... 1
Statement of Members:
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 1
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Panel I:
Curtis, Hon. John R., a Representative in Congress from the
State of Utah.............................................. 4
Prepared statement of.................................... 5
Statement of Witnesses:
Panel II:
Noem, Hon. Kristi, Governor, South Dakota.................... 7
Prepared statement of.................................... 9
Gordon, Hon. Mark, Governor, Wyoming......................... 13
Prepared statement of.................................... 14
Panel III:
Culver, Hon. Nada Wolff, Principal Deputy Director, Bureau of
Land Management, Washington, DC............................ 51
Prepared statement of.................................... 53
Questions submitted for the record....................... 57
Chandler-Henry, Kathy, Board Chair, Eagle County Board of
Commissioners, Eagle, Colorado............................. 63
Prepared statement of.................................... 64
Sgamma, Kathleen, President, Western Energy Alliance, Denver,
Colorado................................................... 66
Prepared statement of.................................... 67
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Westerman
Proposed Bureau of Land Management Rule.................. 28
Arizona Cattle Growers Association, letter to the
Committee.............................................. 101
Various stakeholders from the grazing industry, letter to
BLM dated June 6, 2023................................. 104
Various multiple-use groups, letter to BLM dated June 7,
2023................................................... 107
American Exploration & Mining Association, letter to the
Committee dated June 15, 2023.......................... 109
Multiple farm bureaus, letter to Rep. Curtis dated June
14, 2023............................................... 117
American Forest Resource Council, letter to Rep. Curtis
dated June 13, 2023.................................... 118
American Exploration & Production Council, letter to the
Committee dated June 15, 2023.......................... 119
Various Mining Coalitions, letter to the Committee dated
June 15, 2023.......................................... 120
Council of Alaska Producers, letter to the Committee
dated June 14, 2023.................................... 122
Independent Petroleum Association of America, letter to
the Committee dated June 15, 2023...................... 123
National Sand, Stone & Gravel Association, letter to the
Committee dated May 24, 2023........................... 124
Resource Development Council, letter to the Committee
dated June 15, 2023.................................... 125
Women's Mining Coalition, letter to BLM.................. 126
Solar Energy Industries Association, Statement for the
Record................................................. 142
Rocky Mountain Elk Foundation, letter to BLM dated June
15, 2023............................................... 143
American Forest Resource Council, letter to BLM dated
June 23, 2023.......................................... 146
Submissions for the Record by Representative Fulcher
Idaho Delegation, letter to BLM dated May 11, 2023....... 77
Western Governors, letter to DOI dated June 14, 2023..... 162
Submissions for the Record by Representative Curtis
Various Recreation Associations, letter to Committee
dated June 20, 2023.................................... 167
Submissions for the Record by Representative Hageman/Stauber
Small Business Administration Office of Advocacy, letter
to DOI dated June 13, 2023............................. 38
Submissions for the Record by Representative Grijalva/Huffman
California Natural Resources Agency, letter to Committee
dated June 13, 2023.................................... 22
Submissions for the Record by Representative Huffman
Letter from Congress to DOI dated February 15, 2023...... 88
Letter from Congress to DOI dated June 12, 2023.......... 90
LEGISLATIVE HEARING ON H.R. 3397, TO REQUIRE THE DIRECTOR OF THE BUREAU OF.
LAND MANAGEMENT TO WITHDRAW A RULE OF THE BUREAU OF LAND MANAGEMENT
RELATING TO CONSERVATION AND LANDSCAPE HEALTH
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Thursday, June 15, 2023
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The Committee met, pursuant to notice, at 9:03 a.m., Room
1324, Longworth House Office Building, Hon. Bruce Westerman
[Chairman of the Committee] presiding.
Present: Representatives Westerman, Lamborn, Wittman,
Gosar, Graves, LaMalfa, Gonzalez-Colon, Fulcher, Stauber,
Curtis, Tiffany, Rosendale, Boebert, Bentz, Collins, Duarte,
Hageman; Grijalva, Huffman, Gallego, Leger Fernandez,
Stansbury, Peltola, Hoyle, and Kamlager-Dove.
Also present: Representative Johnson.
The Chairman. The Committee on Natural Resources will come
to order.
Without objection, the Chair is authorized to declare a
recess of the Committee at any time.
The Committee is meeting today to hear testimony on
Representative Curtis' bill, H.R. 3397, to require the director
of the Bureau of Land Management to withdraw a rule of the
Bureau of Land Management relating to conservation and
landscape health.
I ask unanimous consent that Representative Dusty Johnson
of South Dakota be allowed to participate in today's hearing
from the dais.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I therefore ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I now recognize myself for an opening statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
The Chairman. Again, good morning, everyone. It is a little
bit earlier starting time, but hopefully we will get out of DC
a little bit earlier today, and we wanted to have plenty of
time for the hearing.
We are here today to consider H.R. 3397, which would
require the Bureau of Land Management to withdraw its proposed
so-called Conservation and Landscape Health Rule. In short,
this rule would devastate rural economies across the West under
the guise of conservation. The rule would only further this
Administration's radical preservationist agenda.
More than half of the U.S. population lives within 100
miles of BLM land. Thousands of rural economies depend on
access to BLM lands for energy and mineral development, outdoor
recreation, timber production, grazing, and more. These
activities are all part of the BLM's multiple-use and
sustained-yield mandate, which create hundreds of millions of
dollars in economic output, and sustain over 783,000 jobs.
Now, the BLM is threatening to upend its multiple-use
mandate and the Western way of life. The rule would broadly
allow the BLM to lease lands under new and vaguely defined
conservation leases, incorporate new standards when evaluating
traditional multiple-use decisions, and expedite designations
of new areas of critical environmental concern.
One of the greatest concerns is how the rule would
fundamentally change the way BLM carries out its multiple-use
and sustained-yield mandates by elevating conservation as a use
within the Federal Land Policy and Management Act of 1976, also
known as FLPMA, thereby bypassing congressional authority. BLM
would pursue this through so-called 10-year conservation leases
to address restoration of degraded landscapes.
And one of the main problems with this is BLM seems to
think preservation is the same as conservation, and it is
certainly not. This type of playbook is not new for the Biden
administration. No amount of clever naming schemes will
disguise the fact that their policies are quite simply
atrocious. You might recall the 30x30 Initiative, which was
quickly rebranded as the America the Beautiful Initiative. We
aren't fooled by Trojan Horses.
The BLM's proposed conservation rule is anything but, and
it fails to even define what exactly would be considered
conservation or permissible under a conservation lease. While
the definition goes so far as to say it will not prevent non-
commercial activities, this is in itself limiting, because many
members of the public access Federal lands through commercial
outfitting and guiding services, which would, by definition, be
excluded. As a lifelong hunter and fisherman myself, I am
deeply concerned that this will have devastating effects on the
outdoor recreation economy, which heavily depends upon
outfitters and guides.
The rule also states that, ``Lands could be temporarily
closed to public access,'' yet remains silent on how long these
closures could last, meaning that the American people could be
blocked from accessing an area under a conservation lease for
the majority or entirety of the lease's 10-year term.
Our Committee's members and staff have repeatedly asked the
BLM these and many other questions, yet the agency has failed
to give us any clear answers on how they will implement this
rule. We have held three hearings in the past 2 months where
Members have been able to engage with agency officials on the
rule, including DOI Secretary Deb Haaland, and the BLM
Director, Tracy Stone-Manning. Witnesses have shared their
opposition to the implementation of this rule, and Members on
both sides of the aisle have expressed their concern.
The BLM itself has only held three in-person listening
sessions on the rule in densely populated cities: Denver,
Albuquerque, and Reno. These areas do not adequately represent
the impacted communities. The agency also failed to respond to
a letter I sent with 13 of my colleagues asking them to extend
the comment period on this rule and hold more in-person
listening sessions.
This is why we are advancing H.R. 3397, which would require
the BLM Director to withdraw this devastating rule, and would
prevent the BLM from issuing a substantially similar rule in
the future. I look forward to hearing our witnesses' testimony
and discussion today on why this legislation is so critical to
push back on over-reaching regulations. American citizens in
rural areas across the West deserve better than the BLM's hard-
fisted bureaucracy.
I would particularly like to thank Governor Kristi Noem,
who is no stranger to this hearing room, having served on the
Committee before, she is now the Governor of South Dakota, as
we all know, and Governor Mark Gordon of Wyoming for traveling
to DC today to testify on this important subject. And it is
great to hear from the real world, where these policies will
have devastating impacts. And I look forward to hearing the
testimony of the governors.
With that, I yield back my time and now recognize Ranking
Member Grijalva for his opening statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Chairman Westerman. I
appreciate the opportunity to talk about BLM's newly-proposed
public lands rule, Even if I don't appreciate the context in
which the discussion is happening.
The proposed rule is long overdue. It is a long-overdue
update to how we manage our public lands. As laid out by the
Federal Land Policy and Management Act, FLPMA, BLM has a
mandate to manage our public lands for multiple uses in a way
that will ``best meet the present and future needs of the
American people.'' To meet the needs of our future, there is no
question that conservation must be part of that multiple-use
equation.
Unfortunately, however, conservation has historically taken
a back seat to all other uses, including mining, oil and gas
extraction, and even grazing. These other land uses have long-
standing agency systems and protocols that provide access and
set forth consistent guidelines and expectation. Conservation
does not. So, it is important to see the Biden administration
finally putting conservation on an equal footing and seeking
balance.
The proposed rule establishes a framework to promote
restoration, provide for responsible development, and conserve
intact, healthy landscapes.
As it stands now, over 90 percent of BLM lands are open to
commercial development. The new rule won't change that at all.
But public lands are not just a backdrop for oil rigs and
mining pits. They include incredible natural places where
Americans hike, fish, camp, bike, or seek respite.
Many of the agency's crown jewels are found on the 35
million acres of national conservation lands, places like Bears
Ears National Monument in Utah and the Sonoran Desert National
Monument in my home state. Considering these special places is
not a radical idea, it is what the American people want.
Year after year, the Colorado College State of the Rockies
Poll shows a broad majority support increased conservation.
It is also important to point out that BLM is responsible
for managing a countless array of cultural and archeological
resources. That is exactly why tribal communities throughout
the country have been calling on lawmakers to support
conservation of their ancestral homelands. It is way past time
that we start listening.
The proposed rule does just that by creating a critical
opportunity for BLM to incorporate feedback from tribes and
elevate the role of Indigenous traditional ecological knowledge
into the planning.
And finally, I will point out that the Biden administration
has committed to the permitting of 25 gigawatts of renewable
energy on public lands by 2025. The proposed public land rule
complements that effort by creating a new mechanism for
mitigation to occur on public lands. Simply put, the proposed
rule will help BLM finally establish the balance that will best
meet our present and future needs.
Repealing this rule only endorses a status quo of imbalance
and unsustainability, the burden which our future generations
will be forced to bear.
I look forward to our discussion today. I welcome our
distinguished guests to the Committee.
Mr. Chairman, I yield back.
The Chairman. Thank you, Ranking Member Grijalva. We will
now move on to our first panel, which consists of
Representative John Curtis of Utah, who is the bill's sponsor.
I now recognize Representative Curtis to testify for 5
minutes on H.R. 3397.
STATEMENT OF THE HON. JOHN R. CURTIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
Mr. Curtis. Thank you, Mr. Chairman, for holding this
hearing. Thank you to our distinguished witnesses for being
here.
I am sitting here, and having a hard time, literally,
having my head not explode.
There is one Member across the aisle at this hearing at the
beginning and two total at this hearing now. This is the same
reflection of those in the East Coast who would like to come to
us in the West and tell us how to manage our lands, and what is
good and bad.
Let me state clearly for the record that for decades, and
decades, and decades, the good people of Utah have managed
these lands in a responsible way, far better, Mr. Ranking
Member, than since the Bears Ears Monument designation. Nothing
good has come out of that designation for the land in Utah, for
the local tribes, and for the people who participate in this
land. And now we have bureaucrats on the East Coast who have
never been to my district, who have hardly been to the West,
other than to fly over it on their way to California, tell us
that they know better than we do how to manage these lands.
That is simply not true based on any fact.
If you come to see these lands, how we have managed them,
how we have protected them, how we have taken care of them, how
we have balanced recreation with agriculture, with extraction,
with the many beauties in this area, first of all, I would like
to go on the record of saying that in the West we know far
better how to manage these lands, and have done better for
decades and decades, than any bureaucrat in the East Coast
could ever imagine or ever dream of managing these lands.
The bulk of my district is over 90 percent Federal lands.
Think about that for just a minute. Ninety percent of my
district doesn't get property tax, doesn't have the ability to
manage their own fate. Ninety percent. Our state is 60 percent.
And I know our two witnesses have similar percentages in their
state. Yet, people from the East who have never been there,
want to tell us how to manage these lands and what we can do
with these lands.
And once again, I will say that for decades, and decades,
and decades, the best environmentalists in the world--by the
way, they hate to be called environmentalists, our farmers and
ranchers are the best environmentalists in the world--have been
taking care of and preserving and protecting these lands.
This rule undermines the work of real conservatives,
conservationists like farmers and ranchers who have kept the
land in good health. It will increase the likelihood of
wildfires. Poor management of these lands will increase the
likelihood of fires. It will increase our food shortages and
our energy shortages. None of these things are good for the
people of the United States, let alone the people of the West.
The repeal of this designation is critical to proper
management of these lands. And I would like to thank our
Chairman and our witnesses again and my colleagues for being
here. And I hope that, through the course of this hearing
today, we will understand truly how to best manage these lands,
preserve, take care of our beautiful resources in the West.
With that, Mr. Chairman, I yield my time.
[The prepared statement of Representative Curtis follows:]
Prepared Statement of the Hon. John R. Curtis, a Representative in
Congress from the State of Utah
on H.R. 3397
H.R. 3397--To require the Director of the Bureau of Land Management
to withdraw a rule of the Bureau of Land Management relating to
conservation and landscape health.
The Biden Administration's rule undermines the Federal
Land Policy and Management Act's (FLPMA) multiple-use
requirement for Bureau of Land Management (BLM) lands,
hindering access to public lands for energy and critical
mineral development, grazing, forest management, and
recreation.
More than 90% of BLM's 245 million acres are located in
the Western United States, and the rule would
disproportionally impact Western recreationalists, ranchers
and mineral producers.
+ And a lot of that land is located in Utah.
This rule undermines the work of real conservationists,
like farmers and ranchers who have kept the land in good
health for generations.
It would create increased risk for wildfires as lands
prone to disaster would be locked up and not properly
managed.
It would also hinder American energy independence by
making it harder to produce oil, gas and coal while also
making it more difficult to site and build renewable energy
facilities.
Utahans are proud of our land and want to share with
recreationalists who come from all over the world to enjoy
it. Under this rule, multiple use opportunities for
recreationalists shrink drastically.
Americans all over the country will feel the impact of
this rule if implemented. Food costs will rise as the rule
will impact grazing. Already too high energy prices will be
further impacted as land used for critical energy
development will be locked up.
The rule would lock up lands through new ``conservation
leases'' and by the identification of intact landscapes
through the BLM's Resource Management Plan process.
The rule is a land grab disguised as a 30 x 30
accomplishment and must be revoked.
______
The Chairman. Thank you, Representative Curtis. We will now
move to our second panel of witnesses.
And Governor Gordon, Governor Noem, again, welcome, and I
will just remind you that, under Committee Rules, you must
limit your oral statements to 5 minutes, but your entire
statement will appear in the hearing record.
And to begin your testimony, just press the ``on'' button
on the microphone.
We do use timing lights. When you begin, the light will
turn green. At the end of 5 minutes, the light will turn red. I
will ask you to please complete your statement if you haven't
done so by that time.
I would now like to introduce Representative Dusty Johnson
from the great state of South Dakota to introduce our first
witness.
Mr. Johnson. Mr. Chairman, I think we all know a lot of
politicians who will be whatever you want them to be. And if
the political winds change, they will just change who they are
just that quickly. And that is not Kristi Noem. I have known
her for a long time, and I have seen her act, and I have seen
her step forward and make decisions. And time and time again, I
have seen her make decisions not on the basis of what would
increase her political comfort, but what would better serve her
oath of office. And you guys understand the paradox of that.
Often when you make those tough decisions, they end up becoming
the popular thing. And in that way she has led public opinion,
in that way she has made great decisions for our state, in that
way she has been a great leader.
So, thank you to the Committee for letting me show up as an
off-Committee member, just to show up and brag by saying this,
and I am the only Member of Congress who can say this, that is
Kristi Noem, and she is my governor.
STATEMENT OF THE HON. KRISTI NOEM, GOVERNOR, SOUTH DAKOTA
Governor Noem. Thank you, Congressman Johnson. It is an
honor to be here. I was ready for some kind of a joke or
something I had to respond to, but thank you very much for that
kind introduction. I have enjoyed watching you serve in the
seat that represents South Dakota here, and you have done so
with distinguished honor. So, I appreciate all of your service
to our state and our people. Thank you.
Good morning, Chairman Westerman, and Ranking Member
Grijalva, and the members of the Committee. It is my honor to
be with all of you today. In fact, my former Chief of Staff
just gave me my old nameplate from this Committee, when I had
the chance to serve with all of you, which is incredibly
special to me. I would put it up here today and use it, except
for I don't get the chance to sit where you sit today. This is
not a decision that I will get the chance to make. This is
something that has congressional authority, and you need to act
in order to protect our people and to protect our freedom.
Today, I sit in front of you as a governor and as a former
farmer and rancher, and someone who recognizes the deep
devastation that if this proposed rule should go forward, how
hard it would be on our people, and what it means for our
nation far into the future.
I remember vividly my time serving here on this Committee,
and I remember fondly working with many of you, who sat on this
Committee with me as well during that time, and the good work
we were able to do in preserving our natural resources.
Today, as the current governor of the great state of South
Dakota, I want to direct my comments specifically to a piece of
legislation that you are debating and considering: H.R. 3397.
This legislation would require the Director of the Bureau of
Land Management to withdraw a rule relating to conservation and
landscape health.
This rule is just one of many that highlights an example of
over-reaching, unelected bureaucracy attempting to perpetuate
radical environmental policies that ignore common sense. They
ignore stewardship practices that have been practiced on our
land for generations while allowing multiple uses of this
precious resource to strengthen America and our people. We have
been doing that for many, many years.
In my written testimony, which I have submitted today to
you, Mr. Chairman, I list several specific reasons why this
rule would be so devastating for our people in South Dakota and
for our economy, why I think it is impossible for them to move
forward with this, and to responsibly conserve our land. I
encourage all of you to read that written testimony. It goes
into much more detail.
In addition to my testimony today, I have joined a letter
with other governors, with governors of Utah, Idaho, Montana,
Nevada, and my friend sitting here with me today, Governor Mark
Gordon of Wyoming. He is a voice, and they all voiced concerns
with the Biden administration directly on this proposed rule.
Like many of you, land conservation for our family isn't
just a theory. It is the way that we have lived for many, many
generations. I was raised by a dad who often reminded me,
``Kristi, we don't sell land because God is not making any more
land.'' From the time I was a young girl, I listened to him
talk about soil types, I listened to him talk about the
importance of native ground, conservation practices, and
management decisions.
I learned the scientific data and the research of what it
took to operate on that land and to protect it, but I also
learned why he cared so much. Because working the land wasn't
just a job or a career to my father, it was our family legacy,
it was our way of life. It was a culture that not only
preserves a critical work ethic that is so important to this
country, but it also reminded us daily of the natural resources
that were a gift from God.
As I grew older, I learned more about the importance of
keeping all areas of our country productive. To help stabilize
the economy, every part of our nation needs to produce, and
that would help us during very difficult economic times.
I also learned how critical it was to be energy
independent, how important it was to protect our nation's food
supply, and to produce our own food.
When I was elected governor, I selected a fellow rancher as
my lieutenant governor. His name is Larry Rhoden. To our
knowledge, we are the only governor and lieutenant governor in
the history of the nation that both spent our lives making a
living from agriculture. We are very proud of that, and we
understand as well as anyone that our farmers and our ranchers
care about our land. They are stewards. We care about
preserving it to pass it on to our kids and to our grandkids.
My experience in business and in public office and national
security issues has reaffirmed my belief that our enemies and
those who hate the United States of America may never need to
fire a shot to take us over. They may not need to. We are going
to be surrendering our freedom by becoming more dependent on
them for our critical needs: for gas, oil, food, medicine, and
more. When a country controls our food supply and our energy
supply, they will control us, and American freedom will be
gone. We cannot allow rules like this to move forward in a way
that stops productivity and it stops American independence.
Nearly 98 percent of BLM surface lands in South Dakota are
grazed by permittees. Grazing is an important conservation
strategy in South Dakota. We also host 76 active producing oil
and gas wells and 36,762 acres. These acres provide outdoor
recreation opportunities, including hunting, fishing, hiking,
camping, and more. And we must maintain public access in order
for these lands to benefit both South Dakota residents and
visitors.
Mr. Chairman, I am smart, and I realize I am out of time,
and you have a tight schedule, but I have much more I would
like to share with the Committee today on what specifically is
wrong with this rule and why it doesn't work, the redundancy in
it, the unnecessary burden it creates, how it stops
productivity. And the No. 1 concern for me is that conservation
is already incredibly a part of every single management
practice that happens on BLM land. To go out there and to
create a mechanism such as a conservation lease that could be
bought by third parties, not even necessarily by people in our
own country, and give them access and authority over these
lands, it is dangerous. It is not just dangerous to those that
are out there working the land, it is dangerous to our economy,
it is dangerous to our energy independence, to producing our
own food supply. It is dangerous to America.
Thank you so much, Representative Curtis, for bringing this
piece of legislation.
With that, Mr. Chairman, I will yield back.
[The prepared statement of Governor Noem follows:]
Prepared Statement of Kristi Noem, Governor of South Dakota
Introduction
Good morning, Chairman Westerman, Ranking Member Grijalva, and
members of the Committee. Thank you for the opportunity to be with you
all today. I recall vividly my tenure on this committee and remember
fondly working with many of you on both sides of the aisle to achieve
important priorities for the American people.
Today, I come before you not as a committee member, but as a former
colleague and current Governor of the great state of South Dakota. I
would like to direct my comments this morning to the important piece of
legislation the committee is considering--H.R. 3397. This legislation
would require the Director of the Bureau of Land Management (BLM) to
withdraw a rule relating to conservation and landscape health.
I stand with Representative John Curtis of Utah, the sponsor of
H.R. 3397, and his fellow Representatives who are co-sponsoring the
legislation.
In addition to my testimony today, I have joined a letter with the
Governors of Utah, Idaho, Montana, Nevada, and Wyoming to voice these
concerns to the Biden Administration directly.
There are several reasons why I believe this rule needs to be
withdrawn immediately:
The rule creates unnecessary redundancy in scope and practice.
It fails to follow long-established NEPA requirements.
The rule fails to properly balance the proposed definition of
``conservation'' with the economic impact on South Dakotans and
Americans.
It also prioritizes conservation leases over other proven proper
uses of public lands.
The rule would limit the public's access to federal lands and deny
them the ability to utilize and enjoy our landscapes and outdoor
activities.
It would also limit grazing on public lands. This would be
devastating to our producers, our economy, and our ability as a nation
to produce our own domestic food supply--all while limiting a critical
management practice.
The rule would also negatively impact our ability to manage our
forests responsibly to the benefit of our land, wildlife, public
safety, and economy.
This rule is just one of many which highlights an example of an
overreaching, unelected bureaucracy attempting to perpetuate radical
environmental policies that ignore common sense stewardship practices
that have protected our land for generations, while allowing multiple
uses of this precious resource to strengthen America and our people.
We have seen these types of actions before, such as in the Waters
of the United States rule proposed by President Biden. We've also seen
it in the 30x30 program that has now been deceptively rebranded as
``America the Beautiful.'' But make no mistake, it is a land grab
initiative purposely designed to make the federal government more
powerful and to take more control over people's daily lives.
My family has lived off the land for generations. I was raised by a
dad who often reminded me, ``Don't sell land, Kristi. God isn't making
any more land.''
From the time I was a young girl, I listened to him talk about soil
types, native ground, conservation practices, and management decisions.
I learned the scientific data and research that was necessary to
protect the land, but I also learned why he cared so much--because
working the land wasn't just a job or a career to him. It is a family
legacy, a way of life, and a culture that not only preserves a critical
work ethic, but also reminds us daily of the natural resources that are
such a gift to this country.
As I grew older, I learned more about the importance of keeping all
areas of our country productive to help stabilize our economy through
difficult times. I also learned how critical it is that we continue to
be energy independent and produce our own food supply.
When I was elected Governor, I asked a fellow rancher, Larry
Rhoden, to serve as my Lieutenant Governor. To our knowledge, we are
the first Governor/Lieutenant Governor combination in our country's
history that both primarily earned their living working in agriculture.
We understand as well as anyone that our farmers and ranchers care
about our land. We care about preserving it to pass on to our kids and
grandkids.
My experience in business, public office, and national security has
reaffirmed my belief that our enemies and those who hate the United
States of America may never choose to fire a weapon at us. They may not
need to. We are surrendering our Freedom by becoming more dependent on
them for our critical needs: gas, oil, food, medicine, and more. When a
country controls our food supply or our energy supply, they will
control us. And American Freedom will be gone. We cannot allow rules
such as this one to move forward in a way that stops productivity and
American independence.
Background
Nearly 98% of all BLM surface lands in South Dakota are grazed by
permittees. Grazing is a proven and effective conservation strategy in
South Dakota and across much of the Great Plains and the Western United
States. South Dakota also hosts 76 actively producing oil and gas
leases that cover 36,762 acres. The acres managed by BLM in South
Dakota provide outdoor recreation opportunities including hunting,
fishing, hiking, camping, and others. Maintaining public access to
those lands is of critical importance to South Dakota residents and
visitors.
Unnecessary Redundancy to Existing Law
The Federal Lands Policy and Management Act of 1976 (FLPMA)
requires that BLM manage public lands for multiple use and sustained
yield. Multiple use requires a balanced use of diverse resources to
meet the present and future needs of the American people. Conservation
is a tool to ensure those resources are managed in a way that promotes
resiliency to natural disturbance events and achieves sustainable use
of those resources for the long-term.
The proposed rule seeks to clarify that ``conservation is a use on
par with other uses of the public lands under FLPMA's multiple-use,
sustained-yield framework.'' Conservation is not a `use,' but an
overarching objective in all other uses. This rule, as proposed, seats
conservation as a competing use to those others listed, when it is
already mandated by those other uses. The proposed rule is both
unnecessary and redundant.
Compliance with NEPA
The proposed rule will have a significant impact on the environment
and should trigger an environmental impact statement (EIS) under the
National Environmental Policy Act (NEPA). BLM has stated that the
proposed rule is too broad and thus exempt from the NEPA process. I
disagree with BLM's determination. If private Americans must follow
NEPA, then so should the federal government.
Imbalance of Conservation versus Economic Needs
This proposed rule overemphasizes conservation rather than the
economic needs of the American people. Resources like minerals, mining,
and fields for grazing are critically important for the continued
success of our economy. But the proposed rule broadens the application
of the fundamentals of land health from just public land grazing to all
other renewable resource uses.
The rule does not include an economic analysis evaluation. It also
does not provide any data to indicate better outcomes for conservation
practices if implemented. They claim that the rule does not have a
``significant economic effect,'' or that it does not affect ``a
significant number of small entities.'' BLM provides no support for
this ridiculous claim. And they're declaring that it's not a ``major
rule'' based on this analysis.
The more I read the rule, the more offended I was.
In addition, BLM should not eliminate the requirement to publish
potential designations of Areas of Critical Environmental Concern in
the Federal Register. This provides states and other interested
stakeholders time to consider the economic and environmental impacts to
those areas prior to the public comment period.
Competition from Conservation Leases
The ``. . . proposed rule would provide a framework for BLM to
issue conservation leases on public lands for the purpose of pursuing
ecosystem resilience through mitigation and restoration.'' As
previously stated, creating a new use targeted solely at conservation
creates unnecessary competition for the other approved uses. Rather
than creating a new rule that proposes conservation as a use, BLM
should follow its existing mandate to review all permits and lease
applications to adhere to conservation guidelines and standards for use
of public resources.
Also, conservation leases can be bought up by outside groups that
do not adhere to or embrace the mission of federal land use--even
activist groups.
Maintain Public Access
Public lands in South Dakota provide opportunities for hunting,
fishing, hiking, camping, and other types of recreation. But the
proposed rule says that ``. . . the purposes of a lease may require
that limitations to public access be put in place in a given instance
(for example, temporarily limiting public access to newly restored
areas).'' That is simply unacceptable.
Some tracts of BLM land in South Dakota are vast landscapes. BLM
should not limit access to entire leased areas when only a fraction of
a landscape is in a restorative state. Larger tracts of land offer
better recreational opportunities by spreading pressure out, which is
less likely to push big game away.
South Dakota prioritizes our Walk-In Area hunting access program to
enroll private lands that are adjacent to BLM lands. This creates
larger blocks of land open to public hunting and increases access
opportunities that might otherwise not be available from isolated BLM
tracts.
If a proposed lease must restrict access to any public lands for
the purpose of restoration, public access must be addressed. There are
currently BLM parcels in South Dakota and across the western US that
are landlocked within private lands. Rather than implementing new ways
to restrict access to BLM lands, BLM should put more time, funding, and
efforts into accessing landlocked BLM lands.
Grazing Management
As stated earlier, nearly all surface lands managed by BLM in South
Dakota are grazed by permit or lease. Livestock grazing is an important
management tool that grasslands have evolved with over millennia.
Grazing aids in promoting biodiversity, keeps fire fuels low, and
promotes a robust rural economy. Further, rotational grazing promotes a
healthy ecosystem and is an important tool for conservation.
In South Dakota, BLM tracts are comingled with private land and
lands owned by the South Dakota Office of School and Public Lands
(SDSPL). Because of the small and isolated nature of BLM lands in South
Dakota, these are often comanaged as a unit and BLM lands are not
separately fenced. As a result, critical infrastructure such as water
sources, mineral supplement, interior fences for promoting sustainable
grazing practices cannot be easily severed from the existing BLM,
private, and SDSPL complexes. If this rule is implemented in a manner
where the comingled nature of BLM is not accounted for, the
implementation of this rule would result in hardship for the local
landowners and the SDSPL to manage their lands adjacent to BLM lands.
Additionally, severing these BLM lands from existing grazing
management may result in less conservation because the lands are no
longer managed on a landscape scale.
Forestry
BLM manages over 34,000 acres of forestland in South Dakota. BLM
should focus on using authorities already in place, such as a Good
Neighbor Agreement, to manage these forests. South Dakota adheres to
forestry best management practices. There is no need to create
additional guidance for forest management activities to address
conservation concerns.
Biden Administration Overreach
This proposed rule reminds me of President Biden's failed effort to
overregulate so-called ``Waters of the United States.'' His
administration wanted to redefine the phrase ``navigable waters'' as
described in the Constitution to regulate every drop of water and every
inch of land from coast to coast. The Biden Administration stated
publicly their desire to seize control of thirty percent of all land in
the United States by the year 2030. These efforts are un-American and
unconstitutional. The American people do not want an overburdensome
federal government breathing down their neck when they seek to use
their private property.
Justice Alita and the Supreme Court made this abundantly clear in
the recent Sackett opinion. The authority to regulate the environment
is not a blank check to make up rules that take away liberty. This BLM
rule, like the unconstitutional WOTUS rule, would take power away from
the states and the people and give it to the federal government.
It's not to say the federal government doesn't have a role in
federal land management decisions, of course it does, but it should not
restrict people's abilities to have access or utilize this natural
resource while ignoring economic impact--or even conducting basic
scientific research.
Conclusion
In closing, I support H.R. 3397 because the rule BLM has proposed
would be bad for the country. Moreover, the proposed rule opens the
door for a mechanism to circumvent the NEPA process and not require an
environmental impact study.
Let me be clear, this is a land grab by a greedy government that
wants more power and control and will even ignore its own laws to do
so. Lastly, this rule would be devastating for our people in South
Dakota and our economy. And it would make it impossible to responsibly
conserve or utilize our land.
______
The Chairman. Thank you, Governor. And we will have plenty
of time for questions. We will get to delve into the details of
your testimony even more.
I now recognize the gentlelady from Wyoming, Ms. Hageman,
to introduce our second witness.
You are recognized.
Ms. Hageman. Yes, and it is so wonderful to see both of you
today.
There are a lot of differences between Washington, DC and
Wyoming, but one of them is traffic.
[Laughter.]
Ms. Hageman. Maybe you have noticed that. I apologize for
being a few minutes late. It is so wonderful to see both of you
here today.
Mr. Chairman, it is my honor to introduce from the great
state of Wyoming, Governor Mark Gordon. Governor Gordon grew up
on a family ranch in Wyoming, and understands firsthand the
difficulties of dealing with over-burdensome Federal
regulations in a landlocked state. He is an experienced public
servant, having served as Wyoming State Treasurer from October
2012 until January 2019, when he was sworn in as our governor.
As our governor, he is here today to represent the
interests of many frustrated farmers, ranchers, recreationists,
and others who have been left out of the conversation on this
so-called landscape health rule proposed by the BLM.
I would add that this rule isn't about either conservation
or landscape health, either one. It is about control. And I
look forward to Governor Gordon's testimony in that regard.
I ask those of you who consider this proposed rule to be a
great conservation effort with minimal impacts to listen to his
testimony. Governor Gordon knows Wyoming, and he understands
the significance this proposed rule will have on Wyomingites
and many others if we don't do anything about it.
Thank you for being here today, Governor Gordon, and I
yield back.
STATEMENT OF THE HON. MARK GORDON, GOVERNOR, WYOMING
Governor Gordon. Mr. Chairman, members of the Committee,
Representative Hageman, it is wonderful to be here today. On
behalf of the people of Wyoming, as a rancher, an outdoorsman,
and a conservationist, let me thank you for this opportunity to
share my support for H.R. 3397, Representative Curtis' bill,
and my opposition to the Bureau of Land Management's proposed
Conservation and Land Use Rule.
More than 48 percent of Wyoming is Federal surface estate.
The BLM's footprint in Wyoming is substantial, managing
approximately 18.4 million acres of public land and 42.9
million acres of Federal mineral estate. This equates to over
29 percent of Wyoming's surface land, covering more than West
Virginia.
Wyoming's top three economic drivers: energy, tourism, and
agriculture, all contribute meaningfully to conservation, in
concert with the multiple-use principle of Federal law and
BLM's existing rules. Wyoming routinely ranks first in the
nation for gas production and second for oil production from
onshore Federal minerals. In 2022, 7.5 million tourists visited
the Equality State, spending $4.5 billion. Public land
recreation contributes substantially to Wyoming's economy.
Agriculture is our third-largest economic sector. Grazing
on public lands is done under tight regulation and with
dedication to stewardship of the land while supporting a
domestic food supply. Mr. Chairman, members of the Committee,
Wyoming ranchers are custodians of the public lands, and work
well with agencies on grazing issues. I am proud that my ranch
was recognized for excellence in range management by the
Society for Range Management. It lies in core sage-grouse
habitat.
In 2014, my wife and I stood with eight others when we
signed the first candidate conservation agreements with
assurances with then-Secretary of the Interior Sally Jewel. And
I remember what she said that day: ``We have going on here in
Wyoming the most effective example of state and private
landowners working in cooperation with multiple Federal
agencies to protect these ecosystems in perpetuity.''
Mr. Chairman, my point is not what we have done for
conservation, but the fact that Wyoming ranchers, industries,
and sportsmen are conservation-minded. And that is true
throughout the West. In the words of Teddy Roosevelt,
``Conservation means development as much as it does
protection.'' Wyoming people have respected the importance of
conservation from the early days of statehood, when we
established the nation's first game and fish agency. Respecting
private property rights, Wyoming was one of the first states to
recognize and implement wildlife migration corridors. We have
successfully managed the nation's largest population of greater
sage-grouse, and that is because we have the best habitat.
Simply put, if it ain't broke, don't fix it. The best
solution is to rescind this rule.
In fact, I question the need to create a separate
conservation category. The Federal Land Policy and Management
Act of 1976 requires the full consideration of multiple uses of
Federal lands as directed by Congress, not the whimsical
inspiration of DC bureaucrats. Though the BLM has claimed that
there are ``pressures to review FLPMA'' and ``fill in the
gaps,'' that is not the Bureau's role. It is up to Congress to
write the laws, not the executive branch to take them for a joy
ride.
This proposal wallpapers over a Federal management grab,
which seeks to elevate conservation as a single use on BLM
lands. It does so while simultaneously abrogating the BLM's
responsibility to review decades of management practices across
its 245 million acres, and without material stakeholder input.
It pits productive uses of public land against conservation, a
gross mischaracterization of the concept.
Wyoming stands as an example of how grazing, energy
development, and recreation are not mutually exclusive of
conservation. Wildlife management, moreover, is the
responsibility, and squarely within the authority and purview
of the states, not the Federal Government. state agencies excel
in the management of fish and wildlife species, yet this rule
seeks to circumvent state authority, and doing so will throw a
monkey wrench into collaborative conservation work that our
citizens and state agencies do already with BLM offices.
Let me say my administration values the relationship we
have with Wyoming BLM staff, which is why it seems so
boneheaded to spurn valuable, on-the-ground stakeholder
knowledge and the ability to work with local partners to craft
a useful way forward. One can only assume, from the broad,
sweeping statements of this rule that it was pushed from the
top down to serve an agenda, rather than improve management of
the public lands.
Finally, Mr. Chairman, the language of this rule
inappropriately picks out and expands upon the BLM Organic Act
in ways that are arguably unconstitutional. This is not a
trivial matter. This rule has the potential to undermine how
public lands are managed and threatens the essential economies
of my state and our country.
Therefore, I urge the BLM to reconsider the need for the
Conservation and Landscape Health Proposed Rule, and reiterate
my support for Representative Curtis' bill, H.R. 3397.
Mr. Chairman, members of the Committee, thank you for this
time.
[The prepared statement of Governor Gordon follows:]
Prepared Statement of Mark Gordon, Governor of Wyoming
Chairman Westerman, Ranking Member Grijalva, and members of the
Committee, good morning. On behalf of the people of Wyoming, and as a
rancher, outdoorsman and conservationist, let me thank you for the
opportunity to discuss H.R. 3397 and the BLM's proposed Conservation
and Land Use rule with you today.
Wyoming is no stranger to federal lands. More than 48 percent of
Wyoming is federal surface estate, including the first national park,
the first national monument, and the first national forest. The Bureau
of Land Management's footprint in Wyoming is substantial. The BLM
manages approximately 18.4 million acres of public lands and 42.9
million acres of federal mineral estate. This equates to over 29
percent of Wyoming's surface land, covering an area larger than the
state of West Virginia. It is important to note Wyoming's top three
economic drivers, energy, tourism, and agriculture, have developed
successful industries and contributed meaningfully to conservation
across the state under the multiple-use principle of the federal law
and BLM's existing rules.
Wyoming routinely ranks first in the nation for gas production from
onshore federal minerals and second for oil production from onshore
federal minerals. Approximately 65 percent of Wyoming's oil and 79
percent of gas production are from federal minerals.
In 2022, seven and a half million tourists visited the Equality
State, spending $4.5 billion. Recreation, largely on public lands,
contributed $1.5 billion to the state's economy. More than 5 percent of
our employment stems from the recreation industry.
For food production, in Fiscal Year 2021, the BLM authorized over
1.4 million Animal Unit Months or AUMs on public lands, more than any
other state. Agriculture is the third largest sector of our economy,
and grazing is done under tight regulation and with dedication to
personal responsibility to ensure land stewardship while supporting a
domestic food supply.
Mr. Chairman and members of the Committee, as a rancher, I was
proud when my ranch received the Society for Range Management Wyoming
Section's Excellence in Range Management award. My ranch management
team followed up with another on the Ucross Ranch the following year.
Because of our work on that ranch, Apache Corporation, an oil and gas
company associated with Ucross, demonstrated the ability to sequester
2,640 metric tons of carbon per year from grazing management alone.
My ranch lies in core sage-grouse habitat. In 2014, my wife and I
stood alongside eight other ranchers who signed Candidate Conservation
Agreements with Assurances (CCAAs) with then Secretary of the Interior
Jewell. I remember her comments that day, ``We have going on here in
Wyoming the most effective example of the state and private landowners
working in cooperation with multiple federal agencies to protect these
ecosystems in perpetuity. I will say that Wyoming was way ahead of the
curve.''
Mr. Chairman and committee members, my point here is not
specifically what we have done for conservation but the fact that
Wyoming ranchers, industries, and sportsmen are conservation-minded. In
the words of Teddy Roosevelt, ``Conservation means development as much
as it does protection. I recognize the right and duty of this
generation to develop and use the natural resources of our land; but I
do not recognize the right to waste them, or to rob, by wasteful use,
the generations that come after us.''
Cooperation has enabled Wyoming to be one of the first states to
recognize and manage wildlife migration corridors essential to healthy
mule deer and antelope. We also successfully manage the nation's
largest population of the Greater Sage-grouse. We have known and
respected the importance of conservation from the early days of our
statehood when we established the nation's first game and fish agency.
And without hesitation, Mr. Chairman and committee members, I can say
the investment from energy development in natural resource management
would be a fraction of what we have now to protect and enhance habitat.
Wyoming ranchers are stewards of public lands and have worked well with
agencies on grazing issues. Wyoming is a haven for outdoor recreation.
All of these practices are complementary and envisioned in a multiple-
use sustained yield approach to managing public lands. So when it comes
to this proposed rule, simply put: It isn't broken, so don't fix it.
This proposed rule was rushed forward without material input from
Wyoming or other states. It did not have the benefit of the views of
impacted public land users. The proposed rule mischaracterizes
conservation, seeks to preempt wildlife management from the States, and
oversteps the Bureau's statutory authority.
The best solution is to rescind the rule.
I fully support Representative Curtis's H.R. 3397, co-sponsored by
Wyoming's Congresswoman Harriet Hageman. I also note that Wyoming
Senator John Barrasso brought a companion bill in the U.S. Senate.
Barring the rescission of the proposed rule, I call for the DOI and
BLM to extend the comment period for a thorough review and for
additional public meetings in Wyoming and other affected states--enough
of management by windshield, model, or fantasy. If one wants true
conservation, it must come from working with people on the ground.
This proposed rule caught state governments, agriculture, industry,
recreationists, and even local BLM offices entirely by surprise--
seemingly disdaining any input from those with the most knowledge and
expertise to craft a useful policy.
Let me be clear; my administration values the relationships we have
with the Wyoming State BLM Office and the District and Field Office
staff throughout the state, which is why it seems so boneheaded not to
include their on-the-ground knowledge and ability to work with local
partners in crafting this proposed rule. One is left to assume from the
broad, sweeping statements in the rule that it was pushed from the top
down to serve an agenda rather than improve the management of public
lands. Hosting public ``information sessions'' in hand-picked locations
with no opportunity to comment is not a responsible way to seek input
and will be counter-productive.
I have to question the need and the occasion to create a separate
conservation category, essentially overriding other statutory multiple
uses. The Federal Land Policy and Management Act of 1976 (FLPMA)
requires the full consideration and multiple-use of federal lands, as
directed by Congress, not the interpretation of D.C. bureaucrats. This
rule's potential to upend decades of management practices across the
BLM's 245 million acres requires extensive review and contributions
from those standing to be impacted. Abrogating the responsibility the
BLM bears to analyze the full range of impacts this rule will have on
communities, businesses, and the environment is the height of
arrogance. Meetings with the opportunity for engagement and comments
must be held in our state. Analysis of the implications is critical so
the public may have a say on their lands.
This proposal is wallpaper to cover a federal management grab. It
would likely elevate a mischaracterization of conservation as a single-
use on BLM lands. Currently, the proposed rule's definition of
conservation is a major consideration in every land-use decision on BLM
lands. This rule pits the productive use of public lands as
diametrically opposed to conservation, a gross misstatement. I have
already shown that Wyoming exemplifies how grazing, energy development,
and recreation are not mutually exclusive to conservation.
The BLM, in its June 5th virtual public meeting, justified this
proposed rule by claiming there are ``pressures'' to review FLMPA
authorities to fill in gaps in implementation. That is the role of
Congress.
If the BLM has not managed under FLMPA ``to sustain the health,
diversity, and productivity of the public lands'' without this rule
since 1976, what has the agency been doing for the last 47 years? Why
now this heavy-handed rewrite of Congressional authority?
Ranchers, companies, and organizations have achieved remarkable
conservation benchmarks throughout the years under this authority, and
it does not need to be tweaked. Responsible local management makes our
public lands productive and an enduring attraction to people worldwide.
The impetus for this rule exists because of the good work of these
entities. And yet, this proposed rule gives the BLM a checklist when
evaluating ``intact landscapes'' outside their normal planning process.
This can be read as a designation of entire segments of land to exclude
multiple uses in the name of keeping a landscape ``intact.''
Succession, erosion, and competition are not static processes--
something that Aldo Leopold noted over and over again.
Let me also state clearly; wildlife management is the
responsibility and within the authority and purview of the states--not
the federal government. State agencies lead in the conservation and
stewardship of all fish and wildlife species except for a few cases
where specific species fall under federal jurisdiction. And sadly, the
federal government's ability to recover species is not all that
compelling.
This rule seeks to circumvent State authority to define, analyze,
and manage wildlife within our borders. Instead of furthering the
collaborative work our State wildlife agencies currently do with local
BLM offices daily, this rule would drive a wedge while most likely
undermining local conservation efforts. As such, progress towards
achieving our shared goal of thriving populations of the public's
wildlife, healthier ecology, thriving local communities, and a better
understanding of management would be stymied. Communities would be
crippled, management compromised, riparian systems impacted, and
invasives left unchecked. This rule is wrongheaded.
Using tools like Areas of Critical Environmental Concern, or ACECs,
outside of their intended capacities is also misguided. The well-
established framework that includes public input through Resource
Management Plans should not be tampered with, yet, this rule opens the
door for interim evaluations and implementations, excluding any input
from the states, tribes, local governments, land users, and the
affected public. The authority to make management designations of BLM
land of this magnitude must be made by Congress and not left to
unelected officials. Land management is best when it is stable and is
most stable when management agencies respect those closest to the
managed area. Wild, whimsical policy swings like this rule have far
more potential to do lasting harm than working with people who know
what they are managing.
By now, it is probably pretty clear that I believe this proposed
rule is an inappropriate expansion of the BLM's Congressional mandate
and statutory authority. FLPMA charges the BLM with managing for
``multiple use and sustained yield unless otherwise specified by law.''
Congress has not granted the BLM any authority to define conservation
nor included it as an additional mandate with the ability to exclude
existing uses. How can I be so certain? Because I was here in 1976 and
remember conversations with former Assistant Secretary of the Interior
Jack Horton about FLPMA and the intent of Congress at that time. I
remember conversations with former Senator Cliff Hansen, for whom my
sister interned, and his views about FLPMA. It is up to the legislative
branch to write the laws, not the executive branch to take them out
joyriding. As a Governor, I have learned that much.
The language in this proposed rule selectively picks out and
expands on the BLM's Organic Act in a manner that is both wrong and
questionably constitutional. This rule encroaches on State's rights and
priorities and may violate federal law. The best thing for a bad idea
like this rule is to rescind it. Failing that, for the sake of the
American public, we need additional time to thoroughly analyze how the
BLM is going beyond its statutory scope of authority. What this rule
proposes is not trivial. It appears to have the potential to completely
undermine how public lands are managed in our country and upend major
pillars of my state's--indeed, the country's economy, our people's
standard of living, and the viability of far too many local
communities. I urge the BLM to reconsider the need for the Conservation
and Landscape Health proposed rule and reiterate my support for HR.
3397.
______
The Chairman. Thank you, Governor Gordon. And I thank both
of the governors for your testimony.
I was just thinking how blessed we are to have not only two
strong governors from Western states here, but two ranchers and
two true conservationists. I know a conservationist when I see
one, and I see two of them that know what they are talking
about at the witness table today.
With that, we are going to move to questions. Members will
have 5 minutes. I now recognize Mr. Fulcher for questions.
Mr. Fulcher. Thank you. And to our panel, thank you for
being here today. I know you have other things to do, but this
is real important, and we need you. So, thank you for that.
Governor Gordon, does Wyoming participate with SRS, Secure
Rural Schools funding, Payment in Lieu of Taxes?
And can you talk about that, and how that fits into your
budget when you put together the budget of each year and the
source of that funding? I want to just talk about money,
Federal money, for just a minute.
Governor Gordon. Mr. Chairman, Representative, thank you
very much for that question. Yes, we do. And mineral
development and the surface activities there contribute
mightily to our schools.
Wyoming has a constitution that requires our state to fund
a lot of our school activities. There is also local property
tax, and we have also funded it with a severance tax off
minerals. When we forego that, as we did in 2020, when COVID
hit and we shut down production of so much, that was roughly a
third of the state's total budget, an incredible hit to local
schools, to our school kids, and an incredible hit to our
county's ability to meet their needs.
Mr. Fulcher. So, Governor, given that, if you had the
option as a governor of your state and the ultimate director of
that budget, what would you prefer in that dynamic to control
the destiny of the land, to be able to manage that land that is
under Federal control and these restrictions, or to rely on the
ongoing PILT and SRS funding?
Governor Gordon. Mr. Chairman, Representative, I, as
Treasurer, had the opportunity to experience what happened when
Congress instituted sequestration. And as a result, I have
recommended that the states collect the Federal mineral
royalties and distribute the 50 percent to the Federal
Government, rather than the other way around. That money
leaving the state and not being able to come back under
whatever particular circumstance is dramatic.
So, to answer your question directly, I would rather
control our future than have it controlled by----
Mr. Fulcher. Thank you for that.
And Mr. Chairman, I would just like to state for the record
I wish there were more of my colleagues on the other side of
the aisle here, because most of them come from states which are
identified as donor states, not donee states. But it is just
what the governor pointed out: the amount of Federal money that
their taxpayers pay into the Federal Government, a lot of that
gets exported to the West in the form of PILT, Payment in Lieu
of Taxes, SRS.
That is a lose-lose deal, because those in those donor
states are sending that money, in large cases, to the West,
where there is a lot of this public land. And those of us who
are supposedly receiving it are getting the short end of the
stick because (A) we can't depend on it, it is not predictable;
and (B) as the governor points out, you lose the ability to
control your own destiny.
Governor Noem, I am less familiar with South Dakota. I am
right next door.
Governor Noem. That is unfortunate.
Mr. Fulcher. I am right next door to Governor Gordon.
Governor Noem. Come visit us.
Mr. Fulcher. However, I know Mr. Johnson really well, and
he gives me all these rave reviews, so I know it is a wonderful
place.
Governor Noem. Good.
Mr. Fulcher. In terms of Federal land, do you have a
significant issue with wildfire in the summer season?
Governor Noem. We do. But I would say the Black Hills
National Forest is known as one of the best-managed forests in
our country. It has one of the last successful operating timber
industries, and that is because we utilized some mechanisms
that were implemented in the last farm bill that I had the
chance to work on when I was here in Congress, using Good
Neighbor Authority to go out and to do some unique pilot
projects to allow us to actually manage our forest in a way
that many other people's hands were tied in other areas of our
country.
So, I would say that now we are deeply challenged by what
we see coming out of the Forest Service. They are cutting our
cubic feet that we can get in timber contracts. In fact, the
last GTR made false assumptions, and cut our percentage down
significantly--I would say a third of what it should be. And
that brings incredible risk to our state.
I know Governor Gordon and I have worked extensively on
trying to get the Forest Service to revise their analysis and
use real scientific data to come up with what we could actually
go out there and log in order to utilize the timber, but this
is the story of it all. We have bureaucrats in DC making
decisions not on facts on the ground. And what it is doing in
the Black Hills, is it is going to threaten life.
Mr. Fulcher. So, your point is that the management of the
Black Hills aids the fight against wildfire.
Governor Noem. Yes, it does. It aids in the fight against
wildfire, and that is because we have been able to go around
the Federal Government.
We have been able to get through some of the rules like
this one that is being proposed, cut through that, and still be
able to do more than other forests have been able to. But now
we see that going away under the Biden administration.
Mr. Fulcher. Yes. Thank you, Governor.
Governor Noem. But listen, these forests are heavily
populated with people and communities. When you have a forest
fire come through, you are getting more erosion and waste,
dangerous chemicals being released into the atmosphere. If a
person was environmentally-minded and conservation-minded, they
would allow us to manage these forests.
Mr. Fulcher. Thank you for that, Governor. I am out of
time, but that is a very good, thoughtful answer.
Governor Gordon, thank you, as well.
Governor Gordon. Thank you.
Mr. Fulcher. Mr. Chairman, I yield back.
The Chairman. The gentleman from Idaho's time has expired,
and I recognize the gentleman from Arizona, Mr. Gallego, for 5
minutes.
Mr. Gallego. Thank you, Chairman Westerman and Ranking
Member Grijalva.
This hearing is another step in the Majority's effort to
undermine the multiple-use mandate of the Bureau of Land
Management, and prohibit similar actions in the future. The
proposed rule does not change BLM's existing land management
planning process, it just adds to it. But this bill would
dangerously limit future rulemaking by the agency.
As a Representative of Arizona, which has 12.1 million
surface acres and 17.5 million subsurface acres of BLM land, I
think it is important that we look out for the future and not
cut ourselves off at the knees by limiting future rulemaking.
And I think it is important that these decisions be made based
on the input of people who would actually be impacted by this
rule. Unfortunately, today's hearing falls short on both
accounts.
Also, since more than half of this Committee's members come
from other states with more BLM land than South Dakota, we can
rely on the experience and expertise of our own governors.
I am also surprised that we have not called other
witnesses.
If we can't agree on the fundamental existence of climate
change, a productive conversation around the new BLM rule gets
a whole lot harder. I would like to emphasize the importance of
inviting witnesses that follow the science and have expertise
in the issues we are discussing.
I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentleman from California, Mr. LaMalfa, for 5
minutes.
Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate it. I
appreciate both of you governors for traveling here today and
bringing your firsthand expertise on dealing with vast spaces
of Federal land in your states.
Governor Noem, the proposal says conservation leases are
not intended to provide a mechanism for precluding other uses,
such as grazing, mining, or recreation. Conservation leases
should not disturb existing authorizations, valid existing
rights, or state or tribal land use management. However, if the
Administration determines other uses such as grazing or energy
production are incompatible with the lease, those uses would
not be allowed, and could be prohibited indefinitely from these
lands, even after the expiration of a conservation lease, which
would effectively lock up these lands indefinitely for multiple
use.
So, do we pretty much have a de facto national monument or
wilderness area by a designation like this? Do you believe this
is their ultimate goal?
Governor Noem. It gives them the authority to. This
proposed rule absolutely allows them to look at large
landscapes and to shut the public out from accessing it, from
utilizing it, from no longer being able to hunt and fish,
engage in outdoor recreation, from mining, permitting, grazing,
all activities. It creates a new mechanism, which I will remind
you, Congress has no authority to do this. You are overstepping
your authority--or that BLM has no authority to do. Congress is
the only one who has the authority to put forward a rule like
this to establish something like a conservation lease which can
collect fees to go out and prioritize conservation over all
other activities. BLM has no authority to be able to do what
they are trying to do in this rule here today.
There are no consequences for violation of these
conservation leases, as well, no punishment if the rules of the
game are not followed. What is interesting to me is there are
no guidelines on who can purchase a conservation lease and who
can't. What is to prevent China from coming in and purchasing
up conservation leases on our Federal lands, and therefore
having some control and authority over them?
It also allows BLM to go around the NEPA process, which
listen, I am just a big believer that if Americans have to
follow the NEPA process, then the Federal Government should
have to follow the NEPA process. If we are going to go through
that, everybody should be treated equally under the law.
It is burdensome. It will shut down economic activity in
these regions of the country, which right now, facing the
inflation and the stagnation that we are seeing, keeping these
productive areas contributing to our American energy
independence and our food supply is critically important.
So, it is ill advised. And what is interesting to me is
watching how they allow bureaucrats in DC to make these
decisions under this proposed rule, and taking that authority
away from the local BLM offices. Because I think Governor
Gordon would tell you and I will tell you, as well, we have
good relationships with our local BLM offices because those
people actually do live there, and they do interact with people
that are out there working on stewardship practices on the
land. This rule changes that. It takes those decisions away
from those local authorities and moves it to bureaucrats within
the agency at the higher level that many times may not have
stepped foot in our state.
Mr. LaMalfa. Thank you. It is apparent to me when I do
flyover country, coming from my home in California to the----
Governor Noem. Don't do that. You need to stop.
[Laughter.]
Mr. LaMalfa. I don't consider it that, I consider it God's
country, but especially at night, once you get west of the
Mississippi there are not a whole lot of lights down there. But
I do notice there are a whole lot of problems with the lands
that are already managed by BLM or U.S. Forest Service of not
having a whole heck of a lot going on in their management.
So, I wonder, both governors, how do you feel it currently
is going with the record of land management that our Forest
Service is doing on helping prevent fire?
You mentioned the Black Hills there. I look at million-acre
fires in my district. What is the track record of them, and
should we be giving them more responsibility over more lands
such as this pie in the sky 30x30 deal?
Governor Gordon, let me give you a shot.
Governor Gordon. Well, thank you very much. And I will give
you an experience that we had recently in 2020, something we
called the Mullen Fire.
It was an area that had been logged before, and it is an
area that had some burn scars there before, as well. It is also
an area where there is a wilderness called Savage Run. This
lies just a little bit north of the Colorado border. In 2020,
we had a serious fire, very dry conditions. And because there
was so much dead beetle-kill timber, that fire was almost
impossible to put out. It burned for quite a long time.
And here is the thing. Where it entered into either timber
sales that had been harvested, or places that had burn scars,
the fire was able to be kept at bay. In places where it had
old-growth forest, in places where it was a wilderness, that
fire escaped all bounds and kept moving. This is very similar
to what you had in California.
Mr. LaMalfa. Yes, sir, like the Tahoe Pilot Plan that
Chairman and I and others have visited. When the fire hits
that, you can actually knock the fire down. It actually works.
It will not work very well under this rule.
I yield back, Mr. Chairman. Thank you.
The Chairman. The gentleman yields back. The Chair
recognizes Ranking Member Grijalva for 5 minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman. And
Governors, thank you for taking the time to visit with us
today.
Governor Noem, welcome back.
Governor Noem. Yes, thank you.
Mr. Grijalva. It has been a few years since you were a
member of this Committee. And as you can see, not much has
changed.
[Laughter.]
Mr. Grijalva. We are still at odds over how best to
prioritize long-term conservation of our public lands, and ever
struggling to find a common ground on what should be, I would
hope, a bipartisan initiative.
Both your states, like states all over the country, like my
state, are reeling from the effects of climate change, long-
term drought, catastrophic wildfire, and year after year,
record-high temperatures, just to name a few.
Under Secretary Haaland, BLM has taken the important step
to come up with a proposal to balance the uses of public lands,
enhance options for durable conservation, and promote resilient
and intact landscapes. These are outcomes that are supported by
broad majorities of Americans. And as I highlighted in my
opening remarks, they are outcomes supported by Indigenous
communities across this country.
The proposal is an opportunity to bring public land
management into the 21st century. That is why I believe public
land states like Colorado, California, and New Mexico are
advocating for the rule. In fact, just a couple of weeks ago,
New Mexico's land commissioner testified about how the rule is
a significant improvement and update to the management
framework for public lands.
This is a sentiment echoed in a letter sent to the
Committee by the California Natural Resources Agency, which,
Mr. Chairman, I would like to ask unanimous consent to enter
into the record.
The Chairman. Without objection.
[The information follows:]
California Natural Resources Agency
Sacramento, CA
June 13, 2023
Hon. Raul M. Grijalva
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Greetings Committee Members:
Thank you for the opportunity to provide testimony in advance of
the upcoming hearing on H.R. 3397. We respectfully oppose H.R. 3397 and
support the adoption of the Bureau of Land Management's Public Lands
Rule.
The Bureau of Land Management (BLM) stewards many of California's
most spectacular places, in total overseeing about 15 percent of
California's land mass. These landscapes including rangelands, forests,
mountains, and deserts across our state. BLM lands provide important
opportunities for Californians to recreate outdoors, including by
hunting and fishing. These lands also provide important habitat and
connectivity corridors for wildlife, allow for natural carbon
sequestration, and protect clean water and air for local communities.
The Proposed Conservation and Landscape Health Rule is a thoughtful
improvement to federal land stewardship. Simply put, it will better
enable BLM to fulfill its mission to sustain the health, diversity, and
productivity of our shared public lands for the use and enjoyment of
present and future generations.
BLM's mission of Multiple Use and Sustained Yield will be
strengthened with a focus on healthy and resilient ecosystems.
California demonstrates that economic prosperity, clean energy, and
environmental protections for air, water, and biodiversity can go hand
in hand. California's economy has grown into the fourth largest economy
in the world while maintaining world-leading environmental standards
that keep our ecosystems and communities healthy.
We applaud the Bureau of Land Management for its proposed approach
to place environmental conservation and restoration on equal footing
with other uses on BLM-managed lands. This important shift will help
conserve California's iconic landscapes, which sustain tourism, provide
our residents public access to nature, offer refuge for wide range of
wildlife, and safeguard our water supplies.
Importantly, finalizing and strengthening the proposed updates to
the Federal Land Policy and Management Act (FLPMA) will help to advance
the solar energy and other renewable energy projects we need to achieve
our clean energy goals. In California, we know that ambitious clean
energy development is aided by well-planned and located environmental
conservation. As BLM's own Desert Renewable Conservation Plan in
California has demonstrated, land use planning that considers ecosystem
needs alongside energy development can actually expedite permit
issuance, speed project delivery and reduce conflict and delay for
important new energy projects.
We also strongly support BLM's prioritization of partnership with
Native American Tribes in this updated rule. Native people have
stewarded these lands since time immemorial and must have a central
role in future land stewardship.
Designation of Areas of Critical Environmental Concern (ACEC) have
been successful conservation tools in California and updates to how
these areas are designated and managed are essential to effectively
address climate change and biodiversity loss. Encouraging the
designation and durable protection of ACECs where needed and
appropriate to protect imperiled plants and animals represents an
important advancement to advance the BLM's conservation mission.
Several existing ACECs in California have played an important role
in our environmental management, including:
Hopper Mountain ACEC (Ventura County) was designated to
limit certain uses during California Condor nesting season
and has helped the successful California Condor Recovery
Program, which has brought the species back from near
extinction.
Kaweah ACEC (Tulare County) limits certain activities to
protect the only grove of Giant Sequoia trees managed by
BLM at Case Mountain, while providing public access
including hiking, mountain biking, and equestrian trails.
Giant Sequoias are not only a culturally iconic species in
California, but also are important for sequestering carbon
and helping combat climate change.
Pine Hill Preserve ACEC (El Dorado County) was designated
to protect eight rare plant species, four of which are
endemic, or found nowhere else on earth due to the unique
soil type in this area. This area also provides access for
hiking and educational resources and opportunities on
California's rare plants.
We look forward to submitting more detailed written comments on
BLM's proposed rule update in coming weeks. We are thankful for all the
Natural Resources Committee, the Bureau of Land Management and other
federal partners do to ensure the effective stewardship of federal
lands in California.
Thank you for your consideration of this testimony.
Sincerely,
Wade Crowfoot,
Secretary
______
Mr. Grijalva. These two states have roughly 10 million more
acres of BLM land than your two states combined. So, it must be
more of a matter of perspective, rather than scale or impact.
It is not as if California and New Mexico don't have critiques.
They are both engaged with the Administration to ensure that
their concerns regarding the proposal are incorporated into the
final product. There is an open comment period. There is still
an open comment period, so plenty of time to register official
feedback and work with the Administration to strengthen the
rule.
The rule itself is not long. In fact, it may actually be
shorter than your written testimony or the letter the Chair
referenced in his opening remarks. My comments today are to
work with the Biden administration to improve this long-overdue
update.
This conflict between--it is not a conflict, it is a
reality. And our public lands should play and need to play a
significant role in climate mitigation and to building up
resiliency and sustainability for our nation in the long term
and for the future. And this rule is future-looking, looking
beyond our nose and beyond the immediacy of the moment, and a
tool that I believe is important as we tackle what I think is
the critical issue before us, this Committee and Congress, and
for the nation, which is climate change.
Thank you, Mr. Westerman, and I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentleman from Minnesota, Mr. Stauber, for 5
minutes.
Mr. Stauber. Thank you very much, Mr. Chair.
Governors, it is great to see you. Welcome to the fourth
administrative state, where unelected bureaucrats make rules
that affect us all, oftentimes in a negative way.
To me, this is, as Mr. Curtis spoke about, I think this is
a way for our Federal Government to take chunks of land to stop
development. In the Iron Range of Minnesota, we have the
biggest copper nickel mine in the world. It is called the
Duluth Complex. Trillions of dollars of minerals there. This
Administration wouldn't even allow an EIS to go forward. They
removed 225,000 acres from development. This is what they are
trying to do.
And we can talk at these hearings; this Administration is
going to do what they want to do. I never thought, as a Member
of Congress, I would have to vote to defend using gas stoves in
our homes across this country. But we did. And just last week,
the Army Corps of Engineers removed a water permit that they
gave just 4 years ago. The EPA remanded this water permit,
first time ever in the history of this country.
We feel the pain. And as Mr. Curtis talks about the Western
states, I want to add the Midwestern states, too. This is
happening in Minnesota and other states. They would rather push
this agenda than allow the American people to live free. As
Ronald Reagan says, ``As government expands, our liberties
contract.'' And as governors, you are seeing that in your
respective states. I believe this is another rule and a tool
for this Administration to assert control and take away our
lands from the people of this nation.
Governor Gordon, in your testimony you shared your
frustration with the lack of stakeholder input that the Biden
administration considered when crafting this proposed rule. If
the BLM actually listened to your constituents in Wyoming, what
do you think they would have heard from them on this dangerous
precedent that these so-called conservation leases would have
on our Federal leasing?
Would they fear the Federal Government pairing future
productive leases with conservation leases or utilizing
conservation leases to strategically block off other areas from
permitted activities? Can you comment on that?
Governor Gordon. Thank you, Mr. Chairman, Representative, a
very good question. It is interesting that no one thought to
have a field hearing anywhere near my state. And as a result,
that testimony is lost on the BLM.
I think one of the biggest challenges, and you have
mentioned it, is the lack of consistency and the desire by the
Federal Government to kind of control the future of this.
Wyoming has a variety of BLM lands. My ranch, for example,
has BLM land holdings in it. If those are put into conservation
leases, it could quite conceivably affect the way we operate.
That could, for many families in Wyoming----
Mr. Stauber. I would submit to you, Governor, that it will
if this goes through.
Governor Gordon. I agree with you. And I would also say,
Representative, that you could break ranches. You could break
families that have been on the ground for generations.
And here is the deal. If they weren't focused on
sustainability, if they weren't focused on conservation, they
wouldn't be in business now. So, it would be an irony to say,
out of conservation, we are going to break the backs of
ranchers who have shown conservation ethic. Thank you.
Mr. Stauber. Thank you very much, Governor Noem. It is
great to see you once again. And real quick, just like in my
district in northern Minnesota, public lands play an important
role in your everyday lives of those living in South Dakota. As
you mentioned in your testimony, entire facets of your economy
are built, both figuratively and literally, on our precious
public lands. If this rule is finalized, and the BLM gains this
tool to weaponize Federal lands, what effect is it going to
have on your state's economy?
Governor Noem. Thank you, Congressman, for the question. It
will be dramatic.
What is interesting to me is that, if you read the rule and
the analysis the BLM has put out on the rule, it is that they
have done no economic evaluation. In fact, they have openly
declared that this is not a major rule, does not have more of
an impact than $100 million on our economy. Yet, if you keep
reading through the rule, they have done no economic analysis,
and have no idea what the consequences will be if this is put
into place.
What is also interesting is that there is a real lack of
environmental data, as well. They don't know how this is going
to help, and they make no attempt to even define that our
stewardship of the land will actually get better.
They openly say that there will be public input, yet do not
conduct and follow through on that. Our people have not been
heard from, other than the ability to submit comments, which I
would say the Ranking Member referred to people such as land
managers and elected officials in some states having an
important voice because they are in bigger states. In my world,
everybody matters. It doesn't matter if you are big, or small,
or important, or not important, you should listen to them,
especially if they are making a living off the land.
But you have submitted for the record comments from many,
many associations of people that engage in recreation, grazing,
the Cattlemen's Association, many, many more that have
submitted comments against this rule. So, I would encourage you
to, even though they are not going to conduct public hearings
because they don't want to hear what they are going to have to
hear, I would say look at those comments that are being
submitted to the formal record.
And again, in this rule there are some mechanisms to allow
them to stop putting things in the Federal Record, and to stop
taking public input at all.
Mr. Stauber. Right, right.
Governor Noem. So, that is another overstep, that the BLM
made promises years ago that they are trying to do away with in
this proposal in front of you today.
Mr. Stauber. Thank you very much, and my time is up.
I yield back, Mr. Chair.
The Chairman. The gentleman yields back. The Chair
recognizes the gentlelady from New Mexico, Ms. Stansbury, for 5
minutes.
Ms. Stansbury. Thank you, Mr. Chairman, and welcome to our
governors. Thank you for joining us today.
I just want to start, with respect to my dear friends
across the aisle, to counter the narrative that was proposed at
the beginning of this hearing that this is just a bunch of
bureaucrats from the East supporting this action by the
Department of the Interior, and to remind my colleagues that
the Secretary of the Interior is our nation's very first
Indigenous cabinet Secretary, a native New Mexican whose family
has lived in and been from New Mexico for countless
generations.
And I myself am a native New Mexican. I was born in rural
New Mexico, in Farmington, New Mexico, in San Juan County,
where my dad worked in the oil fields, and where my mom worked
at the San Juan Power Plant. I grew up working the land with my
hands, working for my family's irrigation company, and I
support this rule.
And the reason why I support this rule is because, unlike
what we are hearing here in this hearing this morning, the rule
actually will help us to manage our lands in a more balanced
way. It is not going to cut off development. It is not going to
cut off our ranchers from grazing. It is not going to cut off
oil and gas. It is not going to cut off mining. It is going to
make sure that we are adequately balancing the needs of
conservation, protecting our cultural landscapes, and ensuring
that we are also balancing that with our resource management.
And I say that also as somebody from a state in the West
that is an oil and gas state, that is a rural state, that is a
state where our communities depend on agriculture and ranching,
and where our state revenue predominantly comes from oil and
gas on those lands, and where our state has actually
implemented a very similar rule. And guess what? Not only did
it not cut into the revenues of the state, we have seen the
largest, most astronomical growth in oil and gas revenues over
the last several years in New Mexico ever in the history of our
state. In fact, this year we are on par to see the largest
growth in oil and gas revenues after implementing a similar
rule.
So, I find it very upsetting, Mr. Chairman, when I see the
resources of this body of Congress, the People's House, being
used to put forward narratives and misinformation that, in my
mind, is intended to scare the American people because it is
just simply not true. And much of what I have heard here today
is just not true. This is really about balancing the needs of
our public lands.
Now, if we want to talk about Eastern bureaucrats who have
been misusing public lands, I do have to note with respect that
the Black Hills were brought up this morning. It is a space
that, similar to Chaco Canyon, is sacred to Indigenous people,
that is sacred to the Lakota Sioux people, along with places
like Mount Rushmore and the sacred mountain that it was carved
into, and that the former President Donald Trump used for a
campaign event which one of our witnesses helped to host on the
sacred Indigenous lands, which was a misuse, and possibly
illegal misuse, of our public lands.
And as we all know, the former President this week was
indicted on 37 counts of illegal behavior, including under the
Espionage Act. So, it is a fine point to make here in this
Committee to try to claim that a bunch of Eastern bureaucrats
are telling Westerners about misuse of our public lands when
the front runner in the Republican Party is indicted on 37
counts of illegal activity this week and was misusing our
public lands in the West. So, I take a lot of homage with the
conversation here this morning.
So, I do want to make the point that it is important that
we follow the science, that we do listen to our stakeholders
across the West, that we listen to our Indigenous communities,
that we listen to our farmers and ranchers who are stewards of
the land--of course, they are--that we do work with industry
and those who are using our public lands for revenues and for
extractive activities that we all benefit from, and that we
continue to ensure the ecological integrity of our public lands
in the West.
But it is also important that we maintain the integrity of
this body, and use the resources of this Committee and of
Congress to tell the truth to the American people, and that we
make sure that we are serving our role as good stewards of this
body and our public lands.
With that, I yield back.
The Chairman. The gentlelady yields back.
I have here in my hand the 88-page BLM rule, and I wanted
to illustrate that this is a substantial rule, much longer than
probably all the statements combined that have been made today,
and much longer than any letters that we have sent.
And without objection, I want to enter this into the
record. So ordered.
[The information follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
*****
The full document is available for viewing at:
https://docs.house.gov/meetings/II/II00/20230615/116036/HHRG-
118-II00-20230615-SD016.pdf
------
The Chairman. That was not the call of votes, which we do
expect to happen here soon. We are now going to go to the
sponsor of the bill, Mr. Curtis, from Utah.
You are recognized for 5 minutes.
Mr. Curtis. Thank you, Mr. Chairman. I would like to
explore for a minute this relationship between states with
large amounts of Federal land and the East Coast, and perhaps
help my colleagues understand this relationship.
Like both of you, Utah has a large amount of public lands,
about 42 percent just for BLM, about 60 percent over Federal
lands. And there were no hearings in Utah on this. And I think
that kind of shows the heart of the frustration of those of us
in the West.
I was on this Committee and watched the efforts to move the
BLM to the West, to Colorado, successfully started and then
pulled back, and really saddened that that wasn't completed.
Because like both of you, we have great relationships with our
BLM folks in the state. We meet with them frequently, we talk
with them. They understand our perspective.
So, this is not an anti-BLM sentiment from us. It is more
of a feeling that people who have not been to our states, who
won't hold hearings in our states, who won't come to our
states, have a degree of hypocrisy in telling us how to manage
our lands. And I would love to give both of you just a second
to comment on that relationship.
Governor Gordon, first.
Governor Gordon. Well, thank you. And I think, actually,
the good Congresswoman's testimony, Mr. Chairman, somewhat
offended me.
We invited Secretary Haaland to come to Wyoming to do a
couple of things: to meet with the tribes on the Wind River
Reservation, which have a long conservation standard, and we
have worked very closely with them on a number of issues; we
also invited her to go look at the Jonah Field, where oil and
gas companies are doing remarkable work to save the sage-
grouse. She demurred from that, and instead went to Yellowstone
National Park.
And it is very frustrating to me when people aren't willing
to look at on-the-ground work. And Chaco Canyon is a great
example of where ``conservation'' has led to amazing amounts of
erosion.
The other thing that I am particularly frustrated about on
this, with the lack of hearings and the lack of process on
this, is that both Governor Polis and I, Governor Polis is a
Democrat, have written to BLM and said, ``Can we please use
endosulfan to control invasive species? '' We have yet to see
them approve the use of that chemical, which would help with,
as you know, cheatgrass and other things. It is ironic, because
the USDA has approved it, the EPA has approved it, and yet they
are dragging their feet.
Mr. Curtis. I have a really important question after
Governor Noem answers this that will actually tie into that.
So, Governor Noem, do you want to respond briefly to this
relationship between the East and the----
Governor Noem. Well, the Congresswoman is wrong in
virtually everything that she said. I think that they are
trying to cast this narrative that we don't care about the
environment or stewardship of our lands, and that we can't work
with our local BLM offices. We can.
The sustained yield is a mandate right now of the Federal
Lands Policy and Management Act. So, what is interesting to me
is that South Dakota is the second-largest producing state of
renewable energy, that we are regularly in the top 10 of
greenest states in the nation, that we are very conservation-
minded, and----
Mr. Curtis. So, both of you have led right into the
question I want to ask you right now, which is hypothetically,
if we could change this and make it outcome-based and say, OK,
states, you get to decide the rules of the road, and these are
the outcomes we want to produce. We want to make sure these
lands are protected. We want to make sure they are preserved.
We want to make sure there are recreational opportunities. We
want to make sure that any extraction is done appropriately.
So, here are the rules of the road, and you get to set the
terms and conditions. How many of you would like to compete
with New Mexico on those terms?
Governor Noem. In a heartbeat. We would beat them every day
of the week.
That is the reality of it, is because we have less
bureaucracy. We did all of these accomplishments and outcomes
without mandates. South Dakota doesn't go out there and mandate
practices, and mandate more taxes to fund government programs
to make this work. We do it in partnerships. We have
conversations. We have honest, working relationships with the
people who live there and recognize the value of the land.
Mr. Curtis. This describes this tension that they feel from
us that they interpret as not caring about the lands. But in
essence, it is more please don't tell us that you know better
than we do in a place that you have never been, where, by the
way, for decades, and decades, and decades we have done a
fabulous job of this.
And I wish we had more time to explore this relationship.
But I think you have spoken well. Give us an outcome-based
rule, and we will take it all day long.
Governor Noem. Well, the one thing that Governor Gordon has
mentioned is that this rule also trounces on states' rights. It
takes decisions we make regarding our wildlife and how we
operate away from us, and gives it to the Federal Government.
It is about control.
Mr. Curtis. Yes, absolutely.
Governor Noem. So, regardless of what they say, it is about
control.
Mr. Curtis. I am out of time, Mr. Chairman. I yield.
The Chairman. The gentleman yields back. We will note that
votes have been called, and now 15 people have voted. So, I
think we have time for one more round of questions before we
recess.
Mr. Bentz, you are recognized for 5 minutes.
Mr. Bentz. Thank you, Mr. Chair, and thank you for being
here.
One would think from some of the materials I have read from
environmental interests that support this rule, that both
Wyoming and South Dakota are public land wastelands. Is that
the case? Are your public lands in disastrous shape that
require this type of removal from any type of use to kind of
get them back into shape, what kind of shape are they in? I
don't want to lead you any more than necessary.
Governor Noem. I would say that there are always areas that
can be addressed, but they are managed very well, in
partnership with the people that are out there operating on the
land.
And I would say specifically, this proposed rule that BLM
has brought does no analysis on if these mandates will actually
produce better results. That is what is interesting to me, is
that what they are putting forward with conservation leases
doesn't show us that it is going to produce better conservation
practices, or produce greener energy, or less carbon emissions.
Essentially, what it is doing is letting third parties come
in, give them some money, and give them the authority over this
land, rather than the people who actually live there. And it
gives no discretion as to who those third parties are, if they
are foreign countries that could be our enemies. They could be
people who do not love the United States of America.
And then it also allows them to lock up that land and have
authority over it that they had no authority before, with no
consequences if the agreement is broken.
Mr. Bentz. And Governor Gordon, the suggestion that we need
this new use of conservation suggests that multiple use has
been a failure. Is that true in your state, or is it working?
Governor Gordon. Thank you, Mr. Chairman, Congressman. No,
it is not.
As the good governor from South Dakota knows, we have
worked very collaboratively together to do the best we can with
a mosaic of landscape in the Black Hills.
Here is one of the problems when it comes to climate
change. Dead and dying trees off-gas because they oxidize.
Either they oxidize over decades, or they oxidize in a few
seconds, as we have seen in the West. The ability to work
together on the ground to effect conservation practices, that
is the benefit of having local communities and state control.
Your comment about does multiple-use fly in the face of
that, absolutely not. As I mentioned before, these ranches
would not be sustainable. These businesses would not be
sustainable if they overused the resource.
Mr. Bentz. I grew up on a ranch, and I have five younger
brothers, three of them are still in the ranching business in
Oregon. And we are very familiar with this, with what we are
debating.
I am also very familiar with, as an attorney who
represented the local production credit association through the
1980s and the 1990s, just how important a grazing permit is
when you go in to get a loan. And you have to say to whoever
you are working with, who is sitting on the other side of the
desk, and you are trying to borrow some money, and they ask,
``Are you going to have your grazing permit?'' And you can't
say, well, maybe.
[Laughter.]
Governor Gordon. Exactly.
Mr. Bentz. Is that the case also, Governor Noem, in your
state? I mean, isn't that reliability, that which you are going
to rely upon to graze your cattle, pretty important in those
kind of financing conversations?
Governor Noem. Absolutely, yes. It is an important
discussion that everyone has with their bank, or whoever is
financing them on what their operating note needs to be, at
what level, and what kind of collateral they are bringing to
the table, and if their business model actually works. Yes, it
is.
Mr. Bentz. And isn't it correct, I am not sufficiently
familiar with either of your states, that huge chunks of this
public land is already placed in other types of off-limit
locations that, I don't mean 10 acres, I mean millions. Is that
correct, Governor Gordon?
Governor Gordon. In Wyoming, if you look at the total, it
is about 39 percent of the Federal estate that is in either
national parks, wilderness areas, or other categories of
restricted use.
Mr. Bentz. So, this proposal of going in and allowing
someone to lease this land, I have heard it said that this is a
device to allow big, huge REITs and other organizations with
lots of money to come in and bid these things up to use to
acquire carbon credits. And thus, all of a sudden this
assertion that we heard earlier from New Mexico's Congresswoman
that nothing is going to change, nothing could be further from
the truth. Is that correct, Governor Noem?
Governor Noem. It is very true. In fact, you have a lot of
producers out there that may have private land that is
completely surrounded by BLM land. What happens if they declare
that an intact landscape that is now locked up and no access
given, and they can't even access their own private property?
That is a reality that we see out there on the ground that has
the potential if this rule goes forward.
Mr. Bentz. Right. Well, thank you both so much for being
here. It is an incredibly important issue, and I really
appreciate your presence today and your testimony.
Governor Gordon. And Mr. Chairman, if I might, I want to
point out that, back in 2008, the grazing management that we
did sequestered 2,526 metric tons of CO2. We were
recognized on the Chicago Climate Exchange. So, management
makes a difference.
Mr. Bentz. Thank you, I yield back.
The Chairman. The gentleman yields back. As I have
mentioned, votes have been called, so we are going to take a
short recess. There are two votes, and we will reconvene
approximately 5 to 10 minutes after the second vote. And I hope
all the Members can come back, and I hope the witnesses can
stick with us. I apologize for the inconvenience.
Governor Noem. No worries.
The Chairman. We are now in recess.
[Recess.]
Mr. Lamborn [presiding]. The Committee will come back to
order.
The next one of the Members to ask questions is the
gentleman from Montana, Mr. Rosendale.
Mr. Rosendale. Thank you very much, Mr. Chair.
Thank you, both governors, for joining us. And I hope,
Governor Noem, that you didn't suffer too much anxiety taking
that well-too-familiar commute back to Washington.
Governor Noem. No, no. A little bit of PTSD, but not too
bad.
[Laughter.]
Mr. Rosendale. Yes, yes. One of the things that I like to
always paraphrase is Dwight Eisenhower, when he says--and we
have listened from the disinformation and lack of information
from, unfortunately, my colleagues on the other side. Dwight
Eisenhower said that farming looks very easy when you use a
pencil for a plow, and you live 1,000 miles away from a corn
field. And that is exactly the problem that we run into in this
body on a daily basis. There are too many people that are
making decisions about the land management in our part of the
world that they are not familiar with at all, at all.
And, unfortunately, we have some people making those
decisions, such as the Director of BLM, who is a known
collaborator with eco-terrorists, and a Secretary of the
Interior who won't provide documents about her daughter's
lobbying efforts with the Department of the Interior and BLM
that certainly doesn't help matters.
Sadly, it is critically important for us to pass this bill
and hold this hearing so that we, the people that are impacted
the most by it, can actually get accurate information about the
impact of the rule from the people that are going to be hit by
it the most. As we have discussed several times already this
morning, BLM is not going out and holding these hearings in the
areas that are going to be hit. We have requested in the state
of Montana to have a hearing, just to have a hearing in the
state, when we have nearly 40 percent of our state that is
Federal public lands, and we can't even accomplish that.
We watched this Administration time and again try to bypass
or get around those laws by passing rules that completely
contradict them, thereby eliminating congressional
participation, congressional representation, representation
from the people that we represent as their extension, and
public votes, quite frankly. So, they believe that they can do
that. And, fortunately, we have seen time and again the Supreme
Court side with us and say, no, the agencies are going outside
of their bounds.
So, that all being said, Governor Gordon, Governor Noem,
did the BLM ever consult with you, your office, or the impacted
agencies in your state before the promulgation of this rule?
Governor Gordon. Mr. Chairman, Congressman Rosendale, no.
There was some indication that you could have an
information-only kind of opportunity. I think the hearing was
held, not a hearing, it was an information-only sort of
briefing that was held in Denver. You could only kind of view
it, but you couldn't participate, you couldn't have a hearing.
You could not talk about what the rule would mean.
And I think the good governor from South Dakota mentioned
it, the fact that they are ignoring normal NEPA process on
something this devastating is just a complete abrogation of
FLPMA.
Mr. Rosendale. Governor Noem, did the Administration meet
with you before they promulgated this rule?
Governor Noem. No, there was no input or even consideration
for our office, no notification or consultation.
Mr. Rosendale. OK. So, do either of you believe that, as I
do, that this contradicts the Taylor Grazing Act, which is law,
which prioritizes grazing, food production for our nation?
Governor Noem. Yes.
Governor Gordon. Yes.
Mr. Rosendale. As a rancher yourself, how does this
conservation and management currently factor in to your typical
operation?
I know that, in Montana, most of our public lands are
checkerboarded, and everybody seems to be the same way. So, how
is this going to impact the typical operation, conservation
and/or management practices for a local rancher, farmer in your
state?
Governor Noem. Well, first, in particular, ranchers look at
every analysis of how they utilize land, on how it maintains
that land, because they recognize it will need to be utilized
in the future. These 10-year leases for permits to access BLM
land, they want to continue to get them. They are not
interested in a short-term engagement in partnership with BLM.
They want to be good stewards so they are eligible for those
leases in the future.
Myself, as a rancher, looked at my land and utilized
rotational grazing to get the most out of that land and leave
it in the best shape at all times. And to go forward with a
proposed rule like this and say that what we are doing today
isn't working, and ignoring what is happening on the ground, I
think, is extremely arrogant, perhaps naive, especially in the
fact that when you look at the rule and read it--in fact, the
more times I read it, the more offended I was, because it lacks
any scientific data or analysis that what we are doing today is
not providing conservation, and efforts, and that it isn't
being a good steward of the land, but also doesn't give you any
basis for why they are proposing these changes and that it will
actually better our environment, that it will leave us in
better shape.
So, it is very clear what their agenda is when you don't
use any kind of data to back up the need for changes, have no
analysis for the economic impact it will have, you ignore
Federal law, you overwhelm our state's authority and rights
with it, with what you are proposing, as well, and then take
constitutional authority that should be only given to Congress.
This rule has done all of those.
And I want to remind all of you of your responsibility here
at this Committee. It is to protect the United States of
America. And what they are undermining with just this simple
rule in BLM undermines all of those precedents that we have
followed that are built on constitutional law in this country.
And I have seen this so much. I have been in a lot of
different roles in my life now. I am a wife, and a mom, and a
grandma, but I am also a business person, farmer, rancher. I
have served in our legislature. I have been here in Congress,
and as governor. I have never in my life seen such a short
period of time where they have completely destroyed the
foundation of this country. And it is not just in the big
things that you see and hear about on the TV news at night, it
is in rules like this, where they are overstepping their
authority through a powerful Federal Government and undermining
us as states, us as governors and the authority we have to
fight for our people and their way of life.
There will be business owners, small businesses in my state
that will be bankrupt if this proposed rule goes into place.
They will have no land for their cattle, nowhere to graze them.
They will be out of business. Their cattle or their
manufacturing plants, their future, will be gone.
These timber industries, we have one of the last examples
of one that is still functioning, but we lost a mill in the
Black Hills, and it was because of the Federal Government. We
have two left, each of us have, and that is all we have
anymore. And we are going to fight tooth and nail to keep that,
too. This rule would destroy our timber industry, as well.
Mr. Rosendale. Thank you very much for your information and
for your passion.
Mr. Chair, I yield back.
The Chairman [presiding]. The gentleman's time has expired.
The Chair now recognizes the gentleman from Colorado.
Mr. Lamborn, you are recognized for 5 minutes.
Mr. Lamborn. Thank you, Mr. Chairman. This is an important
hearing. Thank you for having it.
Governor Noem, I enjoyed serving with you in Congress when
you were here. In fact, you were on this same Committee for a
time, and you did such an excellent job. And I know you are
also doing that in your position now in South Dakota.
Just last month, BLM Director Tracy Stone-Manning testified
before this Committee, and I asked her at that hearing if the
new proposed conservation rule would allow simultaneous land
use by ranchers, loggers, and other industries. And she said,
``The term of the conservation lease would preclude uses that
directly conflict with the underlying conservation lease.''
I think that a lot of people here in Washington don't
understand the West, or they wouldn't make the kind of rules
that they are proposing.
I know you had a great answer just now to Representative
Rosendale. Is there anything you would like to add about the
impact that this rule, should it ever take effect, would have
on BLM land, and then hence the people and the economy of the
state of South Dakota?
Governor Noem. Well, let's remember that BLM was
established to produce sustained yield and management practices
that were out there for conservation efforts. So, in every
single practice that we are utilizing on BLM land is built in
the mandate to utilize conservation. What they are doing in
this rule is putting conservation efforts, based on no
definition of what those conservation efforts are or what they
should be, and placing them above every other use. So, that in
itself turns the entire mission of BLM on its head.
And when you have this much Federal land in your districts
and in your states, it impacts your economy in ways that--the
ripple effect is tens of thousands of people, tens of thousands
of jobs, and it takes their ability to be producers away from
them.
For me, it is not just on the economic side of it. It is
also what it does to people's spirits and to their ability to
want to get up every day and go to work. I am just a big
believer that we have lost our nation's work ethic, and we need
to remember why we have one. We have a work ethic because we
were created to serve, to serve other people, to get up every
day. It is better for us physically, mentally, spiritually. And
having the ability to go out and work on the land and to help
it produce and provide for your family would help our nation,
as a whole, be unified and to accomplish something that keeps
our economy stable.
We have talked for years about the need for not just one
part of this country to be successful, not just one part where
people can do well and make higher incomes, or where they can
be more productive. When you guys have a tough economic
recession on the East Coast or on the West Coast, often it is
the middle of the country that stabilizes this country.
Mr. Lamborn. Thank you, I appreciate that.
Governor Noem. Our people are still working.
Mr. Lamborn. Thank you.
Governor Gordon, you are in the great state of Wyoming, and
I admire how it is run. I have a daughter with her family who
live there. And I have seen firsthand that it is a very well-
run state. During COVID, it was a relief to leave Washington,
DC, where things were locked up so tightly and be where things
are at least halfway normal, such as Wyoming. That was a breath
of fresh air.
One thing that really frustrates me about the current
Administration is that they will be deceptive when they say a
rule is proposed for one reason, when their real objective is
another reason. Gas cooktop stoves is one example. They say it
is to protect people with asthma. They are just trying to shut
down a fossil fuel, and they are not admitting that, they are
not being honest. Taking helium off the critical mineral list
when it comes from natural gas extraction is another example of
that.
Do you have suspicions, or thoughts, or concerns about what
the real purpose of BLM's new conservation rule is?
And will it have the effect of hurting resource-based
industries, including conventional fuels?
Governor Gordon. Mr. Chairman, Congressman, yes,
absolutely. I am very concerned about the ulterior motives of
this. It is to shut down fossil fuel development.
And as I have mentioned, one of the things is that our
fossil fuel industry has very much invested in conservation. To
just segue a little bit to the question that the Congressman
from Montana mentioned very specifically, our ranch is in core
sage-grouse area. People that develop minerals do so with an
intent to do the best they can to preserve that bird. In our
case, we did a range tour, and it was actually the NRCS that
came back and said, ``We can't provide you with any more
resource, you are already doing things so well.'' That is the
way we run our ranch.
And this conservation rule, if implemented, would suddenly
have somebody in Washington say, ``Oh, you know what? We are
going to put this in conservation. You can't graze your cows
anymore,'' when very much the role that our cows play in making
that range better would be devastated. Our ranching operation
would be devastated. That would be true across the West.
So, this rule and everything you see in this--and you have
this same issue in Colorado--everything this Administration
does is about climate. So, you have tremendous regulations
being put in place that are holding back our fossil fuel
industry, that are costing Americans dearly in the pocket. We
had unprecedented rises in the price of oil and gas, and now we
are talking about going off of coal and onto natural gas at a
time when we can't get a lease out of this Administration, we
can't get a permit out of this Administration.
And for those who aren't familiar with the mineral estate,
there is a surface estate and a mineral estate. And the way the
Federal Government shuts down anything that goes anywhere near
a Federal mineral lease, shuts down private industry, shuts
down private property, it is devastating.
Mr. Lamborn. Thank you. I yield back.
The Chairman. The gentleman's time has expired. The Chair
now recognizes Mr. Huffman, who wasn't overlooked in the last
round of questions.
But you are recognized for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. And I hate to
interrupt this hyper-partisan performance masquerading as a
legislative hearing, but on the off chance that there may be a
few people watching at home who don't get all of their news and
information refracted through the kaleidoscope of right-wing
media, I would just like them to know that not every Western
state is hyped up on anti-government conspiracy politics.
In fact, California opposes H.R. 3397, and thinks it is a
good idea to proceed with BLM's public lands rule. I would just
like to enter into the record, if I could, Mr. Chairman, this
letter from the California Natural Resources Agency.
The Chairman. Without objection.
[The letter can be found on page 22.]
Mr. Huffman. Thank you, Mr. Chairman.
Look, not every Western state believes it would be the end
of the world to elevate conservation to equal footing with
grazing, and timber harvesting, and mining, and other
extractive uses. A lot of folks think that this is just good,
plain common sense and sensible policy, as do I. We will talk a
little more about that when we get to the next panel with the
BLM witness.
But for now, Mr. Chairman, I will yield back and allow you
to proceed with the regularly scheduled conspiracy politics.
Thank you.
The Chairman. The gentleman yields back, and I will remind
the gentleman it is an open hearing, and I am glad that you and
Mr. Grijalva are here to represent the Minority's view. And I
do appreciate our witnesses for being here today.
I now recognize the gentlelady from Wyoming, Ms. Hageman,
for 5 minutes.
Ms. Hageman. Thank you. And again, it is so good to see
both of you. The voice of Wyoming has been ignored on this
topic, so I am deeply grateful for the chance to echo their
sentiment of concern and outrage over this proposed rule.
According to public comments submitted by the United States
Business Administration Office of Advocacy, this proposed rule
has unintended consequences that are contrary to the statutory
provisions of FLPMA, lacks factual basis, and does not
adequately consider the economic impacts of the rule on small
businesses. That is how bad this proposed rule is. The SBA
under the Biden administration is literally calling out the BLM
on how bad the proposal is.
Mr. Chairman, I would like to submit the SBA's public
comments on this for the record.
Dr. Gosar [presiding]. Without objection.
[The information follows:]
U.S. Small Business Administration
Office of Advocacy
June 13, 2023
Hon. Deb Haaland, Secretary
U.S. Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
Re: Conservation and Landscape Health (88 Fed. Reg. 19583; April 3,
2023)
Dear Secretary Haaland:
On April 3, 2023, the U.S. Department of the Interior's Bureau of
Land Management (BLM) published a proposed rule entitled ``Conservation
and Landscape Health.'' The Office of Advocacy of the U.S. Small
Business Administration (Advocacy) respectfully submits the following
comments on the proposed rule. Advocacy and small businesses support
activities to mitigate and restore public lands. Advocacy is concerned,
however, that BLM's proposed rule may be contrary to the statutory land
management principles laid out in the Federal Land Policy Management
Act (FLPMA). Furthermore, BLM's proposed rule does not adequately
consider the impacts to small businesses as required by the Regulatory
Flexibility Act (RFA). Advocacy makes the following additional comments
below.
I. Background
A. The Office of Advocacy
Congress established the Office of Advocacy under Pub. L. 94-305 to
represent the views of small entities before Federal agencies and
Congress. Advocacy is an independent office within the U.S. Small
Business Administration (SBA). As such, the views expressed by Advocacy
do not necessarily reflect the views of the SBA or the Administration.
The Regulatory Flexibility Act (RFA),\1\ as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA),\2\ gives small
entities a voice in the rulemaking process. For all rules that are
expected to have a significant economic impact on a substantial number
of small entities, the RFA requires federal agencies to assess the
impact of the proposed rule on small entities and to consider less
burdensome alternatives.
---------------------------------------------------------------------------
\1\ 5 U.S.C. Sec. 601 et seq.
\2\ Pub. L. 104-121, Title II, 110 Stat. 857 (1996) (codified in
various sections of 5 U.S.C. Sec. 601 et seq.).
---------------------------------------------------------------------------
The Small Business Jobs Act of 2010 requires agencies to give every
appropriate consideration to comments provided by Advocacy.\3\ The
agency must include a response to these written comments in any
explanation or discussion accompanying the final rule's publication in
the Federal Register, unless the agency certifies that the public
interest is not served by doing so.\4\
---------------------------------------------------------------------------
\3\ Small Business Jobs Act of 2010 (PL. 111-240) Sec. 1601.
\4\ Id.
---------------------------------------------------------------------------
Advocacy's comments are consistent with Congressional intent
underlying the RFA, that ``[w]hen adopting regulations to protect the
health, safety, and economic welfare of the nation, federal agencies
should seek to achieve statutory goals as effectively and efficiently
as possible without imposing unnecessary burdens on the public.'' \5\
---------------------------------------------------------------------------
\5\ Id.
---------------------------------------------------------------------------
B. The Proposed Rule
The Federal Land Policy and Management Act (FLPMA) of 1976 lays out
provisions for BLM to follow in its management of federal lands within
the United States.\6\ FLPMA directs the agency to manage the lands in a
way that balances the need to preserve and protect certain lands in
their natural habitat while also recognizing the need for domestic
sources of ``minerals, food, timber, and fiber.'' \7\ FLPMA further
directs BLM to follow specific criteria for the development of land use
plans. These criteria include principles of multiple use and giving
priority to the designation and protection of areas of critical
environmental concern (ACEC).\8\
---------------------------------------------------------------------------
\6\ 43 U.S.C. Sec. 1701 et seq.
\7\ Id. at (a)(12).
\8\ 43 U.S.C. Sec. 1712(c).
---------------------------------------------------------------------------
FLPMA defines multiple use as including the management of public
lands in a way that ``best meet[s] the present and future needs of the
American people.'' \9\ Multiple use is further defined as a combination
of uses including but not limited to ``recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic, scientific
and historical values.'' \10\ FLMPA also defines six principal uses for
land management that include and are limited to, ``domestic livestock
grazing, fish and wildlife development and utilization, mineral
exploration and production, rights-of-way, outdoor recreation, and
timber production.'' \11\
---------------------------------------------------------------------------
\9\ 43 U.S.C. Sec. 1702(c).
\10\ Id.
\11\ Id. at (l). (Emphasis added).
---------------------------------------------------------------------------
Pursuant to FLPMA, if the Secretary of the Interior issues a land
management decision that excludes or eliminates one or more principles
of major use for two or more years, the Secretary is required to report
their decision to Congress. Congress may issue a concurrent resolution
of non-approval for the decision.\12\ In such an instance, the
Secretary must terminate such decision.\13\
---------------------------------------------------------------------------
\12\ 43 U.S.C. Sec. 1712(e)(2).
\13\ Id.
---------------------------------------------------------------------------
On April 3, 2023, BLM published its proposed ``Conservation Land
Health'' rule.\14\ The rule proposes three major changes to current
land management practices. First, it applies land health standards to
all BLM managed lands.\15\ This provision requires that BLM use data
and information to prepare an assessment of land health for all BLM
managed lands, not just those used for grazing, as is the current
practice.\16\ Second, the rule adds ``conservation'' as a land use
category and allows for conservation leases.\17\ These leases would be
available to entities seeking to restore public lands or provide
mitigation for a particular action.\18\ Conservation leases would be
issued for an initial maximum term of ten years, but can be extended as
necessary to serve the purpose for which the lease was first
issued.\19\ Third, the rule expands the use of Areas of Critical
Environmental Concern (ACECs).\20\ The rule would emphasize ACECs as
the principal designation for protecting important resources, and
establish a ``more comprehensive framework'' to consider areas for ACEC
designation.\21\
---------------------------------------------------------------------------
\14\ Conservation Land Health, 88 Fed. Reg. 19853, (April 3, 2023).
\15\ Id.
\16\ Id.
\17\ Id.
\18\ Id. at 19586.
\19\ Id.
\20\ Id.
\21\ Id. at 19584.
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II. Advocacy's Small Business Concerns \22\
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\22\ At the time of filing of this letter many of the stakeholders
with whom Advocacy engaged have not yet filed their own comments.
Advocacy therefore requests that BLM carefully review and consider the
comments of small businesses and their representatives and that any
issues not raised herein that are of concern to small businesses be
given their due weight and consideration.
On May 17, 2023, Advocacy held a virtual small business roundtable
to discuss the rule.\23\ Advocacy also conducted outreach directly to
small businesses. Small businesses in agriculture, forestry, and mining
spoke to Advocacy about the rule, as well as to representatives of BLM.
During this outreach, small businesses expressed concern with BLM's
assertion that the rule would not have a significant impact on their
business. They were especially concerned about the impact the new
conservation leases would have on other uses and whether this may
inhibit grazing, mining, and timber leases. Many small businesses
questioned the need for the rule. They also questioned whether the rule
was outside the bounds of FLPMA. Small businesses are already providing
mitigation and restoration measures as prescribed under the National
Environmental Policy Act (NEPA) and other environmental statutes.
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\23\ See, Office of Advocacy Natural Resources Roundtable (May 17,
2023), https://advocacy.sba.gov/2023/04/27/small-entity-natural-
resources-roundtable-may-17-2023/.
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Advocacy heard from some county executives in Western states where
more than 80 percent of land within the county is managed by BLM, and
significant portions of the county's economy is tied to these federal
lands.\24\ Small business representatives from Montana indicated that
nearly 30 percent of the state's lands are public lands, and that
grazing leases are an essential part of farming and ranching in the
state. Some small businesses pointed to BLM's own economic report that
states that lands managed by BLM account for nearly 201 billion dollars
in economic output in the U.S.\25\ Advocacy heard from some mining
representatives who stated that close to 80 percent of their member
companies are small businesses.\26\
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\24\ Advocacy has not independently verified this data.
\25\ See U.S. Bureau of Land Mgmt., ``The BLM: A Sound Investment
for America 2022'', (November 2022), https://www.blm.gov/about/data/
socioeconomic-impact-report-2022.
\26\ Advocacy has not independently verified this data.
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Recreation and outfitting industries also have an interest in the
rule. Some businesses expressed to BLM that conservation leases may be
compatible with outdoor recreation activities and therefore may create
opportunities for multi-use leases. Others, however, shared the
concerns of other industries and noted that conservation leases may be
incompatible with certain types of recreation, including those that
require the use of motorized vehicles. Some noted that this could pose
accessibility issues for those individuals with limited mobility if
BLM, or the conservation lease holder, limits the types of recreational
activities that can occur in a particular area.
Advocacy also acknowledges that there may be instances where a
small business may find portions of BLM's rule beneficial in providing
mitigation opportunities. There may also be new and emerging small
businesses because of the proposed rule. While these small businesses
may enjoy some benefits of the proposed rule, the rule itself is
problematic. Given that the rule has the potential to impact a
substantial number of small businesses across various industry sectors
BLM must properly and thoroughly consider these impacts and modify the
proposed rule's RFA analysis accordingly. Advocacy makes the below
comments on the proposed rule.
A. BLM's proposed rule has unintended consequences that are contrary to
the agency's goals and the statutory requirements for land
management under FLPMA.
1. The proposed rule does not properly explain how conservation
leases are compatible with the multiple use land management
goals laid out in FLPMA.
FLPMA expressly states that BLM must balance the need to protect
and preserve public lands with the principal land uses laid out in the
Act.\27\ FLPMA further states that public lands need to be managed in a
way that recognizes the country's need for domestic sources of natural
resources and food.\28\ Within its proposed rule, BLM cites FLPMA
Sec. 102(a)(8) as the basis for issuing its proposed rule.\29\ This
section describes that BLM must manage public lands in a manner that
will protect the quality of resources and preserve some public lands in
their natural condition.\30\ FLPMA Sec. 102(b) states that the policies
of the Act, ``shall become effective only as specific statutory
authority for their implementation is enacted by this Act or by
subsequent legislation.'' Within this rulemaking, BLM is proposing to
create a new category of leases, conservation leases. In creating a
conservation land use lease, BLM will disrupt the current multiple use
landscape. BLM's proposed rule states that such conservation leases
``would not override valid existing rights or preclude other,
subsequent authorizations so long as those subsequent authorizations
are compatible with the conservation use.'' \31\
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\27\ 43 U.S.C. Sec. 1701 et seq.
\28\ Id. at 102(a)(12).
\29\ Id. at 102(a)(8).
\30\ Id.
\31\ 88 Fed. Reg. 19583 at 19856.
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BLM has not, however, clarified within the proposed rule how
conservation leases will be compatible with the other principal uses
laid out in FLMPA.\32\ In at least two instances, mining and grazing,
the proposed rule is incompatible. Without proper clarification from
BLM regarding the implications of conservation leases on other uses,
and the inevitable incompatibility that may result, the proposed rule
has the effect of placing conservation leases above other interests.
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\32\ 43 U.S.C. Sec. 1701(a)(7).
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This is contrary to the statutory intent outlined in FLPMA. As
indicated above, BLM does not have statutory authority to create such
additional uses that would make the other principal uses incompatible.
According to the statutory text cited throughout this letter, Congress
did not intend for land uses to be excluded on a programmatic level.
BLM's rule has the impact of excluding various land uses
programmatically simply because of their incompatibility with
conservation. While BLM's objectives in issuing the proposed rule are
well-intended, the agency is ignoring the fact that the current
multiple use land management landscape is working and does not need the
proposed change. This current landscape balances the need to protect
and preserve lands while also acknowledging that these lands are
necessary for ensuring domestic supply chains for food, minerals, and
natural resources, just as FLPMA had intended.
Furthermore, according to FLPMA, these conservation leases would
need to be submitted to Congress. These leases could go through rounds
of voting in Congress only to be eventually struck down.\33\ BLM should
therefore reconsider the proposed rule and whether it has statutory
authority to take such actions. BLM should consider whether there are
alternatives, such as more opportunities for mitigation, rather than
creating additional lease categories that are not expressly authorized
by FLPMA. Whatever alternatives BLM considers, the agency must require
that the leaseholder identify the uses that are consistent with the
principal use and be able to justify the exclusion of other principal
uses as outlined in the statute. By modifying the rule so that it
better aligns with the principles of FLPMA, BLM can ensure that its
agency goals and priorities are in line with the statute and retain
regulatory durability.
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\33\ 43 U.S.C. Sec. 1712(e)(2).
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2. The proposed rule offers too much discretion to BLM that may
result in elevating conservation above the other principal land
management uses.
Within the proposed rule, BLM states that conservation leases will
be issued for a maximum term of 10 years. The agency then states that
it may, ``extend the lease if necessary to serve the purpose for which
the lease was first issued.'' \34\ Conservation is not a finite use of
land in the same way that other uses are. Conservation can be a
prolonged and permanently sustained use of land. BLM does not make
clear what it will use to measure when a conservation land use has been
achieved, nor is this a clear-cut thing that can be measured.
Restoration as a land use implies that once the land is restored, the
lease has a logical endpoint.
---------------------------------------------------------------------------
\34\ 88 Fed. Reg. 19583 at 19586.
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Here, however, BLM has expressly chosen to use the term
conservation, and not restoration. This provision of the proposed rule,
therefore, would give BLM broad discretion to renew conservation leases
indefinitely so long as they meet the purpose for which they were
issued. This would all but ensure that other uses such as mining,
grazing, logging, and some forms of recreation would not be able to co-
exist on these lands, which, once again, is outside the bounds of
FLPMA. By locking up a particular public land in an indefinite
conservation lease, BLM is neglecting to ensure the sustainability of
the domestic supply chain, and instead contributing to the lack of
domestically available materials. This may have significant unintended
consequences to the domestic supply chain.\35\
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\35\ A lack of domestically available materials may have an impact
on renewable energy priorities. These projects require mineral
resources such as lithium, copper, and many other locatable minerals.
It may also impact domestically sourced food.
---------------------------------------------------------------------------
BLM should therefore reconsider whether there are other
alternatives that may more adequately achieve the agency's objectives
for the proposed rule. These alternatives may include broader
mitigation opportunities on public lands that are more compatible with
other land uses. This will ensure that BLM is not overstepping the
statutory principles laid out in FLPMA.
3. BLM's proposal does not account for required actions that lease
holders already take with respect to conservation goals and
does not consider alternatives.
FLPMA directs BLM to balance and create multiple use land
management plans. In doing so, FLPMA defines multiple use as a
combination of uses including the six principal land management
uses.\36\ Within BLM's proposed rule, the agency does not consider and
discuss requirements that lease holders are already complying with to
meet the agency's goals for increased conservation. Many small
businesses discussed the NEPA compliance measures that they are already
taking to restore lands once their activities have expired, and to
mitigate the impacts of those activities.
---------------------------------------------------------------------------
\36\ U.S.C. Sec. 1702(c), Stating that the six principal land uses
include, ``domestic livestock grazing, fish and wildlife development
and utilization, mineral exploration and production, rights-of-way,
outdoor recreation, and timber production.''
---------------------------------------------------------------------------
By considering measures that businesses are already taking, BLM can
focus its attention on areas for improvement with respect to those
activities rather than creating additional land uses that are not
statutorily supported. Within its own rule BLM cites restoration of
degraded lands and increased mitigation opportunities as reasons for
issuing the proposed rule. BLM should therefore reconsider whether the
provisions of the proposed rule meet these goals, and whether they are
statutorily permitted under FLPMA.
B. The proposed rule lacks a proper factual basis for certification
that the rule will not have a significant economic impact on a
substantial number of small entities.
Within BLM's proposed rule, the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.\37\ Under Sec. 605(b) of the RFA, if an agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities, they must include a factual basis for such
certification.\38\ BLM's certification provides no such factual basis,
and offers no information as to how they arrived at this
conclusion.\39\
---------------------------------------------------------------------------
\37\ 5 U.S.C. Sec. 605(b).
\38\ Id.
\39\ 88 Fed. Reg. 19583 at 19594.
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As noted above, many small businesses are concerned about the
impacts the rule may have on both their existing leases and the
opportunity for future leases. While BLM is not required to attempt to
calculate the impact the proposed rule may have on potential future
lease sales, BLM is required to offer a discussion of the impacts the
rule may have on current lease holders.
At a minimum BLM should identify the small businesses that
currently engage with the agency and/or hold leases. As noted above,
many activities would be rendered incompatible with conservation leases
which constitutes lost revenue for those businesses. While it is
difficult to quantify those potential impacts, they should at least be
discussed by BLM and should appear within its RFA analysis. BLM could
also have asked for public comment and data directly from small
businesses to help inform a more thorough analysis of the impacts.
Advocacy therefore requests that BLM revise its RFA analysis and
instead provide a supplemental document with an initial Regulatory
Flexibility Act analysis that includes a discussion of the impacted
small entities, what if any impacts those small entities may face, and
what regulatory alternatives the agency considered.
III. Conclusion
Advocacy appreciates BLM's intention to prioritize restoration of
degraded public lands. However, BLM's proposed rule falls short of
achieving these stated goals. The rule has unintended consequences that
are contrary to the statutory provisions of FLPMA. Furthermore, BLM's
RFA certification lacks a factual basis, and does not adequately
consider the economic impacts of the rule on small businesses. For the
foregoing reasons BLM should consider alternatives to the proposed rule
that better align with the statutory provisions of FLPMA and should
conduct a proper and thorough RFA analysis for the proposed rule.
Sincerely,
Major L. Clark, III, Prianka P. Sharma,
Deputy Chief Counsel Assistant Chief Counsel
______
Ms. Hageman. American economies can only get a return on
our Federal lands in much of the West through two things. The
first is grazing and the second is through mineral extraction
or logging. The very lifestyle of rural communities is at risk
when burdensome regulations like this cripple the businesses
that allow these communities to flourish. The revenue provided
to the state through mining and agriculture is essential to our
lives and our economy. This revenue funds our schools, health
care, public safety, and other essential services.
Wyoming is a strong leader in energy production,
agriculture, and outdoor recreation, as Governor Gordon
outlined in his testimony. Basically, everything this proposed
rule touches is what we in Wyoming are good at. So, quite
frankly, it is hard not to take this personally.
To make matters worse, the BLM won't even come to Wyoming
to talk about the proposed rule.
Governor Gordon, considering that Wyoming's economy lives
and dies on the industries impacted by this rule, why do you
think it is that BLM would hold town halls in New Mexico and
Colorado, but not Wyoming? Are they avoiding something?
Governor Gordon. Mr. Chairman, Congresswoman Hageman, it is
clear they are avoiding having real testimony on the ground
with practitioners of conservation. They are looking for
communities where they can find a favorable audience so they
can move things forward.
And the testimony of the gentleman from California I take
great umbrage at, because actually----
Ms. Hageman. We typically do, as well.
[Laughter.]
Governor Gordon. Governor Noem and I have worked with folks
across the aisle. This is about conservation and good
development, good management, and stewardship of our natural
resources. It is not a hyper-partisan issue. Just last year, I
signed an agreement with Secretary Vilsack which recognized
that private property has a role in healthy wildlife
populations. So, I take real offense at suggesting that this is
somehow a conspiracy.
This is about keeping people on the land. This is about
stewardship. And to suggest that people that are in the oil and
gas business or miners somehow don't care about conservation is
just wrong-headed.
Ms. Hageman. It has been proven over, and over, and over
again, yet our colleagues on the other side just simply can't
get through that through their head because they lack the
talking points, as we just saw.
A few weeks ago, the Subcommittee on Oversight and
Investigations had Ms. Garcia Richard from New Mexico attend as
the Minority witness. In her written testimony, she said that a
state's ``ability to generate money for education is directly
tied to the health and the productivity of state lands.''
What I don't understand is what revenue you would generate
for your state through a Federal conservation lease. Governor,
will conservation leases generate any funds to local education
or to the state in general?
Governor Gordon. Mr. Chairman, Madam Congressman, no. That
money would go to the Federal Government.
And it is sort of a joke to think that we are going to make
it more productive by taking it out of play. We, as you know,
and Governor Lujan Grisham, and I have both addressed Congress
on this fact. Our schools are funded by mineral development.
The leases and all the ancillary pieces of the economy are
funded by activities on Federal lands. Taking those out of play
would be devastating to our economy.
Ms. Hageman. One of the things that so many people don't
understand is that our water development and the way that we
manage our resources in the West, even on Federal lands, is
typically done by private individuals to better the situation
for their livestock production. But that also benefits our
wildlife. You take cattle off of our Federal lands in the West,
you are also going to have a substantially negative impact on
wildlife, because we are not going to be developing the
resources that they need to survive.
This is going to have incredibly negative unintended
consequences that the people in Washington, DC don't
understand, and they should not be making policies like this
sitting in their air conditioned office here.
With that, I yield back.
The Chairman [presiding]. The gentlelady yields back. The
Chair now recognizes the gentleman from California, Mr. Duarte,
for 5 minutes.
Mr. Duarte. Well, I am a people in Washington, and I would
seek to understand more about what you do.
I think it is under-appreciated, the 245 million acres in
Bureau of Land Management. It looks pretty good to me from the
air. I don't see every inch of it, by any means, mined and
developed with gas rigs. Not that those things bother me much
when they are done properly, sustainably, and effectively by
operators that know what they are doing.
What does bother me a lot are some of the mismanaged lands
in California, the forests that burn purportedly because of
climate change. But from my angle on the kaleidoscope, we have
neglected them. We have turned those forests over to the
priorities of the conservation groups for a few decades. And
now they are burning out of control, and we are getting no
value from that.
We see some bumper stickers around rural communities that
say graze it, log it, or watch it burn. And I believe we should
be grazing it and logging it in California, much like we should
be doing in South Dakota and Wyoming.
I would invite you, Governor Noem, and then you, Governor
Gordon, give us some detail. Talk to us about the things you
think about, the effective resource managers on your ranches,
and how those lead to not only the conservation of the
resources on your ranches, but how, instead of the government
coming out with resource conservation monies and paying
billions of dollars to have somebody do it for them, for us,
you guys do a lot of environmental services for free because,
God forbid--we will try and accept it--you make a few nickels
once in a while doing it.
Explain the business of being a ranch owner to us, please.
Governor Noem. Thank you, Congressman, for the question. I
would say for most ranchers, it is not a business model, it is
their family legacy. It is what their fathers did and their
grandfathers and grandmothers did. And it is something that
they take a lot of pride in.
I think probably one of the most devastating things I have
ever seen in my entire life was when Winter Storm Atlas hit
South Dakota when I served here in Congress, and tens of
thousands, hundreds of thousands of cattle were dead overnight
because of something out of ranchers' control.
So, to paint the picture that they only care about dollars
and cents just simply isn't true. And they make management
decisions how best to support that herd, but also how to
support that land and how to protect it. They are putting in
investments to access water, and they are putting in different
resources in order to manage noxious weeds. You could go
anywhere in South Dakota and see that the private land and land
in cooperation with ranchers is better cared for than much land
that would be under a government jurisdiction or at the Federal
level.
What is interesting to me is that, if you look at BLM and
what their mission is, is that it specifically is to use the
land, it is a land management agency, and it is supposed to
consider conservation in every activity that it conducts. When
you start prioritizing one over the other, the entire mission
of the agency fails. And the way that they are approaching
this, by declaring this not a major rule, completely eliminates
any of the scientific facts they would need to even know if
this rule is going to work.
When the former Congressman over here was chatting about
conspiracy theories, this whole proposed rule is a conspiracy
theory. They are avoiding Federal law. They may not even, under
one of their processes they have established in this rule, even
require these rules to be listed in the Federal Register
anymore under the ACEC process. They are taking away all public
input, potentially, in how they are going to create intact
landscapes, which means the public will have no input, and they
can immediately implement it overnight, which is not the
authority of BLM.
So, I am incredibly surprised by how this rule came forward
because of how it is established, and it is ignoring the long-
set precedent that ranchers take every day to manage lands, and
not asking for their input.
Mr. Duarte. Thank you. That is a great answer. No one
understands ranching and government together better than the
two of you.
I will give what is left of the last minute to Governor
Gordon, if we can, please. Thank you very much.
Governor Gordon. Thank you. On a personal level, when I get
up on the ranch, I go out and I look at how the grass is
growing. We measure it on a monthly basis. You can go to our
website and see our range studies over the last several years.
We take our conservation very seriously.
But more importantly, wherever you go in Wyoming, and I am
thinking of the Thunder Basin, and Congresswoman Hageman knows
it well. Secretary Perdue came out and actually took a ride
through the Thunder Basin national grassland and visited with
the ranchers there, because he wanted to see on the ground what
was going on. You can't do windshield management. You have to
look at the ground. You know that, as a farmer yourself.
And what is frustrating about this rule is it will put in
place all of these sort of constrictions on management. And as
I mentioned before, it would inhibit our ability to be able to
improve the range, and to be able to sustain the range so that
our sage-grouse populations could happen. You know, from being
from California, that dead and dying material oxidizes. It
doesn't produce anything except CO2. And that either
happens over time or it happens in a fire.
Mr. Duarte. Out on the range there are lots of ideas in the
world, we all learn from each other in farming and natural
resources of all types, many businesses, do you categorically
dismiss perspectives because of political party affiliation?
Governor Gordon. Absolutely not.
Governor Noem. We don't get that ability, as governor. As a
governor you need to get things done, and accomplished, and do
what is best for people. And we work on a bipartisan basis
every single day.
Mr. Duarte. Do you feel you are able to listen to an idea
or perspective, and give it merit based on its----
Governor Noem. The diversity of that perspective helps us
make better decisions. When we hear those different opinions,
we make better policy decisions.
Governor Gordon. And there may be things that the governor
and I don't agree on, and there may be things that a governor
in Colorado and I don't agree on. But we find a way forward.
Mr. Duarte. Even though you are in the same political
party, you don't always agree?
The Chairman. The gentleman's time has expired. I am going
to have to move on to the next question. I recognize the
gentleman from Arizona, Mr. Gosar, for 5 minutes.
Dr. Gosar. Thank you, Governor Noem. Good seeing you again.
Governor Noem. Good to see you again, too.
Dr. Gosar. And Governor Gordon, I am the lost sheep from
Wyoming, the oldest brother.
First, I have to start with the comments from my colleague
from New Mexico. She mis-speaks. She said this rule will not
stop oil and gas leases, it won't change a thing. Well, tell
that to the Navajo allottees who saw their livelihoods and
financial well-being dragged from them from one of their own
Indigenous Secretary of the Interior, once again magnifying the
old adage, ``I am here from the Federal Government, I am here
to help.'' Run Forrest, run.
Now, I want to get back to this from a little different
tact. You are very aware of the equal footing clause, I might
ask, and the multiple-use doctrine. Yesterday in a Committee
hearing on Oversight, we had just the craziest, craziest
hearing. And we had an individual talking about mercury
toxicity. And little did she know that the No. 1 adage for
mercury toxicity is catastrophic wildfires. Amazing. Absolutely
amazing. It shows that this dog chases his tail round, and
round, and round we go, and never catches it.
So, we are looking at those aspects and primacy. Let's get
back to Arizona. Arizona is a very unique state, because we
were rejected by statehood the first time. And the President at
that time, President Taft, who was the only president to go on
to serve at the Supreme Court, actually forced the Federal
doctrine on Arizona. But he also said that the commitment was
the multiple-use doctrine would be very advantageous not only
for the state of Arizona, but for the Federal Government in
utilizing it. Now, we may not have as much gas and energy that
you guys have, but we are loaded with minerals. We are loaded.
So, this is a further attempt to victimize the West, not to
empower them. But I keep coming back to that equal footing
clause that states that what Eastern states got, we were
entitled to without this Federal doctrine. I am going to ask
you. If we were to return that equal footing clause to primacy,
how would that affect your states, and how would they run more
efficiently?
Governor Noem, we will go with you first.
Governor Noem. Well, it would be a game-changer for us,
specifically. It would right the ship, and give us an
opportunity to at least be treated in a manner which gave us
equal opportunity to succeed. It is not the Federal
Government's job to come in and make sure that we succeed, or
to put their thumb on the scales, but to give us an opportunity
to at least produce and succeed as every other state gets the
opportunity to.
Dr. Gosar. Governor Gordon?
Governor Gordon. Thank you, Mr. Chairman, Congressman. I
knew your dad, I know many of your siblings----
Dr. Gosar. Don't hold it against me.
[Laughter.]
Governor Gordon. I won't. And I know your county very well.
And the example you give in Sublette, where you were raised, is
absolutely critical.
As you know, former Commissioner Joel Bousman has worked on
trying to get primacy for that area, which has national
forests, has BLM, has Federal leasing involved. And it would
be, to the good governor of South Dakota's comment, a game-
changer.
Really, states know how to do this. We have done it better
than anyone else on sage-grouse habitat, and your home county,
Sublette. And it really is thanks to state government, not the
Federal Government, that we got a recipe that protects the
wildlife, allows for energy development, and makes sure that
the communities of Pinedale, Big Piney, and others have
families that can live there and make a reasonable living.
Dr. Gosar. Yes. So, I am one of these people that gets
tired of playing defensive politics. So, I am going to
highlight a program called SNPLMA, the Southern Nevada Land
Exchange Project. It was by the late Harry Reid. And what he
found was that Las Vegas was surrounded by BLM. He couldn't
grow anymore. So, what he dug up is that he found in the
inventory of Federal laws that the government had to get rid of
the land they had no use for, or didn't have a direct aspect
for. And, voila, Vegas grew. BLM sold land right and left.
Maybe we ought to be looking at that law. If it was good enough
for Harry Reid, it should be good enough for us, as states, and
the supremacy of the state over its jurisdiction.
Mr. Chairman, I yield back and I thank the witnesses for
attending today.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentlelady from Puerto Rico, Mrs. Gonzalez-
Colon.
Mrs. Gonzalez-Colon. Thank you, Mr. Chairman, and thank
you, both governors, for being here.
Happy to see you, Governor Noem.
Governor Noem. Good to see you again, too.
Mrs. Gonzalez-Colon. We were here together when I actually
arrived here in Congress. And I am listening to you both in
terms of that experience, and my main concern will be how, if
in any way, the management engagement from BLM was done with
your state. Was there any engagement before the publication of
the rule?
Governor Noem. Not with our office or with our state,
specifically, no. There was an opportunity to listen and gather
some information at one time. I would say it is a very
different--well, it has happened. Waters of the U.S. was
proposed much the same way. The 30x30 rule, which is absolutely
a land grab by the Federal Government that is now being
rebranded and brought forward, we are starting to see this as a
pattern coming out of this Administration.
Mrs. Gonzalez-Colon. You were saying in your testimony, in
your statement that the proposed rule will also impact public
safety in a negative way in your state. Can you elaborate on
that?
Governor Noem. Well, it is going to risk people's lives
because it will not allow us to manage the Black Hills National
Forest and Forest Service lands throughout that area in a way
that protects our communities and homes that are there. We have
seen devastating fires in the area. And because it is such a
populated forest, if we do not manage it, it will increase that
risk of wildfire, and we will lose people.
The rule completely ignores that aspect, and does no
analysis on what public safety ramifications may happen if they
follow through on it.
Mrs. Gonzalez-Colon. You know that I represent Puerto Rico
in Congress, and we don't have the Bureau of Land Management
back home.
Governor Noem. Right.
Mrs. Gonzalez-Colon. But I think it is important to know
what kind of repercussions could be in the whole nation if we
don't pay attention to this. Why should the general public and
nationwide be concerned about the way this rule is being
imposed?
Governor Noem. Well, it will have long-lasting effects as
far as precedent that it is setting for how every other rule is
done. That is what I see consistently coming from the
government, is once you allow them to overstep Federal law or
to trample on our states' rights, they will continue to do so.
And they will reference back to, well, we have already used
this mechanism before under a rule through BLM, and they will
continue to push it.
That is why it is important to stop this, because,
specifically on this rule, there is no scientific data, there
is no analysis. They have purposely declared it not a major
rule so they don't have to provide for you what the economic
impact could be on the country.
And for us specifically, it is our way of life. It is the
people that live there and make a living off the land.
Governor Gordon. And if I may, here is a direct impact.
Governor Noem talked about forests. And we have seen that
in California, we have seen that in Wyoming, we have seen that
in Montana, really, everywhere across the West.
The other thing we have seen, and I will point to Colorado
a few years ago, where a massive grass fire overwhelmed
communities. If we aren't able to treat invasive species on our
Federal estate, there is a grass called cheatgrass, there is
another one called Japanese brome. Both of them grow under
really rapid conditions. They are annual grasses and they are
like gasoline. In fact, they are characterized as being able to
change the ecology of an area. So, if we are not able to treat
that, and a spark hits that land, and a wind comes up, you will
have devastation that can wipe out communities. We have seen it
in Colorado. Governor Noem, Rapid City on the western edge, had
real problems, and none of that was taken into effect.
In fact, earlier today, I said one of the things that this
Administration could do to get off their butt and actually do
something about conservation is make sure that we get Rejuvra
approved. The Ag Department says it is OK, EPA says it is OK,
the Bureau of Land Management can't figure this out. That is
one of the most important things they could do for
conservation.
Mrs. Gonzalez-Colon. And I need to agree with you. You said
a few minutes ago that Secretary Perdue visited Wyoming to see
what is going on in real life there. He did the same thing in
Puerto Rico after the hurricanes. That is the kind of politics
we should be pushing from our executive branch.
I want to say thank you, both of you. Thank you for the
conservation you do and your people do in your lands.
I yield back.
The Chairman. The gentlelady yields back. I now recognize
myself for questions and, again, want to thank both of you for
coming here today and spending your valuable time with us.
Governor Noem, in your testimony, you talked about how this
rule has no scientific basis. You talked about how the
Administration is classifying it as a minor rule. And we held
up the 88-page minor rule that they are proposing.
And I know a few years ago I was out in Wyoming and South
Dakota and in the Black Hills area, and I was there on a very
sad day. It was a day that one of the mills in South Dakota
closed, one of the few mills remaining out there. And I wasn't
planning to meet with you, Governor Noem, but there was a
forest fire that very day, and you had to fly over to be there
for the forest fire.
And I will say that some things do change, probably since
you have been on the Committee. We actually passed out two
bipartisan pieces of forestry legislation this week, one of
them with a 39 to 0 vote, and it was on Good Neighbor
Authority, which I know you worked on when you were here in
Congress. And that bill had passed the Ag Committee 51 to 0.
So, we are starting to wake up and realize the benefits of
forest management. This will allow tribes and counties to do
some of the same work that the states are able to do.
But when I was there, I reviewed a report. And I have a
forestry background. It was written not just by bureaucrats,
but retired bureaucrats from the Forest Service, on how the
forests should be managed. And it was offensive to me from a
scientific standpoint on the basis that there was no science or
knowledge that went into it. It was purely a biased report
written to influence how the forest was going to be managed.
So, it didn't appear to be a great day in the Black Hills
with a mill closing down, a forest fire raging, and a new
withdrawal from, if you will, from the Forest Service on land.
But you mentioned that Good Neighbor Authority is working, and
things are happening better in the Black Hills. I know both of
you utilize the Good Neighbor Authority. Can you talk about how
that and other programs that are run by the state can actually
make conservation better and make our Federal lands better?
Governor Noem. Well, in the Black Hills we have utilized
Good Neighbor Authority to cooperate with other layers of
government, with the state, with counties, with outside
associations. And we have run incredible projects that have
allowed us to go out and manage the forest to make sure that we
were considering all aspects of what a successful forest looks
like.
Those are the kind of rules, suggestions, and regulations
that I believe we should be focusing on in Congress to cut
strings rather than to tie more on to us, to allow us the
freedom to look at what specifically is happening in each
situation and adapt to that. That was used very successfully
for us to defeat and push back the pine beetle epidemic that we
were dealing with at that time that was making the Black Hills
so dangerous. And it worked overwhelmingly.
Since then, we have seen more and more regulation coming
in. Specifically, the GTR that was put forward by the Forest
Service that cut our cubic cord feet was pretty devastating for
us to see that it wasn't built on anything on the ground. And
that is what is another aspect that is impacting the Black
Hills right now, why we are seeing our mills being threatened
and our timber industry struggling.
I know Governor Gordon has been deeply involved in this, as
well, as we have been trying to brainstorm on how we can keep
the economy going.
It is so interesting to me that we import a lot of our
lumber from Canada, while we have excess lumber here that we
just don't allow ourselves to utilize to help support our
country. And now we have lumber from California from burned-out
wildfires that is being shipped all the way to South Dakota to
our two mills. It doesn't make any sense.
The Chairman. I know, I almost passed out when I heard the
solution was to ship in logs from California, and all that
freight. Think of the carbon emissions on that.
Governor Noem. Absolutely, they are actually doing it.
The Chairman. Governor Gordon.
Governor Gordon. And Mr. Chairman, the lesson is well
learned in that particular instance. That is because the mill
industry in the Northwest is dead. We put it out of business.
So, in order to take care of those logs, we had to figure
out a way, at enormous cost, both carbon and to the taxpayer,
to get those logs to South Dakota, just to get them taken care
of.
Good Neighbor Authority has worked. It is incredibly
valuable. We are working on it, obviously, in the Black Hills,
but also in the western part of our state.
And I will point out one other thing that is really
critical about this. As we look at the Colorado River and the
challenges it has had over the last several years, if we don't
manage our watersheds well, we will compound our problems with
droughts. We will compound our water shortage issues.
And Mr. Chairman, as a forester, you know very well that
when somebody says we are going to take this offline, we are
not going to manage the forest, succession doesn't stop. You
end up with post-successional forests that are tinder boxes.
You end up with all kinds of strange things that happen.
Management happens when we actually have the ability to do
something.
The Chairman. And the point I would like to make as we wrap
up this panel is that, when we choose not to manage, we make a
management decision. And if the Federal Government, the
bureaucracy in the Federal Government is truly concerned about
conservation, then let the people who know how to do
conservation actually do conservation. Because the Federal
Government's track record on conservation is really pretty
poor. If you look at it compared to tribal governments, to
state governments, and to private, you are looking at two
different areas and, actually, two different universes.
So, thank you to the witnesses for being here today.
And Governor Gordon, you mentioned a great point. When
these trees burn, they are releasing carbon dioxide. When they
fall down and deteriorate over time, it is actually methane.
They release CH4 from the digestion from the bugs
that are eating them. So, you can burn it up as CO2,
or let it rot and create CH4, or you can utilize
those products and create good jobs in rural economies.
But again, thank you both for being here today. And those
were the last questions we have for Panel II.
Some members of the Committee may have some additional
questions for the witnesses that we will ask to respond in
writing.
We will now move on to our third panel. While the Clerk
resets the witness table, I will remind the witnesses that
under Committee Rules, they must limit their oral statements to
5 minutes, but their entire statement will appear in the
hearing record.
I would also like to remind our witnesses of the timing
lights, which will turn red at the end of your 5-minute
statement, and to please remember to turn on your microphone.
As with the second panel, I will allow all witnesses to
testify before Member questioning.
At this point I would have liked to have introduced the
Bureau of Land Management Director, Tracy Stone-Manning, to
testify on H.R. 3397, a bill with explicit actions for the
Director to take. However, the Director declined our invitation
to testify, and instead we have Principal Deputy Director Nada
Wolff Culver.
Principal Deputy Director Culver, you are now recognized
for 5 minutes.
STATEMENT OF THE HON. NADA WOLFF CULVER, PRINCIPAL DEPUTY
DIRECTOR, BUREAU OF LAND MANAGEMENT, WASHINGTON, DC
Ms. Culver. Thank you, Chairman Westerman, Ranking Member
Grijalva, and members of the Committee. I am Nada Wolff Culver,
the Bureau of Land Management's Principal Deputy Director. I
appreciate the opportunity to express the BLM's concerns
regarding H.R. 3397, which would deprive the BLM of critical
tools necessary to manage the challenges facing public lands
today. The BLM opposes the bill.
I also appreciate the opportunity to be here on a panel
with my fellow Colorado residents, and I am also thankful to
get to speak at this hearing today to get a chance to reiterate
the intent and the content of the rule, how it works,
consistent with the day-to-day management of our public lands.
On behalf of the American people, the BLM manages
approximately 245 million acres of public land, primarily in 12
Western states, as well as 700 million subsurface acres.
Congress provided clear direction to the BLM in the Federal
Land Policy and Management Act, or FLPMA, to manage public
lands for multiple use and sustained yield, specifically to
manage for uses such as renewable and conventional energy
development, livestock grazing, timber production, fish and
wildlife habitat, recreation, and conservation, including
protecting cultural and historic resources, watersheds, and
scenery. FLPMA also directs the BLM to ``take into account the
long-term needs of future generations.''
Today, public lands are under severe stress from
increasingly frequent and intense wildfires, historic drought,
influx of invasive species, and changing conditions on the
ground driven by climate change. Simultaneously, public lands
are under pressure from ever-increasing types and amounts of
use.
Simply put, the BLM's ability to continue to manage for the
multiple uses outlined in FLPMA, which are a vital economic
driver for communities across the West, depends on the
resilience and the health of America's public lands.
The proposed rule would help provide necessary direction to
public land managers to work toward resilient, healthy
landscapes that can support the full breadth of multiple use
now and into the future. Recognizing that not every use can
always occur on every acre, the BLM is working to ensure the
appropriate balance of uses within the multiple-use framework
on every acre.
Conservation, defined in the proposed rule as protection
and restoration, is a part of this balance and, as one type of
multiple use, supports the continued resilience of the public
lands. The proposed rule would direct land managers to identify
intact landscapes and degraded landscapes, and consider whether
and how land health, habitat, clean air, and clean water can be
maintained or improved or restored as necessary.
At the same time, the proposed rule would direct the use of
the best available science and data, including Indigenous
knowledge in decision making.
The proposed rule also outlines a tool to support
restoration, and to offset the impacts of development:
conservation leasing. With conservation leases, the BLM could
leverage private investment toward restoration and mitigation
efforts taking place on public lands while working with
partners, industry, and the public to site energy development
and to conserve greater sage-grouse and wildlife habitat.
The BLM received feedback from states, localities, and
developers that such a tool is necessary to support durable
lands restoration and mitigation on public lands to offset the
impacts of development. The rule is responding to that input.
And this is an important point overall: the concepts and
the direction in this proposed rule arise out of years of the
BLM's experience in implementing FLPMA and working with public
land users on the ground. They have been discussed and
implemented internally and externally. This proposed rule
reflects the lessons learned, the needs identified, and the
continuing conversations that BLM has with so many partners
across this country who depend on the resources of our public
lands.
The BLM is currently in the process of receiving feedback
on this proposed rule. The rule was published in the Federal
Register on April 3, opening a 75-day public comment period. To
date, the BLM has hosted five informational sessions and
provided numerous briefings to a wide range of the interested
public around the West and around the rest of the country. The
BLM has received nearly 120,000 comments thus far.
While our public outreach has been robust, in response to
several requests, including from members of this Committee,
today we are announcing an additional 15 days for public
comment, bringing the comment period to 90 days. We will
consider the valuable input we have received and continue to
receive to inform the final rule.
I am optimistic that this rule would help achieve our
shared goals discussed by everyone here today to continue to
manage public lands so they can support the multiple uses that
we rely on now, while also maintaining the health of the lands
for future generations.
Every day, the BLM seeks a careful balancing across many
uses and resources to steward the public lands for all. The
proposed rule would help guide balanced management in a manner
that does not elevate one use over others. The BLM would
continue to permit multiple uses on the public lands, and
conservation will remain compatible with many other uses.
Thank you again for the opportunity to present this
testimony, and I look forward to your questions.
[The prepared statement of Ms. Culver follows:]
Prepared Statement of Nada Wolff Culver, Principal Deputy Director,
Bureau of Land Management, U.S. Department of the Interior
Thank you for the opportunity to express our concerns regarding
H.R. 3397, which would require the Director of the Bureau of Land
Management (BLM) to withdraw the proposed Conservation and Landscape
Health rule (88 Fed. Reg. 19583 (April 4, 2023)) and prohibit the BLM
from taking any action to finalize, implement, or enforce the proposed
rule or any substantially similar rule.
The BLM's management responsibilities are at a pivotal moment, as
our shared public lands face new and growing challenges resulting from
a changing landscape, such as unprecedented drought and wildfire, while
at the same time demands from commercial and recreation uses are
increasing. The proposed rule is intended to provide tools to land
managers on the ground to most effectively respond to these challenges
and fulfill the BLM's mission so that our public lands can continue to
support the people and wildlife that depend on them. It could help to
ensure that the BLM has the ability to continue to responsibly manage
energy development, grazing, mining, recreation, conservation, and
other uses in a balanced manner consistent with the multiple-use,
sustained-yield mission of the Bureau. It is important to note that
this rule is at the proposed rule stage and the final rule could
include modifications.
Every day the BLM provides for a careful balancing across many uses
and resources to steward the public lands for all. The proposed rule
clarifies a framework confirming this approach and is consistent with
the BLM's responsibilities, including under Section 102 and Section
103(c) of the Federal Land Policy and Management Act (FLPMA), to uphold
its multiple use mission while ensuring the health, diversity, and
productivity of public lands for the use and enjoyment of present and
future generations. The proposed rule is intended to help guide
balanced management that does not elevate one use over others. The BLM
permits multiple uses on the public lands and would continue to do so
should this rule be finalized. Conservation principles, which are
already established in BLM administrative policy and instruction
memoranda, as well as applicable precedent, will continue to be
compatible with many other uses and are key to ensuring that the public
lands can continue to support multiple uses now and into the future.
H.R. 3397 would unnecessarily interfere with the rulemaking
process, and limit BLM's ability to manage for the challenges facing
public lands today. The BLM strongly opposes this proposed legislation.
Overview
On behalf of the American people, the BLM manages approximately 245
million surface acres, located primarily in 12 western states. The
Bureau also manages about 30 percent of the nation's onshore mineral
resources across 700 million subsurface acres, including beneath
surface areas managed by other Federal agencies, as well as state and
private lands. Pursuant to the multiple-use mandate set out in FLPMA,
the BLM manages public lands for a broad range of uses and values, such
as renewable and conventional energy development, livestock grazing,
timber production, hunting and fishing, recreation, and conservation--
including protecting scenic, cultural, and historic resources,
watersheds, and scenery. FLPMA also directs the BLM to manage the
public lands for sustained yield, so that the many resources of the
public lands will continue to be available into the future.
Approximately 155 million acres are managed for livestock grazing, and
approximately 24 million acres are under lease for oil and gas
development, with tens of thousands more acres leased or permitted for
renewable energy development, outdoor recreation, or other uses. Public
lands managed by the BLM also provide vital habitat for more than 3,000
species of wildlife and support fisheries of exceptional regional and
national value.
For more than 75 years, the BLM has evolved to meet the needs of
the Nation while maximizing opportunities for conservation, recreation,
and commercial uses on public lands. Today, public lands are under
severe stress from increasingly frequent and intense wildfires,
historic drought, an influx of invasive species, and changing
conditions on the ground driven by climate change. At the same time,
the pressures of use and development on public and private lands are
increasing.
The challenges posed by maintaining the health of public lands in
the face of a changing world are making it increasingly difficult for
the Bureau to provide for the needs of the American people--whether
through food, fiber, habitat, forage for livestock, energy needs,
outdoor recreation opportunities, or many of the other uses of the
public lands. For the BLM to continue to deliver on its multiple-use
and sustained-yield mission, the Bureau needs to manage for the health
of lands today, so that their resources and values remain available and
in a condition that best meets the needs of current and future
generations of Americans.
The proposed rule would help provide necessary direction to public
land managers to work towards resilient, healthy landscapes that can
support the full breadth of multiple use. The proposed rule would
direct land managers to identify intact landscapes and consider whether
and how land health can be maintained or improved. As proposed, it
would direct land managers to identify where lands are unhealthy or
degraded, and to consider how they might be restored. The rule proposes
land managers use the best available science and data, while
meaningfully incorporating Indigenous Knowledge, to ensure that
management is science-based and driven by conditions on the ground. In
addition, with the recognition that not every use can always occur on
every acre, the BLM is working to ensure the appropriate balance of
uses within the multiple use framework on every acre. Conservation is a
part of this balance and supports the continued resilience of the
public lands.
Among several meaningful updates, the proposed rule also seeks
public and stakeholder input on conservation leasing as a potential
tool that would support restoration and offset the impacts of
development. Under this approach, the BLM could potentially leverage
private investment by allowing members of the public to invest
restoration and mitigation dollars on public lands, which will also
provide industry with a tool to offset their impacts on public lands.
This could provide a path to facilitate responsible development while
ensuring the public benefits from those mitigation efforts. The
proposed rule also attempts to respond to prior feedback from states,
localities, and developers that such a tool could help to support
durable mitigation and restoration on public lands. Responding to this
input by providing additional structure for such an approach could
improve the BLM's restoration and mitigation efforts.
The BLM is currently in the process of receiving and reviewing
feedback on this proposed rulemaking to ensure it achieves these
important goals without unnecessary disruption to existing management.
The proposed rule was published in the Federal Register on April 3,
2023, opening a 75-day public comment period. To date, the BLM has
hosted five informational sessions, including two virtual meetings and
three in-person meetings, to provide the public with opportunities to
learn more about the proposed rule, as well as numerous briefings to a
wide range of the interested public. The BLM has received more than
120,000 public comments, and will consider and respond to the comments,
using this valuable input to inform the final rule.
The Federal Land Policy and Management Act of 1976 (FLPMA)
Congress provided clear direction to the BLM in the agency's
organic act, FLPMA. FLPMA requires public lands to be managed for
multiple use and sustained yield unless otherwise specified by law.
FLPMA 302(a), 43 USC 1732(a). In doing so, it defined the term
``multiple use'' at FLPMA Sec. 103(c), 43 USC Sec. 1702(c), to mean:
[T]he management of the public lands and their various resource
values so that they are utilized in the combination that will
best meet the present and future needs of the American people;
making the most judicious use of the land for some or all of
these resources or related services over areas large enough to
provide sufficient latitude for periodic adjustments in use to
conform to changing needs and conditions; the use of some land
for less than all of the resources; a combination of balanced
and diverse resource uses that takes into account the long-term
needs of future generations for renewable and nonrenewable
resources, including, but not limited to, recreation, range,
timber, minerals, watershed, wildlife and fish, and natural
scenic, scientific and historical values; and harmonious and
coordinated management of the various resources without
permanent impairment of the productivity of the land and the
quality of the environment 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.'' [emphasis added]
Moreover, Congress further declared:
``[I]t is the policy of the United States that the public lands
be managed in a manner that will protect the quality of
scientific, scenic, historical, ecological, environmental, air
and atmospheric, water resource, and archeological values;
that, where appropriate, will preserve and protect certain
public lands in their natural condition; that will provide food
and habitat for fish and wildlife and domestic animals; and
that will provide for outdoor recreation and human occupancy
and use . . . .'' [emphasis added]
To ensure the BLM is able to meet these priorities, FLPMA provides
that ``in administering public land statutes and exercising
discretionary authority granted by them, the Secretary be required to
establish comprehensive rules and regulations after considering the
views of the general public . . . .'' To date, the BLM has established
and maintains regulations for a wide variety of uses, from grazing to
off-road vehicle management, from areas managed to protect natural
values to mineral resources to rights-of-way. However, the BLM has not
established comprehensive regulations governing the conservation
elements of BLM's mission to manage for multiple use and sustained
yield, which is increasingly necessary in light of the challenges
resulting from our changing landscape.
Ultimately, the proposed rule would maintain the BLM's commitment
to its multiple-use and sustained-yield mission, helping to provide
management direction to fulfill its congressionally directed
obligations. If finalized as proposed, the rule would help enable the
BLM to deliver on all aspects of the charge Congress has given the
Bureau and fulfill its mission, now and into the future. The proposed
rule would better address conservation (defined to include restoration
and protection) as a ``use'' among other ``multiple uses'' and would
establish direction and management tools for land managers to consider
and better protect and restore healthy public lands.
The Proposed Rule
The BLM's ability to manage for the multiple use and sustained
yield of public lands depends on the health of the ecosystems and the
ability of the lands to deliver associated services, such as clean air
and water, food and fiber, renewable energy, and wildlife habitat.
Ensuring resilient ecosystems has become imperative, as public lands
are increasingly degraded and fragmented due to adverse impacts from
climate change and a significant increase in authorized uses. The
proposed rule as issued aims to provide a framework to restore degraded
habitat, protect intact landscapes, and ensure informed decision making
in planning, permitting, and programs, by identifying best practices to
manage lands and waters to achieve desired conditions. The rule would
also incorporate opportunities for Tribal co-stewardship and include
Indigenous Knowledge as part of informed decision-making.
The proposed rule defines conservation to include restoration and
protection. It clarifies that conservation is one of the multiple uses
of public lands under FLPMA's multiple-use and sustained-yield
structure, as courts have already held, but it explicitly does not
prioritize conservation over other uses. The proposed rule is
consistent with the plain language of FLPMA.
Promotes Restoration of our Lands and Waters
The proposed rule would direct the BLM to seek opportunities for
restoration across the public lands to enable achievement of its
sustained yield mandate, and it encourages active management to achieve
ecosystem resilience where appropriate. The proposed rule seeks public
input on the concept of conservation leasing, which BLM believes could
ultimately provide a durable mechanism to support restoration of public
lands in a manner consistent with the BLM's administration of other
uses.
Conservation leases could be issued in targeted areas to support
the BLM's mission and policy goals through one of two allowed uses--
restoration or mitigation--and for a term consistent with those
outcomes, for up to ten years as a standard term. While conservation
leases would effectively restrict some other purposes, they would not
disturb existing authorizations, valid existing rights, or state or
Tribal land use management. In its current form, the proposal does not
contemplate the BLM requiring conservation leasing; rather, the BLM
would review applications from qualified third parties and ensure the
proponent is experienced in and qualified to achieve the proposed
restoration or mitigation outcomes by leveraging non-Federal funding.
Proposals would be evaluated to determine if the proposed use would be
suitable at the proposed location, considering other potential uses of
the lands. The existence of a conservation lease could also provide
support for successful restoration. For example, a non-profit sporting
organization could put people to work on public lands to restore mule
deer or elk habitat, and a conservation lease would help ensure that
the work would take hold and flourish.
Conservation leasing could also serve as an important tool for
compensatory mitigation, which compensates the public for the
unavoidable impacts of development on public land through investments
in restoration and other mitigation measures. Compensatory mitigation
could facilitate responsible development on public lands while ensuring
ample availability of healthy rangelands for other multiple uses.
Currently, however, there are often too many obstacles for partners to
engage in successful compensatory mitigation on public lands. In their
current form, the conservation leasing provisions in the proposed rule
come, in part, in response to input from state, local, and industry
partners who requested a reliable path to pursue compensatory
mitigation on public lands to facilitate development projects,
including participation by mitigation fund holders. Decisions to issue
a conservation lease would utilize the appropriate NEPA process to
ensure adequate public engagement and informed decisions.
Provides for Balanced, Responsible Development
To support balanced and informed decision-making, the proposal
would broaden the use of the fundamentals of land health, currently
applied within the BLM's grazing program, and apply them consistently
across other land management programs. Incorporating land health
standards and guidelines broadly into land management is a best
practice employed by state and Federal land management agencies,
including the U.S. Forest Service.
Extending the applicability of the fundamentals of land health
would ensure the BLM programs will more formally and consistently
consider the condition of public lands during decision-making
processes. Expanding assessments to a scale beyond an individual
grazing allotment could allow the BLM field offices to leverage those
broader assessments with the goal of making individual decision-making
processes more timely and efficient. The BLM has already seen success
in BLM field offices that are currently leveraging broader land health
assessments. Moreover, by using land health assessments and building
conservation into land management, the proposal would enable the BLM to
work more effectively with local communities and industry to identify
areas of low resource conflict that are better suited to development
uses while acknowledging areas important to other community needs or
protection.
In addition, as noted above, conservation leasing could provide a
vehicle to more effectively carry out compensatory mitigation for the
unavoidable impacts of development projects on public lands. The
proposed rule does not contemplate the BLM requiring compensatory
mitigation to be carried out via conservation leases or only on public
lands; it simply provides another vehicle to support compensating the
public for loss of use and resources on their public lands.
Protects the Healthiest Intact Landscapes
To help direct resources to areas where they will have the
strongest and most beneficial impact, the proposed rule would direct
land managers to identify the most suitable intact landscapes for
conservation. Intact landscapes are defined in the proposed rule as
unfragmented ecosystems free of local conditions that could permanently
or significantly disrupt, impair, or degrade the landscape's structure
or ecosystem resilience, and that are large enough to maintain native
biological diversity, including viable populations of wide-ranging
species. Intact landscapes have high conservation value, provide
critical ecosystem functions, and support ecosystem resilience.
Moreover, fragmentation of these landscapes can impact their ability to
deliver critical services, including clean drinking water and flood
mitigation.
To this end, intact landscapes would be managed at the local level
under the proposed rule. When revising a land use plan, the BLM would
review available information to identify intact landscapes and then
determine which, if any, landscapes should be managed to protect
intactness. In doing so, the BLM would consider a range of potential
uses in accordance with its multiple-use management approach, and
evaluate their impacts using the best available scientific information.
The identification of any intact landscapes would be subject to
notice and public comment as part of the larger land use planning
process. Identification of an intact landscape does not require it be
managed in any particular manner; rather, managers would retain the
discretion to determine whether an area should be managed to protect
its intactness or should be open to other uses. In identifying the
areas that are most suitable for management as intact landscapes, the
proposed rule would enable the BLM to work with communities to identify
areas that the communities have targeted for strategic growth and
development, as managing those areas for intactness is less likely to
be appropriate.
One of the principal tools that the BLM currently has available to
manage intact, native landscapes on public lands is the designation of
areas of critical environmental concern (ACEC), as provided by FLPMA.
FLPMA directs the BLM to give priority to the designation and
protection of ACECs when making land management decisions. Notably,
ACECs can be designated to protect a wide range of values, including
recreation, research, and cultural resources.
Currently, the BLM's process for designating ACECs is established
partially in regulation and partially in guidance. The proposed rule
would formalize much of that guidance in regulation, ensuring
consistent identification and management, while reducing duplicative
steps in the management of these important sites. This would leverage
the BLM's more than 40 years of experience inventorying, evaluating,
and managing ACECs through the land use planning process to protect
sensitive areas for future generations.
Conclusion
The BLM is committed to its core mission of multiple use and
sustained yield, which includes managing for healthy lands today so
that the BLM can deliver on its important, congressionally-mandated,
multiple-use mission now and in the future. The proposed rule would
help the BLM respond to the pressures posed by unprecedented drought,
intense wildfires, loss of wildlife, and an influx of invasive species.
Given the significant challenges the BLM faces in maintaining the
health of the public lands, the BLM again emphasizes its stringent
opposition to the proposed legislation. Thank you again for the
opportunity to present this testimony, and I look forward to your
questions.
______
Questions Submitted for the Record to the Hon. Nada Wolff Culver,
Principal Deputy Director, Bureau of Land Management
Ms. Wolff Culver did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. During the hearing, Representative Curtis asked for a
listening session in San Juan County, Utah.
1a) Will you respond to Representative Curtis's request and hold a
listening session in his district?
1b) Will you hold this listening session before the comment period
closes on July 5, 2023?
Question 2. During the hearing, Representative Fulcher asked for a
listening session in Idaho.
2a) Will you respond to Representative Fulcher's request and hold a
listening session in Idaho?
2b) Will you hold this listening session before the comment period
closes on July 5, 2023?
Question 3. During the hearing, Representative Gosar asked for a
listening session in Arizona.
3a) Will you respond to Representative Gosar's request and hold a
listening session in Arizona?
3b) Will you hold this listening session before the comment period
closes on July 5, 2023?
Question 4. During the hearing, Representative Boebert expressed
concern over the lack of in-person listening sessions and the decision
of the BLM to hold these listening sessions in metropolitan areas.
4a) Will you respond to Representative Boebert's concern and hold a
listening session in her district?
4b) Will you hold this listening session before the comment period
closes on July 5, 2023?
4c) Why did the BLM choose to hold an in-person listening session
in Denver and not Grand Junction, despite Grand Junction being the
``Western headquarters'' of the agency?
Question 5. During the hearing, Representative Rosendale expressed
concern over the lack of in-person listening sessions and the decision
of the BLM to hold these listening sessions in metropolitan areas. He
specifically noted the Montana Delegation letter sent on May 11, 2023,
asking for a listening session in Montana.
5a) Will you respond to Representative Rosendale's concern and hold
a listening session in Montana?
5b) Will you hold this listening session before the comment period
closes on July 5, 2023?
5c) Why has the agency not responded to the Montana delegation's
letter?
Question 6. How many more in-person listening sessions will you
hold?
Question 7. Representative Peltola expressed concern her rural and
remote residents were unable to participate in listening sessions on
this rule. Many rural and remote residents don't have access to
broadband to connect to virtual sessions. Also, the closest listening
session for Alaskans is over 2,800 miles from Anchorage and Fairbanks,
Alaska to Reno.
7a) How will you accommodate an in-person listening session for
rural and remote residents in Alaska?
Question 8. How often does the BLM meet with the stakeholders and
leaseholders and local, county, and state governments to discuss their
management of the lands within those states?
Question 9. In your written testimony, you state, ``The BLM has
already seen success in BLM field offices that are currently leveraging
broader land health assessments.''
9a) Will you provide a list of what field offices are conducting
land health standards and guidelines? Please provide details on the
frequency of the assessments and what the uses of the lands are where
these standards are being applied.
9b) How long have these offices been conducting this practice?
9c) If BLM field offices are currently doing this, why is the
proposed rule needed to expand land health standards and guidelines
beyond grazing?
Question 10. In your written testimony, you clearly state, ``While
conservation leases would effectively restrict some other purposes,
they would not disturb existing authorizations, valid existing rights,
or state or Tribal land use management.''
10a) Several Members, from both sides of the aisle, have expressed
concern about the future uses of lands. The testimony clearly states
conservation lease would restrict some uses. Please provide a list of
what uses a conservation lease could restrict.
10b) What parameters will the BLM put on conservation leases?
Currently, there are no details on acreage, number of times a contract
can be renewed, or who can obtain a lease. Please provide details on
each of those items.
Question 11. In your written testimony, it states the rule
``clarifies that conservation is one of the multiple uses of public
lands under FLPMA's multiple-use and sustained-yield structure, as
courts have already held, but it explicitly does not prioritize
conservation over other uses.''
11a) What court decisions is this referencing?
11b) Will you provide the court cases and summaries from the Office
of General Counsel supporting this statement?
Question 12. The submitted testimony agonizes the agency is facing
challenges to provide for the needs of Americans. Specifically stating,
``The challenges posed by maintaining the health of public lands in the
face of a changing world are making it increasingly difficult for the
Bureau to provide for the needs of the American people--whether through
food, fiber, habitat, forage for livestock, energy needs, outdoor
recreation opportunities, or many of the other uses of the public
lands.'' If this is true, why would the agency then propose a rule that
would limit its ability to provide these needs through the multiple
uses of public lands?
Question 13. I have sent 65 questions for the record to the BLM and
Secretary Haaland during past hearings where this rule was addressed.
All have gone unanswered.
13a) Will you respond to all QFRs sent about this rule?
13b) Will you respond before the comment period closes on July 5,
2023?
13c) Will you respond before issuing a final rule?
Question 14. On May 17, 2023, I sent a letter with 13 of my
colleagues asking Secretary Haaland to extend the comment period by 75
days and hold more in-person listening sessions.
14a) Will you commit to a comment period extension of at least 75
days?
14b) Will you respond to my letter in writing?
14c) Will you respond before the comment period closes on July 5,
2023?
14d) Will you respond before issuing a final rule?
14e) Why did BLM only extend the comment period by 15 days and not
the requested 75 days?
Question 15. During the hearing, Governor Noem of South Dakota
raised a concern about foreign entities pursuing conservation leases.
These foreign entities could be bad actors, such as China, looking to
restrict America's ability to be independent in our production of
energy, minerals, and food.
15a) Did the BLM consider foreign entities pursuing conservation
leases as part of its rulemaking?
15b) What safeguards will the agency put in place to restrict
conservation leases from being obtained by foreign entities controlled
by the Chinese Communist Party (CCP) or under direct CCP influence?
15c) What safeguards will the agency put in place to ensure
conservation leases do not make America more dependent on countries
with worse environmental and labor standards for energy, minerals, and
food?
15d) Will the BLM allow conservation leases to be obtained near
military bases in the West?
15e) How many foreign entities controlled by the CCP or under
direct CCP influence currently have leases on BLM lands?
15f) What current processes are in place at BLM to analyze whether
current lessees are not under the influence of the CCP?
Question 16. On June 13, 2023, the Small Business Administration
Office of Advocacy sent a letter to Secretary Haaland expressing great
concern over the impact of this proposed rule to small businesses and
even questioned the legality to issue conservation leases under FLPMA.
The letter states in part:
``The proposed rule lacks a proper factual basis for
certification that the rule will not have a significant
economic impact on a substantial number of small entities.''
``BLM's proposed rule has unintended consequences that are
contrary to the agency's goals and the statutory requirements
for land management under FLPMA.''
``The proposed rule offers too much discretion to BLM that may
result in elevating conservation above the other principal land
management uses.''
16a) Have you received and read this letter?
16b) Have Director Stone-Manning and Secretary Haaland received and
read this letter?
16c) Please provide the factual basis that the rule will not have a
significant economic effect on small businesses under the Regulatory
Flexibility Act.
16d) Who was involved in the determination that this rule would not
have a significant economic effect under the Regulatory Flexibility
Act?
16e) During the hearing, you testified the BLM had not consulted
with any small businesses on this determination under the Regulatory
Flexibility Act. Will you commit to consulting with small businesses
now to determine whether this rule will have a significant economic
effect on small businesses?
16f) Will you respond in writing to the Small Business
Administration Office of Advocacy letter?
16g) Will you respond before the comment period closes on July 5,
2023?
16h) Will you respond before issuing a final rule?
Question 17. Deputy Director Culver, both Governors testified
saying this rule will significantly impact their state economies, yet
the BLM determined it was not a significant rulemaking and would not
have a significant effect on the economy. Even the Small Business
Administration Office of Advocacy is refuting this claim. Did anyone
from the BLM request that this rule be deemed not significant by OIRA?
Question 18. The word ``conservation'' appears in FLPMA 33 times,
primarily in reference to the designation of specific areas within the
National Landscape Conservation System.
18a) Please provide the specific section(s) of FLPMA the BLM is
using to justify elevating conservation as a ``use'' under FLPMA.
18b) Does the word conservation appear in Section 102 of FLPMA?
18c) Does the word conservation appear in the definition of
multiple use as defined by section 103(c) of FLPMA?
Question 19. Why do you believe this rule would be a more effective
alternative to address climate change and conserve land as opposed to
proactive forestry practices, which store and retain carbon in a
continual cycle of growing, harvesting, and replanting?
Question 20. The BLM seeks comments on this question: ``Should the
rule expressly authorize the use of conservation leases to generate
carbon offset credits?'' The federal government should not engage in
carbon banking. This is completely incompatible with the agency's
multi-use and sustained yield mandate.
20a) Under what legal authority does the BLM have the ability to
sell carbon offset credits on public lands?
20b) Does FLPMA, which was passed in 1976, contemplate the issue of
carbon offset credits?
Question 21. On the Bureau of Land Management's website, there are
a few industry specific Frequently Asked Questions (FAQ) documents.
However, there is not a document for all the current, multiple uses of
BLM land under FLPMA.
21a) How are these actions not evidence of BLM choosing a
predetermined outcome before the public comment period is even over?
21b) Will you create FAQ documents for all current, multiple uses
on BLM lands?
21c) Why is there no FAQ document for timber harvesting?
21d) Why is there no FAQ document for oil and gas production?
21e) Why is there no FAQ document for mineral development?
Question 22. Deputy Director Culver, Governor Noem and Governor
Gordon testified about the continued locking up of lands and the
detriment to their states. I am afraid the administration does not care
about these concerns. There are many land management tools to restrict
use. Another, vaguely defined conservation lease is not needed.
22a) Does a wilderness area conserve land?
22b) How many BLM acres are currently designated as wilderness?
22c) Does a wilderness study area conserve land?
22d) How many BLM acres are currently designated as wilderness
study areas?
22e) Does a national monument designation conserve land?
22f) How many BLM acres are currently designated as national
monuments?
22g) Does an Areas of Critical Environmental Concern (ACECs)
conserve land?
22h) How many BLM acres are currently designated as ACEC?
Question 23. Under BLM's existing regulations, the agency charges
rental fees of at least fair market value for usage of BLM land. How do
you plan to determine fair market value of conservation leases?
Question 24. Under this rule, BLM would be required to identify
intact landscapes as a part of the RMP process and would have to
develop a restoration plan with any new or revised RMP. Staff would
also have to report annually on the results of land health assessments.
These are just some of the various new requirements placed on BLM
employees by this rule.
24a) How will the agencies be able to meet all of these new
undertakings when they cannot even meet requirements in existing
statute like quarterly lease sales under the Mineral Leasing Act?
24b) Will you request more funding from Congress in order to meet
these new requirements?
Question 25. Under Executive Order 13211, Federal agencies are
required to prepare and submit to OMB a Statement of Energy Effects for
any proposed significant energy action that is likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Amazingly, the Department concluded that the rule would not
affect energy supply or distribution. I have heard from conventional
energy stakeholders as well as renewable energy stakeholders who have
expressed serious concern that this rule would limit their ability to
produce energy on BLM lands.
Please provide the documentation to the Committee to support the
assertion that the rule would not affect energy supply or distribution.
Question 26. The rule itself is relatively silent about how the
conservation leases themselves will be granted. Will they be done upon
request, or will they be granted competitively according to an auction
system?
Question 27. Will the conservation leases be limited to surface
activities or include mineral rights? If they will include mineral
rights, how does BLM intend to ensure that an appropriate return is
granted for American taxpayers?
Question 28. Will current oil and gas production, permits, and
leases be exempt from the rule and thus be allowed to be processed and
or developed once the rule is in place?
Question 29. In meeting the requirements and or intent of the
rule--establishing ACEC's for example--do you anticipate the barring of
future, or revoking pending, oil and gas leases or permits in areas
that are currently available or potential future development?
Question 30. Please provide the factual basis, including supporting
documentation, for how BLM came to the determination that this rule
will not have an effect on the economy of $100 million or more.
Question 31. Please provide the factual basis, including supporting
documentation, for how BLM came to the determination that this rule
will not increase costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions.
Question 32. Please provide the factual basis, including supporting
documentation, BLM's claim in the rule that the ``proposed rule would
benefit small businesses by streamlining the BLM's processes.''
Question 33. Please provide the factual basis, including supporting
documentation, for how BLM came to the determination that this rule
will not have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
Question 34. Please provide the factual basis, including supporting
documentation, for how BLM came to the determination that this rule
will have ``no substantial direct effects on federally recognized
Indian Tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes, and that consultation
under the DOI's tribal consultation policy is not required.''
Question 35. Is the definition of conservation in this rule
consistent with the definition of conservation that has never been
publicly provided for the purposes of the administration's 30 by 30
Initiative.
Question 36. Why is the BLM proposing to remove the public comment
period on ACECs as part of this proposed rule?
Question 37. In regards to the relationship with RMPs:
37a) How many RMPs will need to be updated if this proposed rule is
finalized?
37b) What will be the cost and time of those RMP updates?
37c) If RMPs will not need to be updated, why is the BLM proposing
a rule that would dictate land managers act inconsistently with their
own resource management plan?
Question 38. The proposed rule states that ``Some public lands
could be temporarily closed to public access for purposes authorized by
conservation leases, such as restoration activities or habitat
improvements.'' How long would these temporary closures last?
Question 39. How many recreation visits to BLM lands are attributed
to commercial recreation, such as outfitting and guiding, versus non-
commercial recreation?
Question 40. The rule defines the term ``high-quality information''
to specifically include Indigenous Knowledge. Despite this, BLM did not
consult with any tribes on this proposed rule. Therefore, should I
assume that the proposed rule itself does not rely on ``high-quality
information''?
Question 41. Why does the proposed rule not use the definition of
``public lands'' that appears in FLPMA?
Question 42. Why does the proposed rule not define multiple use?
Questions Submitted by Representative Levin
Question 1. How is the Bureau of Land Management aiming to balance
the growing demand for renewable energy in the face of the climate
crisis with conservation, which is essential for climate resilience?
Question 2. Can you provide some of examples of how the
Administration is already working to strike a balance between those two
important priorities?
Question 3. While I support the general concept of conservation
leasing, I want to make sure that any final conservation rule fully
incorporates the feedback of key stakeholders, including those
developing renewable energy projects. Deputy Director Culver, thank you
for your announcement this morning that BLM will be extending the
comment period to allow for additional engagement, including with those
seeking to develop renewable energy projects. Will you commit to
working with these important stakeholders to ensure their concerns are
incorporated into the final rule?
______
The Chairman. Thank you, Principal Deputy Director Culver.
I now recognize Ms. Kathy Chandler-Henry, Board Chair of the
Eagle County Board of Commissioners, to testify for 5 minutes.
Commissioner Chandler-Henry, you are now recognized.
STATEMENT OF KATHY CHANDLER-HENRY, BOARD CHAIR, EAGLE COUNTY
BOARD OF COMMISSIONERS, EAGLE, COLORADO
Ms. Chandler-Henry. Good morning, Chairman Westerman,
Ranking Member Grijalva, and members of the Committee. Thank
you for the opportunity today to testify in opposition to H.R.
3397, and to express my support for the BLM's proposed public
lands rule.
I was lucky to grow up in the small town of Eagle in the
central mountains of Colorado. Spending time on my family's
ranch and exploring the mountains and surrounding areas
instilled in me an ethic to protect these places.
Eagle County has grown since I was a kid. Our surrounding
public lands, ranching heritage, and beautiful mountains make
Eagle County a uniquely desirable place to visit, to call home,
raise a family, ski, hike, raft, hunt, or fish. But our public
lands are challenged by the impacts of changing climate,
continued population growth, and increased demands on our
natural resources. We must balance these demands with
protecting our mountain ecosystems.
The proposed public lands rule helps with this balancing
act by clarifying the ability of BLM to consider conservation
values when developing resource management plans, to manage for
resilient ecosystems, and to promote collaboration among public
land users.
Over 80 percent of Eagle County's nearly 1.1 million acres
is public lands. Eagle County is home to portions of the White
River National Forest, which is the most visited forest in the
nation, more visitors than Yellowstone, Yosemite, Grand Canyon,
and Rocky Mountain National Park combined. Eagle County is also
home to the BLM's Castle Peak and Bull Gulch Wilderness Study
Areas.
About a quarter million acres in Eagle County is managed by
the BLM. Like the rest of Colorado, where only 16 percent of
BLM's 8.3 million acres are durably protected, most of these
lands in Eagle County are not permanently conserved. These
public lands contribute to our world-class outdoor recreation
experiences, and help ensure that our local economy thrives.
Tourism and outdoor recreation account for roughly 50
percent of Eagle County's annual revenues. Maintaining our
proud ranching history alongside tourism and ski resorts can be
seen throughout the county with numerous grazing allotments on
both BLM and Forest Service lands.
I would like to applaud the BLM for creating a new tool,
conservation leases, as part of the proposed rule. These leases
would be temporary, allowing local groups to work with BLM on
restoration projects or renewable energy companies to enter
into leases for compensatory mitigation. This is a very
promising and complementary tool to support landscapes across
my county and around the West.
Clarification in the proposed rule that appropriately
balances conservation values with other types of land practices
will allow the BLM to create management plans that benefit
rural economies like ours.
The proposed rule further establishes a guiding principle
that BLM manage for resiliency in public lands through
protection of intact, native landscapes and restoration of
degraded landscapes.
Eagle County is a headwaters county. Our community members
rely on public lands not only for their quality of life and
wildlife habitat, but also to provide our communities with safe
drinking water. Water from Eagle County flows into the mighty
Colorado River, and it helps provide water for drinking,
agriculture, power, and industry for 40 million people
downstream. Maintaining healthy watersheds that can be
resilient in the face of drought and fire is a priority for our
county, and we believe the proposed rule will assist in that
resilience.
The management of public lands has a significant impact on
our local communities. Having a Federal land management partner
with clear direction to work with us on balancing multiple
uses, including conservation, will only strengthen the
collaboration we already rely on, and will provide our
communities with more certainty that our needs will be
considered in BLM's planning and land management decisions.
If enacted, H.R. 3397 would undermine BLM's ability to
ensure conservation of critical public lands. The bill would
prevent local managers from working with communities like ours
to protect important recreation and conservation areas that are
vital to our economies and ways of life.
In conclusion, I support the BLM's proposed public lands
rule. It will empower the agency to deliver on its multiple-use
mandate by placing conservation values on par with other uses
on our public lands. As climate change, energy development,
recreation, and tourism pressures continue to grow, this rule
will promote ecosystem resilience.
Clarification of BLM's multi-use approach and providing
tools to collaborate with all users is the best method of
managing these public lands that we so dearly love.
Thank you so much for your consideration.
[The prepared statement of Ms. Chandler-Henry follows:]
Prepared Statement of Kathy Chandler-Henry, Eagle County Colorado
County Commissioner
Introduction
Good morning, Chairman Westerman, Ranking Member Grijalva, and
members of the committee. Thank you for the opportunity to testify in
opposition to H.R. 3397, and to express my support for the Bureau of
Land Management's (BLM) proposed Conservation and Landscape Health or
Public Lands Rule.
I was lucky to grow up in the small town of Eagle, in the central
mountains of Colorado. Spending time on my family's ranch and exploring
the mountains and surrounding public lands instilled in me a
conservation ethic to protect these places for my children and their
children to enjoy.
When I graduated high school, Eagle County only had 7,000
residents. Now there are 56,000. Our surrounding public lands, ranching
heritage, and thriving outdoor recreation economy make Eagle County a
uniquely desirable place to call home, raise a family, or to visit to
ski, hike, boat, hunt or fish. But we are in danger of loving these
lands to death. Our public lands are challenged by the impacts of a
changing climate, continued population growth, and increased demand for
natural resources, development and outdoor recreation. Balancing the
demands on natural resources with protecting our mountain ecosystem is
one of the top goals of the Eagle County commissioners.
The proposed Public Lands Rule helps with this balancing act by
clarifying the ability of the BLM to consider conservation values when
developing Resource Management Plans. It allows us, in concert with the
BLM, to manage for resilient ecosystems, especially important in this
time of threats to western water and increased wildfire dangers. And
finally, the Public Lands Rule promotes the BLM's mission of multiple
use and allows collaboration among users, including timber, grazing,
extraction, mining, and recreation to mitigate and restore our
treasured public lands.
Consideration of Conservation Values
Over 80% of Eagle County's nearly 1.1 million acres is public
lands. Eagle County is home to portions of the White River National
Forest (the most-visited national forest in the nation with over 17.8
million visitors per year--more than Yellowstone, Yosemite, Grand
Canyon, and Rocky Mountain National Parks combined). Eagle County is
also home to Eagles Nest, Holy Cross and Flat Tops Wilderness Areas,
and the BLM's Castle Peak and Bull Gulch Wilderness Study Areas.
About a quarter million acres in Eagle County are managed by the
BLM. Like the rest of Colorado, where only 16% of BLM's 8.3 million
acres are durably protected, most of those Eagle County lands are not
permanently conserved.
These public lands contribute to our world-class outdoor recreation
experiences and help ensure our local economy thrives. Maintaining the
historic ranching cultural identity alongside tourism and ski resorts
can be seen throughout Eagle county with numerous grazing allotments on
BLM and Forest Service lands.
I'd like to applaud the BLM for creating a new tool--conservation
leases--as part of the proposed rule. These ``leases'' would be
temporary, allowing local groups to work with BLM on restoration
projects or renewable energy companies to enter into leases for
compensatory mitigation purposes to offset the impacts of projects on
public lands elsewhere. This is a very promising and complementary tool
to support intact, well functioning landscapes across my County and
around the West.
Clarification in the proposed rule that appropriately balances
conservation values with other types of land practices will allow the
BLM to create management plans that benefit rural economies like ours.
Management for Resilient Ecosystems
The proposed Rule furthermore establishes a guiding principle that
BLM manage for resiliency in public lands through protection of intact,
native habitats, and restoration of degraded habitats.
Eagle County is a headwaters County. Our community members rely on
public lands not only for their quality of life and wildlife habitat,
but also to provide our communities with safe drinking water. Water
from Eagle County flows into the mighty Colorado River and helps
provide water for drinking, agriculture, power and industry for 40
million people downstream. Maintaining healthy watersheds that can be
resilient in the face of drought and fire is a priority for our County
and our state, and we believe the proposed BLM rule will assist in that
resilience.
Multiple Use and Collaboration
Eighty-five percent of BLM lands in our local field office are open
to oil and gas development. These include popular recreation and
wildlife areas on the Colorado and Eagle Rivers. We've worked for years
to protect these areas and prevent permitting of potentially damaging
uses that could fragment these intact landscapes.
The management of public lands has a significant impact on our
local communities. Having a federal land management partner with clear
direction to work with local communities on balancing multiple uses,
including conservation--like what is proposed in the new rule--will
only strengthen the collaboration we already rely on and will provide
our communities with more certainty that our needs will be considered
in BLM planning and land management decisions.
These BLM lands play an important role in supporting world-class
recreation opportunities that create Colorado's $9.6 billion outdoor
recreation economy. Tourism and outdoor recreation account for roughly
50% of Eagle County's $181 million in annual revenues. Eagle County has
worked hard to create a diversified economy that includes and balances
development while conserving our world class public lands. We rely on
having federal land management partners that work with us to balance
these needs.
If enacted, H.R. 3397 would tie the hands of the BLM, undermining
the agency's ability to ensure conservation of critical public lands in
Eagle County and across the West. The bill not only derails the
agency's effort to balance conservation with other multiple uses, it
puts an end to any ``substantially similar rules.'' H.R. 3397 would
prevent the agency from balancing its management practices, preventing
local managers from working with communities like Eagle County to
protect important recreation and conservation areas vital to our
economies and ways-of-life.
I would like to commend the BLM agency staff who have led an
inclusive public process. They have conducted outreach to solicit
feedback and information on the proposed rule that they can consider
before revising and proposing a final rule. I appreciate that the BLM
offered a 75-day public comment period and hosted five informational
meetings, including one in Colorado. H.R. 3397 would shut down and lock
out the public's ability to participate and provide meaningful feedback
on this important rule before the comment period is over.
Conclusion
I support the BLM's proposed public lands rule. It will empower the
agency to deliver on its multiple use mandate by placing conservation
values on equal footing with other uses on our public lands. As climate
change, energy development, recreation and tourism pressures continue
to grow in Eagle County and Colorado, this rule will promote ecosystem
resilience. Clarification of BLM's multi-use approach and providing
tools to collaborate with all users is the best method of managing
these public lands we love.
______
The Chairman. Thank you, Commissioner Chandler-Henry. I now
recognize Ms. Kathleen Sgamma, the President of the Western
Energy Alliance.
You are recognized for 5 minutes.
STATEMENT OF KATHLEEN SGAMMA, PRESIDENT, WESTERN ENERGY
ALLIANCE, DENVER, COLORADO
Ms. Sgamma. Thank you, Mr. Chairman and Ranking Member
Grijalva.
I really am glad that we have 15 more days to comment on
the rule. I am very glad to hear that, Deputy Director.
But I think this rule is so nebulous, and it raises so many
different questions that I don't think it should have been put
out as a proposed rule. I think it should have been put out as
a request for information, or an advanced notice of proposed
rulemaking, because there are so many nebulous concepts in this
rule, I don't see how BLM goes through this comment period,
even the extended comment period, and comes out with a rule
that can really withstand legal challenge.
There are so many concepts that BLM has redefined within
this rule that Congress simply had defined already in FLPMA.
So, we have conservation leases, which were not contemplated by
NEPA. We have conservation being elevated to a principal use on
par with the principal uses that are very clearly defined in
FLPMA.
So, while BLM would like to change what FLPMA says,
Congress is the only one who can change FLPMA.
And right now, you look at what are the principal uses.
They are specifically livestock grazing, mineral exploration
and production, fish and wildlife management and development,
recreation, and timber. But conservation is a goal, it is not a
use. So, were Congress to want to change that, they certainly
could. But BLM simply does not have the authority to redefine
FLPMA.
I mean, with this rule, BLM is really attempting to give
itself power to set broad questions of policy that Congress
simply did not give it.
BLM had its chance, specifically with FLPMA, to set
wilderness study areas. It did so. It reported to Congress on
that, I believe, in the early 1990s. It seems that BLM now
wants to use areas of critical environmental concern in a
wilderness study area-like manner. It seems to want to re-play-
out history. And Congress gave it its chance. So, BLM really
needs to stay within the boundaries that Congress gave it. And
if BLM doesn't like those boundaries, if members of this
Committee who mostly are not here want to change that, they
need to do the hard work of changing the law.
So, we don't see how this rule comes out in a way that will
stand, really, the test of not only time, but of any kind of
legal challenge. It seems to be that BLM is just defining
itself new powers.
I think the governors did such a great job of talking about
all that was wrong with the rule. And I know we are kind of
long on time here, so I don't need to use my full time for
that. I would just echo many of the things they would say.
And I am particularly concerned with how BLM has redefined
terms that it simply doesn't have the ability to do.
So, I appreciate the ability to be here today. We really
call on BLM to rescind this rule, and we certainly support H.R.
3397. Thank you.
[The prepared statement of Ms. Sgamma follows:]
Prepared Statement of Kathleen Sgamma, President,
Western Energy Alliance
Chairman Westerman and Ranking Member Grijalva, thank you for the
opportunity to testify today. It has been six years, 51 weeks since I
appeared before the Senate Committee on Energy and Natural Resources to
testify on the Bureau of Land Management's (BLM) Planning 2.0 rule, a
rule that was overturned by Congress in 2017 under the Congressional
Review Act (CRA) and a rule that is only different from BLM's proposed
conservation and landscape health rule by the terms used and the add-
ons attached. I wonder if many aspects of this new rule don't run afoul
of the CRA requirement that a rule so overturned ``may not be reissued
in substantially the same form . . .''
With the proposed conservation and landscape health rule, BLM is
attempting to upset the balance on federal lands that has been in place
for nearly 50 years, since the passage of the Federal Land Policy and
Management Act (FLPMA) in 1976. With this rule, BLM would eventually
become an agency like the National Park Service that is focused
primarily if not solely on conservation and preservation, rather than
remain the foundational multiple-use agency that FLPMA, BLM's organic
statute, requires.
Nearly 40% of the United States consists of lands managed by
federal, state, or local government in various designations.\1\
Americans enjoy 112 million acres of wilderness areas,\2\ 85 million
acres of national parks,\3\ 58.5 million acres of roadless areas in
National Forests,\4\ 95 million acres of wildlife refuges,\5\ 39
million acres in BLM's National Landscape Conservation System, and 21.3
million acres of Areas of Critical Environmental Concern.\6\ Further,
Interior Secretary Haaland has withdrawn from energy and mineral
leasing 589,000 acres in Alaska, Minnesota, Nevada, and New Mexico and
is contemplating another withdrawal of 225,000 acres in Colorado.
---------------------------------------------------------------------------
\1\ USGS Gap Analysis Project, U.S. Geological Survey (USGS), July
5, 2022.
\2\ Aldo Leopold Wilderness Research Institute home page, U.S.
Forest Service Rocky Mountain Research Station, accessed June 8, 2023.
\3\ National Park System About Us page, U.S. National Park Service,
accessed June 8, 2023.
\4\ Welcome to Roadless Area Conservation, USDA Forest Service,
accessed June 8, 2023.
\5\ National Wildlife Refuge System, U.S. Fish & Wildlife Service,
accessed June 8, 2023.
\6\ Public Land Statistics 2021, U.S. Department of the Interior/
Bureau of Land Management, June 2022, Table 5-1.
---------------------------------------------------------------------------
Among the vast 714 million acres of federal landholdings and
mineral estate, there are extensive working landscapes that contribute
to the wealth and prosperity of all Americans. These lands are
appropriate for, ``. . . the Nation's need for domestic sources of
minerals, food, timber, and fiber'', as FLPMA states. Within FLPMA,
Congress specifically defined ``principal or major uses'' as limited to
mineral exploration and production, livestock grazing, rights-of-way,
fish and wildlife development, recreation, and timber. Of course FLPMA
calls for the protection of the environment, water, and cultural
resources, but does not list conservation as a use.
With the conservation rule, BLM is elevating conservation to a use
ostensibly on par with the FLPMA-defined uses and tipping the balance
that has been, however imperfectly, maintained on its 244 million
acres. Further, because conservation-only would apply everywhere and is
not compatible with anything, it would always be in direct conflict
with productive uses. BLM would have the difficult task of trying to
navigate through those conflicts, which past experience has shown is
not something at which BLM excels. The rule is a bridge too far from
FLPMA. The majority of BLM lands are appropriate for productive
multiple uses. These productive activities are important not only to
supply Americans with the basics of modern life, but also to sustain
rural communities across the West.
At Western Energy Alliance, we are proud that oil and natural gas
producers operating on federal lands provide about 10% of American
production and return $9.2 billion in revenue to the American people.
Leased acreage is at a historic low even as federal onshore revenue is
at a high. We are much more efficient on federal lands, producing more
from less land, a balance that the members of Congress who passed FLPMA
in 1976 would be proud of and which I hope this committee appreciates
today. We produce a huge resource for the American people while
protecting the land and disturbing just 0.06% of public lands.\7\
---------------------------------------------------------------------------
\7\ Fiscal Year 2022 oil and gas statistics, BLM, February 10,
2023. We calculate surface disturbance using the method BLM has
historically used of five acres per federal well. This chart was
released yearly by BLM during the Bush Administration. Since BLM
stopped releasing it during the Obama Administration, likely because
the low disturbance didn't fit the preferred narrative, Western Energy
Alliance re-creates it every year. The five-acre disturbance was used
by BLM to account for all disturbance resulting from the well pad,
including roads to access the well pad. Because of horizontal and
directional drilling that reduce surface disturbance up to 70% by
clustering multiple wells per pad, we believe five acres overestimates
surface disturbance but have stuck with it as a conservative estimate.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsThose who claim we should not produce oil and natural gas on
federal lands because of climate change conveniently ignore the fact
that if we do not produce them on federal lands, we must produce from
nonfederal lands or import the energy from overseas where it is not
subject to strict environmental standards. Federal production is some
of the most sustainable in the world because of all the additional
protections on federal lands. In the continued absence of energy
sources that do everything that oil and natural gas do, just saying
``no'' to federal production means less clean energy and more
greenhouse gas emissions.
FLPMA's intent was a sensible approach to the management of federal
lands. However, BLM's proposed conservation rule would impose unduly
restrictive measures that violate the multiple-use and sustained yield
mandate by closing or restricting unnecessarily large amounts of land
to productive uses. Not only would the rule change the face of FLPMA,
but it attempts to enable BLM to sidestep its statutory mandates in the
Mineral Leasing Act, the Taylor Grazing Act and the 1872 Mining Law. If
finalized, the rule would make it more difficult to develop in energy-
rich basins across the West, decrease investment, and prevent job
creation.
Whereas in the Planning 2.0 rule BLM called it ``landscape-level''
planning, BLM is now talking about ``intact landscapes.'' Whereas
Planning 2.0 called for downplaying the voices of communities that
derive their livelihoods from multiple uses on federal lands and their
elected officials, in the current rule BLM would shut down public
comment completely when designating Areas of Critical Environmental
Concern (ACEC) and not even bother to engage the public in determining
what areas would be subject to conservation leasing. We find the
following aspects of the rule particularly troubling:
Making conservation a multiple use and prioritizing
ecological resilience and intact landscapes over productive
uses, thereby expanding the intent of FLPMA and providing
BLM an avenue to preclude FLPMA-defined uses on public
lands. Essentially anything designated an intact landscape
will be managed as an ACEC or wilderness.
Establishing a conservation leasing program that is
completely at odds with the concept of leasing in FLPMA.
BLM simply does not have the authority to issue leases for
conservation to the exclusion of FLPMA-specified land uses.
Ironically, the proposed rule's purported interest in
promoting FLPMA's goals is at odds with FLPMA's fundamental
requirement of land use planning. Even if BLM possessed
statutory authority to issue conservation leases, it could
only do so after designating areas as eligible for
conservation leasing through a land use planning process
and complying with the National Environmental Policy Act
(NEPA). The rule appears to side-step the NEPA requirement.
BLM does not seem to have considered how federal and state
governments would be compensated for the loss of mineral
and grazing revenues.
ACECs have historically been used to preclude productive
multiple uses. The rule would greatly expand the size and
use of ACECs and make it more difficult to remove ACEC
designations. The rule would allow interim management for
ACEC nominations that have not yet gone through the
required planning process. Large-scale ACECs could severely
decrease the amount of land available for productive uses.
Adding several new definitions not found in the law or
revising definitions to establish conservation as a
priority in planning and permitting processes. For
instance:
+ ``Intact landscape'' and ``resilient ecosystems'' are
new concepts that would aid in designating large amounts of
land off-limits to FLPMA-defined uses. The rule lacks objective
standards so that their meaning and the resulting management
would lie in the eye of the beholder.
+ ``Landscape'' has been expanded to include watersheds
and ecoregions.
+ ``Protection'' is a common notion now redefined as
conservation, indicating a step further than FLPMA's standard
of ``undue degradation''. ``Unnecessary and undue degradation''
has been expanded to encompass harm to the land or resources
that BLM peremptorily deems excessive or disproportionate.
+ ``Casual use'' is redefined to apply only to short-term,
noncommercial uses, thereby obviating casual activities related
to oil and natural gas that do not cause significant surface
disturbance as previously defined.
+ ``Sustained yield'' includes the new concept of
``ecosystem resilience'' and violates FLPMA by erasing the
concept of ``multiple use'' from the definition. The proposed
rule seeks to transform FLPMA's sustained yield goal to a
preservation mandate in a manner inconsistent with FLPMA and
its judicial interpretation.
+ ``Important resources'' are now arbitrarily determined
by BLM, giving itself broad discretion.
The numerous, nebulous concepts in the proposed rule and the
questions arising about how they would be applied to land
management indicate that BLM should have pursued an
Advanced Notice of Proposed Rulemaking or a Request for
Information instead of advancing a proposed rule. We have
joined other groups including the Public Lands Council,
National Cattlemen's Beef Association, American Mining and
Exploration Association, Safari Club International,
National Association of State Departments of Agriculture,
American Farm Bureau Federation, and Federal Forest
Resource Council in requesting BLM withdraw the proposed
rule and engage meaningfully with appropriate stakeholders
before moving forward with this rule. At the very least,
BLM should acknowledge that this is a major rulemaking,
extend the comment period, and hold meaningful public
meetings in every state with significant BLM lands.
Formalizing a compensatory mitigation framework to offset
impacts to important, scarce, or sensitive resources to the
maximum extent possible. Compensatory mitigation applied to
the maximum extent possible is highly subjective and could
be used to preclude development. Fundamentally, the Mineral
Leasing Act does not permit BLM to require compensatory
mitigation of federal lessees and require them to offset
on-lease impacts with off-lease mitigation actions.
Requiring a Fundamentals of Land Health review prior to
authorization for use, a process currently applied only to
grazing. BLM already struggles with large backlogs in
grazing permit renewals because of this review requirement.
Applying it to all uses would only serve to increase
permitting backlogs for all productive uses.
Thank you for the opportunity to testify. I look forward to
discussion during the hearing to better understand BLM's intentions. I
urge Congress to pass H.R. 3397 to overturn BLM's conservation and
landscape health rule.
______
The Chairman. Thank you, Ms. Sgamma, and thank you to all
the witnesses. We will now move to questions. And for the first
round of questions, I recognize the gentlelady from Colorado,
Mrs. Boebert, for 5 minutes.
Mrs. Boebert. Thank you, Mr. Chairman, and thank you to the
witnesses for being here today, especially from Eagle County.
Principal Deputy Director Culver, nearly 50 percent of my
district is Federal lands, and more than 90 percent of the
BLM's 245 million acres are located in Western rural
communities. Consequently, this rule will negatively impact
rural America significantly more than urban areas. Why did BLM
hold its in-person meeting off to brief the public on this rule
in Denver, away from where most rural stakeholders actually
are?
Ms. Culver. Thanks for the question, Congresswoman. I am
really glad to get the opportunity, as someone who was at all
of the public information sessions, as well as some additional
briefings we have been doing, to let you know that we----
Mrs. Boebert. I am short on time. So, I just would like to
know why it was held in Denver, away from stakeholders.
Ms. Culver. We held three information sessions in three
areas where we felt a lot of people would be able to attend,
and we----
Mrs. Boebert. Where were all three of those areas?
Ms. Culver. Our three in-person information sessions were
held in Denver, Colorado; Albuquerque, New Mexico; and Reno,
Nevada.
Mrs. Boebert. Right. And Denver is a very urban area. And
my rural area in Colorado's 3rd District, half of the state of
Colorado nearly, is impacted the most by this. And you chose to
have that meeting in person in Denver, rather than on the
Western Slope or Southwest Colorado.
Just this week, I heard from one of my constituents who is
a farmer and rancher in Mesa County that this unconstitutional
rule could prevent her livestock from grazing on BLM land where
they currently graze and where she has an active permit.
Ranchers and farmers across the West still do not have clear
answers as to what the impact of this rule will be on their
current grazing leases or what happens when they are up for
renewal even.
We heard from one of my colleagues on the other side of the
aisle today that other multi-use activities won't be harmed.
But let me ask you this. Will this rule lock up more land and
prevent other multiple-use activities under the guise of
conservation?
Ms. Culver. No, it will not, Congresswoman. We have had----
Mrs. Boebert. There will be no additional land held up,
locked up, and no multiple use will be prevented from this
rule? That is your promise to my constituents and everyone----
Ms. Culver. BLM implements multiple-use management on every
acre of public land, as prescribed in FLPMA.
Mrs. Boebert. Since the rule was proposed with little to no
stakeholder input, there are over 86,000 submitted public
comments from a wide range of stakeholders who have a lot of
questions. And I want to dive into some of those that have been
sent to me.
What law passed by Congress has given the BLM the authority
to propose this rule? Because it sure seems like the BLM is
trying to rewrite FLPMA here, and has no authorization from
Congress for this rule, similarly to what we heard Ms. Sgamma
speak to.
Ms. Culver. We are implementing the Federal Land Policy and
Management Act, including our authority to implement for
multiple use and sustained yield.
Mrs. Boebert. Do you feel that the BLM is defining new
powers through this FLPMA and through this rule?
Ms. Culver. We are following FLPMA and Congress' direction
to manage for multiple use.
Mrs. Boebert. We heard concerns earlier from both Governor
Noem and Governor Gordon about this rule and how it will
prevent active forest management, which is a very big issue,
especially in my district. We have had four of the largest
wildfires in our recorded history in my district, and it will
lead to more wildfires.
Is active forest management, including mechanical thinning,
consistent with the BLM's definition of conservation in this
proposed rule?
Ms. Culver. Absolutely.
Mrs. Boebert. You will allow mechanical thinning to
continue.
Ms. Culver. BLM manages every acre under our multiple-use
mandate, and restoration in many places includes that kind of
active management.
Mrs. Boebert. OK. Let the record show that this rule will
not affect mechanical thinning and the active management of our
forests. I want the record to show that you have promised that,
because what we are seeing, what we are hearing, the questions
that are coming up, this looks like a huge threat to forest
management.
Is this rule an attempt to further the Administration's
30x30 agenda?
Ms. Culver. I just at least want to finish answering your
last question.
Active forest management is part of restoration, so
different tools are appropriate in different places. I just
want to finish my sentence since you want to make sure we have
the record clear.
Mrs. Boebert. Well, I was asking if mechanical thinning
would be impacted. Would it be reduced or restricted?
Ms. Culver. And then, in terms of the agenda, I think
certain aspects of different management could certainly be
considered conservation that would support the America the
Beautiful----
Mrs. Boebert. OK, I just want you to answer my last
question that I had asked previously.
Is this an attempt to further the Administration's 30x30
agenda, and eventually go into the 50x50 agenda that we hear so
much of?
Ms. Culver. This is the BLM implementing its multiple-use
and sustained-yield mission under the Federal Land Policy and
Management Act, to do that so that we can continue to support
all the uses we have been talking about today.
Mrs. Boebert. So, you want to further the Administration's
30x30 agenda to lock up 30 percent of America's lands and
waters by 2030.
Ms. Culver. This rule will not lock up----
Mrs. Boebert. Thank you. My time is expired.
The Chairman. The gentlelady's time has expired. The Chair
now recognizes the gentlelady from Alaska, Mrs. Peltola.
Mrs. Peltola. Thank you. I just wanted to see if Ms. Wolff
Culver would like to answer any of the previous questions in
more detail.
Ms. Culver. Thank you so much for that opportunity. I
really appreciate the opportunity to reiterate that the way we
have defined conservation in this rule is to include both
restoration and protection. Those are active uses under the
Federal Land Policy and Management Act. It is part of the
specific direction we have from Congress, and is some of our
additional policy right now.
We see active restoration as a vital part of managing our
Federal lands, and we are very grateful for the funding that
Congress has given us to do even more restoration of our public
lands.
Mrs. Peltola. OK. And I am sensitive about the issue that
Representative Boebert brought up about rural people not having
access to public comment. And I am just wondering if you can
explain how remote people in Colorado were able to make
comment, although the hearing was in Denver.
Ms. Culver. Certainly. Thank you for the opportunity.
We did have two virtual listening sessions. Recordings are
posted online, along with all the slides, frequently asked
questions, documents, a user's guide, and numerous fact sheets.
We wanted to provide that support in as many places as
possible.
In those information sessions, we did have quite a few
people from different states who came, which was wonderful to
see. We had Coloradans in Albuquerque, we had Wyomingites in
Colorado and in Denver, and we had Californians in Nevada.
At the same time, our BLM leaders around the West have been
meeting with their local communities. I know that our Colorado
State Director spent most of the last week in Western Colorado
meeting with the counties, CCI, with Colorado cattlemen.
Similar in Wyoming, in Arizona, all around the West. So, we are
trying to give every opportunity for people to ask questions,
and then to submit comments.
Mrs. Peltola. OK. That is really good news. And I really
appreciate the virtual forums, the Zooms and things like that,
the Teams meetings.
I just want to put a plug in for Americans who don't have
access to broadband, Internet, or Wi-Fi. There are many, many
Americans, certainly across Alaska and across the United
States, who either can't afford it or there just isn't stable
and quality Internet to stay connected, especially on a visual
platform. A lot of times, when people have their videos on, you
just drop off.
And one of the frustrations I have had is the state
agencies and the Federal agencies who say, ``Go to our website,
look at our website,'' and some of them are challenging to
navigate, and you have to have Internet to be able to even get
onto the website.
So, I was very sensitive to her concerns about rural and
remote people being able to be part of the public process, and
I appreciate your answer for the ways that you were able to be
inclusive.
Thank you, Mr. Chairman. I yield back my time.
The Chairman. The gentlelady yields back.
And regarding the comment period, I do appreciate the wink
and a nod on 15 days, even though we requested in our letter 75
days. I still think 15 days is totally unacceptable, especially
when you think about people having to travel from different
states to come to one of those hearings, or to do it online,
where they may not have access.
I now recognize the gentleman from California, Mr. LaMalfa,
for 5 minutes.
Mr. LaMalfa. Thank you, Mr. Chairman. Yes, 15 days, you
might not even find out about the 15 days until most of it has
gone by. Typically, these numbers are 60, 90, or 180, round
numbers like that.
That all said, under the BLM rule, there is the thought
that this could require any use or permitted activity to be
offset by a separate conservation lease. That is a concern. Can
you comment? Is that a scenario where, let's say, somebody is
seeking a grazing lease or a timber, any kind of permitted
activity, do you see a scenario where a separate conservation
lease could be required of this person, and then will it cost
them money in order to have to have a lease for a conservation
area?
And I am directing that to Principal Deputy Director
Culver, please. Thank you.
Ms. Culver. Sure, thank you for the opportunity. And if I
am not answering all of it, I am sure you will follow up with
me.
The idea with the conservation leases is it is one way that
an entity who is carrying out a permitted activity on public
lands that results in an unavoidable impact to public lands
could mitigate, could offset that. It doesn't require that
every activity be offset. That generally happens on a case-by-
case basis.
As with the rest of this rule, it is a framework for, if
you are seeking to offset impacts that occur on public lands,
one option would be to do that offset on public lands, and one
tool could be a conservation lease.
Mr. LaMalfa. So, that is a scenario where--let's say I am
seeking a grazing lease. I might have to offset that with a
conservation lease and I won't have to pay for this lease?
Ms. Culver. Thanks for clarifying the question.
No, right now we continue to manage grazing under the
Taylor Grazing Act and our current grazing policy. This rule
wouldn't affect that.
Mr. LaMalfa. OK. That is just an example. How about a
timber operation, where you have mechanical devices and such?
Ms. Culver. Similarly, the requirements for compensatory
mitigation happening so far on BLM lands have happened in the
context of mining, where we have regulations requiring that.
And also when we are working with states. So, as noted
here, we work very closely with states. We manage the habitat
and they manage the wildlife. Often these states require
mitigation for loss of wildlife habitat that may be happening
for a permitted activity on BLM land.
Mr. LaMalfa. So, it sounds like you might be deferring to
states on that.
Ms. Culver. Yes.
Mr. LaMalfa. There is also a question here that these
conservation leases could be part of a tool or a requirement to
have carbon offset credits. Are we looking at activities,
permitted activity, possibly being required to have to have
carbon offsets to do them?
Ms. Culver. The rule doesn't contemplate implementing that
kind of requirement.
One of the questions that we wanted to get input on from
the public is should we be defining the types of permitted uses
more specifically for conservation leases?
Should we be permitting use of them for carbon offset
credits?
Again, like the compensatory mitigation issue you raised,
those requirements would be coming from a separate agreement or
project, or from a state policy.
Mr. LaMalfa. A great amount of effort is being made on this
whole carbon content situation. Do you know what the percent of
our atmosphere actually is carbon dioxide?
Ms. Culver. Not off the top of my head, sir.
Mr. LaMalfa. Well, I will give you the number. It is 0.04
percent of our atmosphere. Not some much higher number that the
average person on the street thinks it is anywhere from 20 to
50, with all the advertising out there. It is 0.04 percent. In
1960, it was 0.03.
So, what we are talking about is, over this period of time,
a change of 1/100 of 1 percent in carbon is what everybody is
getting hysterical about, and this is going to be so very
detrimental to our country, its economy, and basically replace
our economy with those of some other country in the Pacific
Rim, or maybe offsetting clean American natural gas with
Russian natural gas, which is known to be 40 percent dirtier
flowing into Europe or what have you.
So, I would be very cautious that we would look at carbon
credits as some type of an additional offset in order for legal
and necessary permitted activities.
With that, Mr. Chairman, the time has flown by and I yield
back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentlelady from Oregon, Ms. Hoyle, for 5
minutes.
Ms. Hoyle. Thank you, Mr. Chairman and Ranking Member.
I represent Oregon's 4th Congressional District, and the
BLM manages 2.1 million acres of O&C lands in Western Oregon.
About 800,000 of those acres are in Oregon's 4th District, and
the rest are in Mr. Bentz's district. And I have spoken to this
Committee before about how these lands are unique, with a
checkerboard ownership pattern of tribal, private, state, and
Federal lands. They are important to me, they are important to
my district. And the O&C lands represent the vast majority of
the timber lands that the BLM oversees, like well over 95
percent.
For over a century, the O&C lands have provided wildlife
habitat, recreational opportunities, stream buffers for fish
habitat, and for timber harvests that are crucial to Oregon's
rural economies. In fact, the O&C Act of 1937 was one of the
first Federal conservation laws, and it is directed that all
timber lands should be managed under sustained yield so that
harvest levels are in balance with forest growth. And later on,
the Federal Land Policy Management Act of 1976 made sure that
the BLM manages all its land for sustained yield and multiple
uses.
However, section 701(b) of FLPMA is clear. If there are
inconsistencies between FLPMA and the O&C Act, the O&C Act
shall prevail. So, that brings me to my concern today.
I am confused about why the BLM's public land rule does not
mention the O&C lands, and my concern is there is no mention of
them, nor an acknowledgment that the O&C Act even exists, much
less that it would prevail in an inconsistency. So, was this an
oversight, or is this an intentional change in policy?
And to you, Ms. Wolff Culver, I would like to know, and the
counties I represent would like to know, they deserve to know,
whether the BLM intends to implement this rule on O&C lands.
Ms. Culver. Thank you for the question.
Right now, as you noted, FLPMA specifically acknowledges
the Oregon and California Lands Act, and the BLM manages land
in Oregon under both authorities, and ensures that we comply
with both of them. And our intent with this regulation is the
same. We are not amending the Federal Land Policy and
Management Act, nor are we seeking to change the O&C Act or the
Taylor Grazing Act, for example. We currently manage in a way
that complies with all of those bills, all of those laws, and
we would continue to do so.
Ms. Hoyle. To follow up, what I would like to know, because
again, these lands are unique and my concern and the concerns
of my constituents are that this is a change in policy. I would
like to know if you could put that in writing in this rule
that, in the case of inconsistencies of FLPMA and the O&C Land
Act, that the O&C Land Act will prevail.
Ms. Culver. Certainly, and thank you for following up.
Certainly, we do not intend to change the way that FLPMA defers
to the O&C Act, and can certainly take into account how we
might be more explicit about that in the rule, because the
intent here was not to undermine that relationship between the
two laws.
Ms. Hoyle. Thank you for saying that is not your intent,
but it is important to me, it is important to my constituents,
it is important to these lands that are absolutely unique, and
especially as we see drought and wildfires and all of the
challenges of managing multiple uses and multiple ownership of
lands, it is critical that the O&C Land Act prevails.
And what I would like, and I don't know but I would guess
that my colleague, Mr. Bentz, would like, certainly, what my
counties would like, is clarity in writing. I appreciate you
saying, ``We would like to see that,'' but what I would like to
see is I would like to see that in writing, explicitly in this
rule.
Ms. Culver. Thank you. Understood.
The Chairman. Does the gentlelady yield back?
Ms. Hoyle. I yield back, sorry.
The Chairman. The gentlelady yields back. The Chair now
recognizes the gentleman from Idaho, Mr. Fulcher, for 5
minutes.
Mr. Fulcher. Thank you, Mr. Chairman.
Ms. Culver, thank you for being here. I appreciate you
taking the time to do this.
Where is your boss?
Ms. Culver. The Director is at a meeting in Utah.
Mr. Fulcher. So, that meeting was more important than
showing up and talking about this issue in front of the Natural
Resource Committee?
Ms. Culver. The Director was scheduled to be in the West,
meeting with all of our executive leadership team across the
BLM.
Mr. Fulcher. OK. Ms. Culver, on May 11, the entire Idaho
Delegation sent a letter addressed to the Director, and it was
on this issue.
[Slide.]
And basically, it expresses concern, in fact, I think it is
up on the board right now. It expresses concern about this
issue. It asks for a public hearing, and it describes how
devastating this rule, if implemented, is going to be on our
state.
And I have to tell you, being from Idaho, I am not feeling
the love here. You don't call, you don't write, you don't
respond, because we never get any response at all.
Were you even aware of this letter, Ms. Culver?
Ms. Culver. Yes. We have received a lot of letters with
different asks, either for extensions or for us to complete the
rule, to undertake this rulemaking, et cetera.
Mr. Fulcher. Is it typically your habit not to respond to
those, or is it still forthcoming?
Ms. Culver. You will receive a response, absolutely.
Mr. Fulcher. OK. Thank you for that. Ms. Culver, just to
point out the importance of this, 62 to 63 percent of my state
is Federal lands. The only state by percentage more is Nevada.
Utah is right there with us, about that same percentage. But 33
million acres, 33 million.
And by the way, thanks to lack of management, not climate,
somewhere between a half million and a million acres a year
burns up. And that is because of fuel load, and because we
can't touch the ground that we live on, for the most part. We
can't put any intelligence into the management of that. That is
how significant this is to us.
I think I know exactly why the Director isn't here, and
that is because she didn't want to answer these questions. I at
least thank you for showing up.
Mr. Chairman, I would like to submit for the record a copy
of this letter from the Idaho Delegation, with your permission.
The Chairman. Without objection, so ordered.
[The information follows:]
May 11, 2023
Tracy Stone-Manning, Director
Bureau of Land Management
U.S. Department of Interior
1849 C Street NW
Washington, DC 20240
Dear Director Stone Manning:
As the Bureau of Land Management (BLM) considers a major shift in
the long-standing and well understood multiple-use approach of federal
land management, we are discouraged to see Idaho was not listed as one
of the sites for in-person public meetings regarding the proposed
Public Lands Rule. Further, we were disappointed to see not only was
Idaho not included, but the in-person locations are geographically
concentrated away from many of BLM's constituents. For example, the
closest in-person meeting for Idaho residents is Reno, Nevada, a trip
that can take anywhere between 5 and 14 hours by car.
Additionally, while significant strides have been made in rural
broadband development, some Idaho residents still lack reliable
coverage needed to communicate and participate in a virtual meeting.
This includes those in sparsely populated areas. With the COVID
emergency ending, it is important for the BLM to meet with shareholders
in person and face the public.
Idaho has 12 million acres of BLM managed land, and this rule will
significantly impact how Idahoans interact with those public lands. By
categorizing conservation as a use, rather than an outcome, this rule
will effectively ensure the uses Idahoans have traditionally enjoyed on
our public lands will be placed in competition with conservation,
rather than in harmony. This action is in direct conflict with the
congressional mandate to manage public lands for multiple use.
Given the impact this rule will have on all Idahoans, we urge you
to hold in-person meetings in Idaho to gather feedback from the
stakeholders that this proposed rule will impact. The BLM is proposing
extensive management practice changes with the capacity to severely
disrupt multiple uses from grazing to recreation as well as other
considerations such as Tribal access. Therefore, it is imperative that
the BLM hears directly from Idahoans, in the state of Idaho, in-person.
We would also encourage you to personally attend these in-person
meetings as head of the BLM. That would offer both direct feedback and
good interaction with your Idaho State Director and her team. We look
forward to a modification of the schedule for in-person meetings soon.
Sincerely,
Mike Crapo James E. Risch
U.S. Senate U.S. Senate
Mike Simpson Russ Fulcher
House of Representatives House of Representatives
______
Mr. Fulcher. Ms. Culver, have you been to Idaho before?
Ms. Culver. Yes. My mother-in-law is from Shoshone.
Mr. Fulcher. Have you spent any time with the stakeholders
that work on that land, that live there, that attempt to
operate or make a living on that land?
Ms. Culver. Yes, in my capacity at the BLM, I have not done
an official tour, but yes, I have spent a lot of time----
Mr. Fulcher. So, then you know, if you have met with these
people, that a proper grazing project is conservation, that
proper recreational access is conservation, that a proper
thinning program or a timber managed program is conservation.
So, then you understand why we are concerned about making a
separate category for conservation inadvertently makes it
compete with other forms of conservation in conjunction with
other uses. The multiple-use structure has been in place for
decades, and the worst problem we have in my home is not being
able to execute on it.
And the arrogance, quite frankly, just the flat-out
arrogance for the Administration, for yourselves to promulgate
something like this, thinking you know better than the people
who live on this property, who depend on it, who work on it,
who have the biggest vested interest in it, and biggest
investment in it, to see it prosper for years and years and
generations and generations, the arrogance is unbelievable,
especially when the majority of the Administration, I would
say, probably hasn't even been there.
I want to just summarize. I think you get a pretty good
feel of where we are at, but I am just going to summarize here
this request. I would like to have an in-person hearing in my
state. The closest in-person hearing to Idaho was Reno, Nevada.
Depending on where you are, that is a 5-hour drive, minimum, or
a 14-hour drive, maximum, for my constituents, the people who
are impacted the most by this.
I am going to assume you can't answer that question now,
but I want an in-person hearing. Or maybe you can.
Ms. Culver. No, I cannot answer the question right now, but
I appreciate the request.
Mr. Fulcher. But I am going to get a response back on this
letter?
Ms. Culver. Absolutely.
Mr. Fulcher. I am going to restate, creating a category of
conservation as a use makes it compete.
There is significant arrogance by making this decision and
imposing it on the people who live there.
And conservation is an all-of-the-above approach.
Mr. Chairman, I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentlelady from New Mexico, Ms. Leger Fernandez,
for 5 minutes.
Ms. Leger Fernandez. Thank you so much, Mr. Chairman, and
thank you for the testimony to all three of our witnesses. I
always love it when our entire witness panel is women, because
we have a lot of women in agriculture, a lot of women in
ranching, a lot of women in conservation in New Mexico.
And the issue about grazing is as important to us in New
Mexico as it is to any of our other Western states. That is a
key element of our economy. It is a key element of our
heritage. In New Mexico, we have been grazing sheep and cattle
and now ibex and a lot of other things on our lands for
centuries. Since before there was a United States, we have been
grazing on those lands. And then some of those lands were lost
and taken into public land, even though they had been used in
common by the people who lived there before we became part of
the United States.
So, the issue of will the proposed rule affect existing
grazing permits or leases, that is key to us. So, Deputy
Director Culver, tell me what the answer is to that once again,
and where can we look to find that in our rule and the previous
regulations you have issued?
Ms. Culver. I think at the outset I want to just re-
emphasize that the rule sets out a framework. It doesn't make
any decisions. Any on-the-ground decisions will be made by
local land managers. I would encourage everyone to search the
word ``local'' in the rule if you are looking at it online. We
really emphasized that. That process will not change. In terms
of day-to-day decisions on managing grazing, that will not
change, that will continue to be managed at the local level.
The rule itself, again, doesn't change the Taylor Grazing Act.
It doesn't affect any existing authorizations.
In the context of conservation leasing, a conservation
lease would have to be issued in a way that respects any
existing, permitted, authorized use. So, the issuance of a
conservation lease would only occur over a grazing permit if
those two uses were consistent.
Ms. Leger Fernandez. For example, a rancher that might
already have a grazing lease could come and work with you, and
decide, ``How can I work with the existing USDA programs to
actually also restore?'' Because we do know that, with that
many hundreds of years of grazing, there is work that needs to
be done. Is that right?
Ms. Culver. Yes. The BLM manages 155 million acres for
grazing. We see that use as key to the success of the concepts
in this rule and, in particular, conservation leasing as an
opportunity for ranchers to work with the entities who may be
providing funding for some of the practices that they already
are, as you noted, undertaking, but might be more formally set
out in a lease, and might be a source of additional income.
Ms. Leger Fernandez. And this issue of being able to bring
additional income in is really important, because when we look
at the statistics there are way too many ranchers and farmers
who actually don't make a profit on their lands. It is
consolidated. We have a lot of small holdings, so that issue is
really important to them.
What about future permits and leases? Will this affect
future grazing permits and leases?
Ms. Culver. The rule itself doesn't take a position, one
way or another. I think what it looks at is what different--
there are certain aspects of conservation. Grazing practices
can be one aspect. We are trying to set out a framework to
ensure those are taken into account.
Ms. Leger Fernandez. Great. And I am looking at page
19,591, where you actually do explicitly state that it is not
intended to preclude uses such as grazing, mining, and
recreation, and they would not disturb existing authorizations,
valid existing rights, or state or tribal land use management.
So, you have that in there as you discuss the rule. And I think
making sure that you can now point to specific places in the
rule will help this clarity, because my constituents also want
that clarity.
The State Land Commissioner testified, was it last week or
2 weeks ago? And she is in favor of this process, but also
wants to make sure that there is a commitment to continue to do
that work with the state and the tribes. Do we have that
commitment from you?
Ms. Culver. Yes, I appreciate the opportunity to
acknowledge that request. We have heard it.
Again, what we are putting in here is what we intended the
rule to say and how we expect it to work. And if it needs to be
clearer, that is the feedback we are looking for right now, and
we are so appreciative to get it.
Ms. Leger Fernandez. OK, thank you.
And Mr. Chair, I would ask unanimous consent to enter into
the record one letter of various that we have seen from the
Office of the Governor of the Pueblo of Tesuque in opposition
to H.R. 3397. It is dated June 15, 2023.
The Chairman. Without objection, so ordered.
Ms. Leger Fernandez. Thank you, Mr. Chairman. I yield back.
The Chairman. The gentlelady's time has expired. The Chair
now recognizes Mr. Stauber for 5 minutes.
Mr. Stauber. Thank you very much, Mr. Chair.
The Department of the Interior has told this Committee that
the new conservation leases created by this rule are simply a
new tool for folks to offset impacts of activities on Federal
lands, and are not a new requirement. However, given this
Administration has a track record of moving the goalposts left
and right to their political benefit, we cannot rely on what
they say. We must watch what they do.
Ms. Sgamma, do you believe that this rule would create a
new requirement for companies to purchase conservation leases
for energy projects on Federal lands?
Ms. Sgamma. I think that is the goal, yes. And they do not
have the authority to require that type of off-site mitigation.
Mr. Stauber. And what kind of impact will this have on the
small businesses?
Ms. Sgamma. Well, I think the Small Business
Administration's Advocacy Office said it best in a recent
letter. Yes, this will impact small businesses. Most of our
companies are independent producers, small producers, with an
average of 14 employees.
Mr. Stauber. And I agree with you that this rule will have
a significant impact on small businesses. And as it turns out,
the U.S. Small Business Administration's Office of Advocacy
agrees.
And Mr. Chair, I ask unanimous consent for the SBA Office
of Advocacy comment letter on the BLM's proposed rule sent this
Tuesday to Secretary Haaland be entered into the record for
today's hearing.
The Chairman. Without objection, so ordered.
[The letter can be found on page 38.]
Mr. Stauber. I want to quote from that letter: ``Given the
rule has the potential to impact a substantial number of small
businesses across various industry sectors, BLM must properly
and thoroughly consider these impacts and modify the proposed
RFA analysis accordingly.''
Ms. Culver, the Department of the Interior determined that
the proposed rule will not have a significant economic effect
on a substantial number of small entities under the Regulatory
Flexibility Act. But you failed to conduct an initial
regulatory flexibility analysis, or even provide the factual
basis for certifying that small businesses won't be impacted.
Why did you refuse to analyze this rule's impact on our small
businesses?
Ms. Culver. I appreciate that question. When we looked at
the economic analysis that we created as part of this rule, we
looked at----
Mr. Stauber. Did you create that yourself, or with the
small businesses?
Ms. Culver. It was done by experts within the BLM.
Mr. Stauber. OK, and not small businesses that may be
affected. Is that correct?
Ms. Culver. The BLM prepared an economic analysis as part
of the rule.
Mr. Stauber. No, ma'am. My question was you didn't talk to
small businesses that could be affected by this. You just said
no.
Ms. Culver. No, it was prepared by an expert at the BLM.
Mr. Stauber. OK. So, you didn't consult with small
businesses. That is correct?
Does your department not care about small businesses and
their successes, which are the engine and innovators of our
economy?
Ms. Culver. I couldn't agree more that our public lands are
a key to supporting the success of so many small businesses
around the West and around the country. We really value those
partnerships and the support they provide.
Mr. Stauber. Why didn't you include the small businesses in
your decision?
Ms. Culver. I am not quite sure what you are asking.
However, I think we prepared the economic analysis, the
evaluation of significance, working with the Office of
Information and Regulatory Analysis, the Office of Management
and Budget, the Department of the Interior, Council on
Environmental Quality, and all of those agencies that provide
that direction to us.
Mr. Stauber. That is the same Department of the Interior
that banned mining in northeastern Minnesota for political
reasons only? That is the Interior Department you are talking
about.
As I just noted, the SBA's Office of Advocacy has called
foul on you for failing to conduct this analysis, and has
called on the BLM to ``provide a supplemental document with an
initial Regulatory Flexibility Act analysis that includes a
discussion of the impacted small entities, what if any impacts
those small entities may face, and what regulatory alternatives
the agency considered.''
Yes or no, will you commit right now to fulfilling the
Office of Advocacy's request?
Ms. Culver. I need to review their request and look at what
is in the rule, because we did complete the required analysis.
So, I really look forward to reading that comment.
Mr. Stauber. Mr. Chairman, this Administration has
continually failed to consider small businesses in their
reckless regulatory onslaught. I appreciate you holding this
hearing today to allow us to conduct oversight on this
rulemaking, and I look forward to working with you and the
Committee on Small Business to stand up for small businesses
across this country. And I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentlelady from California, Ms. Kamlager-Dove,
for 5 minutes.
Ms. Kamlager-Dove. Thank you, Mr. Chair. And I just have to
say that the whiplash you get in this Committee is
unbelievable.
Last panel, the governor, both of them, complained about
how this rule takes away public input, and they got an amen
corner from my colleagues on the other side of the aisle. But
last week, we had a Committee hearing, and the Committee balked
at the need for public input as it relates to mining and its
impact. So, I guess it just depends on who the public is.
Deputy Director Culver, I want to know more about ACEC, and
how it integrates with the needs of and coincides with respect
for tribal communities.
And Mr. Chair, I ask unanimous consent to enter two
resolutions into the hearing record. One is from the National
Congress of American Indians, outlining how ACEC can elevate
tribal traditional knowledge and protect tribal traditional
cultural resources. And the second is by the Affiliated Tribes
of Northwest Indians identifying new pathways for designating
conservation areas that protect and prevent irreparable damage
to important historic, cultural, or scenic values, fish and
wildlife resources, or other natural systems of processes.
The Chairman. Without objection, so ordered.
Ms. Kamlager-Dove. Thank you, Mr. Chair.
And I want to enter it into the record, and I am asking you
this question because I have actually heard from some of my
colleagues that they know what is best when it comes to tribes.
They either appropriate or discredit viewpoints of Indigenous
peoples based on, I guess, political points they want to score.
But folks have actually said that there is no need for
meaningful consultation. There is actually no need for
consultation by Indigenous communities, which I find
outrageous. And it actually strikes me quite often as settler
colonialist rhetoric, which makes all of my hair stand up on
the top of my head.
So, do you believe that we should be speaking for tribes
without including them into these processes and discussions?
Ms. Culver. Thank you for the question. Your hair looks
great.
[Laughter.]
Ms. Kamlager-Dove. Thank you.
Ms. Culver. This Administration, from Day 1, has committed
to making sure that we are engaging in meaningful consultation
with tribes, and not just in a pro forma way, but a proactive
way to ensure additional engagement. That is why we have
committed to co-stewardship, and have really led the way at the
Department of the Interior on that issue.
Ms. Kamlager-Dove. Thank you. Because, as we have heard,
people actually want to feel included in discussions, including
tribal communities that don't want other folks speaking for
them.
Can you go a little deeper in terms of how this proposed
rule incorporates requests from tribes and Indigenous
communities, and sort of what co-management, co-stewardship
actually looks and feels like, and should in a non-appropriated
way?
Ms. Culver. Thank you for the question.
Ms. Kamlager-Dove. A long question----
Ms. Culver. I appreciate the opportunity to talk about
this.
One of the aspects of this rule that we are very proud of
is that it explicitly incorporates requirements to evaluate
Indigenous knowledge as part of the best available science that
we are taking into account in decision making.
We also explicitly emphasize the importance of consulting
and working with tribes when we are doing land use planning,
where we allocate lands for different management.
And in the context of areas of critical environmental
concern, we received numerous letters, and the resolutions also
that you mentioned from tribes, asking that we formalize the
process for identifying and protecting and designating those
areas to be managed. It is one tool the BLM has. It is required
under the Federal Land Policy and Management Act for us to use
it, to prioritize its use, and it explicitly considers historic
and cultural resources.
So, what we have done in this regulation is note the
importance of evaluating whether an ACEC could be designated,
just another acronym here at the BLM, whether we would use
that, and to look at proposals from tribes, and to consider
opportunities for co-stewardship. And what that could look like
is how we incorporate Indigenous knowledge into the management
decisions, or how we might work together, for example, to
ensure that there is adequate education about the resources for
which that area was designated.
Ms. Kamlager-Dove. Thank you for that explanation and
response.
I was having some discussions with some different tribal
communities. And when I was sharing what I was hearing in this
Committee, and I was questioning if they felt that they were
being silenced, they said, ``Keep asking questions about this
issue, because it is important that we are seen and valued in
these discussions.''
So, with that I want to thank you for your responses.
I yield back, Mr. Chair.
The Chairman. The gentlelady yields back. The Chair now
recognizes the gentleman from Montana, Mr. Rosendale, for 5
minutes.
Mr. Rosendale. Thank you, Mr. Chair. I appreciate that.
Ms. Culver, as I sit here and listen to all of this, as
much as you would try to deny it, what I see and what I read,
and the reality is the BLM trying to expand its powers, an
attempt to expand your powers.
And the fact that no hearings have been held in the areas
where the impacted land is located demonstrates, quite frankly,
the complete disregard that the agency has for the opinion of
the people that are going to be impacted by it the most.
Holding a hearing in an intensely urban area, instead of out in
the field, where the people that are going to be impacted, the
people that are actually managing those lands now, nowhere near
them, is an insult, quite frankly.
The Montana Delegation also sent a letter out to the
Department of the Interior and to BLM, trying to obtain a
hearing to be held in the areas that were going to be impacted.
Again, nothing. We sent that back on May 11.
This rule completely contradicts the Taylor Grazing Act and
FLPMA. It does contradict it. And the Supreme Court has
recently ruled in agency over-reach, West Virginia v. EPA, and
now you have heard it from Congress that you are getting
outside of the lines.
So, please, save money, save time, save aggravation for the
people across this nation who have to go through that legal
process to show that this is out of line, and simply stay in
your lane. OK? We make the laws. Stay in your lane. That is
where we need to stay.
Ms. Sgamma, we have heard navigating through conflicts is
not something that the BLM excels at. Can you give us some
examples in your experience where the BLM failed to mitigate
conflict, and how it has affected your members?
Ms. Sgamma. I am not sure I can think of a specific example
right off the top of my head. But in general, when you look at
the definition of conservation leases, you can't help but see
that the way it is defined in the proposed rule is going to
preclude productive uses. So, I don't see how there isn't an
inherent conflict with that.
And I think you are absolutely right, that Congress simply
hasn't given BLM the power to redefine away FLPMA terms.
Mr. Rosendale. Thank you. Do you believe that this rule,
would it be enacted, in any way provides more clarity about how
the lands can be used, or how they should be managed? Or does
it produce more ambiguity and subjectivity?
Ms. Sgamma. I think it is really nebulous at this point
with this proposed rule, which is why we have joined with
Public Lands Council, the Cattlemen's Beef Association,
American Mining and Exploration Association, Safari Club
International, and others asking that this rule be pulled back,
or at least go through another iteration of comments once BLM
has a chance to react to everything that they are given in this
comment period, because there are just too many new terms and
too many questions raised.
Mr. Rosendale. Thank you so much. And if the rule would
take effect, do you believe it would result in better or worse
outcomes for the environment and the land quality, and why?
Ms. Sgamma. Well, again, I think it is so nebulous, how
this is intended and how it would be actually used, that I
don't know what would come out of this. And that is why I think
BLM needs to do another round of public comment and explain
itself better.
Mr. Rosendale. And would your definition of public comment
include areas that are actually where the lands are located, so
that the people that are in the field managing them might be
included?
Ms. Sgamma. I do agree, indeed, that this should be out in
rural areas because it is really rural areas where this is most
impacted.
Mr. Rosendale. Thank you so much.
Mr. Chair, I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the Ranking Member, Mr. Grijalva, for 5 minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman.
Commissioner, let me ask you a question. Before I ascended
into this position, I was a County Commissioner, Chair of my
local County Board. And there is a mythology that goes on about
this is the West, and this is the West that it has always been,
and this is the West that it will continue to be.
The West has changed. The dynamics are different. And at
least in my county we had to deal with habitat restoration and
a conservation plan in order to deal with endangered species,
deal with land use decisions. And those are all difficult and
done at the local level.
But at the end of the day, it was in response to guidance,
it was in response to a law, a Federal law, and the end result
was benefit: more assurity about what zoning was, a
conservation ethic that got strengthened in terms of protection
of areas, and no grazing rights were lost, no mining operation
in the Silver Bell Mountains was closed, dire consequences did
not hit my county of Pima. In fact, it is highly supported and
seen as something important.
My question about mythology is you have heard back and
forth today that this rule provides an opportunity for local
communities to look at restoration and conservation as a
legitimate use of BLM lands. That is all it does. It doesn't
change the fundamental ground that we are working with, but it
provides an opportunity for the future. And I think, more
importantly, the word doesn't get used enough, but the
restoration of areas that need to be restored.
The mining industry left messes all over the West that
nobody talks about. No restoration, no remediation, the
taxpayer having to carry that burden. Here is an opportunity.
Could you speak to what it means to local people to have this
opportunity, and why a kind of mythology that doesn't exist
can't help us going into this century in dealing with issues
like climate.
Ms. Chandler-Henry. Thank you so much for that very
perceptive question, Congressman Grijalva, and you have really
hit the nail on the head.
In our county, we really rely on collaboration. We rely on
working with our Federal land managers. Our small businesses
are based on outdoor recreation and tourism, our small
businesses rely on conservation values, and they rely on the
certainty that this proposed rule would implement to look at
those conservation uses on par with every other use.
In our county, we have to pay businesses to come in and
take the timber out for our forest restoration programs. It is
not a big moneymaker for us. Oil and gas is negligible. Our
extractive industry is tourism, outdoor recreation. We are a
rural area. We work hand in glove with our ranchers and our
conservationists. The conservation district is run by our
ranchers. It works with our open space, and we work closely
with BLM to make all that work.
Mr. Grijalva. Deputy Director, the proposition that we are
seeing here today, either there is no rule because the freedom
and fundamental life of our nation is at stake in this rule--
talk about restoration. Talk about the new players that haven't
been talked about in this part of the discussion, because
restoration is a use. And the way this is being interpreted is
that restoration for many communities--and conservation--is an
important element that we are adding to the portfolio about
what BLM should be doing.
I don't want to repeat the 1872 law of mining, where we get
to do nothing but give mining everything they want. This rule
gives the public, regardless of where you live, you own part of
this public land, each individual in this country, and the
response has to be landscape. It can't be short-term parochial,
with collateral damage being OK here but conservation being
important somewhere else.
Please.
Ms. Culver. We really intentionally defined the
conservation aspects of this rule as including both restoration
and protection, considering those both very active uses. We
have received, as I mentioned before, a lot of funding recently
from Congress for restoration. We see that as something that
this rule can really help us implement.
Our public lands will benefit from this type of
restoration, whether it is making them more resilient for fire
or drought, or addressing impacts of other development. And the
intent of this rule, the way it is structured, the actual words
of it, it is a structure, it is a framework.
And what we are ensuring is that one element of
conservation restoration is taken into account in decision
makings, looking for those opportunities, identifying the best
places to do that. And the rule is very explicit that we do
that with our partners, as we always do.
Mr. Grijalva. Thank you. I yield back, Mr. Chair.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentleman from Oregon, Mr. Bentz, for 5 minutes.
Mr. Bentz. Thank you, Mr. Chair, and I thank all of the
witnesses for their patience. My question is directed to
Principal Deputy Director Culver, and I just wanted a little
background.
My district in Oregon is larger than the entire state of
Washington. I think we have somewhere around 72,000 square
miles of space in my district. And of that, about 50 million
acres is public land. Exactly how much is BLM and how much is
Forest I couldn't tell you, but there is a lot more BLM than
Forest. So, this rule has a great importance to me and to the
people I represent.
I am looking at your Bureau of Land Management 43 CFR part
1600 to 6100 that was published in the Federal Register on
April 3. I am looking at, I think, about the fourth page, and
it would suggest that there is a gap in your regulations. You
agree with that, of course, because it says so right here in
your document. Right? I am reading it: ``This proposed rule is
intended to address this gap in the Bureau's regulations.''
What is that gap?
Ms. Culver. Thank you for the question, Congressman Bentz.
The reference there is the lack of explicit regulations
discussing this particular aspect of the multiple use and
sustained yield.
Mr. Bentz. I think it would be better to carry that a
little further, because I have been studying this the entire
time I have been sitting here, trying to figure it out. And I
want you to tell me what it actually means.
Because the way I read it, and you can tell me if I am
right or wrong, but the way I read it is it suggests that you
are now going to take conservation as--it is never defined, by
the way, in here, so I am not sure what it is. I did dig up a
definition of it. It is fairly broad: ``The act of protecting
the Earth's natural resources for current and future
generations.'' That is the National Geographic Society's
definition. Is that yours?
Ms. Culver. In the rule we define conservation as
``maintaining resilient, functioning ecosystems by protecting
or restoring natural habitats and ecological functions.''
Mr. Bentz. Are you reading that out of your BLM U.S.
Department of the Interior Manual H-4180? Is that where you are
getting that?
Ms. Culver. I am reading it out of section 6101.4 of the
proposed regulations, sir.
Mr. Bentz. It is suggested in this article by Michael Bloom
out of my law school, a faculty guy, ``BLM defines rangeland
health as the degree to which the integrity of the soil and
ecological processes of rangeland ecosystems are sustained.''
Are you trying to change the standard that currently is in your
manuals with this rule? I think you are, but you can tell me.
You have to be. There is a gap, you are filling it, so you have
to be changing, right?
Ms. Culver. We are providing additional detail on how to
carry out this work. And if we need to update manuals and
guidance, we will do that.
Mr. Bentz. Additional detail. You are filling a gap with
something. So, you are saying it is not changing anything. This
is just additional detail of something that already exists. Is
that your argument?
Ms. Culver. We are setting out a framework of how to
explicitly address these two aspects of conservation,
protection and restoration, with specific tools and processes
in the regulation.
The gap, in part, refers to the fact that this is a portion
of our regulations that was reserved for additional regulation.
And the BLM promulgates new regulations as we see the need for
more direction.
Mr. Bentz. OK. Then at least you do agree these are
additional regulations, and there will be additional work to be
done across the entire scope of your activities as a bureau. Is
that correct?
Because that is exactly what it says here on the fourth
page: ``The proposed rule recognizes the BLM has three primary
ways to manage resilient public lands,'' and then it walks down
through how the proposed rule would require the BLM to plan for
and consider conservation as a use on par with all other uses,
and identify the practices and ensure conservation actions are
effective in building resilient public lands.
And then it goes on to say that you currently can't apply
some of these standards, but you are going to start doing so.
It says they are applicable to grazing now, but you want to
extend that applicability to other activities on public land. I
mean, it is in your rule. So, am I correct there? That is a new
step on your part.
Ms. Culver. The rule would apply. The land health standards
that currently apply specifically to grazing, consideration of
grazing, make that explicit to apply to other uses. We have
heard for a long time from the grazing community that they
comply with these fundamentals of land health, and that should
be explicitly applied to other uses of the public lands.
Mr. Bentz. I have to hop back to the O&C lands because,
indeed, as Congresswoman Hoyle suggested, there needs to be
much clarity in the rule. And I think she was trying to ask
about the letter they sent to you, one of the county
commissioners from one of the counties that has a lot of this
type of land in it, conservation as a use cannot be applied to
O&C timber lands. Is that correct?
Ms. Culver. The way we have defined conservation in the
regulations includes restoration, which is certainly something
that we do in compliance with the O&C Act. So, we would apply
this regulation in a way that complies with the Oregon and
California Lands Act.
Mr. Bentz. Thank you, Mr. Chair. I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the gentleman from California.
Mr. Huffman, you are recognized for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman, and it would be easy
to forget that we are talking about public lands that belong to
the people of the United States if you are listening in to this
hearing where so many questions and speeches seem to suggest
that these public lands should simply be available to various
extracting industries for commercial purposes, and that they
should continue to have the type of impunity that they have had
for decades.
But I think that the BLM public lands rule is on the right
track. I don't think it is wildly controversial at all. BLM has
been in the conservation business for a long time, and has done
all kinds of rulemakings and policy guidance for every type of
extractive industry that operates on BLM lands, but never for
conservation. So, I would say it is about time.
And I want to just enter into the record two letters that
Congresswoman DeGette and I have sent on this matter. One is
from February this year, signed by 40 Representatives in
support of this rule, and another from earlier this week, where
we co-led a letter with Senator Martin Heinrich of New Mexico
outlining the positives that we see in this common-sense step
reflected in the proposed rule. We had 45 Representatives and
Senators sign that letter. So, Mr. Chairman, without objection,
I hope we would like to enter that into the record.
The Chairman. So ordered.
[The information follows:]
Congress of the United States
Washington, DC
February 15, 2023
Hon. Debra Haaland, Secretary
U.S. Department of the Interior
1849 C St., NW
Washington, DC 20240
Dear Secretary Haaland:
In order to combat the climate and biodiversity crises, we
encourage you to shift the focus of the Bureau of Land Management (BLM)
to emphasize conservation by utilizing all the administrative tools at
your disposal. These tools include designating Wilderness Study Areas,
meaningful protection for Areas of Critical Environmental Concern
(ACECs), and connecting landscapes for safe travel for wildlife. We
urge you to use your statutory authority established by theLand Policy
and Management Act (FLPMA) to provide protections for our public lands
and waters and drastically increase the opportunity of overcoming these
crises.
Under FLPMA, the Department of the Interior has the authority to
update inventories of the resources it manages--including areas that
qualify for wilderness designation, ACECs, and other conservation
areas. Under section 202 of FLPMA, once such inventories have been
completed, the Interior Department may then move to administratively
protect lands as new Wilderness Study Areas. Managing these BLM lands
in a wilderness-like state would help achieve President Biden's goal to
protect 30 percent of lands and waters by 2030.
Our remote lands are frequently overlooked in conversations about
addressing the climate crisis, but their contributions will be crucial.
Public lands not only support complex ecosystems, but also can
sequester carbon and make areas more resilient to the impacts of
climate change.
The largest opportunity to protect our public lands lies with the
BLM. For years, DOI and the BLM have not utilized their ability to
protect these lands, leaving critical habitats vulnerable to
degradation of their unique resources. Without proper protections,
these lands face many threats that could jeopardize wilderness-quality
values the BLM stated these lands have.
FLPMA directs the BLM to give priority to the designation and
protection of ACECs. These are places where special management
attention is required to protect and prevent irreparable damage to
important historic, cultural, or scenic values, fish and wildlife
resources or other natural systems or processes. For decades, this
designation has gone largely underutilized, with inconsistent
identification, designation, and management. If fully embraced, ACECs
can preserve and protect historical and cultural resources and sites as
well as promote public access and enjoyment of the open air, outdoor
areas and historic resources of the nation.
Protecting new Wilderness Study Areas and ACECs in a durable way as
envisioned in FLPMA would be a significant step to mitigate climate
change and reach the administration's 30 x 30 goal. Thank you for your
commitment to the stewardship of our nation's public lands.
Sincerely,
Jared Huffman Diana DeGette
Member of Congress Member of Congress
Doris Matsui Eleanor Holmes Norton
Member of Congress Member of Congress
Melanie Stansbury Adam B. Schiff
Member of Congress Member of Congress
Jill Tokuda Julia Brownley
Member of Congress Member of Congress
Stephen F. Lynch Earl Blumenauer
Member of Congress Member of Congress
Andre Carson Gwen S. Moore
Member of Congress Member of Congress
Donald S. Beyer Jr. Katie Porter
Member of Congress Member of Congress
Barbara Lee Suzanne Bonamici
Member of Congress Member of Congress
Nanette Diaz Barragan Salud Carbajal
Member of Congress Member of Congress
Pramila Jayapal Mike Levin
Member of Congress Member of Congress
Raul M. Grijalva Mike Thompson
Member of Congress Member of Congress
Teresa Leger Fernandez Mark DeSaulnier
Member of Congress Member of Congress
Jan Schakowsky Mark Pocan
Member of Congress Member of Congress
Betty McCollum Joe Neguse
Member of Congress Member of Congress
Brittany Pettersen Rick Larsen
Member of Congress Member of Congress
Steve Cohen Lisa Blunt Rochester
Member of Congress Member of Congress
Judy Chu Alexandria Ocasio-Cortez
Member of Congress Member of Congress
Raul Ruiz, M.D. Debbie Dingell
Member of Congress Member of Congress
Yadira Caraveo, M.D. Jason Crow
Member of Congress Member of Congress
Kevin Mullin Sara Jacobs
Member of Congress Member of Congress
______
Congress of the United States
Washington, DC
June 12, 2023
Hon. Debra Haaland, Secretary
U.S. Department of the Interior
1849 C St., NW
Washington, DC 20240
Dear Secretary Haaland:
On April 3, the Bureau of Land Management (BLM) published in
theRegister a draft ``Conservation and Landscape Health'' rule. The
draft rule provides tools for the BLM to improve the resilience of
public lands in the face of a changing climate and biodiversity loss;
conserve important wildlife habitat and intact landscapes; plan for
development; and better recognize unique cultural and natural resources
on public lands. We strongly support the progress and direction of
BLM's long-overdue draft rule. We believe the final rule should build
upon the draft to ensure that the rule achieves its potential to
balance various multiple uses of BLM lands for the benefit of current
and future generations.
The draft rule laudably:
Clarifies conservation as a legitimate land use, alongside
other land uses, and prioritizes lands to be managed for
conservation.
Promotes restoration of our lands and waters, empowering
federal land managers and state partners to leverage
federal dollars from the Bipartisan Infrastructure Law and
the Inflation Reduction Act, towards restoration and
improving land health.
Includes regulations for Area of Critical Environmental
Concern (ACEC), which are areas where special management is
required to protect important natural, cultural, and scenic
resources, or to protect from natural hazards.
Provides for nomination of ACECs by tribes and members of
the public.
The BLM oversees some of our nation's most spectacular landscapes,
more than 85 percent of which remain in their natural state. These
lands provide connectivity corridors and habitat for wildlife, allow
for natural carbon sequestration, and provide clean water and air for
local communities. Protecting our public lands also provides increased
opportunities for recreation, including hunting and fishing.
Lands managed by the BLM are often overlooked in conversations
about addressing the biodiversity and climate crises, but their
contributions are crucial. Sustainable and resilient public lands are
critical to Western economies and great quality of life. This draft
rule provides an important framework to modernize BLM's conservation
regulations and can be strengthened.
We encourage Interior to implement the draft rule by:
Conducting an inventory of intact natural landscapes.
Ensuring that identification and consideration of ACECs is
prioritized and that ACECs are properly managed.
Identifying and protecting habitat connectivity.
Restoring streambeds and riparian areas.
Protecting mature trees from a myriad of growing threats,
including uncharacteristic wildfires and climate change.
In addition, the BLM should coordinate with tribal governments to
refine the rule and ensure that it:
Advances opportunities for co-stewardship.
Incorporates Indigenous knowledge.
Respects tribal sovereignty and treaty rights.
Protects tribal cultural sites.
Carries out tribal consultation in ways that honor tribes'
unique historic and contemporary connections to public
lands.
We support your commitment and stand ready to work with you and
communities across the West to conserve public lands for generations to
come. We look forward to the completion of this important rulemaking.
Sincerely,
Jared Huffman Diana DeGette
Member of Congress Member of Congress
Martin Heinrich Richard J. Durbin
United States Senator United States Senator
Dianne Feinstein Earl Blumenauer
United States Senator Member of Congress
Alex Padilla Suzanne Bonamici
United States Senator Member of Congress
Edward J. Markey Raul M. Grijalva
United States Senator Member of Congress
Bernard Sanders Doris Matsui
United States Senator Member of Congress
Cory A. Booker Ro Khanna
United States Senator Member of Congress
Elizabeth Warren Sydney Kamlager-Dove
United States Senator Member of Congress
Adam B. Schiff Betty McCollum
Member of Congress Member of Congress
Maxine Waters Adriano Espaillat
Member of Congress Member of Congress
Joe Neguse Brittany Pettersen
Member of Congress Member of Congress
Yvette D. Clarke Mark DeSaulnier
Member of Congress Member of Congress
Mark Pocan Julia Brownley
Member of Congress Member of Congress
Barbara Lee Judy Chu
Member of Congress Member of Congress
Gabe Vasquez Sara Jacobs
Member of Congress Member of Congress
Donald S. Beyer Jr. Eleanor Holmes Norton
Member of Congress Member of Congress
Chellie Pingree Andre Carson
Member of Congress Member of Congress
Ted W. Lieu Katie Porter
Member of Congress Member of Congress
Becca Balint Mike Thompson
Member of Congress Member of Congress
Melanie Stansbury Seth Magaziner
Member of Congress Member of Congress
Nanette Diaz Barragan Jerrold Nadler
Member of Congress Member of Congress
David Trone Ritchie Torres
Member of Congress Member of Congress
Zoe Lofgren
Member of Congress
______
Mr. Huffman. Thank you.
Deputy Director Culver, is it correct that congressional
intent for the Federal Land Policy and Management Act, FLPMA,
is to include conservation as part of BLM's multiple-use
mandate?
Ms. Culver. Thank you for the question. Absolutely, it is.
The definition of multiple use is very clear. It includes,
for example, natural, scenic, scientific, and historical
values. Those are certainly aspects of conservation, as are
management of habitat.
And I think the quote that I have read a few times lately
comes from the former governor of Idaho, Mr. Andrus, who was
the Secretary of the Interior when FLPMA passed in 1976. And he
talked about the importance of these public lands for all
Americans, and said in response to the passage of FLPMA,
``Conservation is no longer a pious ideal. It is an element of
our survival.'' I take that as something that maybe we should
have gotten around to these regulations earlier, as you note,
but I take that to reiterate that that was the intention at the
time of the passage.
Mr. Huffman. And is it fair to say that over the years you
have done a lot of rulemaking when it comes to mining, and
grazing, and oil and gas activities on our Federal public lands
and other commercial uses?
Ms. Culver. We do have standalone regulations for all of
those activities, as well as for rights-of-way. And when we saw
the need, we updated our regulations to address renewable
energy, wind and solar explicitly. We just issued updated
regulations on that today.
Mr. Huffman. But you have never done a rulemaking for
conservation?
Ms. Culver. We have not.
Mr. Huffman. So, that does not seem radical. It seems long
overdue and sensible, putting it on equal footing.
And let's just establish that you are not putting a thumb
on the scale for conservation and elevating it over other uses
in your multiple-use portfolio, are you?
Ms. Culver. We are not. And the rule is explicit that this
is one of the multiple uses.
Mr. Huffman. Thank you. The bill before us today would not
only close the door to you taking this step, it would lock the
door, and it would prevent you from doing other regulatory
actions in this space. How would that tie your hands and your
ability to carry out your multiple-use mandate under FLPMA?
Ms. Culver. Thank you for that question and for pointing
that out, that there may be unintended consequences or intended
of such a law, because the rule itself actually reiterates
numerous policies and activities that are already underway.
For example, compensatory mitigation, restoration, planning
ahead for managing to restore habitat, working with our
partners to identify the best places to manage for healthy
public lands and to manage for restoration.
As I mentioned in my testimony, the ideas and the concepts
and the tools in this rule and this proposed rule grow out of
activities and ideas that are already underway at the BLM and
have been for decades.
Mr. Huffman. Thank you, Deputy Director.
I just want to note, as I close, that of the 245 million
acres of public lands BLM manages, 90 percent are open for oil
and gas leasing. The vast majority are open for hardrock
mining. It is high time that we elevate conservation to equal
footing with these other uses, and this rule seeks to do just
that.
I will note, Deputy Director, that I have had some solar
power developers that are a little bit nervous about this rule.
I think they are misinterpreting what is going on here, but it
would be very important, as you go forward, I think, to provide
some assurance and clarity that, just as this would not prevent
other uses, it would certainly not stand in the way of our
renewable energy goals and solar development on public lands.
With that, I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes the bill's sponsor for questions.
Mr. Curtis, you are recognized for 5 minutes.
Mr. Curtis. Thank you, Mr. Chairman. I would like to direct
my questions to the Deputy Director, and thank you for being
here, and all the witnesses, for your long hours that you have
been here.
Deputy Director, I am from Utah. BLM manages 22.8 million
acres of public land in Utah. That is 42 percent of our state.
If you go more specifically to my district, I don't have the
specific numbers for BLM, but Federal lands represent about 90
percent, a high percentage of my district. Can you explain,
given those numbers, why there were no public meetings in Utah
about this rule?
Ms. Culver. Thanks for the question. We identified a number
of places to hold information sessions, and have again
continued to provide responses and information sessions and
briefings as requested.
Mr. Curtis. The governors of South Dakota and Wyoming were
here earlier, and they also expressed that there were no public
meetings in their states with similar numbers. Do you not feel
that you have missed something here by not coming to the people
in these good areas and getting their input?
Ms. Culver. Having worked on a number of regulations, and
seen the Federal Government issue regulations for many years, I
think we have one of the most robust outreach processes I have
ever seen with the information sessions online, the information
we have posted online, the information we have made available
around the West, the amount of outreach going on from our State
Directors, yes.
Mr. Curtis. To be clear, then, you are saying states with
significant impact by this rule didn't need to be heard from,
and that that was adequate. Is that what you are telling me?
Ms. Culver. With respect, Congressman, that is absolutely
not what I am saying.
Mr. Curtis. Then help me understand why you wouldn't hold a
single public meeting. I don't know about the other states in
the region, but these three I know about. Why wouldn't you hold
a single public meeting, not one?
Ms. Culver. We did not hold public meetings to receive
comment. We held information sessions to provide additional
information. And then we have been supplementing those with
meetings held with our State Directors, our districts, and our
field offices. Just as so many people have talked about how
well they work with their local BLM, their state BLM, their
districts, those are the people who we are having help us with
additional outreach.
Mr. Curtis. Let me get to that in a minute. BLM has not
responded to letters my colleagues on the Committee and I have
sent. How can Utah ranchers, farmers, and recreationalists have
their voices heard, when you are not responding to our letters
and you are not holding hearings? What do you want me to go
back and tell them?
Ms. Culver. We have been doing briefings for anyone who
asks, and we are happy to continue doing that. We are in a
public comment period right now. That is when we will respond.
Mr. Curtis. Good. I am asking for a briefing in San Juan
County.
Ms. Culver. Understood.
Mr. Curtis. You are willing to do that?
Ms. Culver. I have responded to briefings. We have been
doing most of them virtually. But I am sure we can figure that
out.
Mr. Curtis. That is a yes.
Ms. Culver. I will need to confirm, but I am sure we can
find a way to continue discussions with San Juan County.
Mr. Curtis. No, I want an in-person briefing in San Juan
County, where they are impacted by this in a dramatic way.
Ms. Culver. I understand your request. As I said, we are
not holding public hearings, but we are providing additional--
--
Mr. Curtis. Are you willing to extend the comment period,
given the fact that so many people have not been heard from?
Ms. Culver. I am. Today, we announced the extension of the
comment period by an additional 15 days.
Mr. Curtis. Fifteen?
Ms. Culver. Yes, sir.
Mr. Curtis. That gives you 2 weeks to get down to San Juan
County. I will meet with your scheduler immediately, as soon as
you are ready.
Ms. Culver. Having driven from Albuquerque to San Juan
County to Salt Lake City on Monday, I think it can be done, but
I hear you.
Mr. Curtis. Please. We would like that to happen.
So, I am curious of two questions. One is it sounds like
you are a little bit familiar with the geography in Utah. Can
you give me an example where you feel like this rule would have
made a difference in Utah in the last decade? What would it
have preserved that was not preserved?
Ms. Culver. Absolutely. To give an example that is from a
little farther north in the state, we recently permitted the
TransWest Express transmission line. As part of that process
that line goes through a number of Western states, including
Utah.
Mr. Curtis. So, you are saying that would not have been
permitted under this rule?
Ms. Culver. What happened with that was the company, in its
own discussions, agreed to compensatory mitigation to provide
funding.
Mr. Curtis. I only have 30 seconds left. Let me try to make
a point with you.
Ms. Culver. We could have worked out----
Mr. Curtis. I know. This is my time.
Ms. Culver. We could have worked----
Mr. Curtis. I have 30 seconds.
Ms. Culver. I know. I thought you wanted me to explain. I
am so sorry.
Mr. Curtis. OK. Thirty seconds, right? You have no funding
in my district. You have two BLM agents for the entire Bears
Ears area. How is funding going to change so that you have the
resources to do this?
Ms. Culver. Most of this will be part of our ongoing
standard practices such as land use planning and permitting
projects. We expect that it will be funded in that way.
Mr. Curtis. All right. I am, unfortunately, out of time.
Hopefully, you interpret from my results that we don't feel
heard, that we feel like we are doing a very good job of
conservation ourselves. And I really would challenge you to
point out anything where your involvement would have provided
better conservation than what we have done. And I wish I could
give you a chance to respond. I am out of time.
Mr. Chairman, I yield my time.
The Chairman. You can respond, if you would like.
Ms. Culver. Thank you so much, Mr. Chairman. The example I
was going to give with the transmission line, there are
millions of dollars for compensatory mitigation. If we had had
this opportunity, this rule, it would have been easier to work
with local communities to propose projects and to implement
those projects directly with the communities, instead of going
through the National Fish and Wildlife Foundation.
Mr. Curtis. I think my question is what would have been
preserved, and particularly in the south, that was not
preserved because this rule was not in place?
Ms. Culver. So, I think what we are looking at is the
rulemaking easier for our land managers to find that----
Mr. Curtis. I know, but what would have been preserved that
wasn't preserved by my locals that this law would help you do,
this rule would help you do?
Ms. Culver. I think there are significant restoration
opportunities in San Juan County that this rule could help.
Mr. Curtis. I am talking about preservation, not
restoration, preservation. And you don't have the money for
restoration, by the way.
Ms. Culver. We have just received a lot of funding for
restoration from the Congress, and we are very grateful for
that, and we look forward to directing it around your state.
Mr. Curtis. OK, but not a single example of what would have
been preserved that wasn't preserved.
Ms. Culver. This rule is a framework. It does not make a
decision to preserve something that isn't already preserved. It
provides a way to use that tool.
Mr. Curtis. OK. I just want to point out that we are doing
a very good job of preserving ourselves, and I am not sure that
there is anything in this rule that will do a better job of
preserving in the area.
Ms. Culver. And our intent is to support those activities
through the rule.
Mr. Curtis. We can go on, Mr. Chairman, but I will yield.
The Chairman. I thought we were canning pickles or
something. We are talking about preservation, I thought it was
a conservation discussion, but the Chair now recognizes Mr.
Gosar for 5 minutes.
[Laughter.]
Dr. Gosar. Thank you very much.
I want to make it perfectly clear I am against this rule
and so are my constituents. And that is why I am also
requesting an in-person meeting in Arizona with the BLM, with
my constituents, and myself. I think we deserve it, and we
demand it.
Deputy Culver, the Federal Land Policy and Management Act
at section 202(c)(9) requires the Bureau to coordinate the
proposed rule with states and local governments. This probably
has been asked before, but has that occurred?
Ms. Culver. Thank you for the question, Congressman. That
section actually pertains to our land use planning process,
where we certainly do coordinate closely with our cooperating
agencies.
In terms of the rule itself, much of the input that we have
received over the decades of implementing FLPMA with our
partners is reflected in the rule.
Dr. Gosar. So, yes or no? Is that a yes or a no?
Ms. Culver. Yes, we have consulted with states and other
partners over the years on the concepts in this rule.
Dr. Gosar. Can you provide us with a report documenting the
coordination process, including the steps you took to satisfy
the criteria for coordination set forth in FLPMA, and efforts
to reach consistency with the state and local positions?
Specifically, I would like the report to address the
following four elements of this criteria:
(1) because of the importance of the public lands to
Western states, and I made myself very clear in the first or
the second panel, and in particular the rural areas and their
economies. FLPMA section 202(c)(9) requires meaningful
coordination by the BLM with state and local governments with
respect to land use inventory, planning, and management
activities.
(2) in addition, FLPMA section 202(c)(9) authorizes the
elected and appointed officials of state and local governments
to furnish advice to the BLM concerning the development and
revision of land use guidelines, land use rules, land use
regulations for the public lands with their respective states.
(3) FLPMA section 202(c)(9) also requires the BLM to
provide state and local governments meaningful involvement in
the development of BLM land use programs, land use regulations,
and land use decisions for public lands.
And finally (4) under FLPMA section 202(c)(9), land use
plans adopted by the BLM must be consistent with state and
local plans to the extent possible, unless FLPMA any other
Federal law requires otherwise.
Furthermore, the BLM must assist in resolving, to the
extent practical, inconsistencies between the Federal land use
plans and the state and local government plans. Are you capable
of doing that?
Ms. Culver. The rule would, at some point, I assume, if the
rule is finalized, it will be carried out through the land use
planning process, at which point we would be----
Dr. Gosar. I think, first of all, you have to go through
these four aspects. You haven't done them. And you have heard
the parade of my colleagues saying you are way out in front of
your skis.
The gentleman from Montana had it right. We are the people
that are making the laws, not you. You are part of the
enforcement aspect and implementation. And we have this all
backward, really backward. And that is why I brought up the
SNPLMA, the Southern Nevada land exchange that Harry Reid
piloted, because if this is what you are going to continue to
do, then it should be up to the states and to the local
governments to go back and attain those jurisdictions over
those lands.
I find this offensive. And he said, ``Stay in your lane.''
I think that is the best advice I possibly can tell. And I will
be very frank with you. I think more and more states need to
take the BLM and the Forest Service to court, because you are
too far over the skis, you are out of your lane. And that is
not right.
This Constitution, this country was formulated on real
basis. And when you look at the equal footings clause,
particularly the Arizona model in regards to Taft, that formed
contracts with the states. So, it is not if you are
predisposing one part of multiple use over another, it is you
must use all of those, otherwise you are subservient back to
the state.
So, I tell you, I am very disappointed in what I have seen,
and I hope that you will--I don't hope; I will be looking
forward to your answers.
Thank you, I yield back.
The Chairman. The gentleman yields back. It looks like we
are down to only one person left to ask questions. And since
when I am talking, there won't be anybody to tell me I am over
time, this could go on for a while. But again, I thank the
witnesses for being here.
Ms. Sgamma, I am going to ask you, and it is going to be a
difficult question I am going to ask you, because I am going to
ask you to maybe help me role play, and I am going to do my
best to be a rural Coloradan. You will have to pretend with my
accent and maybe that you are out in rural Colorado and I am a
friend, and I come up to you.
And I say, ``Hey, Kathleen, I have known you for a while.
You are a smart person. You follow all this stuff. I know you
go to DC and you testify before committees, and you are really
tuned in on what the Federal Government and the BLM is doing. I
saw where they are proposing this new rule to do something with
conservation and I thought that is what their job was, anyhow.
I thought we spent billions of taxpayer dollars to fund
agencies to take care of our land and practice conservation.
What is this conservation easement thing I am hearing about,
and how is it going to affect me here in Colorado?''
Ms. Sgamma. Well, besides the fact that you really don't
sound like you come from Colorado, I would have to say I think
it is still pretty unclear what the intention is.
We keep hearing that this is just a framework, that this is
just multiple use. But Congress didn't define conservation as a
multiple use. So when you look at these conservation leases,
you can't help but think that it is going to preclude other
uses, it is going to preclude the grazing, it is going to
preclude oil and gas development, solar, wind. So, at this
point it is hard to say exactly what the impact will be.
But just looking at the plain language of it, and hearing
what it is not going to do, it makes me nervous that when they
say it is not going to do this, it is not going to stop
grazing, or it is not going to stop energy development, that
what we are going to actually see out of the rule is the exact
opposite, that it will be used to stop those primary principal
multiple uses on Federal lands, and that it will be used to
elevate conservation above other productive uses so that it
passes over that conservation.
Because we all do conservation on Federal lands. We are
always conserving, we are restoring, we are reclaiming. Oil and
gas companies are always reclaiming the land and restoring it.
And we do that conservation in agreement with BLM. But it is
going to pass over from conservation to preservation only. We
see the BLM trying to become like the National Park Service,
and move from its multiple-use mandate to a preservation-only
type of mandate.
The Chairman. So, in layman's terms, they are saying it is
not going to change anything, yet they need this massive rule
to go into effect so they can do the job that they are already
supposed to be doing?
Ms. Sgamma. Right. BLM already has the ability to do
conservation. In fact, there are 38 million acres in the
Landscape Conservation System that BLM manages already. So, BLM
clearly has been doing conservation.
What we are concerned about is when they say it is not
going to stop grazing, it is not going to stop leasing, it is
not going to stop mining, that, in fact, that is exactly what
is going to happen.
The Chairman. And thank you for that. I was very confused
when I saw this proposed rule come out, and I asked the same
questions. Why? Why do they need this? What is the ulterior
motive?
And we have heard that it is not going to do anything, but
I am going to read from the letter that Mr. Stauber submitted
for the record from the Small Business Administration Office of
Advocacy, and this is directly from their letter: ``BLM has
not, however, clarified within the proposed rule how
conservation leases will be compatible with the other principal
uses laid out in FLPMA. In at least two instances, mining and
grazing, the proposed rule is incompatible.''
``Without proper clarification from BLM regarding the
implications of conservation leases on other uses, and the
inevitable incompatibility that may result, the proposed rule
has the effect of placing conservation leases above other
interests. This is contrary to the statutory intent outlined in
FLPMA. As indicated above, BLM does not have statutory
authority to create such additional uses that would make the
other principal uses incompatible. According to the statutory
text cited throughout this letter, Congress did not intend for
land uses to be excluded on a programmatic level.''
So, even the Small Business Administration disagrees and
says that BLM apparently doesn't know, somebody doesn't know
what they are talking about within the Administration.
And Ms. Culver, you talked about experts in the BLM, and I
know you are a political appointee, I don't think you went
through Senate confirmation, but your boss did. And I know
politics change. And whoever is in the White House, their
politics get to filtrate throughout the Administration. But was
it political staff or was it career staff that wrote this 88-
page rule?
Ms. Culver. Thanks for the question, Mr. Chairman. The rule
was written by career staff. We engaged subject matter experts
throughout the BLM, both headquarters and around the West, in
creating----
The Chairman. What would happen if the career staff said,
``I am not going to write that rule?''
Ms. Culver. Well, that did not happen, so I can't really
speculate. As I mentioned, a lot of the ideas in this rule you
can see reflected in BLM land use plans, and in decisions, and
in discussions----
The Chairman. The bottom line is we know that nothing would
happen. The career staff, they work for the Federal Government.
There are no repercussions for when they do their work, when
they don't do their work. Who do career staff answer to?
Ms. Culver. They report generally to additional career
staff.
The Chairman. Career staff report to career staff, who are
writing rules. They answer to nobody. They have never been
elected. They never have to go out and face the public. They
can put their own views, their own biases. Whatever they want
to they can write into these rules. And guess what? After you
are gone and this Administration is gone, they will still be
there, and they will be the ones enforcing these rules. They
have full enforcement.
They also get to be the judge and the jury, because if
somebody complains, there is an administrative law judge there
in the agency that can rule in favor of the career bureaucrats.
It is a broken system. It gets abused.
And that is the big problem that I have with this, because
it is totally unnecessary. If there was leadership and people
were doing the right thing, we would be conserving our lands.
We would be providing access to it. But guess what? I know I am
the only one left here, but we answer to people. We answer to
voters all across this country. So, we are going to push back,
because we don't think career bureaucrats buried in some
cubicle over in some nondescript building should be determining
what happens out on our Federal lands. And we are just not
going to allow that to happen.
We may not be able to pass this law out of the House and
the Senate and get the President to sign it, but either way it
goes, I will be in contact with my friends over at the
Appropriations Committee and have an amendment in the
appropriations bill that says no appropriations shall be used
to implement this rule that the BLM is proposing. It is sad it
has to happen that way, but at the end of the day we do control
the purse strings. They may still have their job, but it will
be against the law if we are able to pass this in
Appropriations.
And it is too bad we can't actually work on these things,
and you all have hearings in all the states, that you respond
to questions in letters that I write, that letters not just the
House writes, but Senators write, as well, and we get to the
point where it is the elected representatives facing off
against the unelected bureaucrats. And as administrations
change, unfortunately, the career bureaucrats don't.
So, with that, I want to thank the witnesses for being here
today.
I do have some things for the record. I ask unanimous
consent that the following letters from 93 different
organizations representing a wide variety of stakeholders,
including those involved in grazing, forest management,
recreation, conservation, and energy and mineral development be
added to the record for today's hearing.
Each letter details different concerns and expresses
support for H.R. 3397 or opposition to the BLM proposed rule.
These groups include the American Forest Resources Council;
Public Lands Council; American Farm Bureau Federation; National
Mining Association; Independent Petroleum Association of
America; National Stone, Sand, and Gravel Association; and
America Outdoors Association.
And without objection, so ordered.
[The information follows:]
ARIZONA CATTLE GROWERS' ASSOCIATION
Hon. Bruce Westerman, Chairman
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: H.R. 3397: A bill requiring the withdrawal of a proposed rule
relating to conservation and public health
Dear Chairman Westerman:
The Arizona Cattle Growers' Association fully supports H.R. 3397,
introduced by Subcommittee Chairman Curtis, which requires the Bureau
of Land Management to withdraw its proposed rule relating to
conservation and public health. We thank the Committee for holding a
hearing on this important issue on June 15.
Every special designation of public land leads to the elimination
or undue restriction of grazing. As drafted, the BLM proposed rule will
have the same effect. Ranchers and their communities throughout the
west are rightly concerned about the agency's proposal. Real
conservation of public land requires the presence of people who care
about the land. Simply tying up land with no responsibility for
management will foment more of the conditions like out-of-control
wildfires and invasive species that are the scourge of healthy
landscapes.
Attached are ACGA's detailed comments on the rule submitted to the
agency. Do not hesitate to contact Jeff Eisenberg of my staff if you
have any questions about the comments or the rule.
Sincerely,
Mike Gannuscio,
President
*****
ATTACHMENT
May 24, 2023
U.S. Department of the Interior
Director (630), Bureau of Land Management
1849 C St. NW, Room 5646
Washington, DC 20240
Dear Sir or Madam:
The Arizona Cattle Growers is the largest and oldest association
representing ranchers. Ranching is central to the history and
development of our great state. As the federal and state governments
own over 80% of the land in the state, public land is an integral part
of agriculture in the state. For this reason, BLM decisions have an
important effect on our members' operations. The BLM's proposed rule on
``Conservation and Landscape Health'', issued on April 3, 2023, is of
great concern to us. We appreciate the opportunity to submit comments
on this important proposal.
Grazing has a large footprint on BLM lands. Of the 245 million
acres administered by the BLM, 155 million acres are dedicated to
grazing. The Taylor Grazing Act of 1934 first recognized the importance
of grazing for protecting public lands. Similarly, a guiding principle
in the current proposal is to ensure the resilience of BLM lands by
``preserving and protecting certain public lands in their natural
condition.'' Proposed 43 C.F.R. Sec. 6101.5. A critical tool for
accomplishing this goal is by protecting ``intact'' landscapes.
Proposed 43 C.F.R. Sec. 6102.1(a). As explained below, BLM land
dedicated to grazing is ``intact'', ``resilient'' land. Because the
proposal leaves very vague the boundaries between the overlapping
relationship of ``intact'' and grazing land, our comments are aimed at
clarifying the distinction by suggesting language to protect grazing
operations that are meeting applicable management goals.
Grazing on BLM land is currently administered under the
fundamentals of land health at 43 C.F.R. Sec. 4180.1. The proposal
characterizes these fundamentals as the ``science for management
decisions to build resilient public lands.'' 88 Fed. Reg. 19583, 19586.
Land dedicated to grazing is expected to achieve the applicable
standards and the management practices are expected to conform to the
guidelines. 43 C.F.R. Sec. 4180.2. Should the grazing land fall short,
the authorized officer is required to take remedial action. The
proposed rule applies the fundamentals of land health (taken verbatim
from the existing fundamentals of rangeland health at 43 CFR 4180.1
(2005)) and related standards and guidelines to all renewable-resource
management, instead of just to public-lands grazing. 88 Fed. Reg.
19583, 19586.
The preamble explains that conservation leases authorized under
section 6102.4(a)(3) are ``not intended to provide a mechanism for
precluding other uses, such as grazing, . . .'' 88 Fed. Reg. 19591.
Nevertheless, a potential conflict arises between conservation leases
and grazing arises when grazing leases are up for renewal. If a
potential conflict is foreseeable in the proposed rule, it should be
addressed and resolved in the final.
The regulations adopted in this proposal contain the process for
ensuring that grazing BLM lands takes place on resilient lands. Under
43 C.F.R. Sec. 4180.2(c)(1), the authorized officer is required to use
monitoring to determine compliance with land health standards. See also
proposed rule 43 C.F.R. Sec. 6103.2(b). Should the grazing not meet the
standards, the officer is to propose ``appropriate action to address
the failure to meet standards or to conform to the guidelines.'' Id. In
other words, current regulations require grazing to be on resilient
lands and prescribe the measures to ensure this happens. This framework
for managing grazing is consistent with the proposed rule to maintain
or restore resilient intact ecosystems. Proposed rule 43 C.F.R.
Sec. 6102.1(a).
The potential for conflict arises under proposed rule 43 C.F.R.
Sec. 6102.2(a), which requires authorized officers to ``identify intact
landscapes on public lands that will be protected from activities that
would . . . significantly disrupt, impair, or degrade the structure or
functionality of intact landscapes.'' Furthermore, authorized officers
must determine during the planning process which tracts of public land
will be put to conservation use. Proposed rule Sec. 6102.2(b).
We recognize that there are any number of environmental groups that
want to eliminate public land grazing and of course would assert that
the grazing disrupts, impairs, and degrades the structure and
functionality of intact landscapes. Under proposed rule 43 C.F.R.
Sec. 6102.5(b)(8), authorized officers are required to ``consider a
precautionary approach for resource use when the impact on ecosystem is
unknown or cannot be quantified''. This section opens the door for
interminable fighting about the effects of grazing and whether existing
monitoring data provides an accurate characterization of the resources
of the land in question.
Fortunately, the foundations for land health point the way for
resolving this uncertainty. As indicated above, the foundations require
monitoring to measure compliance with the standards and guidelines. The
need for quantitative data collection permeates the management
prescribed in this proposed rule. The BLM should make management
decisions based on facts, not the biases of individual stakeholders or
even individual authorized officers. The federal government owes the
public a duty of fairness in its administration of its legal
responsibilities. The only fair way to administer grazing is to base
decisions on empirical data.
There is wide-spread agreement among the range science community
about range monitoring. The BLM has been a key participant in these
discussions through the years and has the necessary access to this
consensus to implement it effectively on its lands. There is no reason
for grazing land management not to be based on facts. The
``precautionary principle'' has no place in the grazing arena where
there are well-known systems for rangeland data collection. See
proposed rule 43 C.F.R. Sec. 6102.5(b)(8).
It may be that data collection is not possible with other resource
uses of BLM lands, and therefore the impact of the use on ecosystem
resilience is ``unknown or cannot be quantified.'' This uncertainty may
be due to the difficulty of measurement in a particular case, or
because BLM does not have the staff to carry out its duties under the
law. However, individual ranchers should not be punished with the loss
of their livelihoods because the federal government is unable to
perform its duties in managing rangelands.
For the foregoing reasons, we propose amending proposed rule 43
C.F.R. Sec. 6102.5(b)(8) as follows (the changes are in red):
[GRAPHIC] [TIFF OMITTED] T2531.002
.epsIn our view, the provisions of this rule should not affect
continued grazing use of BLM lands that is in compliance with the
fundamentals of land health and other applicable legal requirements.
See 43 C.F.R. Sec. 4130.1-1(b)(1). In a similar vein, the area of land
in a grazing allotment that is meeting the fundamentals of land health
standards and guidelines should not be reduced due to a reallocation of
the land to a conservation use or to create ``intact'' land under the
proposed rule. Changes in the existing rule and the proposal are
necessary to effectuate this goal:
1. 43 C.F.R. Sec. 4110.4-2, Decrease in land acreage, add a new
paragraph (a) and reletter the subsequent paragraphs:
[GRAPHIC] [TIFF OMITTED] T2531.003
.eps2. Under proposed rule 43 C.F.R. Sec. 6102.2, add a new
sentence at the end of existing section (a) as follows:
[GRAPHIC] [TIFF OMITTED] T2531.004
.epsAs discussed above, grazing lands are intact that are resilient
when managed properly. Moreover, most often ranchers have the most
contact with the land and the resources and are in the best position to
manage it. We would think the BLM should be reluctant to give up these
valuable benefits by replacing grazing leases with conservation uses
when grazing leases that are meeting land health standards come up for
renewal.
Moreover, people, families, and communities depend on the economic
benefits generated by grazing on BLM land. If the BLM can recognize
that some of its authorizations, such as infrastructure and energy
projects or mining, will cause ``permanent impairment of ecosystem
resilience,'' \1\ then it should certainly honor its long-standing
relationship with the many people who make ``resilient'' use of the
land.
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\1\ 88 Fed. Reg. 19592
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Thank you for your consideration of our views.
Sincerely,
Mike Gannuscio,
President
______
June 6, 2023
Tracy Stone-Manning, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Dear Director Stone Manning:
On April 3, 2023, the Bureau of Land Management (BLM) published the
proposed rule on ``Conservation and Landscape Health.'' The rule, which
amends a long-standing interpretation of the Federal Land Policy and
Management Act (FLPMA), has raised significant concern among the
grazing community.
The undersigned organizations represent cattle and sheep producers
who have, for generations, been partners with the BLM in managing the
245 million acres of federal land in the West as well as hundreds of
millions of acres of private land nationwide. These producers are the
original conservationists of these landscapes, having managed lands,
waters, wildlife, and adverse conditions to ensure the resources remain
healthy and resilient to provide for the diverse needs of people,
animals, and the environment. These producers have always been the
BLM's primary partner in fulfilling your mission of managing landscapes
for multiple use and sustained yield. Yet, in the promulgation of the
proposed rule, the BLM neglected to engage with these partners.
The proposed rule was developed without any stakeholder discussion
or advanced notice. Despite the ongoing discussions about sage grouse
plan revisions, mitigation, conservation practices, grazing regulations
revisions, and resource resilience, the BLM did not provide any
indication they were promulgating this proposal. Individually, each of
the components of the proposed rule would have warranted substantive
and detailed discussion. Together, they demand the BLM do the necessary
work of engaging with stakeholders to avoid conflict and develop
durable outcomes. This discussion certainly should be longer than 75
days during one of the busiest times of year for federal grazing
permittees.
The five public information sessions have done little to compensate
for the agency's lack of advanced discussion. Instead of holding
dialogues in places where federal grazing permittees and other multiple
use stakeholder groups operate, the agency elected to host briefings in
urban centers. Each of these sessions has featured a briefing, after
which BLM staff have been unable to answer questions about future
implementation of the proposed rule, instead urging attendees to answer
those questions in the public comments. The format of these events, the
expectation that permittees from 12 western states would drive to just
three urban centers, and the lack of meaningful dialogue with
stakeholders at the briefings has left the grazing community with the
conclusion that the BLM is not committed to open dialogue on this
proposal.
To create a ``durable mechanism'' to improve landscape health,
these concepts would have been more appropriately explored in one of
the agency's more appropriate tools like a Request for Information, an
Advanced Notice of Proposed Rulemaking, or--most appropriately, a
scoping period attached to a programmatic Environmental Impact
Statement. Instead, the agency moved straight to a proposed rule,
inappropriately bypassing key stakeholder discussions and regulatory
processes that would have informed a more durable process. For this
reason, the undersigned organizations request BLM withdraw the proposed
rule and begin again, engaging with stakeholders in a forum that would
promote open dialogue and address fatal flaws in the existing proposal.
If the BLM instead forges ahead with the proposed rule, the
undersigned organizations request a 105-day extension to the public
comment period, to allow for a full 180 days. The undersigned
organizations are actively engaging with other multiple use groups
across the West, doing the hard work that should underpin federal lands
management. Additionally, we request the agency hold public meetings
and forums for discussion in each of the states where user groups were
previously omitted: Washington, Oregon, California, Idaho, Utah,
Arizona, Montana, Wyoming, North Dakota, South Dakota, and Nebraska.
While we appreciate the agency's recognition that some groups may
prefer virtual meetings, virtual meetings should not replace in-person
engagement in states where broadband access often precludes robust
participation.
Over the last several generations, ranchers have been at the front
of the line helping the BLM conserve wildlife habitat, reduce wildfire
risk, support balanced multiple use, reduce on-range conflicts, and
identify areas of greatest need. We urge the BLM not to compromise that
relationship by forging ahead with a rule that will undoubtedly result
in ranchers and other multiple use groups being forced from the
landscape over time. We support durable conservation, we support
creative partnerships, and we have always been willing to do the hard
work that partnership requires. We urge you to seriously consider our
request and be willing to engage with this community into the future.
Sincerely,
Public Lands Council Montana Wool Growers Assoc.
National Cattlemen's Beef
Assoc. Nebraska Cattlemen
American Sheep Industry
Assoc. Nevada Cattlemen's Association
American Farm Bureau
Federation Nevada Farm Bureau Federation
American Quarter Horse
Association Nevada State Grazing Board
Central Committee
American National Cattle
Women Nevada Wool Growers Association
National Lamb Feeders
Association New Mexico Cattle Growers Assoc.
Arizona Cattle Growers
Association New Mexico Farm & Livestock
Bureau
Arizona Farm Bureau
Federation New Mexico Wool Growers Assoc.
Arkansas Cattlemen's
Association North Dakota Farm Bureau
California Cattlemen's
Association North Dakota Stockmen's Assoc.
California Farm Bureau Oklahoma Cattlemen's Association
California Public Lands
Council Oregon Cattlemen's Association
California Wool Growers
Association Oregon Farm Bureau
Colorado Cattlemen's
Association Oregon Public Lands Council
Colorado Farm Bureau Southern Arizona Cattlemen's
Protective Assoc.
Colorado Public Lands
Council South Dakota Cattlemen's Assoc.
Colorado Wool Growers
Association South Dakota Public Lands Council
Florida Cattlemen's
Association Tennessee Cattlemen's Association
Idaho Cattle Association Utah Cattlemen's Association
Idaho Farm Bureau
Federation Utah Farm Bureau Federation
Idaho Public Lands Council Utah Wool Growers Association
Idaho Wool Growers
Association Washington Cattlemen's
Association
Indiana Sheep Association Washington Farm Bureau
Kansas Farm Bureau Washington State Sheep Producers
Minnesota Lamb & Wool
Producers Assoc. Wyoming Farm Bureau Federation
Montana Assoc. of State
Grazing Districts Wyoming Stock Growers Association
Montana Farm Bureau
Federation Wyoming State Grazing Board
Montana Public Lands
Council Wyoming Wool Growers Association
Montana Stockgrowers
Association
______
June 7, 2023
Tracy Stone-Manning, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Dear Director Stone Manning:
On April 3, 2023, the Bureau of Land Management (BLM) released the
proposed rule entitled ``Conservation and Landscape Health'',
purportedly to ``advance the BLM's mission to manage the public lands
for multiple use and sustained yield'' by ``wise management decisions
based on science and data.'' We write today to ask you, on behalf of
the BLM, to uphold commitments you made in your June 8, 2021 testimony
before the Senate Energy and Natural Resources Committee to ``listen .
. . and seek to work with all . . . That's how we find durable
solutions, by working together.\1\ '' The proposed rule and process
surrounding the rule fall short of that commitment.
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\1\ https://www.energy.senate.gov/services/files/BB980035-6C2E-
47E4-9614-8F5151232144
---------------------------------------------------------------------------
Despite the significant implications of the rule for all multiple
use and conservation communities, the proposed rule was developed
without stakeholder input or advanced notification. The concepts of the
rule are not new; for decades, the agency has contemplated improvements
to landscape health evaluations, how to avoid ``random acts of
conservation'', and how the agency can be more intentional about
evolving land uses, however the mechanisms to address these issues have
been difficult to find. There are few simple answers in natural
resource management, so these are conversations that should be
facilitated by the agency, with the involvement of all stakeholders, to
develop durable solutions--not confined to a 75-day public comment
period.
There are so many nebulous concepts in the proposed rule and the
agency has thus far been unable to answer key questions about the
concept of conservation leases. It is therefore unreasonable for the
BLM to have published this proposal; instead, the agency should have
pursued an Advanced Notice of Proposed Rulemaking or a Request for
Information for a meaningful regulatory process. We therefore request
the agency withdraw the proposed rule and reset the conversation to
ensure appropriate stakeholders are at the table to find durable
answers to some of the West's most pressing challenges.
Absent the BLM's willingness to restart the conversation, we
request an extension to the comment period to facilitate robust
discussion. We request a 105-day extension of the comment period to
allow for the kind of meaningful back-and-forth that is required for
such a significant shift in agency management. During that additional
105 days, we request you hold public meetings that provide opportunity
for discussion in each state affected by the proposed rule. The current
meeting schedule includes only three states of the 12 where BLM
currently manages surface occupancy. Virtual meetings should not be a
replacement for in-person engagement in 75 percent of the agency's
footprint.
As the BLM moves through the regulatory process, we urge the agency
to move with careful intention when engaging with the public. The
undersigned organizations represent a wide variety of multiple use
groups--people who live, work, recreate, and are generationally-
invested in the 245 million surface acres and 700 million subsurface
acres across the country.
Sincerely,
Public Lands Council Federal Forest Resource Coalition
National Cattlemen's Beef
Assoc. Western Energy Alliance
American Sheep Industry
Assoc. American Forest Resource Council
American Quarter Horse
Association American Council of Snowmobile
Associations
American Mining and
Exploration Assoc. National Assoc. of State
Departments of Agriculture
National Association of
Counties America Outdoors Association
Association of National
Grasslands Farm Credit Council
Safari Club International Essential Minerals Association
Partnership of Rangeland
Trusts Family Farm Alliance
American Farm Bureau
Federation Wild Sheep Foundation
______
American Exploration & Mining Association
Spokane Valley, WA
June 15, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: June 15, 2023 Legislative Hearing on H.R. 3397
Dear Chairman Westerman and Ranking Member Grijalva:
The American Exploration & Mining Association (AEMA) submits the
following statement for the record for the above-referenced hearing.
AEMA supports H.R. 3397, which would require the Director of the
Bureau of Land Management to withdraw its Conservation and Landscape
Health rule, also called the Public Lands Rule. We urge the committee
to approve it swiftly.
Who We Are and the Importance of the U.S. Minerals Mining Industry
AEMA is a 128-year-old, 1,400-member national trade association
representing the mineral development and mining industry, with members
residing across 46 states, 7 Canadian provinces or territories and 10
other countries. AEMA is the recognized national representative for the
exploration sector, the junior mining sector, as well as mineral
developers interested in maintaining access to public lands. Thus, AEMA
represents the entire mining life cycle, from exploration to mineral
extraction and then to reclamation and closure. More than 80 percent of
our members are small businesses or work directly for small businesses.
American miners continue to play an indispensable role in building
and defending our Nation. From foundations to roofs, power plants to
wind farms, roads and bridges to communication grids and data storage
centers, America's infrastructure begins and ends with minerals and
mining. As just one example, steel resulting from mining operations
directly supplies the construction and development of roads, railways,
appliances, buildings, stadiums, bridges, airports, conventional and
renewable energy facilities, and other structures. Steel is used to
reinforce concrete and other construction materials and 6 billion tons
of steel are used across the U.S. National Highway System. Steel
requires iron ore for its production, and 65 percent of the global zinc
consumption is used to coat steel, for purposes of making it resistant
to corrosion. Other metals important to steel alloys, including
manganese, chromium, nickel, aluminum, vanadium, tungsten, titanium,
cobalt, and niobium, are specifically identified on the U.S. Geological
Survey's (USGS') final 2022 list of critical minerals.\1\
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\1\ https://www.federalregister.gov/documents/2022/02/24/2022-
04027/2022-final-list-of-critical-minerals
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Another example is copper, with its flexibility, conformity,
conductivity, and resistance to corrosion, that make it an ideal and
essential clean energy metal.\2\ Forty-three percent of U.S. copper
demand comes from the construction industry, as the average American
home contains 439 pounds of copper. An electric vehicle (EV) uses
approximately four times as much copper as a conventional car.
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\2\ According to the World Bank, copper is used in ten low-carbon
energy technologies. https://pubdocs.worldbank.org/en/
961711588875536384/Minerals-for-Climate-Action-The-Mineral-Intensity-
of-the-Clean-Energy-Transition.pdf
---------------------------------------------------------------------------
Infrastructure improvement and development at all levels depends on
metals and mining. Beyond hard-rock mining, AEMA also represents the
industrial minerals industry. Industrial minerals include any rock or
mineral with economic value that is not used as a source for metals,
gemstones, or energy production. Industrial minerals are classified as
non-fuel minerals and differ from construction aggregates like sand,
gravel, and crushed stone. Many different types of industrial minerals
serve multiple uses, some of which are considered critical minerals and
many of which are essential to our nation's economic and national
security. The most widely used industrial minerals include limestone,
clays, diatomite, kaolin, bentonite, silica, barite, gypsum, potash,
pumice, and talc.
Similarly, there is no substitute for phosphorus in agriculture and
in the development of our Nation's food supply. Phosphorus is essential
for plant nutrition and plays a vital role in photosynthesis, energy
transfer, root formation, seed formation, plant growth and improvement
of the quality of fruits and vegetables. China has been the leading
producer of phosphates, followed by the United States. The Society for
Mining, Metallurgy & Exploration's (SME) website \3\ provides a deeper
introduction to industrial minerals and explains why securing domestic
production is essential to America's future.
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\3\ https://www.smenet.org
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There is no question that the minerals we produce are indispensable
to modern society. They are also essential to fighting climate change,
and for zero-emission technologies such as wind turbines, solar panels,
storage batteries and EVs. As these technologies are deployed in ever-
greater numbers, the demand for minerals is skyrocketing, and our
Nation must do more to keep up. The International Energy Agency (IEA)
published a report at the end of July 2022 titled ``Global Supply
Chains of EV Batteries,'' and noted that demand for EV batteries will
increase from 340 GWh today to about 3500 GWh by the year 2030. To meet
that demand, 50 new lithium mines, 60 more nickel mines and 17 more
cobalt mines would need to come into production.\4\
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\4\ https://iea.blob.core.windows.net/assets/4eb8c252-76b1-4710-
8f5e-867e751c8dda/GlobalSupply ChainsofEVBatteries.pdf
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Congress has taken note of this surge in demand, and through the
Infrastructure Investment and Jobs Act of 2021 and the Inflation
Reduction Act of 2022, has decided--and we agree--that it is
inappropriate, unwise and dangerous to rely on hostile, untrustworthy
or unstable countries to supply our country's minerals. Congress has
sent a clear message--Now is the time to get serious about building a
reliable mineral supply chain (emphasis supplied). AEMA and its members
stand ready to help build that supply chain right here in America.
Our members take great pride in producing the metals and other
important minerals America needs for national and economic security, as
well as the materials people use in their everyday lives. We are proud
of our members' contributions across the communities and regions where
they operate, many of which are rural areas facing significant economic
and social development challenges. Notably, the U.S. mining industry is
the safest, most environmentally responsible mining industry in the
world. Our members have repeatedly demonstrated that mining and
protecting the environment are compatible, as mineral producers make
possible the development of society's basic needs and consistently
minimize modern society's impacts on the environment.
We Need a Reliable Domestic Mineral Supply Chain
Recent global events have exposed the United States' supply chain
vulnerabilities, highlighting the importance of an abundant and
affordable supply of domestic minerals for America's future.
The fact is, global mineral demand is skyrocketing. As noted in a
report from the International Energy Agency, keeping global temperature
rise to below 2 degrees Celsius above preindustrial levels will
quadruple the demand by 2040 for the minerals needed to build wind
turbines, solar panels, and electric vehicles. A faster energy
transition--reaching net zero globally by 2050 as the Biden
Administration has called for--would require critical mineral inputs to
increase sixfold by 2040.
Solar panels require silver, tin, copper, and lead; wind turbines
use rare earths, copper, aluminum, and zinc; electric vehicles are
built with copper, aluminum, iron, molybdenum; and rechargeable storage
batteries use lithium, vanadium, nickel, cobalt, and manganese.
Approximately 40 percent of the gold now produced is used in
electronics and computer chips that are needed for clean energy
technologies to meet carbon emission reduction objectives to address
climate change.
President Biden has promised to convert the entire U.S. government
fleet--about 640,000 vehicles by 2030--to EVs. That plan alone could
require a 12-fold increase in U.S. lithium production to manufacture
the lithium-ion batteries that power EVs, according to Benchmark
Minerals Intelligence, as well as increases in output of domestic
copper, nickel, and cobalt--and that's just for the U.S. Government
vehicle fleet. The magnitude of the minerals needed for a 100 percent
EV market is even more staggering, and simply cannot be ignored.
Unfortunately, a lack of access to economically viable mineral
deposits and a lengthy, inefficient federal permitting system has
resulted in the United States being increasingly dependent on foreign
sources of strategic and critical minerals. It's time that we, as a
Nation, recognize this vulnerability and the vital importance of
minerals to our national security, our economy, and our everyday lives.
We have heard a lot over the years about the importance of energy
independence, but it is equally as important, if not more so, that we
are minerals independent.
The Department of Interior's recent mineral withdrawal on the
Superior National Forest is a painful example of a lack of coherence in
the Biden administration's strategy in establishing robust, secure
mineral supply chains that could contribute to their goals of ramping
up deployment of low-or zero-carbon energy technologies to fight
climate change. Projects such as Twin Metals, located within the
boundaries of the Superior National Forest withdrawal, and now in
serious jeopardy because of the withdrawal, could supply more than 90
percent of the United States' nickel, 88 percent of our cobalt, and
roughly 33 percent of the Nation's copper. Renewable energy
technologies simply do not function without these metals, especially
copper.
Made in America must include ``mined in America'' and sourcing
minerals from U.S. mines that use state-of-the-art environmental
protection measures, put a premium on worker health and safety, and
have financial assurances that guarantee reclamation when mining is
complete.
Recycling will play an important role in meeting increasing metal
demand, but it will not be enough. The IEA's report estimates that by
2040, recycling metals from spent batteries could only supply about 10
percent of the minerals that will be needed.
The United States and our economy simply need more mines. According
to the USGS' Mineral Commodity Summaries 2023, our country's import
dependence for key mineral commodities has doubled over the past two
decades, with the United States now 100 percent import-reliant for 15
of its key minerals and more than 50 percent import-reliant for an
additional 36 key mineral commodities. This foreign reliance continues
despite the existence of significant mineral deposits of many of these
commodities within our borders. Moreover, U.S. mineral import reliance
continues to increase as mineral demand from essential industries, such
as energy and transportation, soars. Notably, the World Bank sees
mineral demand for advanced energy technologies jumping by nearly 500
percent by the year 2050.\5\ Copper demand alone may rise as much as
350 percent by 2050, according to one estimate.\6\
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\5\ https://pubdocs.worldbank.org/en/961711588875536384/Minerals-
for-Climate-Action-The-Mineral-Intensity-of-the-Clean-Energy-
Transition.pdf
\6\ https://www.sciencedirect.com/science/article/abs/pii/
S0959378016300802
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Access to Federal Public Lands is Vital for Domestic Mining
In the United States, most hardrock mining takes place on federal
land, after a lengthy and rigorous permitting process that involves
local, state and federal regulatory agencies and many diverse
stakeholders. Even after the mine begins operation, it must adhere to a
myriad of environmental laws and regulations, and financial assurance
instruments ensure that cleanup and restoration will take place when
mining activities cease. However, mineral deposits are unique and rare.
Unlike other economic development or infrastructure projects that have
some flexibility in choosing where they are sited and can move
accordingly--mineral deposits are where they are.
Almost every year, the federal lands available for mineral entry
shrinks. According to the GAO, the federal government manages about 650
million acres, or 29 percent, of the 2.27 billion acres of land in the
United States.\7\ Former Department of Interior Solicitor, John Leshy
(now a professor at the University of California Hastings College of
Law), estimated in 2021 that of the approximate 650 million acres of
public lands, roughly 400 million acres are set aside for conservation
and preservation purposes and are functionally off-limits to mining.\8\
He also calculated that during the period from 1980 to 2020, the acres
of conservation and preservation lands grew from 250 million acres to
400 million acres.\9\ Federal lands have been withdrawn from mineral
entry to protect a variety of ``special places,'' from national
monuments and wilderness areas to military bases. For example, the
National Conservation Lands System already includes 35 million acres of
pristine, culturally diverse and scientifically important sites that
have been withdrawn from mineral entry, including: 122 national
monuments, 28 of which are managed by BLM; 23 national conservation
areas; 30 National Scenic and Historic Trails; 200 designated Wild and
Scenic Rivers; 260 congressionally designated Wilderness areas; and 491
wilderness study areas.\10\ Congress has closed or withdrawn areas to
mineral exploration in favor of other uses, including for the
following:
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\7\ GAO Letter report to Senator Tom Udall entitled ``Hardrock
Mining: Availability of Selected Data Related to Mining on Federal
Lands,'' May 16, 2019, available at: https://www.gao.gov/assets/gao-19-
435r.pdf.
\8\ John D. Leshy, America's Public Lands--A Look Back and Ahead,
67th Annual Rocky Mountain Mineral Law Institute, July 19, 2021.
\9\ Id.
\10\ BLM website: https://www.blm.gov/programs/national-
conservation-lands.
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National Parks;
National Monuments;
Indian reservations;
Various types of Bureau of Reclamation projects;
Military reservations;
Scientific testing areas;
Wildlife protection areas;
National Wilderness Preservation System and Wilderness
study lands; and
Wild and Scenic River designated and study areas.\11\
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\11\ See BLM website: https://www.blm.gov/programs/energy-and-
minerals/mining-and-minerals/locatable-minerals/mining-claims/locating-
a-claim; see also Attachment 5, ``List of Select Federal Laws Amending
or Affecting the Mining Law of 1872,'' identifying principal laws under
which federal lands have been withdrawn from mineral entry.
After Executive Order 14008 in which President Biden set a goal of
preserving and restoring 30 percent of U.S. lands and waters by
2030,\12\ AEMA grew concerned that more withdrawals were on the way.
That has proven to be true, as two withdrawals have been finalized in
the first half of 2023 already, and more are in process.
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\12\ See Executive Order 14008 ``Tackling the Climate Crisis at
Home and Abroad'' (January 27, 2021) and the ``America the Beautiful
Initiative.''
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Shrinking the available land base where mineral exploration and
mining are allowed reduces the number of future mineral discoveries
that can become mines. This ultimately increases the Nation's reliance
on foreign minerals and thwarts the country's goals to increase
domestic production and become more mineral independent. A 1999 report
by the National Research Council of the National Academy of Sciences
notes that ``Only a very small portion of the earth's continental crust
(less than 0.01%) contains economically viable mineral deposits.'' \13\
The Academy further noted that, on average, 1,000 mineral targets must
be examined before discovering the deposit capable of becoming a mine.
Every time we declare land off-limits to mining, we shrink the playing
field and stack the odds higher against discovery.
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\13\ National Academy of Sciences/National Research Council,
``Hardrock Mining on Federal Lands'' (1999), P. 23-24, available at
https://nap.nationalacademies.org/catalog/9682/hardrock-mining-on-
federal-lands
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BLM Proposed Rule on Conservation and Landscape Health
It is against this backdrop that AEMA opposes the Bureau of Land
Management's (BLM) Proposed Rule on Conservation and Landscape Health
(Proposed Rule), which would significantly change the way BLM manages
the 245 million acres of public land it oversees, most of it in western
states. The Proposed Rule is illegal and should be withdrawn
immediately. If BLM refuses to withdraw the rule, Congress must act
swiftly and approve H.R. 3397.
While the Proposed Rule pays lip service to the Federal Land Policy
and Management Act of 1976 (43 U.S.C. Sec. Sec. 1701 et seq.) as
amended, (``FLPMA''), it fundamentally violates FLPMA in multiple ways,
including illegally adding ``conservation'' as a ``use'' when Congress
did not include it in FLPMA's specific list of uses (FLPMA Section
103(l); redefining key terms already defined by Congress in FLPMA,
``multiple use'' and ``sustained yield'' (FLPMA Section 103(c and h));
contorting the scope and definition of ``areas of critical
environmental concern'' beyond FLPMA's scope and using current
administration ``conservation,'' ``restoration,'' and ``ecosystem
resilience'' policies to impermissibly withdraw public lands from
public use in violation of FLPMA Sec. 204.
Since 1970, Congress has consistently and repeatedly recognized
that minerals and mining are essential to all facets of our economy,
society, and national defense. The U.S. Mining Law, as amended (30
U.S.C. 21a et seq.) (``Mining Law''), the Mining and Minerals Policy
Act of 1970 (30 U.S.C. Sec. 21(a)) (``MMPA''), the National Materials
and Minerals Research Policy Act of 1980 (30 U.S.C. Sec. Sec. 1601-
1605) (``MMPRDA''), the Infrastructure Investment and Jobs Act of 2021
(30 U.S.C. Sec. Sec. 1607, et seq.) (also known as the Bipartisan
Infrastructure Law) (``IIJA''); and the Inflation Reduction Act of 2022
(H.R. 5376) (``IRA'') all direct the executive branch agencies to
respond to the Nation's need for domestic minerals (see e.g., 30 U.S.C.
Sec. Sec. 21a and 1602) and direct the Department of Interior (``DOI'')
to streamline the permitting processes for domestic mineral
development. IIJA Section 40206; IRA Sec. 13401. In stark contrast with
these legal obligations, BLM's Proposed Rule Sec. 6102.4(a)(4) ``would
preclude the BLM, subject to valid existing rights and applicable law,
from authorizing other uses of the leased lands that are inconsistent
with the authorized conservation use.'' FR at 19591.
The provisions requiring identification and conservation of
``intact landscapes'' and ``watershed scale'' ecosystems are simply new
terms to articulate the Planning Rule 2.0 approach for landscape-scale
planning that Congress killed in 2017.\14\ These provisions violate the
Congressional Review Act (5 U.S.C. Sec. Sec. 801 et seq.) (``CRA'').
BLM cannot legally breathe new life into this rejected approach. See 5
USCS Sec. 801(b)(2).
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\14\ H.J. Res. 44, Pub. L. 115-12, 131 STAT. 76 (March 27, 2017):
``Congress disapproves the rule submitted by the Bureau of Land
Management of the Department of the Interior relating to ``Resource
Management Planning'' (published at 81 Fed. Reg. 89580 (December 12,
2016)), and such rule shall have no force or effect.''
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In issuing the Proposed Rule, BLM violated a host of procedural
laws that have substantive implications. The Regulatory Flexibility Act
(``RFA''), as amended by the Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. Sec. Sec. 601 et seq.) (``SBREFA''), requires
federal agencies to prepare a regulatory flexibility analysis, subject
to notice and comment under the Administrative Procedure Act, if the
rule would have a significant economic impact on a substantial number
of small businesses and governments. BLM summarily concluded--without
making the required fact-based certification--that it did not apply, so
did not conduct the required regulatory flexibility analysis. See FR at
19594. In similar cavalier fashion, BLM announced it would apply a
categorical exclusion to the rulemaking and, therefore, violated its
obligations under the National Environmental Policy Act (42 U.S.C.
Sec. Sec. 4321 et seq.) (``NEPA'').
Cherry-picking preferred Executive Orders (E.O.), while ignoring
others, does not legitimize the Proposed Rule. Specifically, BLM leans
on E.O. Nos. 13990 and 14008 to support the climate change and
ecosystem resilience provisions in the Proposed Rule. However, BLM
ignores E.O. 14017 and its focus on resilience--in America's supply
chains--including critical and strategic mineral and rare earth element
(``REE'') supply chains and domestic sources. It is time that DOI and
BLM acknowledge that energy transformation and climate change actions
require more minerals and that national security demands domestic
sources of minerals. The Proposed Rule would thwart these equally
important administration policies.
Regardless of this administration's policy inconsistencies,
Congress has spoken clearly and unequivocally on numerous occasions
including FLPMA, the MMPA, the MMPRDA, the IIJA, and the IRA to define
mineral exploration and production as a ``major'' and important use of
public lands, one that is important for national security and America's
economy. Conversely, Congress has not identified ``conservation'' as a
``use.'' It is important to note that in explicitly defining ``multiple
use'' and ``sustained yield,'' FLPMA did not define conservation or
include it in the Section 102(a) land use management directives though
Congress clearly could have done so if it intended conservation to be a
``use.'' FLPMA uses the word ``conservation'' in a very limited way. It
is never used to establish land management objectives. Rather, it is
only used in a restricted way to reference previously Congressionally
designated conservation areas. In fact, there are only six sections in
FLPMA that use the word ``conservation'':
California Desert Conservation Area: Section 206(c),
Section 303(e), Title VI, Section 601(c)(1), (c)(2), (d),
(e), (f), (g)(1), (h);
Conservation system unit or the Steese National
Conservation Area: Section 302(d)(1);
Alaska National Interest Lands Conservation Act: Section
302(d)(4) and (d)(6);
Land and Water Conservation Fund: Section 318(d)
Kings Range National Conservation Area: Section 602; and
Conservation of the Yaquina Head Outstanding Natural Area:
Section 603(c).
The limited ways in which FLPMA mentions conservation to describe
lands that in 1976 were already designated for special management is
additional proof that Congress never intended to authorize making
conservation a ``use'' or a tool for BLM to use to restrict or prohibit
multiple-use.
Where Congress intended conservation to be a ``principal or major
use'' of federal land, it has enacted laws for that specific use. See,
e.g., 16 U.S. Code Sec. 7202 (establishing the National Landscape
Conservation System); 54 USCS Sec. 100101 (establishing that the
National Park System's purpose is to ``conserve the scenery, natural
and historic objects, and wild life''). Congress was further explicit
in identifying an entirely different agency from BLM to focus on
conservation--the National Park System. Sierra Club v. United States
DOI, 899 F.3d 260, 292 (4th Cir. 2018) (``Thus, unlike other Federal
lands, such as the national forests, the National Park System's sole
mission is conservation.'')). If Congress intended FLPMA to include
conservation as a ``use'' or priority as BLM now suddenly suggests,
Congress would have done so explicitly. See, e.g., West Virginia v.
EPA, 142 S. Ct. 2587, 2608 (``Congress could not have intended to
delegate' such a sweeping and consequential authority `in so cryptic a
fashion.' ''); Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996)
(``Congress . . . demonstrated in CERCLA that it knew how to provide
for the recovery of cleanup costs, and . . . the language used to
define the remedies under RCRA does not provide that remedy.''); FCC v.
NextWave Personal Communications, Inc., 537 U.S. 293, 302 (2003) (when
Congress has intended to create exceptions to bankruptcy law
requirements, ``it has done so clearly and expressly'').
The Bureau of Land Management should focus on actual land
management, rather than proposing to lock public lands away from any
public use but ``protection'' and ``ecosystem resilience.'' Make no
mistake, our members are strong supporters of promoting conservation
objectives not only for public lands but all of the country's resources
and are ready to continue to work with BLM to further advance these
goals. However, this will not be accomplished by the flawed and illegal
provisions of the Proposed Rule. The Proposed Rule must be withdrawn by
BLM or repealed by Congress.
AEMA has numerous, extensive concerns with the rule. The list below
is not exhaustive and provides a brief summary:
The proposed rule violates the law. Despite BLM's claims
to the contrary, the ``plain language'' of FLPMA includes a
list of ``principal or major uses,'' including mineral
exploration or development, domestic livestock grazing,
timber production, fish and wildlife development and
utilization, rights-of-way and recreation. The law
specifies that its mandate ``includes and is limited to''
these uses. Notably, conservation or ``nonuse'' was not
listed.
+ If Congress intended for conservation to be a use ``on
equal footing,'' they would have included it in the statutory
list. BLM cannot change that. FLPMA Section 102(b) explicitly
states: ``The policies of this Act shall become effective only
as specific statutory authority for their implementation is
enacted by this Act or by subsequent legislation.'' Creating
conservation leases and elevating conservation to a major or
principal use is a substantial change, not a ``clarification,''
as BLM asserts.
+ BLM acknowledges the novelty of the conservation lease
concept when it says ``FLPMA's declaration of policy and
definitions of `multiple use' and `sustained yield' reveal
[emphasis added] that conservation is a use on par with other
uses under FLPMA.'' The idea that this concept is just now
being ``revealed'' 50 years after the passage of FLPMA is
absurd and unlawful.
+ The rule bears many similarities to the Planning Rule 2.0
for landscape-scale planning, which Congress repealed in 2017
through the Congressional Review Act. This proposal tries to
repackage landscape-level planning as a tool to address climate
change. This new justification for landscape-scale planning
cannot be used to resurrect a concept that Congress has already
rejected.
Conservation leases, ACECs, and preserving intact
landscapes are de facto land withdrawals that undermine
``multiple-use'' standards outlined in FLPMA.
+ The proposal would allow leases for conservation or
compensatory mitigation. As worded, BLM could extend mitigation
leases indefinitely, precluding the balance required under
FLPMA.
+ Future uses under the proposed rule must be consistent
with the purpose of the conservation lease. In testimony before
the House Natural Resources Committee on May 16, 2023, BLM
Director Tracy Stone-Manning acknowledged that ``energy
development and mining would likely not be deemed compatible
with a conservation lease . . .''
+ As such, conservation would not just be ``on equal
footing,'' it would be elevated above other uses.
Use of Areas of Critical Environmental Concern (ACECs)
would be greatly expanded.
+ Frequently abused to prevent development, the rule would
allow ACECs to be larger and easier to designate. Areas
nominated must be managed as an ACEC immediately, even before
process is concluded.
+ No consideration of impacts to multiple use or mineral
resources within the nominated area is required.
The rule will exacerbate permitting delays.
+ Under the proposal, all lands will require a
``Fundamentals of Land Health'' review prior to authorization
for use, a process currently applied only to grazing lands. BLM
already struggles with large backlogs in grazing permit
renewals because of this review requirement. Applying it to all
uses would only serve to increase permitting backlogs for all
productive uses.
Creates a New Zero-Impact Standard that Ignores How
FLPMA's Unnecessary and Undue Degradation Mandate
Effectively Protects the Environment While Allowing
Multiple Use.
+ The rule's unnecessary or undue degradation definition
restates what BLM has implemented for nearly five decades to
prevent excessive or disproportionate impacts.
+ However, the new conservation measures demand zero impact
in ACECs, conservation leases, and intact landscapes, which is
contrary to FLPMA's acknowledgement that some degradation is
necessary for multiple use to occur and the requirement to
minimize that degradation.
BLM's rule is incomplete, deficient, flawed and rushed.
+ The Regulatory Flexibility Act (RFA) requires BLM to
prepare a regulatory flexibility analysis, subject to notice
and comment under the Administrative Procedure Act, if the rule
would have a significant economic impact on a substantial
number of small businesses and governments. BLM did not conduct
a regulatory flexibility analysis before its arbitrary
declaration that the rule ``will not have a significant
economic effect on a substantial number of small entities . .
.''
+ BLM asserts the proposal will have an annual effect on the
economy of $100 million or less, so they did not conduct an
economic analysis. However, the agency's own ``Sound Investment
2022'' report shows multiple-use on BLM lands generated $201
billion in economic output last year.\15\ If conservation
leasing decreases activity by just 1%, that's an impact of $2
billion annually.
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\15\ Bureau of Land Management, Socioeconomic Impact Report 2022,
https://www.blm.gov/about/data/socioeconomic-impact-report-2022
+ The report mentioned above notes BLM redistributed $2
billion to States for revenue-sharing programs, yet BLM
arbitrarily determined the proposed rule has no federalism
implications, so it did not prepare a federalism summary
---------------------------------------------------------------------------
statement of the effects on the States.
+ Using BLM's own data from the Sound Investment report
strongly suggests BLM's claims regarding economic impact are
false and that it is merely seeking to circumvent an Economic
Threshold Analysis and the CRA.
+ The proposal violates NEPA. BLM plans to use a
Departmental Categorical Exclusion under NEPA, because the rule
is ``too broad, speculative or conjectural'' to lend itself to
``meaningful analysis.'' The rule is a ``major federal action''
subject to an EIS containing an analysis of the significant
socio-economic impacts, and the environmental effects of
foregoing critical and strategic mineral development.
Conclusion
BLM's Proposed Rule is illegal--it directly violates FLPMA in the
many ways addressed above. It also violates numerous other federal
laws. Moreover, BLM's attempts to circumvent procedural rulemaking
requirements violate the federal laws designed to ensure transparency,
accountability, and Congressional oversight.
Since 1970, Congress has consistently and repeatedly recognized
that minerals and mining are essential to all facets of our economy,
society, and national defense. It bears repeating that the Mineral and
Mining Policy Act (1970), FLPMA (1976), the National Minerals,
Materials Policy Research and Development Act (1980), the Energy Act
(2020), the IIJA (2021), and most recently the IRA (2022) all direct
the executive branch agencies to respond to the Nation's need for
domestic minerals. Yet, the Proposed Rule brazenly ignores more than 50
years of Congressional intent and direction.
More lands continue to be withdrawn from mineral entry, and
permitting timelines, costs, and risks have become intolerable. Our
risky reliance on imported minerals is a direct result of five decades
of ignoring Congress' clear directives that minerals should be mined
from public lands to help satisfy the Nation's need for minerals.
Despite the urgent need to increase domestic mining and reduce our
dependency on foreign minerals, today it can take 10 years or more to
permit a mine.
The findings in the IIJA that ``critical minerals are fundamental
to the economy, competitiveness, and security of the United States''
and that ``the Federal permitting process has been identified as an
impediment to mineral production and the mineral security of the United
States'' must result in constructive action to streamline permitting
and eliminate permitting impediments. Instead, the Proposed Rule will
exacerbate America's dependence on foreign sources of minerals at a
time when mineral demand is skyrocketing. The Biden administration's
own goals of fighting climate change and reducing carbon emissions
require more domestic mining--not less. The Proposed Rule fails to
acknowledge any potential effects on our ability to develop minerals in
the United States.
BLM simply cannot make the substantial land use policy and
regulatory changes embodied in the Proposed Rule without Congressional
action to amend FLPMA to authorize the agency's proposed change.
Congress' power over federal lands is without limitations. Nuclear
Energy Inst., Inc. v. EPA, 362 U.S. App. D.C. 204, 209, 373 F.3d 1251,
1256 (2004) (quotations omitted). And, while FLPMA Section 107 grants
BLM discretion to manage public lands, it also requires BLM to manage
lands ``on the basis of multiple use and sustained yield[.]'' 43 U.S.C.
Sec. 1701(a)(7); see also Utah v. Norton, No. 2:96-CV-0870, 2006 U.S.
Dist. LEXIS 73480, at *5 (D. Utah Sep. 20, 2006). Unless and until
Congress says otherwise, BLM must manage the public lands pursuant to
FLPMA's multiple use mandates, notwithstanding the difficulties in
achieving the balanced land management approach that FLPMA demands.
Under FLPMA, BLM must balance all multiple uses; it cannot pick and
choose which land use directives to emphasize and which ones to
subordinate or even deny. Given our Nation's need for a strong domestic
mineral supply, and the proven benefits that modern mining provides to
local communities, the federal government should not consider adding
restrictions that would discourage or disincentivize mineral
development. Now is the time for BLM to stop subverting Congressional
mandates and, instead, work to facilitate the development of the
critical resources that are needed now and available on America's
public lands, for national security and the economic well-being of all
Americans. Because BLM lacks the authority to reduce the scope of
allowable multiple uses on public lands, BLM cannot proceed with the
Proposed Rule and should withdraw it immediately. Failing that,
Congress should repeal it through H.R. 3397.
We look forward to continuing to work with you to ensure America
has a secure and affordable supply of the minerals and metals needed
for our modern society.
Sincerely,
Mark Compton,
Executive Director
______
June 14, 2023
Hon. John Curtis, Chairman
U.S. House of Representatives
2323 Rayburn House Office Building
Washington, DC 20515
Dear Representative Curtis:
The American Farm Bureau Federation and state Farm Bureaus in the
West appreciate the introduction of H.R. 3397, and we support your
legislation. AFBF is the nation's largest general farm organization,
with almost six million farm and ranch members in all fifty states and
Puerto Rico. Our collective Farm Bureaus are farm and ranch families
working together to build a sustainable future of safe and abundant
food, fiber and renewable fuel for our nation and the world.
As you know, the American West is truly unique--not only in the
landscape but in how ranchers serve as caretakers of our shared public
lands. The Bureau of Land Management (BLM) is now proposing significant
changes to how public lands are managed, including creating a new
``use'' under the definition of ``multiple use,'' establishing a new
kind of land lease for conservation, and elevating and promoting
additional and likely restrictive land use designations, in addition to
codifying mitigation requirements. We agree with the goal of your
legislation, which would require BLM to withdraw the proposal.
Ranchers are delivering a return on the trust placed in them to
care for public lands. They are clearing debris, spotting wildfire
risks, and reporting other potential dangers to local law enforcement.
Livestock grazing also brings overall health benefits to the land, from
reducing wildfire risk and slowing the spread of invasive weeds to
building robust root systems and spurring forage growth for native
species. The University of Wyoming Extension analyzed the most recent
USDA census numbers and found that for each pound of beef raised on
public lands, Americans get $0.44 in ecosystem-related returns.
In addition to policy concerns over the proposal, we are
disappointed in the way the proposed rule was developed. Our public
lands ranchers partner with the BLM to fulfill the mission of landscape
management. However, this proposal was released without stakeholder
discussion or advance notice. Recently held public information meetings
left our attendees with more questions than answers. We have encouraged
BLM to withdraw the proposal, or at least extend the comment period for
this extensive new land management plan.
Thank you for your support of America's public lands ranchers and
the rural communities they live in.
Sincerely,
American Farm Bureau
Federation Nevada Farm Bureau
Arizona Farm Bureau New Mexico Farm & Livestock
Bureau
California Farm Bureau North Dakota Farm Bureau
Colorado Farm Bureau Oregon Farm Bureau
Idaho Farm Bureau South Dakota Farm Bureau
Kansas Farm Bureau Utah Farm Bureau Federation
Montana Farm Bureau
Federation Washington Farm Bureau
Nebraska Farm Bureau Wyoming Farm Bureau Federation
______
American Forest Resource Council
Portland, Oregon
June 13, 2023
Senator John Barrasso Rep. John Curtis
307 Dirksen Senate Office
Building 2323 Rayburn House Office
Building
Washington, DC. 20510 Washington, DC. 20515
Dear Senator Barrasso and Representative Curtis:
We are writing in support of S. 1435/H.R. 3397, legislation that
would require the Director of the Bureau of Land Management to withdraw
a proposed rule entitled ``Conservation and Landscape Health'' (88 Fed.
Reg. 19,583).
AFRC is a regional trade association whose purpose is to advocate
for sustained yield timber harvests on public timberlands throughout
the West to enhance forest health and resistance to fire, insects, and
disease. We do this by promoting active management to attain productive
public forests, protect adjoining private forests, and assure community
stability. We work to improve federal and state laws, regulations,
policies and decisions regarding access to and management of public
forest lands and protection of all forest lands. AFRC represents over
70 forest product businesses and forest landowners throughout the West.
Many of our members have their operations in communities adjacent to
BLM managed land that this new rule will impact, and the management on
these lands ultimately dictates not only the viability of their
businesses, but also the economic health of the communities themselves.
Rural communities, such as those affected by this rule, are
particularly sensitive to the forest products sector in that more than
50% of all manufacturing jobs are in wood manufacturing.
We and our members share the goal of sustaining healthy, working
lands through science-based management under the Federal Lands Policy
and Management Act (FLPMA). However, the proposed rule would
substantially rewrite the goals and implementation of FLPMA without
Congressional authorization, limit public input and transparency in
land management decisions, restrict multi-use management and public
access of federal lands, and create new confusing, arbitrary standards
and regulations that impede efficient and effective implementation of
land management plans.
Conservation and landscape health are laudable goals that are
consistent with modern, science-based forest management and other
resource management objectives. These goals are also embodied and
codified in existing multi-use federal statutes such as FLPMA. We have
serious concerns about the lack of public involvement and engagement in
determining the proposed rule's purpose and need; legal and
congressional authorization; local and state government coordination;
and environmental, economic, and social impacts.
We support S. 1435/H.R. 3397 and believe the proposed rule should
be withdrawn. At a minimum, and absent legislation, the BLM should
engage in a more inclusive and transparent process that would start
with an advanced notice of proposed rulemaking that clearly outlines
what ``problem'' the BLM is seeking to solve, what outcome the BLM is
hoping to achieve, and what information the government is lacking and
seeking to obtain from the public, issue experts, and interested
stakeholder groups.
Thank you for your leadership and attention to this issue.
Sincerely,
Travis Joseph,
President
______
American Exploration & Production Council
June 15, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
On behalf of the American Exploration & Production Council, I am
writing in strong support of Congressman John Curtis' legislation, H.R.
3397, to require the Director of the Bureau of Land Management to
withdraw a rule of the Bureau of Land Management (BLM) relating to
conservation and landscape health, and to urge you to consider the
significant implications of BLM's Proposed Conservation and Landscape
Health Rule (``Proposed Public Lands Rule''). Thank you for holding
today's hearing and for the opportunity to share our support for this
legislation.
AXPC, representing 34 leading independent oil and natural gas
exploration and production companies in the United States, is dedicated
to promoting safety, responsible stewardship, and technological
advancement in the production of oil and natural gas. Our members not
only provide millions of Americans with high-paying jobs but also
invest resources into local communities. We recognize the importance of
ensuring positive environmental and public welfare outcomes and
responsible stewardship of our nation's natural resources.
While we share BLM's interest in protecting and conserving public
lands, we believe that the framework outlined in the Proposed Public
Lands Rule contravenes BLM's statutory authority and raises concerns
about its potential impact on the effective and legally defensible
management of public lands and mineral resources. BLM's proposed rule
ignores Congress' multiple use mandate, established under the Federal
Land Policy and Management Act, which states that federal lands,
resources, and uses must be utilized in a balanced combination that
will best meet the needs of the people. If finalized, BLM's rule would
disregard Congress' mandate and enact restrictive access to federal
lands for a multitude of purposes.
Another primary concern with the Proposed Public Lands Rule is its
lack of clarity. The proposal and the materials provided by BLM do not
adequately explain how the rule will be implemented or its relationship
to the current land management objectives and other recent agency
rules, guidelines, and proposals relevant to public land management.
Stakeholders require fundamental details, such as how the Proposed
Public Lands Rule will protect large intact landscapes, to provide
informed comments and engage in a meaningful dialogue.
Additionally, we have concerns regarding the conservation leasing
framework proposed by BLM. While we recognize and support voluntary
conservation actions, including those undertaken on public lands, we
find the framework insufficiently explained and potentially
impermissible under BLM's statutory authority. It is crucial to ensure
that any regulations in this area align with legal requirements and
strike a balance between conservation and responsible resource
development.
Furthermore, it is worth noting that key aspects of the Proposed
Public Lands Rule appear to exceed BLM's statutory authority. Should
BLM finalize the rule in its current or substantially similar form, we
believe that a reviewing court would likely find it ``in excess of
statutory jurisdiction, authority, or limitations'' under the
Administrative Procedure Act (``APA''). This potential conflict
underscores the need for a comprehensive evaluation of the rule's
implications before proceeding.
Thank you for holding today's hearing on this important
legislation. AXPC urges members of this committee to vote in favor of
H.R. 3397 as it allows for a more balanced approach to energy
development and land management and the continued production of
American-made energy on public lands. By passing this bill, we can
ensure Americans continue to have access to affordable, reliable
energy.
Sincerely,
Anne Bradbury,
President & CEO
______
June 15, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
We write today in support of H.R. 3397, a bill directing the Bureau
of Land Management (BLM) to withdraw a proposed rule titled
Conservation and Landscape Health (88 Fed. Reg. 19,583 (April 3,
2023)), that is being considered before the committee today. The
undersigned organizations have members that conduct mining operations
that are frequently located on federal lands that are subject to the
Bureau of Land Management (BLM) and U.S. Forest Service (USFS)
jurisdiction under the Federal Land Policy and Management Act (FLPMA).
As such, our members have extensive experience operating on federal
lands managed according to the multiple use principles under FLPMA and
have a long-standing commitment to environmental stewardship on these
lands.
Access to federal lands for mineral exploration and development is
critical to maintaining a strong domestic mining industry. These lands
historically have provided and will continue to provide a large share
of the metals and minerals produced in this country. That said, half of
these lands are either already off-limits to or under restrictions for
mineral development, rendering unknown amounts of resources on adjacent
state and private lands inaccessible because of existing federal land
restrictions. Further, despite our nation's abundant resources, the
U.S. continues to be increasingly reliant on foreign sources of metals
and minerals, including from geopolitical adversaries that do not share
our values when it comes to environmental, labor and safety standards.
Recently, the BLM issued a proposed rule on Conservation and
Landscape Health, contending that it would advance the Bureau's mission
to manage public lands for multiple-use and sustained-yield by
prioritizing the health and climate resilience of ecosystems across
those lands. Alarmingly, if finalized, the proposed rule would be a
dramatic shift in how public lands will be managed and unlawfully
signal that conservation is a use on par with other uses of public
lands under FLPMA's multiple-use and sustained-yield framework. The
proposed rule also prioritizes designating Areas of Critical
Environmental Concern (ACECs) and the avoidance of impacts to federal
lands.
Based on recent testimony of BLM Director Tracy Stone-Manning, who
described the rule as ``procedural in nature,'' \1\ the BLM believes
that FLPMA provides for this reinterpretation of authority, overriding
more than 50 years of congressional intent and direction. Regrettably,
the proposed rule is likely to open the door to increased conflicts for
even noncontroversial development activities due to the requirement
that BLM plan for and consider conservation on equal footing with other
multiple uses, while also identifying practices that ensure
conservation actions are effective and emphasizing restoration across
the public lands.
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\1\ House Natural Resources Committee Hearing, BLM FY24 Budget
Request--May 16, 2023
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Another concerning provision of the proposed rule requires
avoidance and mitigation, to the maximum extent possible, to address
impacts to important, scarce or sensitive resources, and sets rules for
approving third-party mitigation fund holders. This would result in the
BLM applying a mitigation hierarchy to avoid, minimize and compensate
for impacts to all public land resources, which the BLM has
acknowledged would be difficult or even impossible to avoid.
The proposed rule would also require the BLM to consider a
precautionary approach for resource use when the impact on ecosystem
resilience is unknown or cannot be quantified and provide justification
for decisions that may impair ecosystem resilience. In most cases, this
would lead to the preemptive denial of many mining projects, further
increasing our reliance on foreign sources of minerals vital to our
economic and national security.
Additionally, the creation of conservation leases allowed by the
proposed rule--with the opportunity for limitless renewals of
essentially unlimited acreage--would illegally allow the preclusion of
other multiple uses, such as grazing, mining and certain types of
recreation. Conservation leases would effectively serve as de facto
mineral withdrawals under the dubious guise of allowing environmental
groups to support the conservation and the landscape health of highly
mineralized public lands.
It is also important to note that the BLM failed to fully account
for impacts of the proposed rule by choosing not to complete an
assessment of how it would affect a wide variety of small businesses
under the Regulatory Flexibility Act and the Small Business Regulatory
Enforcement and Fairness Act (SBREFA). It is also unconscionable that
the Office of Information and Regulatory Affairs (OIRA), which
typically reviews all significant rulemakings, allowed the proposed
rule to proceed as ``not significant,'' and therefore not subject to
OIRA's review.
The Biden administration's self-sabotage of domestic mineral supply
chains through a consistent barrage of withdrawals and land-use
restrictions, including the proposed rule, is completely out of step
with the dramatic increase in minerals production that is needed to
keep up with new technologies, infrastructure, manufacturing and
national security needs, let alone the administration's energy
transition goals. Instead of putting more of America's vast mineral
endowment off limits and ceding our nation's mineral supply chain
security to other countries, the U.S. must prioritize policies that
incentivize domestic mineral production that utilizes our world-class
environmental standards to ensure we need not choose between mining and
environmental protection.
Continued access to our public lands for responsible mineral
development must be allowed if the U.S. is to supply the essential
materials necessary for nearly every sector of our economy. For these
reasons, we urge your support for H.R. 3397.
Sincerely,
Alaska Miners Association National Mining Association
American Coal Council Nevada Mining Association
American Exploration &
Mining Association New Mexico Mining Association
Arizona Mining Association Rocky Mountain Mining Institute
Colorado Mining Association Utah Mining Association
Idaho Mining Association Women's Mining Coalition
Mining Minnesota Wyoming Mining Association
Montana Mining Association
______
Council of Alaska Producers
June 14, 2023
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Comments supporting H.R. 3397 BLM Public Lands Rule
Dear Members of the House Committee on Natural Resources:
The Council of Alaska Producers (CAP) is writing to support H.R.
3397--To require the Director of the Bureau of Land Management (BLM) to
withdraw a rule of the Bureau of Land Management relating to
conservation and landscape health.
Formed in 1992, CAP is a non-profit trade association that works to
inspire Alaskans to realize a shared goal of sustainable mineral
production, providing economic and social benefits to our communities
and the people of Alaska. CAP represents the interests of Alaska's five
large metal mines and several advanced projects, informing members on
legislative and regulatory issues, supporting and advancing the mining
industry, and educating members, the media, and the general public on
mining related issues.
CAP has grave concerns about the rule and appreciates the House
Resolution requiring it be withdrawn. The legality of the rule in
general is very questionable as it is contrary to the explicit
provisions of a number of Federal statutes, including the Federal Land
Management and Policy Act.
It would place onerous requirements on the BLM Field Office to re-
do and re-write their resource management plans (RMPs) to accommodate
the rule's regulatory and scientific analysis requirements. As we have
seen on the Bering Sea-Western Interior (BSWI) and Central Yukon RMPs,
such updates take many years. The rule implies development projects,
like mines and related infrastructure on BLM lands, should not move
forward until the updates are completed.
The rule ignores the fact that much of Alaska is already closed off
to mining (wilderness areas, parks, etc.). It will inevitably close off
(or very strictly restrict) mining and related infrastructure on very
large additional areas in the name of conservation objectives that are
not justified by science or in the rule.
As we have seen with the BSWI and Central Yukon RMPs, the use of
Areas of Critical Environmental Concern (ACECs) has been abused in
Alaska. Instead of protecting ``special'' areas, some alternatives in
these two RMPs include numerous ACECs that would close off tens of
thousands of acres and hundreds of stream miles. The rule promotes
ACECs as the primary tool to achieve its conservation objectives.
The rule also advocates for preserving ecologically ``intact''
landscapes like they are unique and suggests avoiding any development
in these areas. This may be true in other places, but in Alaska
virtually everything is intact, so the implication is that virtually
all BLM lands in Alaska should be closed off.
We believe the Donlin gas pipeline would be very difficult to move
forward under the proposed rule since it passes through areas that the
rule implies should not be developed. More broadly, we are not sure any
mine in Alaska could advance that involves BLM lands. The rule
completely ignores impacts to developing Alaska's mineral potential--of
which many are critical minerals essential to the clean energy
transition and could help meet the President's objectives to expand
domestic critical minerals supply chain.\1\
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\1\ Executive Order 14017 (E.O.), America's Supply Chains of
February 24, 2001
---------------------------------------------------------------------------
Thank you for your consideration of this important resolution. We
encourage the House Committee on Natural Resources to pass it from
committee quickly.
Sincerely,
Karen Matthias,
Executive Director
______
Independent Petroleum Association of America
Washington, DC
June 15, 2023
Hon. Bruce Westerman, Chairman
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman:
The Independent Petroleum Association of America (IPAA) writes in
support of H.R. 3397 (Rep. Curtis), a bill to require the Director of
the Bureau of Land Management (BLM) to withdraw a rule of the BLM
relating to conservation and landscape health. IPAA is a national
upstream trade association representing thousands of independent oil
and natural gas producers and service companies across the United
States. Independent producers develop 91 percent of the nation's oil
and natural gas wells. These companies account for 83 percent of
America's oil production, 90 percent of its natural gas and natural gas
liquids (NGL) production, and support over 4.5 million American jobs.
IPAA is pleased to support H.R. 3397 as it aims to withdraw the
misguided rule that is currently being proposed by BLM. IPAA believes
the proposed rule is a gross overreach of BLM's directive and violates
the statutory authority given to BLM under the Federal Lands Policy and
Management Act of 1976 as well as misaligning with the Congressional
intent in creating and delegating powers to the BLM. H.R. 3397 goes far
in reiterating the intent of Congress to clear any ambiguity for
further regulations.
Aside for Congressional intent and agency overreach, the content of
the proposed rule will have devastating impacts on the U.S. economy and
hinder U.S. energy security by curtailing energy production on federal
lands. In 2019, the United States produced record levels of crude oil
(12.2 million barrels per day) and natural gas (40.7 trillion cubic
feet)--increases of 11.3% and 10.6% from 2018 levels, respectively. The
United States, as a result, enjoyed its best energy security since 1970
and became a net energy exporter for the first time since 1952. Oil
production in federal areas, both onshore and offshore, routinely
exceeds 20% of total U.S. production. For gas, federal onshore
production constitutes approximately 10% or more of total U.S.
production, or between 3 and 4 trillion cubic feet.
Furthermore, FLPMA mandates the productive use of federal land.
FLPMA directs the agency to manage all public lands ``in a manner which
recognizes the Nation's need for domestic sources of minerals, food,
timber, and fiber from the public lands . . ..'' This policy
determination was not delegated to the Agency. Instead, Congress
delegated the responsibility to manage the public lands in a way that
provides these specific raw materials for productive use. The current
proposed rule is elevating a non-use function to have equal footing
with all other active uses.
IPAA commends the Natural Resources Committee for bringing these
issues to light during the legislative hearing for H.R. 3397. We look
forward to partnering with you on other multiple-use initiatives for
our nation's public lands.
Respectfully,
Daniel T. Naatz,
Executive Vice President & Chief Operating Officer
______
National Sand, Stone & Gravel Association
Alexandria, VA
May 24, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
On behalf of the 450 members of the National Sand, Stone & Gravel
Association (NSSGA), we write to share our support for H.R. 3397, a
bill to require the Bureau of Land Management (BLM) to withdraw their
newly proposed rule entitled ``Conservation and Landscape Health'' (88
Fed. Reg. 19583 (April 3, 2023)). This legislation provides certainty
to aggregate producers, as BLM's proposed rule would dramatically shift
how public lands will be managed.
NSSGA represents the aggregates and industrial sand industry of our
country, with over 9,000 facilities and more than 100,000 employees in
high-paying jobs. This industry procures 2.5 billion tons of aggregates
annually, which are crucial in sustaining our lifestyle and
constructing our nation's infrastructure and communities. The products
sourced by this industry are fundamental components required for
building roads, airports, transit, rail, ports, clean water and energy
networks.
If the proposed rule is adopted, access to public lands for all
purposes, including energy, material development, grazing, forest
management and recreation would become more difficult, bringing
substantial and adverse modifications to the Bureau's management
approach for the 245 million acres of land under its supervision. For
the aggregates industry, the process of sourcing and supplying
materials used to create building blocks for our nation does not need
to be more stringent, and this rule will significantly impact our
ability to access needed construction materials for infrastructure
projects. As America begins to rebuild our aging infrastructure, the
aggregates industry needs continual support rather than forced
limitations.
NSSGA supports policies that properly outline ways to best maintain
our country's ecosystems and wildlife habitats. However, the proposed
rule limits local land managers' capacity to conserve areas in need. It
is crucial that local farmers, ranchers, hunters, miners and community
stakeholders have their voices heard when implementing broad regulatory
changes, as they know their land and local ecosystems best and will
provide the most efficient ideas for finding a path to long-term
conservation. The adoption of this rule severely cuts out any local
voices and grants too much decision-making power to BLM. We urge
Congress to work with BLM to ensure that cooperation with local patrons
is at the top of the priority list when altering any laws to deal with
conservation efforts.
We hope Congress will vote to remove this burdensome overreach of
BLM and work alongside community stakeholders to reach lasting
sustainability goals without limiting the future potential of multiple
industries that rely heavily on public land use.
Please reach out to my office should you have any questions.
Sincerely,
Michael W. Johnson,
President & CEO
______
RESOURCE DEVELOPMENT COUNCIL
Anchorage, Alaska
June 15, 2023
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Support H.R. 3397
Dear Chair Westerman, Ranking Member Grijalva, and Members of the
House Committee on Natural Resources:
The Resource Development Council for Alaska, Inc. (RDC) writes in
support of H.R. 3397, legislation to require the Bureau of Land
Management (BLM) to withdraw its recently proposed Conservation and
Landscape Rule (88 Fed. Reg. 19583 (proposed April 3, 2023)) (hereafter
the ``proposed rule'').
RDC is a non-profit, statewide trade association within the state
of Alaska. RDC is a unique organization comprised of individuals and
companies from Alaska's key and historically significant industries:
fishing, forestry (timber), mining, oil and gas, and tourism (including
recreation). RDC's membership also includes all landowning Alaska
Native corporations (ANCs) created pursuant to the Federal Alaska
Native Claims Settlement Act of 1971 (ANCSA), local communities,
organized labor, as well as industry support firms. RDC's purpose is to
encourage a strong, diversified private sector in Alaska and expand the
state's economy based on our mission of growing Alaska through the
responsible development of our natural resources.
RDC is concerned the proposed rule violates the constitutional
separation of powers by unlawfully expanding BLM's land management
authority under the Federal Land Policy and Management Act (FLPMA).
``Conservation'' is not a ``use'' in the statutory list of land uses
identified in FLPMA. BLM simply cannot add new type of land use by
regulation without first having legislative authority to do so. This is
inconsistent with the authority granted by and the intent of FLPMA when
Congress passed it in 1976.
RDC is also concerned that by elevating ``conservation'' as a
``use'' under FLPMA and creating so-called conservation leases under
FLPMA, unresolvable conflicts will occur and result in de facto land
withdrawals never intended or authorized by FLPMA. It is difficult to
see how such leases would not create incompatibilities with the limited
land uses already identified in FLPMA or how BLM could properly balance
such a ``use'' against FLPMA's multiple use and sustained yield
mandates that BLM is required to uphold.
RDC is still analyzing the full impacts the proposed rule would
have on the unique attributes of Alaska with the intent to submit
comments on the proposed rulemaking. However, it was important we raise
the important constitutional issues with the Committee. As RDC
continues its assessment, there may be additional concerns that should
be shared with the Committee. RDC will supplement this letter as
needed.
Thank you for your consideration of this matter.
Yours resourcefully,
Leila Kimbrell,
Executive Director
______
Women's Mining Coalition
Reno, Nevada
June 16, 2023
Tracy Stone-Manning, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Re: Comments on the Conservation and Landscape Health Proposed Rule RIN
1004-AE92, Federal Register Vol. 88, No. 63
Dear Director Stone Manning:
I. Introduction
The Women's Mining Coalition (WMC) has numerous serious concerns
about the Department of the Interior's/Bureau of Land Management's
(DOI's/BLM's) Conservation and Landscape Health Proposed Rule
(``Proposed Rule'') that was published on April 3, 2023, in the Federal
Register, Vol. 88, No. 63. As discussed in detail below, the Proposed
Rule exceeds BLM's legal authority and conflicts with BLM's legal
obligations under the Federal Land Policy and Management Act of 1976
(FLPMA). Numerous elements of the Proposed Rule conflict with FLPMA's
multiple use directives, including: the creation of conservation
leases; the designation of more lands as Areas of Critical
Environmental Concerns (ACECs) where multiple use will be restricted,
and the preservation of intact landscapes where multiple uses will be
prohibited. The Proposed Rule also conflicts with the U.S. Mining Law.
About WMC
WMC is a grassroots organization with over 200 members nationwide.
Our mission is to advocate for today's modern domestic mining industry,
which is essential to our Nation. WMC members work in all sectors of
the mining industry including hardrock and industrial minerals, coal,
energy generation, manufacturing, transportation, and service
industries. We convene Washington, D.C. Fly-Ins to give our members an
opportunity to meet with Members of Congress and their staffs, and with
federal land management and regulatory agencies to discuss issues of
importance to both the hardrock and coal mining sectors.
WMC members have extensive experience with FLPMA, the U.S. Mining
Law, the National Environmental Policy Act (NEPA), and BLM's 43 CFR
Subpart 3809 surface management regulations (3809 regulations)
governing locatable minerals and mining activities pursuant to the U.S.
Mining Law.
We have provided comments on numerous NEPA documents for proposed
locatable mineral projects on BLM-administered public lands. Some WMC
members also have expertise in preparing third-party NEPA documents.
Lastly, our Advisory Council is made up of industry experts from
all facets of the mining industry. Based on this experience, WMC is
well qualified to review BLM's Proposed Rule and provide these
comments.
WMC members are keenly aware of the nation's dangerous and
unsustainable reliance on mineral imports, having been involved with
this issue for a number of years. Our overarching concern about BLM's
Proposed Rule is that it will reduce domestic mining and thereby
exacerbate our dependency on foreign countries for critical and other
minerals. As such, BLM's Proposed Rule is diametrically opposed to
other policies espoused by this administration which seek to increase
domestic production of critical minerals in order to strengthen
domestic critical minerals supply chains.
II. The Proposed Rule Should be Withdrawn as Requested by the May 11,
2023 Letter from Sixteen Western Senators
WMC concurs with the May 11, 2023 letter to you from 16 western
U.S. Senators outlining the reasons why BLM should immediately withdraw
this Proposed Rule. As the senators state, the Proposed Rule
``threatens the long-standing approach governing multiple use on our
nation's public lands . . . [and] includes a number of problematic
initiatives that will result in limited access to energy production,
grazing, recreation, and other statutory uses as mandated under
FLPMA.''
The senators' letter questions whether protection and restoration
activities, which define conservation, could ``override a mandated use
enshrined in statute'' and asserts that limiting uses is ``contrary to
the congressional intent to prioritize multiple use of our taxpayer-
owned resources.'' The senators also warn BLM that it lacks the
authority to create conservation leases:
This new leasing regime opens the door for a new,
noncompetitive process designed to lock away parcels of land,
with no limits to size, for a period of 10 or more years. It's
clear that anti-grazing and anti-development organizations
would abuse this tool to attempt to halt ranching and block
access to our nation's abundant energy reserves located on
public lands.
We agree with the senators' characterization of the Proposed Rule
as responding to special interests that seek to put public lands off-
limits to development, contrary to Congress' clear directive in FLPMA
that BLM must manage the public lands for multiple use:
. . . BLM's proposed Public Lands Rule is an effort to empower
special interests that have long opposed BLM's statutory
mandate by prioritizing non-development over the principles of
multiple use and sustained yield. Taking large parcels of land
out of BLM's well-established multiple use mandate would cause
significant harm to many western states and negatively impact
the livelihoods of ranchers, energy producers, and many others
that depend on access to federal lands. As such, the proposal
should be withdrawn immediately.
There is no legal authority for BLM to establish this rule, which
is inconsistent with the fundamental purpose of FLPMA's mandate that
the agency manage the publicly-owned lands for multiple-use.
III. The Proposed Rule will Increase U.S. Reliance on Foreign Minerals
The USGS tracks the country's reliance on imported minerals in its
annual Mineral Commodity Summaries reports. Figure 2 in the 2023 report
\1\ shows U.S. dependency during 2022 on foreign countries for
minerals. Some of the key findings in the 2023 USGS report include the
following:
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\1\ https://pubs.usgs.gov/periodicals/mcs2023/mcs2023.pdf
In 2022, imports made up more than one-half of the U.S.
apparent consumption for 51 nonfuel mineral commodities,
and the United States was 100% net import reliant for 15 of
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those.
Of the 50 mineral commodities identified in the ``2022
Final List of Critical Minerals,'' the U.S. was 100% net
import reliant for 12, and an additional 31 critical
mineral commodities had a net import reliance greater than
50% of apparent consumption.
For most critical minerals, the U.S. is heavily reliant on
foreign sources for its consumption requirements;
exceptions include beryllium, magnesium, and zirconium.
Comparing the 2022 report with the 2021 report shows that the U.S.
is becoming increasingly dependent on imported minerals. In 2021, the
U.S. was 50 percent reliant on 47 minerals. In 2022, that reliance
increased to 51 minerals. So rather than reducing our reliance on
foreign minerals, the U.S. is headed in the wrong direction.
At a time when demand for the minerals essential to the energy
transition is projected to skyrocket, it makes no sense to propose a
draconian rule that would create de facto new land withdrawal
mechanisms resulting in substantially reduced mining of these minerals
from public lands.
This is the wrong time to implement a Proposed Rule that has the
potential to dramatically reduce production of critical minerals.
The Proposed Rule is at counter purposes to the critical minerals
directive in President Biden's February 2021 Executive Order 14017 ``On
America's Supply Chains,'' which directs cabinet officials to develop
policies to increase domestic production of critical minerals to reduce
the risks associated with the county's dependency on mineral imports.
The definition of minerals supply chain in Executive Order 14017
includes ``the exploration, mining, concentration, separation,
alloying, recycling, and reprocessing of minerals.''
The BLM's Proposed Rule is inconsistent with Executive Order 14017
because it will put lands off-limits to mineral exploration and
development and consequently thwart President Biden's stated goals to
strengthen domestic critical minerals supply chains in order to lessen
the Nation's dependency on foreign minerals.
The Proposed Rule is also completely at odds with the June 2021
White House report entitled ``Building Resilient Supply Chains,
Revitalizing American Manufacturing, and Fostering Broad-Based Growth''
\2\ (``2021 White House Report'') that was prepared in response to
Executive Order 14017. This report includes an entire chapter devoted
to critical minerals: ``Review of Critical Minerals,'' prepared by the
Department of Defense (DOD). The Proposed Rule is incompatible with the
following DOD findings in the 2021 White House Report:
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\2\ https://www.whitehouse.gov/wp-content/uploads/2021/06/100-day-
supply-chain-review-report.pdf
Strategic and critical materials are the building blocks
of a thriving economy and a strong national defense. They
can be found in nearly every electronic device, from
personal computers to home appliances, and they support
high value-added manufacturing and high-wage jobs, in
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sectors such as automotive and aerospace.
The global supply chain[s for] strategic and critical
materials . . . are at serious risk of disruption--from
natural disasters or force majeure events . . . and are
rife with political intervention and distortionary trade
practices, including the use of forced labor.
Contrary to a common belief, this risk is more than a
military vulnerability; it impacts the entire U.S. economy
and our values.
[T]he need for strategic and critical materials is likely
to intensify . . . [to] enhance or enable . . . many
environmentally friendly ``green'' technologies, such as
electric vehicles, wind turbines, and advanced batteries. A
recent report by the International Energy Agency (IEA)
notes: ``A typical electric car requires six times the
mineral inputs of a conventional car and an onshore wind
plant requires nine times more mineral resources than a
gas-fired plant. Since 2010, the average amount of minerals
needed for a new unit of power generation has increased by
50 percent as the share of renewables in new investment has
risen.'' \3\
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\3\ International Energy Agency, The Role of Critical Minerals in
Clean Energy Transitions (May 2021), https://iea.org/reports/the-role-
of-critical-minerals-in-clean-energy-transitions
Economic efficiency took priority over diversity and
sustainability of supply . . . [and] U.S. manufacturers
increasingly lost visibility into the risk accumulating in
their supply chains. Their suppliers of strategic and
critical materials, and even the workforce skills necessary
to produce and process those materials into value-added
goods, became increasingly concentrated offshore . . .
[where] disregard for environmental emissions and workforce
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health and safety could thrive.
The U.S. Government, collectively, has examined the risk
in strategic and critical materials supply chains for
decades. Now is the time for decisive, comprehensive action
by the Biden-Harris Administration, by the Congress, and by
stakeholders from industry and non-governmental
organizations to support sustainable production and
conservation of strategic and critical materials.
The incongruity between the country's needs for domestic supplies
of critical minerals, as stated in Executive Order 14017 and in the
DOD's points listed above, and the Proposed Rule is inexplicable. On
the one hand, the Biden administration strongly embraces the need to
increase production of domestic critical minerals, and on the other
hand its DOI is proposing a rule that will impede and even prohibit
mineral exploration and development on public lands.
IV. After Nearly 50 Years of Adhering to FLPMA's Multiple Use
Directives, BLM is Unlawfully Seeking to Redefine this Multiple
Use Law into a Non-Use Law
A. BLM Cannot Change the Definition of Multiple Use to Mean
Conservation
Congress' purpose in enacting FLPMA was to direct BLM to manage
public lands for multiple use. As defined under FLPMA Section 103,
``multiple use'' includes, but is not limited to: recreation, range,
timber, minerals, watershed, wildlife and fish, and natural scenic,
scientific, and historical values.
FLPMA directs the BLM to (1) inventory public lands and create
management plans that implement the multiple-use and sustained-yield
mandate, and (2) promulgate regulations necessary to carry out the
purposes of the Act. BLM is exceeding the scope of this regulatory
authority to promulgate the current Proposed Rule.
In order to justify the draconian changes being proposed in this
rule, BLM is asserting a new and profoundly different interpretation of
FLPMA that significantly deviates from more than four decades of
managing the public lands for multiple use pursuant to FLPMA:
FLPMA's declaration of policy and definitions of `multiple use'
and `sustained yield' reveal that conservation is a use on par
with other uses under FLPMA. The procedural, action-forcing
mechanisms in this Proposed Rule grow out of that understanding
of multiple use and sustained yield.
(FR at 19585, emphasis added). The revelation that multiple use and
sustained yield now mean conservation is indeed curious because BLM has
implemented FLPMA's multiple use policy directives for managing public
lands since 1976 under both Democrat and Republican administrations.
In the Proposed Rule, BLM is now claiming it has experienced a
revelation and finally understands the real meaning of FLPMA. Based on
this revelation and BLM's assertion that public lands are
``increasingly degraded and fragmented due to adverse impacts from
climate change and a significant increase in authorized use,'' BLM is
redefining the FLPMA terms ``undue and unnecessary degradation,''
transforming ``conservation'' to a ``use,'' and then prioritizing that
purpose by actually prohibiting any use of the lands in contravention
of ``multiple-use.'' This is a radical departure from the way BLM has
interpreted and implemented these land use management principles for
the past 47 years and constitutes a sweeping change that only Congress
could make. BLM's proposed makeover of multiple use and sustained yield
to now mean conservation is totally contrary to FLPMA's directives and
definitions.
The multiple use and sustained yield directive in FLPMA Section
102(a)(7) states: ``. . . it is the policy of the United States that--
goals and objectives be established by law as guidelines for
public land use planning, and that management be on the basis
of multiple use and sustained yield unless otherwise specified
by law;
It is clear from Section 102(a)(7) that BLM must manage the public
lands according to the principles of multiple use and sustained yield
as defined in Section 103(c) and Section 103(h). BLM cannot lawfully
deviate from the Section 102(a)(7) directive or modify the Section 103
definitions.
In FLPMA Section 102(a)(8), Congress establishes that certain lands
must be managed to protect numerous resources, stating: ``. . . it is
the policy of the United States that--
the public lands be managed in a manner that will protect the
quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and
archeological values; that, where appropriate, will preserve
and protect certain public lands in their natural condition;
that will provide food and habitat for fish and wildlife and
domestic animals; and that will provide for outdoor recreation
and human occupancy and use; (Emphasis added).
This directive to ``preserve and protect certain public lands in
their natural condition'' requires that these lands remain available
for ``human occupancy and use'' which includes mineral development.
Aside from a mineral withdrawal, there is no authority for BLM to set
aside lands and make them inaccessible to mineral exploration and
development in conservation leases.
B. BLM Must Adhere to Congress' Definition of Multiple Use and
Sustained Yield
Congress defined ``multiple use'' and ``sustained yield'' in FLPMA
Section 103(c) and 103(h) as follows:
(c) The term `multiple use' means the management of the public
lands and their various resource values so that they are
utilized in the combination that will best meet the present and
future needs of the American people; making the most judicious
use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude
for periodic adjustments in use to conform to changing needs
and conditions; the use of some land for less than all of the
resources; a combination of balanced and diverse resource uses
that takes into account the long-term needs of future
generations for renewable and nonrenewable resources,
including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic,
scientific and historical values; and harmonious and
coordinated management of the various resources without
permanent impairment of the productivity of the land and the
quality of the environment 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.
(h) The term `sustained yield' means the achievement and
maintenance in perpetuity of a high-level annual or regular
periodic output of the various renewable resources of the
public lands consistent with multiple use.
Both statutory definitions provide BLM with discretionary authority
to modify the way in which some lands are managed to respond to
changing ``needs and conditions'' but they do not authorize BLM to
prohibit or extensively limit use at all by creating a new ``use'' of
conservation to effectively prohibit any actual multiple-use
activities. The Proposed Rule asserts the dramatic changes to restrict
use (e.g., the increased use of the ACEC designation, the creation of
conservation leases, and the preservation of intact landscapes) are
necessary to respond to climate change by creating ``ecosystem
resilience.'' However, BLM has not defined or explained ecosystem
resilience or demonstrated how ecosystem resilience, restricting land
uses, or putting lands off-limits to development will mitigate climate
change impacts.
Moreover, BLM cannot ignore elements of the multiple use definition
that require BLM to ``best meet the present and future needs of the
American people . . . to conform to changing needs and conditions . . .
[and achieve] a combination of balanced and diverse resource uses that
takes into account the long-term needs of future generations for
renewable and nonrenewable resources, including, but not limited to,
recreation, range, timber, minerals, watershed, wildlife and fish, and
natural scenic, scientific and historical values.''
C. BLM Cannot Eliminate the Balance that FLPMA Demands Between Multiple
Uses and Environmental Protection
The land use restrictions and prohibitions in the Proposed Rule
eliminate the balance that FLPMA demands. They also completely overlook
a change in the country's ``needs and conditions,'' which includes the
United States policy objective to develop domestic sources of the
minerals needed to build the technologies and infrastructure essential
to transition away from fossil fuels and towards increased use of
renewable energy. Therefore, the Proposed Rule directly conflicts with
both FLPMA and the Biden administration's stated goals to reach net-
zero carbon emissions by 2050. That goal is unachievable without
domestic minerals, many of which need to be mined on the Nation's
public lands. The rule would thus exacerbate our dangerous dependence
on foreign sources of minerals by putting lands functionally off limits
to mineral exploration and development, thereby reducing domestic
mineral production.
The Proposed Rule also ignores FLPMA's Section 103(l) unambiguous
definition of ``principal or major uses'':
(l) The term ``principal or major uses'' includes, and is
limited to, domestic livestock grazing, fish and wildlife
development and utilization, mineral exploration and
production, rights-of-way, outdoor recreation, and timber
production. (emphasis added)
The Proposed Rule does not discuss ``principal or major uses'' or
attempt to reconcile the proposed non-uses (e.g., expansion of the ACEC
designation, creation of conservation leases, and preservation of
intact landscapes) with the FLPMA Section 103(l) list of principal or
major uses. The proposed non-uses are irreconcilable with FLPMA's
principal or major uses.
BLM's Proposed Rule seeks to add the non-uses listed above and
functionally make them future principal or major uses of public lands.
There is nothing in the Proposed Rule that suggests these non-use
designations would be used sparingly. To the contrary, the Proposed
Rule implies that BLM would implement the non-use designations broadly
in order to respond to climate change.
FLPMA does not allow conservation to become a principal or major
use of public lands. BLM cannot categorically dismiss the Congressional
directive that other land uses, including conservation, are not
principal or major uses of public lands, write the principal or major
multiple uses out of FLPMA, or add conservation to the definition. The
Proposed Rule is therefore unlawfully proposing to transform this
multiple use statute into a non-use, conservation law.
D. FLPMA Does Not Focus on Conservation
Finally, it is important to note that in contrast to explicitly
defining ``multiple use'' and ``sustained yield,'' FLPMA does not
define conservation or include it in the Section 102(a) land use
management directives. In fact, FLPMA uses the word ``conservation'' in
a very limited way. It is never used to establish land management
objectives. Rather, it is only used in a restricted way to reference
previously designated conservation areas. In fact, there are only six
sections in FLPMA that use the word ``conservation'':
California Desert Conservation Area: Section 206(c),
Section 303(e), Title VI, Section 601(c)(1), (c)(2), (d),
(e), (f), (g)(1), (h);
Conservation system unit or the Steese National
Conservation Area: Section 302(d)(1);
Alaska National Interest Lands Conservation Act: Section
302(d)(4) and (d)(6);
Land and Water Conservation Fund: Section 318(d)
Kings Range National Conservation Area: Section 602; and
Conservation of the Yaquina Head Outstanding Natural Area:
Section 603(c).
The limited ways in which FLPMA mentions conservation to describe
lands that in 1976 were already designated for special management is
additional proof that the law was never intended to authorize making
conservation a ``principal or major use.'' Concluding otherwise would
require us to assume that Congress enacted a useless or superfluous
law.\4\
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\4\ See United States v. Premises Known as Lots 50 & 51, 2050
Brickell Ave., 681 F. Supp. 309, 313 (E.D.N.C. 1988); see also Dept. of
Defense, Army Air Force Exchange Service v. Federal Labor Relations
Authority, 212 U.S. App. D.C. 256, 659 F.2d 1140, 1160 (D.C.Cir. 1981),
cert. denied, 455 U.S. 945, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982) (A
statute should be read in a ``manner which effectuates rather than
frustrates the major purpose of the legislative draftsmen.''); South
Corp. v. United States, 690 F.2d 1368, 1374 (Fed. Cir. 1982) (A
statutory construction which would impermissibly impute a useless act
to Congress must be viewed as unsound and rejected.); United States v.
Ferry Cty., 511 F. Supp. 546, 550 (E.D. Wash. 1981)(``It is a basic
tenet of statutory construction that Congress is not presumed to
perform useless acts.'').
---------------------------------------------------------------------------
Forty-seven years after FLPMA's enactment, BLM cannot lawfully
establish a novel ``interpretation'' that creates a sweeping change
inconsistent with decades of its implementation of FLPMA and the
definitions and directives in the statute itself. Nor can it insert a
definition of ``conservation'' into the Section 103 definitions. Only
Congress can add conservation to the Section 102(a) Declaration of
Policy or amend the definitions in FLPMA Section 103 to include
conservation.
V. FLPMA Does Not Authorize Conservation Leases
At the May 16, 2023, hearing before the House Subcommittee on
Energy and Mineral Resources/Committee on Natural Resources,\5\
(referenced herein as the May 16th hearing), you stated that FLPMA
Section 302(b) gives the Secretary of the Interior many tools,
including leases, for managing public lands. Unfortunately, this
explanation of leasing as an allowable public land management tool is
incomplete and therefore misleading.
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\5\ Examining the President's FY 2024 Budget for the Bureau of Land
Management and the Office of Surface Mining, Reclamation and
Enforcement, https://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=413205
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A complete reading of FLPMA Section 302 reveals that leases are
authorized to promote use and development--not to put lands off-limits
to development. FLPMA Section 302(b) is clear that the FLPMA's intended
purpose in authorizing leases is to promote development of the public
lands:
(b) In managing the public lands, the Secretary shall, subject
to this Act and other applicable law and under such terms and
conditions as are consistent with such law, regulate, through
easements, permits, leases, licenses, published rules, or other
instruments as the Secretary deems appropriate, the use,
occupancy, and development of the public lands, including, but
not limited to, long-term leases to permit individuals to
utilize public lands for habitation, cultivation, and the
development of small trade or manufacturing concerns. (Emphasis
added).
As used in Section 302(b), the words ``use, occupancy, and
development,'' and the authorization for ``long-term leases to permit
individuals to utilize public lands for habitation, cultivation, and
the development of small trade or manufacturing concerns'' clearly
define the scope of Congress' intent for leases. A court ``must give
effect to this plain language unless there is good reason to believe
Congress intended the language to have some more restrictive meaning.''
Shaw v. Delta Air Lines, 463 U.S. 85, 97, 103 S. Ct. 2890, 2900 (1983).
Under FLPMA, leases are supposed to authorize use and occupancy of
public lands for multiple use development and commercial purposes that
are consistent with other laws, like the U.S. Mining Law. Here,
Congress' omission of conservation from these purposes for which the
Secretary can issue easements, permits, leases, licenses, published
rules or other instruments is controlling. Conservation leasing is not
within these authorized purposes and is inconsistent with the uses
Congress did specify for leases.
It is clear that FLPMA Section 302 does not authorize leases for
the purpose of non-use or non-occupancy as the Proposed Rule
contemplates. During the May 16th hearing, you stated that mining,
logging, and other uses that involve surface disturbance would be
incompatible with a conservation lease. This is a clear acknowledgment
of the purpose of the rule--to put public lands off limits to the
multiple-uses Congress clearly directed the Secretary to authorize.
Such an effort by the BLM to close or withdraw lands from mineral
entry and mining use is clearly inconsistent with FLPMA, which provides
for mineral withdrawals by Congress or by the Secretary through a
detailed and lengthy process, not a cursory issuance of a conservation
lease.
Thus, the proposed conservation leases are intended to create de
facto withdrawal areas where some multiple uses would be disallowed.
FLPMA prohibits BLM from using leases to withdraw land in order to
preclude multiple uses. Because there is no statutory authority for
conservation leases, BLM must modify the Proposed Rule to eliminate the
conservation lease concept.
VI. FLPMA Does Not Authorize Establishing a Policy Preference for
Preserving Intact Landscapes
Just as FLPMA does not authorize conservation leases, it also does
not authorize BLM to propose a policy to identify intact landscapes or
to use the restrictive ACEC designation to prevent multiple uses on
such lands to preserve their intactness. The intact landscape concept
is inconsistent with the multiple use and sustained yield directive in
FLPMA Section 102(a)(7). It is also inconsistent with the scope of the
protection and preservation directive in Section 102(a)(8), which
directs BLM to protect and preserve certain lands but also requires
that these lands remain available for human occupancy and use:
The Congress declares that it is the policy of the United
States that--
(8) the public lands be managed in a manner that will protect
the quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and
archeological values; that, where appropriate, will preserve
and protect certain public lands in their natural condition;
that will provide food and habitat for fish and wildlife and
domestic animals; and that will provide for outdoor recreation
and human occupancy and use; (emphasis added)
None of the FLPMA Section 102(a) declarations of policy authorize
BLM to manage public lands solely for preservation purposes and to
exclude multiple uses, (i.e., human occupancy and use) to achieve land
preservation.
In the Proposed Rule, BLM offers the following definition of
conservation:
``The Proposed Rule uses the term ``conservation'' in a broader
sense, however, to encompass both protection and restoration
actions. Thus, it is not limited to lands allocated to
preservation, but applies to all BLM managed public lands and
programs.'' (FR at 19585)
FLPMA does not authorize the broad application of conservation,
preservation, and restoration land use management objectives ``to all
BLM managed public lands.'' BLM cannot change FLPMA from a multiple use
and sustained yield statute to a conservation, preservation, and
restoration law. Only Congress could make such a substantial change to
FLPMA by enacting an amendment that would essentially upend the
original multiple use purpose of this law and transform it into a
conservation, preservation, and restoration law.
VII. FLPMA Does Not Authorize BLM to Replace UUD with a Zero-Impact
Mandate
The unnecessary or undue (UUD) mandate in FLPMA Section 302(b) is
exceptionally effective at protecting the environment because it is a
dynamic, activity-specific, and site-specific regulatory mechanism
applicable wherever multiple use activities occur on public lands. In
implementing the UUD directive, BLM has the necessary authority to
custom tailor the interpretation and application of UUD for all types
of multiple uses to fit the activities involved and the site-specific
environmental and resource conditions at each particular multiple use
project.
FLPMA is not a zero-impact, no-use statute. However, the Proposed
Rule is seeking to unseat UUD as FLPMA's universal and overarching
environmental protection mandate and substitute a new zero-impact
standard that would be enforced at many newly designated ACECs, on
conservation leases, and on intact landscapes. FLPMA does not authorize
BLM to manage public lands with a zero-impact mandate, which differs
substantially from UUD.
In contrast to a zero-impact standard, the UUD policy in FLPMA
Section 302(b) authorizes necessary degradation of the public lands
resulting from multiple uses. A plain language reading of UUD is that
it authorizes degradation that is unavoidable in order for the multiple
use to occur. In other words, the degradation is necessary or due.
In managing the public lands, BLM must respond to the entirety of
Congress' intent in FLPMA and carefully balance both the FLPMA Section
102(a) multiple uses directives and UUD. These statutory directives,
which must be read together, compel BLM to authorize multiple uses that
comply with the UUD mandate to protect the environment. BLM cannot use
the Proposed Rule to administratively insert a zero-impact conservation
objective or a land preservation mechanism to prohibit development on
ACECs, conservation leases, or on intact landscapes.
BLM's statements during the May 15, 2023, stakeholder meetings and
in the Federal Register notice that the Proposed Rule is not intended
to reduce or curtail mining or other public land uses are internally
contradictory and provide substantial evidence that BLM is struggling
to make the Proposed Rule appear to be consistent with FLPMA. Compare,
for example, the following statements:
This provision [conservation leasing] is not intended to
provide a mechanism for precluding other uses, such as grazing,
mining, and recreation. (FR at 19591) \6\
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\6\ Similar statements were made during the May 15, 2023, virtual
public meeting and the May 16, 2023, hearing.
Permanent impairment of ecosystem resilience would be difficult
or impossible to avoid, for example, on lands on which the BLM
has authorized intensive uses, including infrastructure and
energy projects or mining, or where BLM has limited discretion
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to condition or deny the use. (FR at 19592)
The Proposed Rule recognizes, however that in determining which
actions are required to achieve the land health standards and
guidelines, the BLM must take into account current land uses,
such as mining, energy production and transmission, and
transportation, as well as other applicable law. The BLM
welcomes comments on how applying the fundamentals of land
health beyond lands allocated to grazing will interact with
BLM's management of non-renewable resources. (FR at 19586)
In the first statement, BLM says the Proposed Rule is not designed
to upset existing land uses. However, the second and third statements
admit the Proposed Rule creates conflicts between its conservation
objectives and multiple uses. These admissions that the Proposed Rule
would create conflicts with authorized multiple uses clearly shows that
the Proposed Rule is fatally flawed, unworkable, and inconsistent with
Congress' directives in FLPMA dictating how BLM must manage public
lands for multiple use.
There is no justification for creating this conflict by proposing
this new rule. Rather, BLM should focus on consistently managing public
lands for multiple uses that comply with the UUD mandate. Given the
effectiveness of UUD as a universally applicable regulatory mechanism,
there is no reason to modify it or seek to functionally replace it as
BLM is proposing to do in this rule.
VIII. There is No Gap in FLPMA that Needs to be Filled with the
Proposed Rule
During the May 15, 2023 virtual public meeting on the Proposed
Rule, BLM officials asserted the rule is necessary to fill a gap in
FLPMA, stating that BLM needs additional regulatory tools to manage the
public lands in a manner that fully protects the environment. This
assertion mischaracterizes the authority BLM already has to use the UUD
mandate to effectively regulate public land uses to allow for
responsible development of public lands and at the same time require
environmental protection.
There is no environmental protection or regulatory gap in FLPMA.
The 3809 regulations already define UUD and the mechanisms by which BLM
prevents UUD. The 3809 regulations implement FLPMA's UUD mandate in a
dynamic and effective way. One aspect of preventing UUD demands
compliance with all applicable federal and state environmental and
cultural resources protection laws. (See 43 CFR 3809.415(a)).
What is being portrayed as a gap is in reality this
administration's apparent dissatisfaction with having to respond to the
balancing act that FLPMA demands between authorizing simultaneous
multiple uses and mandating environmental protection. There is no
question that this balancing act is difficult and creates tension
between responsibly using public lands and protecting public lands. But
that is precisely FLPMA's purpose and is the foundational premise of
this law.
Seeking to upset this balance by creating new anti-use tools that
prevent development such as preserving intact landscapes and creating
conservation leases cannot be used to modify FLPMA's underlying purpose
and dual Congressional directives to responsibly use public lands and
to protect them. See Carden v. Kelly, 175 F. Supp. 2d 1318, 1325 (D.
Wyo. 2001) (FLPMA's purpose was to ``aid in the management, disposal,
and maintenance of federal public land in the nation[`]s best
interest.'').
FLPMA does not authorize BLM to tip the scales in favor of
conservation. However, the Proposed Rule is designed to do just that--
to create out of whole cloth new restrictive land management tools and
designations to limit multiple use. This is flagrantly at odds with
Congress' intent in enacting FLPMA, and the plain text of the statute
in Section 102(a)(7) which provides that: it is the policy of the
United States that--
. . . management of [public lands] be on the basis of multiple
use and sustained yield unless otherwise specified by law
In enacting FLPMA, Congress did not give BLM the power it is
asserting in the Proposed Rule to establish conservation as a ``use''
to prohibit other uses and to prioritize that ``use'' above all others.
Conservation is not included in the list of multiple-uses Congress set
forth in FLPMA Section 102(a). BLM cannot now assert a new sweeping
authority to ``manage'' use of the public lands by creating conflicting
authorizations prohibiting use through the proposed ``Conservation''
rule. See West Virginia v. EPA, 142 S. Ct. 2587, 2608 (`` `Congress
could not have intended to delegate' such a sweeping and consequential
authority `in so cryptic a fashion.' '') (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 160, 120 S. Ct. 1291, 146 L.
Ed. 2d 121 (2000)).
Changing FLPMA's balance to favor conservation over multiple use--
or even to put conservation and multiple use on the same plateau--would
require Congressional action to amend FLPMA. BLM cannot achieve this
result through rulemaking.
IX. BLM Does Not Need Additional Regulatory Tools to Protect Public
Lands
FLPMA Section 302(b) requires BLM to manage the public lands to
prevent land uses from creating UUD: ``In managing the public lands the
Secretary shall, by regulation or otherwise, take any action necessary
to prevent unnecessary or undue degradation of the lands.''
Since the enactment of FLPMA, BLM has effectively implemented the
UUD mandate through regulatory programs that govern various public land
uses. For example, the overarching purpose of BLM's 3809 regulations is
to:
Prevent unnecessary or undue degradation of public lands by
operations authorized by the mining laws. Anyone intending to
develop mineral resources on the public lands must prevent
unnecessary or undue degradation of the land and reclaim
disturbed areas. This subpart establishes procedures and
standards to ensure that operators and mining claimants meet
this responsibility; (43 CFR Sec. 3809.1(a))
The 3809 regulations include a definition of UUD that is specific
and pertinent to mineral exploration and mining. (See 43 CFR
Sec. 3809.5 and Sec. 3809.415).
BLM has not identified a problem with implementing the UUD mandate
or specified the need for additional tools to impose the UUD mandate.
In the context of UUD, the Proposed Rule is seeking to fix a problem
where none exists.
BLM is proposing to redefine UUD as ``harm to land resources or
values that is not needed to accomplish a use's goal or is excessive or
disproportionate.'' This proposed definition is essentially a broad
restatement of how BLM has interpreted and implemented the UUD mandate
for nearly five decades and administered multiple uses on public lands
to ensure compliance with the UUD standard.
It is indeed telling that after nearly 50 years of managing public
lands in response to FLPMA's overarching mandate to prevent UUD, that
BLM is now seeking to redefine UUD, resulting in a `fundamental
revision of the statute, changing it from [one sort of] scheme of . . .
regulation' into an entirely different kind.'' West Virginia v. EPA,
142 S. Ct. 2587, 2596 (quoting MCI Telecommunications Corp. v. American
Telephone & Telegraph Co., 512 U.S. 218, 231, 114 S. Ct. 2223, 129 L.
Ed. 2d 182).
The agency's own actions over the course of nearly five decades are
compelling evidence of the proper and successful interpretation and
implementation of FLPMA. Efforts with the Proposed Rule to now make
radical changes to how UUD is interpreted and implemented are in
conflict with BLM's obligations under FLPMA.
X. The Proposed Rule Conflicts with the U.S. Mining Law
The Proposed Rule conflicts with the right to use all lands open to
location under the U.S. Mining Law (30 U.S.C. 21a et seq.). Although
FLPMA amends the Mining Law, it does so in a very limited way as
enumerated in Section 302(b):
Except as provided in section 314, section 603, and subsection
(f) of section 601 of this Act and in the last sentence of this
paragraph, no provision of this section or any other section of
this Act shall in any way amend the Mining Law of 1872 or
impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress. In
managing the public lands the Secretary shall, by regulation or
otherwise, take any action necessary to prevent unnecessary or
undue degradation of the lands.
FLPMA Section 302(b) clearly establishes Congress' intent that
FLPMA would not change the Mining Law except in the following ways, the
first three of which are quite limited in their scope:
FLPMA Section 314 requires claim owners to record their
claims;
FLPMA Section 603 establishes the provisions for mining
claims in Wilderness Study Areas;
FLPMA Section 601(f) requires mining activities to comply
with an ``undue impairment'' standard to protect scenic,
scientific, and environmental values of the public lands in
the California Desert Conservation Area; and
All mineral activities must prevent unnecessary or undue
degradation (UUD).
FLPMA's UUD mandate was a major change to the Mining Law that
inserted a new environmental protection and reclamation requirement for
mineral exploration and mining projects. As discussed in Section VII,
UUD effectively safeguards the environment at mineral projects. For
mineral projects, UUD is defined at 43 CFR Sec. 3809.5 and requires
mineral operators to reclaim their exploration and mine sites when the
work is completed and to provide BLM with financial assurance to
guarantee reclamation.
Section 22 of the Mining Law says:
Except as otherwise provided, all valuable mineral deposits in
lands belonging to the United States, both surveyed and
unsurveyed, shall be free and open to exploration and purchase,
and the lands in which they are found to occupation and
purchase, by citizens of the United States and those who have
declared their intention to become such, under regulations
prescribed by law, and according to the local customs or rules
of miners in the several mining districts, so far as the same
are applicable and not inconsistent with the laws of the United
States.
The land use restrictions and prohibitions in the proposed
regulation directly conflict with the Section 22 Mining Law directive
that lands ``shall be free and open to exploration and purchase, and
the lands in which they are found to occupation and purchase'' because
the Proposed Rule would sequester lands away in conservation leases
that would no longer be open to this free exploration and purchase.
The Proposed Rule cannot ignore or override Section 22 of the
Mining Law, FLPMA's multiple use and sustained yield mandate, or
FLPMA's explicit policy to maintain all aspects of the Mining Law
except for the four changes specified in FLPMA Section 302(b). FLPMA
does not authorize BLM to put lands off-limits to mining by creating
widespread ACECs, issuing conservation leases, or preserving intact
areas.
BLM can withdraw lands from operation of the Mining Law, but
withdrawals must adhere to the FLPMA Section 204 withdrawal procedures:
(a) On and after the effective date of this Act the Secretary
is authorized to make, modify, extend, or revoke withdrawals
but only in accordance with the provisions and limitations of
this section.
During BLM's May 15, 2023, virtual meeting on the Proposed Rule BLM
officials explained that mining would likely be deemed an incompatible
use in these areas. At the May 16th hearing, you said the same thing in
response to questions asking whether BLM would manage these lands for
multiple uses including mining.
The Proposed Rule explains that conservation leases could be used
as compensatory mitigation to off-set unavoidable impacts associated
with multiple use projects on public lands. In order to proceed with
such projects, project proponents could be required to enter into
conservation leases or purchase conservation credits associated with
previously established conservation leases designed to function as
mitigation banks. Neither the Mining Law nor FLPMA authorize
compensatory mitigation for hardrock mineral projects. Therefore, this
aspect of the Proposed Rule cannot be applied to mineral exploration
and development projects.
The word ``mitigation'' appears only once in FLPMA at 43 U.S.C.
1785 (e)(2)(D), which Congress added to FLPMA in 1996 for the Fossil
Forest Research Natural Area. This suggests that there is no authority
for compensatory mitigation in FLPMA for any type of multiple use
activity. Project proponents may wish to offer compensatory mitigation
to off-set the unavoidable impacts (e.g., impacts that comply with
FLPMA's Section 302(b) mandate to prevent unnecessary or undue
degradation are necessary and due) but cannot be compelled to offer
compensatory mitigation.
XI. BLM Must Prepare an Environmental Impact Statement
In the Federal Register notice for this rule, BLM states that it
intends to apply the Department's Categorical Exclusion (CX) provisions
and that BLM is not required to prepare a NEPA document, either an
Environmental Assessment (EA) or an Environmental Impact Statement
(EIS), to assess the impacts of this Proposed Rule. At the May 16th
hearing, you asserted that BLM is not obligated to prepare an EA or an
EIS because the rule is ``largely procedural.''
This assertion strains credulity for a Proposed Rule that will
impact 245 million acres of public lands, which are ``an economic
driver across the West'' according to BLM's press release unveiling the
Proposed Rule.\7\
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\7\ https://www.blm.gov/press-release/interior-department-releases-
proposed-plan-guide-balanced-management-public-lands.
The media has appropriately characterized the Proposed Rule as
making significant changes to land use management as is readily evident
---------------------------------------------------------------------------
from the following headlines;
BLM Proposes Sweeping Rule That Could Change Priorities for Public
Lands
https://northernag.net/blm-proposes-sweeping-rule-that-could-change-
priorities-for-public-lands/
BLM defends sweeping revamp of public lands rule
https://subscriber.politicopro.com/article/eenews/2023/05/16/blm-
defends-sweeping-revamp-of-public-lands-rule-00097116
Sweeping Biden Rule Could Change The Game For Protecting Public Lands
https://news.yahoo.com/sweeping-biden-rule-could-change-225322163.html
BLM proposes seismic shift in lands management
https://www.eenews.net/articles/blm-proposes-seismic-shift-in-lands-
management/
BLM needs to take a cue from these headlines and concede that this
far-reaching rule will create ``sweeping changes'' and a ``seismic
shift'' that will cause significant impacts across the western U.S. A
rule that will precipitate sweeping changes, alter priorities for
public lands, and cause a seismic shift in land management
unquestionably qualifies as a major federal action that requires BLM to
prepare an EIS. See Austin v. Ala. DOT, No. 2:15-cv-01777-JEO, 2016
U.S. Dist. LEXIS 159113, at *4 (N.D. Ala. Nov. 16, 2016) (``An EIS is
required before a federal agency undertakes any `major' federal action
`significantly affecting the quality of the human environment.' '')
(quoting 42 U.S.C. Sec. 4332(2)(C)).
The Council on Environmental Quality's (CEQ's) 40 CFR Part 1500
regulations that implement NEPA define a major federal action in
Section 1508.1 as follows:
Major Federal action includes actions with effects that may be
major and which are potentially subject to Federal control and
responsibility . . .
(a) Actions include new and continuing activities; . . . new
or revised agency rules, regulations, plans, policies, or
procedures;
(b) Federal actions tend to fall within one of the following
categories:
i. Adoption of official policy, such as rules,
regulations, and interpretations adopted pursuant to the
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. that
are formal documents establishing an agency's policies which
will result in or substantially alter agency programs.
ii. Adoption of formal plans, such as official documents
prepared or approved by federal agencies which guide or
prescribe alternative uses of Federal resources, upon which
future agency actions will be based. (emphasis added).
Because BLM's acknowledged purpose of the rule is to change how
public lands are managed and how federal resources are used to
prioritize non-use or conservation, it is clear that BLM's Proposed
Rule would ``guide or prescribe alternative uses of Federal resources,
upon which future agency actions will be based.'' Consequently, BLM
must prepare an EIS for what is obviously a ``major federal action.''
Because the land use restrictions and prohibitions would thwart
solar and wind farms and critical minerals mining projects that are
necessary for transitioning to renewable energy, the EIS must take a
hard look at the No Action alternative and quantify the CO2
emission reduction that could be achieved without the rule. The EIS
alternatives analysis must disclose how the Proposed Rule would
interfere with renewable energy projects and potentially increase
CO2 emissions by not being able to develop some critical
minerals and renewable energy projects.
XII. The Proposed Rule is Economically Significant and Must be
Evaluated Under NEPA, the OMB, the SBREFA, and the CRA
A. Multiple Uses Generated $201 Billion in Economic Output in 2022
BLM's website ``Economic Contributions From BLM-Managed Lands'' \8\
and BLM's report entitled ``BLM: A Sound Investment for America 2022,''
\9\ (included herein as Exhibit 1) show that multiple use activities on
BLM-administered lands generated $201 billion in economic output in
2022 and generated 783,000 jobs. Because the Proposed Rule would
significantly interfere with multiple uses such as logging, ranching,
oil and gas production, mineral exploration and mining, and renewable
energy production, BLM must prepare an EIS that analyzes and quantifies
the impacts resulting from the reduced economic output from these
multiple uses on western public lands states.
---------------------------------------------------------------------------
\8\ https://www.blm.gov/about/data/socioeconomic-impact-report-2022
\9\ https://www.blm.gov/sites/default/files/docs/2022-12/2022-
SoundInvestment.pdf
---------------------------------------------------------------------------
BLM has already developed the baseline data for this analysis in
its ``Economic Contributions from BLM-Managed Lands'' and its Sound
Investment for America 2022 report. BLM must complete the job by
assessing the socioeconomic consequences of the Proposed Rule,
recognizing that BLM's own data show that the multiple uses listed
below are significant revenue generators, constituting ``an economic
driver across the West.'' \10\
---------------------------------------------------------------------------
\10\ BLM press release, op cit.
---------------------------------------------------------------------------
Recreation--$11.4 billion
Renewable Energy--$4.4 billion
Nonenergy Minerals \11\--$48.8 billion
---------------------------------------------------------------------------
\11\ Nonenergy minerals refers to locatable, ``hardrock'' minerals
like copper, gold, silver, lithium, rare earths, zinc, molybdenum,
lead, vanadium, tungsten, tellurium, etc. Some of these minerals are on
the USGS' critical minerals list.
---------------------------------------------------------------------------
Oil and Gas--$113.8 billion
Grazing--$2.6 billion
Coal--$8.3 billion
Timber--$1.1 billion
BLM Expenditures \12\--$5.2 billion
---------------------------------------------------------------------------
\12\ BLM expenditures refers to goods, services, and contract labor
purchased by BLM and BLM employees' purchase of goods and services in
the local communities where they live
Payments to States and Counties \13\--$5.2 billion
---------------------------------------------------------------------------
\13\ BLM payments refers mainly to Payments in Lieu of Taxes (PILT)
to states and counties.
BLM must comply with the NEPA requirement to prepare an EIS that
takes a hard look at the economic and socioeconomic impacts resulting
from the reduction in jobs and local and state tax revenues due to the
Proposed Rule. See Wyoming v. USDA, 661 F.3d 1209, 1251 (10th Cir.
2011) (explaining that under NEPA, an EIS must ``analyze not only the
direct impacts of a proposed action, but also the indirect and
cumulative impacts . . . [t]he types of impacts that must be considered
include `ecological (such as the effects on natural resources and on
the components, structures, and functioning of affected ecosystems),
aesthetic, historic, cultural, economic, social, or health [effects].')
(quoting 40 C.F.R. Sec. 1508.8). The EIS must also evaluate
alternatives to the rule and ways to avoid, minimize, and mitigate
---------------------------------------------------------------------------
these impacts. 40 C.F.R. Sec. 1502.14(a).
B. BLM's Economic Threshold Analysis is Faulty
BLM's Economic Threshold Analysis for this Proposed Rule asserts
that the rule would not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. There is a glaring discrepancy between the
Economic Threshold Analysis and the data BLM collected to demonstrate
the economic importance of BLM's multiple use programs on western
public lands. The enormous difference between $100 million and $201
billion must be explained and resolved before BLM proceeds further with
this Proposed Rule.
Assuming the Proposed Rule adversely impacts just one percent of
the $201 billion currently realized from multiple uses, that would be a
$2 billion impact, which would clearly exceed the $100 million
threshold that triggers the requirement to prepare the following
federal economic evaluations:
A cost-benefit analysis by the Office of Management and
Budget pursuant to Executive Order 12866;
An assessment of how the Proposed Rule would impact small
businesses and governments as required by the Regulatory
Flexibility Act of 1980 (RFA), and the Small Business
Regulatory Enforcement and Fairness Act (SBREFA); and
Congressional review pursuant to the Congressional Review
Act.
Executive Order 12866 requires agencies to assess the benefits and
costs of regulatory actions, and for significant regulatory actions,
submit a detailed report of their assessment to the Office of
Management and Budget (OMB) for review. A rule may be significant under
Executive Order 12866 if it meets any of the following criteria:
Has an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or
tribal governments or communities;
Creates a serious inconsistency or otherwise interfere
with an action taken or planned by another agency;
Materially alters the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or
Raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set
forth in the Executive Order.
Because the Proposed Rule will result in substantially more than
$100 million in economic impacts, BLM should be precluded from
proceeding any further with this Proposed Rule until it prepares a
detailed cost benefits analysis and provides the results of this
analysis to the OMB.
C. BLM Must Comply with the RFA and SBREFA and Analyze Impacts to Small
Businesses
The RFA applies to any rule proposal by a federal agency that is
subject to notice and comment under the APA. The RFA requires federal
agencies to conduct a full regulatory flexibility analysis or to
certify that the Proposed Rule will not ``have a significant economic
impact on a substantial number of small entities.'' If an agency
determines that a proposed or draft rule will not have a significant
economic impact on a substantial number of small entities, it must
provide a factual basis for this determination, which must be published
in the Federal Register at the time the proposed or final rule is
published for public comment.
In the Federal Register notice for the Proposed Rule, BLM certifies
that the rule will not have ``a significant economic impact on a
substantial number of small entities'' and consequently does not
require an analysis pursuant to the RFA (FR 19594). However, BLM has
not provided the necessary factual basis as required by the RFA to
support this certification. This mirrors what BLM did in 1997 when it
improperly issued its bonding rule for locatable minerals without
providing the factual basis required to support their certification
that the Proposed Rule would not have a significant impact on small
entities.
When small businesses believe a rule or regulation will adversely
affect them, and that the agency failed to meet its analysis and
disclosure obligations under the RFA, SBREFA provides those small
businesses with the opportunity to seek judicial review of the agency's
action. The SBA's Chief Counsel for Advocacy can become directly
involved in such appeals by filing amicus (friend of the court) briefs
in the court proceedings brought by the small business appealing the
rule and claiming a violation of the RFA.
BLM has first-hand experience with judicial review under SBREFA. In
1998, the District Court for the District of Columbia (DC District
Court) ruled in favor of the Northwest Mining Association (now known as
the American Exploration & Mining Association), citing BLM's failure to
assess the impact of its 1997 proposed bonding rule on small entities
as required under the RFA and SBREFA. In Northwest Mining Association v
Babbitt, 5 F.Supp2d 9 (D.D.C. 1998), the District Court remanded BLM's
bonding rule back to the agency for failure to comply with requirements
under the RFA and SBREFA to evaluate the impact of its proposed bonding
rule on small miners.
In Northwest Mining Association v Babbitt, BLM did not use the
SBA's definition of a small miner, which the DC District Court noted
was 500 or fewer employees. Just as in 1998, many mining and mineral
exploration companies who currently own mining claims on BLM-
administered lands and who explore and develop these lands pursuant to
the right to do so under Section 22 of the U.S. Mining Law have fewer
than 500 employees and qualify as small entities as defined by the SBA.
Additionally many ranching, logging, outfitting, renewable energy, and
oil and gas companies also meet the SBA's definition of a small entity
for their industry sectors.
For the same reasons as the DC District Court found that BLM failed
to comply with its obligations under the RFA when it finalized its
proposed 1997 bonding rule and remanded the rule to BLM for
consideration of the rule's impact on small entities, BLM must now
comply with the RFA and assess the impact of the proposed Conservation
and Land Health rule on small entities or provide the required factual
basis to support a certification the Proposed Rule will not ``have a
significant economic impact on a substantial number of small
entities.'' Proceeding without the proper RFA analysis or the factual
basis to support a no significant impact determination, as BLM is
currently proposing to do, is unlawful and will render the Proposed
Rule void.
BLM must not ignore the SBA's Office of Advocacy (Advocacy) June 13
2023 comment letter on the Proposed Rule to DOI Secretary Deb Haaland
(included herein as Exhibit 2). Some of the key points in Advocacy's
letter are summarized below:
BLM's Proposed Rule may be contrary to FLPMA's statutory
land management principles;
BLM's Proposed Rule does not adequately consider the
impacts to small businesses as required by the RFA;
The Proposed Rule has unintended consequences that are
contrary to BLM's goals and FLPMA's land management
requirements;
The certification in the Federal Register asserting the
Proposed Rule will not significantly impact small entities
does not describe the factual basis to support this
analysis, as required under the Section 605(b) of the RFA;
and
BLM should consider alternatives to the Proposed Rule that
better align with FLPMA's statutory provisions.
D. The Congressional Review Act Precludes BLM from Re-Proposing
Landscape-Scale Planning
The Congressional Review Act (``CRA'') assists Congress in
discharging its responsibilities for overseeing federal regulatory
agencies. It provides that ``[b]efore a rule can take effect, the
Federal agency promulgating such rule shall submit'' a report that
includes ``a concise general statement relating to the rule'' and a
``proposed effective date.'' Ctr. for Biological Diversity v.
Bernhardt, 946 F.3d 553, 556 (9th Cir. 2019) (quoting 5 U.S.C.S.
Sec. 801).
The Proposed Rule bears many similarities to the Planning Rule 2.0
for landscape-scale planning, which Congress repealed in 2017 through
the CRA. In fact, references to ``landscape-scale planning'' are
infused throughout the Proposed Rule and attempts to repackage
landscape-level planning as a tool to address climate change. This new
justification for landscape-scale planning cannot be used to resurrect
a concept that Congress has already rejected. Congress' rejection of
BLM's Planning Rule 2.0 pursuant to the CRA means BLM is prohibited
from reproposing a substantially similar rule.
XIII. Conclusions
For the numerous reasons explained above, the Proposed Rule will be
harmful to our country. It will lead to greater dependency on foreign
minerals at a time when the President and Congress have established
policies to increase domestic mineral production in order to reduce our
reliance on mineral imports--especially from China. As discussed in
Section III, the U.S. continues to become more and more dependent on
other countries for the minerals we need for the energy transition,
national defense, and every aspect of modern society. The country's
mineral reliance grew in 2022 to 51 minerals compared to the 47
minerals on which we were 50 percent or more import reliant in 2021. As
the DOD recently noted, ``Contrary to a common belief, this risk
[relying on foreign minerals] is more than a military vulnerability; it
impacts the entire U.S. economy and our values.''
The Proposed Rule is unlawful because Congress has not authorized
BLM to subordinate the multiple use directives in FLPMA by putting
conservation on the same level as all other multiple uses, and
establishing policy preferences that functionally make conservation the
highest and best use of the land. BLM cannot make this substantial
change without Congressional action to amend FLPMA to authorize the
agency's proposed change. Unless and until Congress says otherwise, BLM
must manage the public lands pursuant to FLPMA's multiple use mandates.
BLM cannot proceed with the Proposed Rule because it is an unlawful
attempt to use the rulemaking process to change FLPMA. WMC concurs with
the 16 western senators who sent a letter to you on May 11, 2023,
requesting that the Proposed Rule be immediately withdrawn. Similarly,
WMC supports the provision in Section 4005 of Senator Barrasso's Spur
Permitting of Underdeveloped Resources (SPUR) Act, S. 1456, which
directs the Secretary to withdraw the Proposed Rule and prohibits
finalizing and implementing this rule. Additionally, WMC notes the many
reasons in the U.S. Small Business Administration's Office of
Advocacy's June 13, 2023, letter (Exhibit 2) to Secretary Haaland
outlining why BLM needs to jettison the Proposed Rule and consider an
alternative that complies with the land management statutory directives
in FLPMA.
The UUD mandate in FLPMA already gives BLM the authority it needs
to manage public lands to achieve the appropriate balance between
multiple use and environmental protection. After nearly fifty years of
implementing this mandate, there is no justification for BLM's proposed
``seismic shift'' in its land management principles. With roughly two-
thirds of the nation's lands already off limits to mineral exploration
and development,\14\ the Secretary does not need the new tools in the
Proposed Rule (e.g., the increased use of ACECs, creating conservation
leases, and preserving intact landscapes) to limit or prohibit mineral
activities and other multiple uses.
---------------------------------------------------------------------------
\14\ John D. Leshy, America's Public Lands--A Look Back and Ahead,
67th Annual Rocky Mountain Mineral Law Institute, July 19, 2021.
---------------------------------------------------------------------------
Finally, the Proposed Rule will inevitably lead to permitting
delays for all types of multiple use projects on public lands. Although
WMC is primarily concerned about permitting delays affecting mineral
exploration and development projects, we note that permitting delays
will also affect the infrastructure projects needed for the energy
transition, including but not limited to high-voltage transmission
lines, and solar, wind, and geothermal renewable energy projects. This
is yet another important reason why this is the wrong rule at the wrong
time.
Although WMC appreciates this opportunity to provide these
comments, we respectfully request that BLM withdraw this Proposed Rule.
Sincerely yours,
Emily Hendrickson, Debra W. Struhsacker,
WMC President WMC Co-Founder and Board Member
Attachments:
Exhibit 1--The BLM: A Sound Investment for America 2022
Exhibit 2--SBA Office of Advocacy June 13, 2023, comment letter on the
Proposed Rule to DOI Secretary Deb Haaland
The attachments are available for viewing along with the letter at:
https://docs.house.gov/meetings/II/II00/20230615/116036/HHRG-118-II00-
20230615-SD022.pdf
______
Statement for the Record
Solar Energy Industries Association
June 22, 2023
The Solar Energy Industries Association (``SEIA'') is the national
trade association of the U.S. solar and storage industry. Our members
promote the environmentally responsible development of distributed and
utility-scale solar energy and storage. We are committed to working
with federal agencies, environmental and conservation organizations,
Tribal governments, state agencies, and other stakeholders to achieve
this goal.
SEIA and our members strongly support leasing for compensatory
mitigation- and restoration-related conservation projects on Bureau of
Land Management (``BLM'')-managed lands. However, we have concerns with
some aspects of the proposed rule, which contains provisions that could
potentially impede the rapid deployment of renewable energy needed to
decarbonize the grid and address the climate crisis. While BLM granted
a 15-day extension of the comment period, we remain concerned that some
of these provisions, while unintentional, may not be revised in a final
rule. Our industry intends to work constructively with BLM to ensure
that a final rule is workable for both conservation interests and the
renewables industries.
______
Rocky Mountain Elk Foundation
Missoula, MT
June 15, 2023
U.S. Department of the Interior, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Re: Bureau of Land Management Proposed Rule: Conservation and Landscape
Health, 43 CFR Parts 1600 and 6100
Dear Director:
The mission of the Rocky Mountain Elk Foundation (RMEF) is to
ensure the future of elk, other wildlife, their habitat and our hunting
heritage. We represent more than 225,000 members nationwide, many of
whom live and/or recreate in western states. Since its inception in
1984, RMEF has conserved or enhanced more than 8.6 million acres of
North America's most vital habitat for elk and other wildlife. In
partnership with the Bureau of Land Management (BLM), RMEF has
conserved or enhanced more than 2.3 million acres across BLM-
administered lands and opened or improved public access to over 370,000
acres since 1987. Together, the combined value of RMEF-BLM cooperative
efforts totals more than $210 million.
The BLM proposes new regulations that aim to `advance the BLM's
mission to manage the public lands for multiple use and sustained yield
by prioritizing the health and resilience of ecosystems across those
lands.' The BLM proposes to implement this through protecting intact
landscapes, restoring degraded habitat, and by making wise management
decisions based on science and data.
RMEF's comments below represent a focus on actions in the proposed
rule that may benefit or hinder our mission and/or represent our broad
stakeholders. The following key topics in our comments resonate with
our mission and membership:
Incorporating appropriate public engagement opportunities
Ensuring public access to public lands for hunting and
other recreation
Enhancing habitat for elk, mule deer, turkeys, and other
wildlife
Conserving critical migration routes (connectivity)
Bringing a stronger focus to much needed active land
management
Using sound science in all conservation and management
activities
RMEF expresses concern about several processes averted during the
proposed rulemaking:
Given the significant implications of the rule, there is
concern about the lack of stakeholder input or advanced
notification. An Advanced Notice of Proposed Rulemaking or
a Request for Information would have provided a meaningful
public engagement opportunity.
Several components of the proposed rule should be required
to go through a full NEPA process; the proposed overarching
categorical exclusion is not sufficient. As is, multiple
decisions (including conservation leases) would not go
through any NEPA assessment (environmental assessment,
environmental impact statement, or otherwise) and would
provide no opportunity for public engagement. The proposed
rule provides unlimited authority to make impactful
conservation decisions through review and approval by an
authorized officer.
BLM Resource Management Plans (RMP) serve as the backbone
to guide management of BLM-administered lands, yet few of
the proposed rule components would flow through the RMP
process. To maintain transparency and ensure quality public
engagement, each action in the proposed rule should be
incorporated, formally, into RMPs.
Specific to the rule content, RMEF generally supports the six broad
objectives (Sec. 6101.2) of the proposed rule but has concerns with the
lack of detail in the proposed rule. RMEF offers the following
comments:
General Comments
The proposed rule would fundamentally change the BLM's
multiple use mandate under the Federal Land Policy and
Management Act (FLPMA) by adding `conservation' as a
recognized use and newly defined, specifically for this
rule. RMEF asks for clarification on how this definition
conflicts with previous versions of the definition of
`conservation' used in BLM manuals or handbooks.
In adding `conservation' as one of the multiple uses in
FLPMA, RMEF requests additional administrative review to
clarify whether additions/changes can be made to FLPMA
without the necessary input from Congress, state and county
governments, private industry, recreationists, and other
impacted stakeholders.
RMEF requests clarity on who within BLM constitutes an
`authorized officer' who, through this rule, is granted
authority to make impactful decisions. For example, these
individuals would have authority to prioritize protection
of intact landscapes (Sec. 6102.19b), identify priority
landscapes for restoration (Sec 6102.3-1), or approve terms
and conditions of conservation leases (Sec. 6102.4).
The section on protection of intact landscapes (6102.1)
also lacks clarity. As with most practices outlined in the
proposed rule, protection of intact landscapes should
follow priorities set in RMPs and utilize existing tools
through the National Conservation System.
Landscape Health
RMEF recognizes the need to assess land health conditions
across all BLM-managed lands and supports the direction for
land restoration activities to improve wildlife habitat and
to help public lands recover from wildfire, invasive
species. and other threats.
RMEF supports the proposed adaptive management strategy
(Sec. 6101.2) to guide BLM land management through
evaluation, treatment, and monitoring.
RMEF supports continued recognition of important big game
migration corridors and encourages BLM to use existing
progress and programs (through SO3362) to implement
objectives in this rule concerning habitat connectivity.
Managed livestock grazing can improve the health of
rangelands and forest meadows if the system is designed
with habitat values for elk and other wildlife in mind. An
effective range management program between the agency and
permittees is essential to maintaining the economic base
and lifestyle that have helped keep private lands across
elk country as working ranches. RMEF encourages continued
use of grazing management systems and techniques compatible
with maintaining desired levels of elk and other wildlife.
Throughout the proposed rule, BLM recognizes the need for
various `conservation' practices, including land
protection. As an avid supporter of active land management,
RMEF has concerns that land protection (preservation), as
defined in the proposed rule, would treat lands as a
functional wilderness, impeding critical land management
and restoration activities needed across BLM-administered
land.
The use of conservation throughout the proposed rule
includes a focus on `restoration.' As defined, this action
means `assisting the recovery of an ecosystem that has been
degraded, damaged or destroyed.' What is lacking is any
focus on active land management to maintain lands that are
currently meeting land health standards. The proposed rule
defines `land enhancement,' with reference to its potential
use in conservation leases. However, the proposed rule
lacks specific guidance on the importance of `land
enhancement' in preventing degradation and supporting
ecosystem resilience and should be a key component of
ACECs, conservation leases, and other tools.
BLM proposes to use the fundamentals of land health (in
Sec. 6103.1-6103.2) from the existing fundamentals of
rangeland health (at 43 CFR 4180.1 (2005)) for all resource
management. This was previously applied to public-lands
grazing programs. RMEF requests development of updated and
expanded landscape health fundamentals that are based on
more recent science and are applicable across more diverse
landscapes (not just rangelands). Applying outdated land
health fundamentals developed for a single landscape type
and program (grazing), is not appropriate. As part of the
2005 land health update, fundamentals of rangeland health
should be expanded to include species beyond those
federally listed, including species of state biological and
social importance.
Conservation Leases
BLM proposes to use conservation leases as a new tool to ensure
`ecosystem resilience through protecting, managing, or restoring
natural environments, cultural or historic resources, and ecological
communities, including species and their habitats.'
RMEF has significant concerns about the lack of detail on
how conservation leases would be prioritized and
implemented through this rule. BLM is requesting public
comment on several critical components of the conservation
lease proposal, highlighting the need to answer many
unknowns prior to any final rule being signed. Key details
should be fleshed out by the BLM and reopened for public
comment, including:
+ the appropriate default lease duration
+ acreage limits for conservation leases
+ constraints on which lands are available for conservation
leasing
+ clarification on what actions conservation leases may
allow
+ eligibility of a lease holder
+ requirement for conservation lease priorities to be set
within RMPs with public engagement
The authorities granted under conservation leases (and
associated definition of `conservation') creates confusion
among other tools available for `protection and
restoration' including the National Conservation System,
ACECs, leases authorized for mitigation, and other tools.
As written, conservation leases appear to encompass
authorities under several existing tools. Protection (and
preservation) and restoration are authorities already
established through the National Conservation System,
ACECs, etc. Given this redundancy, `conservation leases'
should be focused on land enhancement or restoration with a
primary goal of maintaining or restoring prioritized
landscapes.
A key concern in this proposed rule is the lack of clarity
in whether/how public access to BLM-managed land could be
limited under conservation leases. The proposed rule states
that a conservation lease, alone, is not intended to
preclude access to public lands; `although the purposes of
a lease may require that limitations to public access be
put in place in a given instance (Sec. 6102.4(a)(4) and
6102.4(a)(5)).' This ambiguous language opens up
significant uncertainty about public land access,
particularly given that conservation leases would be
approved solely through an authorized officer. Public use
for hunting, fishing, and other recreation should clearly
be defined as a `casual use' and not subject to
authorization on lands covered by a conservation lease
(6102.4(a)(5). Again, this highlights the need to integrate
this proposed program into a local public engagement
process. The preferred route would be to identify areas
eligible for conservation leases through the RMP process
and assess the potential effects of each lease through
NEPA, as is completed with other BLM leases/permits. This
would allow for proper analysis of the effects the proposed
actions may have on the environment, and the related social
and economic effects.
RMEF appreciates this opportunity to comment on the BLM Proposed
Rule: Conservation and Landscape Health, 43 CFR Parts 1600 and 6100,
and looks forward to seeing future clarifications and details.
Sincerely,
Blake L. Henning,
Chief Conservation Officer
______
American Forest Resource Council
Portland, Oregon
June 23, 2023
U.S. Department of the Interior, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Re: Conservation and Landscape Health; RIN 1004-AE92; OMB Control
Number 1004-0NEW
Dear Director Tracy Stone-Manning:
The American Forest Resource Council (AFRC) submits the following
comments on the Department of the Interior's proposal to create new
regulations entitled, ``Conservation and Landscape Health,'' which
seeks to prioritize the health and resilience of ecosystems on Bureau
of Land Management (BLM) lands. 88 Fed. Reg. 19,583 (Apr. 3, 2023).
AFRC is a regional trade association whose purpose is to advocate
for sustained yield timber harvests on public timberlands throughout
the West to enhance forest health and resistance to fire, insects, and
disease. We represent over 70 forest product businesses and forest
landowners throughout the West. Many of our members have their
operations in communities adjacent to BLM managed land that this new
rule will impact, and the management of these lands ultimately dictates
not only the viability of their businesses, but also the economic
health of the communities themselves. Rural communities, such as those
affected by this rule, are particularly sensitive to the forest
products sector because more than 50% of all manufacturing jobs within
these communities are in wood manufacturing.
AFRC and its members strongly believe in--and practice--
conservation and the responsible use of natural resources that benefit
current and future generations. Conservation is a principal of modern,
science-based forest and natural resources management and a
foundational value of our members--which include the very people who
help steward America's public lands and forests throughout the West.
AFRC believes that a sustainable supply of timber is important to,
and an outcome of, healthy and resilient forest land. Further, working
lands and conservation are not mutually exclusive. On the contrary, we
believe that misguided management paradigms, based on flawed and
outdated concepts such as ``forest protection'' (but protection from
what and from whom?), inadvertently inhibit the attainment of forest
health and resilience. This flawed paradigm is most obvious in western
states where high-intensity wildfire, insect infestations, and disease
are responsible for more damage and destruction of federal lands than
any other agent. This is partly evidenced by the ``25-Monitoring Report
on Monitoring Consultation under the Northwest Forest Plan,'' which
concluded that wildfire remains the leading cause for older forest
losses on federal lands, accounting for about 70 percent of all losses
since 1993.\1\ This report was published based on data collected prior
to the disastrous 2020 Labor Day wildfires that impacted over 110,000
acres of BLM managed land in western Oregon.
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\1\ Davis, Raymond J. et al. 2022. Northwest Forest Plan--the first
25 years (1994-2018): status and trends of late-successional and old-
growth forests. Gen. Tech. Rep. PNW-GTR-1004. Portland, OR: U.S.
Department of Agriculture, Forest Service, Pacific Northwest Research
Station. 82 p., available at, https://www.fs.usda.gov/pnw/pubs/
pnw_gtr1004.pdf.
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We are fortunate to have a bedrock law in the Federal Land Policy
and Management Act of 1976 (FLPMA) that requires management based on
the principles of multiple use and sustained yield ``in a manner that
will protect the quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and archeological
values.'' \2\ We are also fortunate to have existing regulations that
require the BLM to solicit public input on potential uses of public
land during the land management planning process. Based on these
preexisting, clear guiding directions for a multitude of resources, we
are confused by the intent of this proposed rule. We also believe that
much of the substance of the rule is misguided or flawed. As explained
below, we believe that this proposed rule was inappropriately developed
with no stakeholder input or advanced notice and that the effects of
this rule warrant preparation of an Environmental Impact Statement
(EIS) due to the significant effects on the human environment.
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\2\ 43 U.S.C. Sec. 1701(a)(8).
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Below is a summary of the AFRC's comments:
The proposed rule needs to clarify that multiple use does
not apply to the management of O&C Act timberlands.
The proposed rule was inappropriately developed without
stakeholder input or advanced notification.
The proposed rule undermines public participation in the
planning process.
The proposed rule violates FLPMA's multiple use mandate
and misuses the term conservation.
The BLM does not have statutory authority to create a
conservation leasing program.
The proposed rule does not clarify how the government will
receive fair market value for conservation use.
The concept of ``carbon offset credits'' is misguided and
should not be permitted through ``conservation leases.''
The proposed rule's changes to the designation and
protection of Areas of Critical Environmental Concern
violate FLPMA.
The Economic and Threshold Analysis is flawed; the
proposed rule will likely have a significant material
effect on several facets of the economy.
The effects of this rule warrant the preparation of an
EIS.
The proposed rule was pushed forward in a manner
inconsistent with FLPMA's state and local government
coordination requirements.
COMMENTS
I. The proposed rule needs to clarify that multiple use does not apply
to the management of O&C Act timberlands.
The proposed rule does not discuss the interplay between FLPMA's
multiple use sustained yield obligations and the Oregon and California
Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), 43
U.S.C. Sec. 2601, et seq. O&C lands are former railroad grant lands
revested in the United States in 1916.\3\ In 1937, Congress enacted the
O&C Act, which requires the subject lands to be devoted to ``permanent
forest production,'' specifically mandating ``the timber thereon shall
be sold, cut, and removed in conformity with the princip[le] of
sustained yield . . ..'' \4\,\5\ Under the O&C Act, 50
percent of timber sale receipts are provided to the 18 counties in
which the O&C lands are located, providing a substantial source of
government revenues for these localities.\6\
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\3\ See Oregon & Cal. R.R. Co. v. United States, 238 U.S. 393
(1915); Chamberlain-Ferris Act of June 9, 1916, 39 Stat. 218; February
26, 1919 (40 Stat. 1179).
\4\ 43 U.S.C. Sec. 2601.
\5\ 43 C.F.R. Sec. 5040.1 (BLM regulations recognizing its
authority to divide O&C lands into sustained-yield forest units).
\6\ 43 U.S.C. Sec. 2605.
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Congress recognized that sustained-yield forestry would result in
``providing a permanent source of timber supply, protecting watersheds,
regulating stream flow, and contributing to the economic stability of
local communities and industries, and providing recreational
facil[i]ties.'' It also recognized the mandatory nature of sustained-
yield forestry on the lands when enacting legislation in 1948 to reopen
the O&C lands to exploration location, entry, and disposition under the
general mining laws.\7\ U.S. District Court Judge Leon recently
provided that the ``BLM must ensure that the timber produced on O&C
land is sold, cut, and removed in conformity with the principle of
sustained yield. These are mandatory directives from Congress.'' \8\
Moreover, the Ninth Circuit has recognized the O&C Act ``as
establishing timber production as the dominant use.'' \9\
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\7\ Act of Apr. 8, 1948, 80th Cong., 2d sess., ch. 179, Pub. L. No.
80-477, 62 Stat. 162.
\8\ Am. Forest Res. Council v. Nedd, No. 15-cv-01419 (RJL), 2021 WL
6692032, (D.D.C. Nov. 19, 2021), appeal docketed, No. 20-5008
(consolidated with Nos. 20-5009, 20-5010, 20-5011, 22-5019, 22-5020,
22-5021) (D.C. Cir. Jan. 24, 2020).
\9\ Headwaters, Inc. v. BLM, Medford Dist., 914 F.2d 1174, 1183
(9th Cir. 1990); but see Murphy Co. v. Biden, 65 F.4th 1122 (9th Cir.
2023) (petition for rehearing en banc filed on June 7, 2023).
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Although FLPMA generally governs BLM's management of federal lands
under a multiple-use sustained-yield model, its savings clause provides
that in the event of any conflict between its requirements and the O&C
Act, the latter takes precedence.\10\ Because the O&C Act mandates
dominant use management of O&C timberlands for sustained-yield timber
harvest, other uses are allowed only when subordinated to sustained-
yield timber production.\11\
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\10\ 43 U.S.C. Sec. 1701 Savings Provisions Note (West 2010).
\11\ Am. Forest Res. Council v. Nedd, No. 15-cv-01419 (RJL), 2021
WL 6692032, (D.D.C. Nov. 19, 2021), appeal docketed, No. 20-5008
(consolidated with Nos. 20-5009, 20-5010, 20-5011, 22-5019, 22-5020,
22-5021) (D.C. Cir. Jan. 24, 2020).
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For the reasons stated above, the proposed rule, and its inclusion
of conservation use, cannot be applied to O&C timberlands. Therefore,
the final rule must clarify that it will not apply to the BLM's
management of O&C timberlands.
II. The proposed rule was inappropriately developed without stakeholder
input or advanced notification.
As an initial matter, AFRC is disappointed with the lack of
stakeholder involvement before issuing the proposed rule, as well as
the agency's engagement during the comment period. Despite the
significant implications of the proposed rule to all multiple use and
conservation communities, including the proposed rule's new
conservation leasing program, the BLM did not appropriately engage
stakeholders through an advanced notice of proposed rulemaking (ANPR)
or Request for Information, which is a critical stage of participation
to help shape the proposed rule. The BLM has also used a Notice of
Intent to accompany the development of its analysis under the National
Environmental Policy Act (NEPA) to help gather public input prior to
proposing regulatory reform.\12\
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\12\ See, e.g., Bureau of Land Management, Interior, Notice of
Intent To Conduct a Review of the Federal Coal Leasing Program and To
Seek Public Comment, 86 Fed. Reg. 46,873 (Aug. 20, 2021).
Moreover, the BLM's truncated comment period of merely 75-days and
perfunctory virtual public meetings is insufficient to meaningfully
engage the public regarding the agency's rulemaking. With respect to
the proposed rule's conservation leasing program, it is apparent that
the BLM has more outstanding questions than answers on how the rule
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should be finalized:
Is the term ``conservation lease'' the best term for this
tool?; What is the appropriate default duration for
conservation leases?; Should the rule constrain which lands are
available for conservation leasing? For example, should
conservation leases be issued only in areas identified as
eligible for conservation leasing in an RMP or areas the BLM
has identified (either in an RMP or otherwise) as priority
areas for ecosystem restoration or wildlife habitat?; Should
the rule clarify what actions conservation leases may allow?;
Should the rule expressly authorize the use of conservation
leases to generate carbon offset credits?; Should conservation
leases be limited to protecting or restoring specific
resources, such as wildlife habitat, public water supply
watersheds, or cultural resources?
Clearly, the agency would benefit from continued stakeholder
engagement before finalizing a rule that will have major impacts on
public land management into the future.
For that reason, AFRC, along with a coalition, submitted a request
that the BLM withdraw the proposed rule to reset the conversation and
ensure that appropriate stakeholders are at the table to find durable
solutions to some of the agency's challenges around multiple-use
management.
III. The proposed rule undermines public participation in the planning
process.
Section 202(f) of FLPMA states that the Secretary ``shall allow an
opportunity for public involvement and by regulation shall establish
procedures, including public hearings where appropriate, to give
Federal, State, and local governments and the public, adequate notice
and opportunity to comment upon and participate in the formulation of
plans and programs relating to the management of the public lands.''
\13\ Accordingly, the BLM's existing regulations pertinent to land use
planning require an opportunity for meaningful public participation in
the preparation of resource management plans and other planning
activities.\14\ Additional regulations provide guidance and management
direction regarding Resource Management Planning specific to issue
identification. The ``identification of issues'' regulation states that
``at the outset of the planning process, the public, other Federal
agencies, State and local governments and Indian tribes shall be given
an opportunity to suggest concerns, needs, and resource use,
development and protection opportunities for consideration in the
preparation of the resource management plan.'' \15\
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\13\ 43 U.S.C. Sec. 1712(f).
\14\ 43 C.F.R. Sec. 1610.2.
\15\ 43 C.F.R. Sec. 1610.4-1 (emphasis added).
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Moreover, FLPMA does not specify or list potential uses on public
lands; rather it directs the BLM to manage for multiple uses, with
special consideration for the Nation's need for domestic sources of
minerals, food, timber, and fiber.\16\ As the U.S. Supreme Court
recognized, multiple use management ``is a deceptively simple term that
describes the enormously complicated task of striking a balance among
the many competing uses to which land can be put[.]'' \17\
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\16\ 43 U.S.C. 1701(12).
\17\ Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004).
---------------------------------------------------------------------------
Prior to this proposed rule, the BLM had not identified any
specific uses in its regulations. Instead, the BLM's regulations were
developed to direct agency managers to solicit input from members of
the public and local stakeholders when developing and prioritizing
potential uses during the planning process.\18\ The proposed rule would
largely take the public out of the resource use identification process
by, for the first time since the passage of FLPMA in 1976,
predetermining what the single priority use would be.
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\18\ 43 C.F.R. Sec. 1610.4-1.
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The existing regulations support and encourage an inclusive,
citizen-based approach to public land management. Whereas the proposed
rule presents a top-down, authoritative approach to public land
management. It is unclear what ``problem'' the BLM is trying to solve
by attempting to cut the public out of important components of the
planning process by adopting this approach. Surely if the BLM believed
that the public supports a single use for public land management guided
exclusively by conservation principles, then development of this
proposed rule would be unnecessary as the current practice of
soliciting public input during the planning process would yield the
same results. The fact that the BLM is inclined to codify a single use
indicates a fear that open public participation may not yield the
results that the current Administration desires. We believe this shift
away from active public participation will ultimately result in flawed
land management decisions and a public that is detached from its public
lands.
IV. The proposed rule violates FLPMA's multiple use mandate and misuses
the term conservation.
As outlined above, neither FLPMA nor existing regulations identify
specific uses for BLM land. The proposed rule constructs a narrative
based on the notion that 1) FLPMA does identify specific uses, 2) those
uses are prioritized in FLPMA, and 3) conservation is among those
existing uses. The Executive Summary asserts that the proposed rule
``clarifies that conservation is a use on par with other uses of the
public lands under FLPMA's multiple-use and sustained-yield
framework.'' This Summary also asserts that ``the proposed rule does
not prioritize conservation above other uses; it puts conservation on
an equal footing with other uses, consistent with the plain language of
FLPMA.'' However, such ``plain language'' simply does not exist in
FLPMA.
Section 103(c) of FLPMA defines ``multiple use'' as ``a combination
of balanced and diverse resource uses that takes into account the long-
term needs of future generations for renewable and nonrenewable
resources, including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic, scientific
and historical values; and harmonious and coordinated management of the
various resources without permanent impairment of the productivity of
the land and the quality of the environment.'' \19\ Neither this
section nor any other section in FLPMA identifies or prioritizes
specific uses. Instead, uses are developed through public engagement
during the planning process, as noted previously. Furthermore, there
are no existing BLM regulations that emphasize any single use--the
proposed rule, if adopted, would represent the first and only time that
the BLM adopts a single use through the regulatory process.
---------------------------------------------------------------------------
\19\ 43 U.S.C. Sec. 1702(c).
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Ultimately, the proposed rule does not propose to clarify any
component of FLPMA, since those components do not exist. Nor is it
proposing to put conservation on ``equal footing'' with other uses,
since no other uses are codified into law or adopted in regulation. The
proposed rule's clarification that ``conservation'' qualifies as a
``use'' under FLPMA is a significant change to the current management
scheme. The BLM can only manage lands for the multiple uses defined in
FLPMA, unless the land has been specifically dedicated for certain
management. The proposed rule's inclusion of conservation as a use
permits the BLM to manage land for conservation purposes, without a
special land use designation. The proposed rule constrains the
multiple-use mandate in FLPMA by defining and listing a single,
priority use: conservation. Therefore, the adoption of the proposed
rule would violate the requirement to manage public lands under the
principles of multiple use under Section 302(a) of FLPMA.
Throughout the proposed rule, the BLM makes additional
proclamations that are simply unsupported by existing law or
regulation. In one instance, the BLM claims that the proposed rule
``identifies and requires practices to ensure that the BLM manages the
public lands to allow multiple uses while retaining and building
resilience to achieve sustained yield of renewable resources.'' Nowhere
in the proposed rule does the BLM even reference uses other than
``conservation,'' let alone identify and require practices that would
ensure their inclusion in future BLM management plans. In fact, Section
III.B. of the proposed rule acknowledges that the BLM has only three
ways to manage for conservation use: (1) protection of intact, native
habitats, (2) restoration of degraded habitats, and (3) informed
decision making, primarily in plans, programs, and permits.\20\ If the
proposed rule were adopted, the BLM managers would not only be shackled
to adhering to a single use, but also to parsing their land base into
distinct categories and applying narrowly defined treatments to each.
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\20\ 88 Fed. Reg. at 19,585.
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It is questionable whether the BLM even has the legal and statutory
authority to designate ``conservation'' as a use. It is Congress who
has provided the BLM with its multiple use and sustained yield
authority, and any new authorities or new uses would require an Act of
Congress. As the U.S. Supreme Court recently stated: ``Agencies have
only those powers given to them by Congress, and `enabling legislation'
is generally not an `open book to which the agency [may] add pages and
change the plot line.' '' W. Virginia v. Env't Prot. Agency, 142 S. Ct.
2587, 2609 (2022). Before FLPMA was enacted, each use was authorized
under other laws like the Mineral Leasing Act of 1920, the Mining Law
of 1872, and the Taylor Grazing Act of 1934. And after FLPMA was
enacted, each time a ``use'' was added to the multiple-use management
scheme under FLPMA, Congress authorized parameters and directed the BLM
to address that use.
Furthermore, conservation itself cannot be appropriately
characterized as a ``use.'' According to the plain reading of the term,
``conservation'' is a purpose or an objective for how another use is
applied. For example, the Cambridge English Dictionary defines the term
``conservation'' as ``carefully using valuable natural substances that
exist in limited amounts in order to make certain that they will be
available for as long a time as possible.'' The Cambridge Dictionary
provides the following sentence as an example of how the term
``conservation'' should be used: ``the main objectives are the
conservation of materials and energy in support of the sustainable
development program.'' \21\ In this example, the use is some type of
development and conservation is the objective that informs the manner
in which that development will be conducted. Other dictionaries
similarly define conservation. The Oxford Languages Dictionary \22\
defines conservation as ``prevention of wasteful use of a resource,''
and the Webster's Third New International Dictionary \23\ defines it as
``the planned management of a natural resource to prevent exploitation,
destruction, or neglect.'' Based on its plain language, conservation is
applied to describe another resource ``use,'' but the term conservation
is not defined as a use.
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\21\ Cambridge English Dictionary, available at https://
dictionary.cambridge.org/us/dictionary/english/conservation.
\22\ Oxford Languages Dictionary, available at https://www.oed.com/
view/Entry/39564? redirectedFrom=conservation#eid.
\23\ Webster's Third New International Dictionary, p. 483 (2002).
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Technical dictionaries are also helpful when interpreting the term
``conservation.'' The Society of American Foresters Dictionary of
Forestry defines conservation as ``the management of a renewable
natural resource with the objective of sustaining its productivity in
perpetuity while providing for human use compatible with sustainability
of the resource.'' \24\ The ``use'' in this definition is the natural
resource being managed for, and the term ``conservation'' refers to the
objective of using that natural resource in a particular way.
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\24\ Deal, Robert, Society of American Foresters Dictionary of
Forestry, p. 36 (2nd ed. 2018).
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Despite the BLM's position to the contrary, conservation in the
context of land management cannot be applied by itself. For example,
conservation of any given acre of land can only be achieved if there is
a specific use being applied to that acre. If that acre is being used
for cattle grazing, conservation could be achieved by limiting the
intensity of that grazing to ensure productivity. If that acre is being
used for timber harvesting, conservation could be achieved by
moderation of the intensity of the harvest and replanting to ensure
long-term forest health and productivity. Land conservation is
attainable under each of these scenarios because that land was being
used; however, the ``use'' could not be defined as ``conservation.''
Conservation absent any other use is not conservation at all, it is
preservation. If BLM's intent in the proposed rule is non-use of public
land, then the word ``conservation'' should be replaced by the word
``preservation'' and defined accordingly.
V. The BLM does not have the authority to create a conservation leasing
program.
Section 6102.4 creates a Conservation Leasing Program, which will
allow conservation leases for either ``restoration or land
enhancement'' or ``mitigation.'' \25\ The proposed rule claims that its
authority to create a conservation leasing program arises under section
302(b) of FLPMA, 43 U.S.C. Sec. 1732(b). According to the proposed
rule, the Tenth Circuit in Greater Yellowstone Coal. v. Tidwell, 572
F.3d 1115, 1127 (10th Cir. 2009) (Greater Yellowstone), has recognized
that section 43 U.S.C. Sec. 1732(b) is considerably broader than the
authority granted in subject-specific provisions. As stated above, it
is questionable whether the BLM has authority to create a leasing
program for conservation as a use.
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\25\ 88 Fed. Reg. at 19,591.
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The BLM's reliance on Greater Yellowstone is misguided and
misleading. In that case, the court primarily discussed the interplay
between special use permits granted under 43 U.S.C. Sec. 1737(b) and
BLM permitting in general under 43 U.S.C. Sec. 1732(b). At issue was a
memorandum of understanding (MOU) between the BLM and the State of
Wyoming. The court held that the BLM did not violate the agency's
permitting regulations under 43 U.S.C. Sec. 1732(b) by authorizing the
State to use BLM lands through a cooperative agreement, the MOU, under
43 U.S.C. Sec. 1737(b). The court merely stated that the applicability
of 43 U.S.C. Sec. 1732(b) is broader than that of 43 U.S.C.
Sec. 1737(b), which is logical because 43 U.S.C. Sec. 1737(b) is only
meant to apply to special uses. See Greater Yellowstone, 572 F.3d 1115,
1127-28. The decision in Greater Yellowstone simply cannot be validly
interpreted as a case that supports the position that the BLM has broad
authority under 43 U.S.C. Sec. 1732(b) to promulgate an entirely new
public land use and leasing program through rulemaking without an Act
of Congress.
More pertinent and illustrative is another Tenth Circuit decision
in Public Lands Council v. Babbitt, holding that a 1995 regulation--
that allowed a permit for a 10-year duration to use public lands for
conservation use to the exclusion of livestock grazing--was not
authorized by any statute and, therefore, was invalid. The court found
that the conservation use was not authorized under the Taylor Grazing
Act, FLPMA, or the Public Rangelands Improvement Act, and that the
primary purpose of the permits had to be a use: livestock grazing.
Public Lands Council v. Babbitt, 167 F.3d 1287, 1308 (10th Cir. 1999).
The court found that the Secretary of the Interior lacked the statutory
authority to issue grazing permits intended exclusively for
conservation use. Further, upon appeal to the Supreme Court, the
Secretary did not seek review of that portion of the Tenth Circuit's
decision. See Public Lands Council v. Babbitt, 529 U.S. 728, 747
(2000). And while the proposed rule, here, claims that the conservation
leases are ``not intended to provide a mechanism for precluding other
uses, such as grazing, mining, and recreation,'' it is hard to imagine
how that will not be the end result.
Even if a conservation leasing program is somehow lawful, the BLM's
proposed rule has several issues. The proposed rule states conservation
leases ``would not override valid existing rights or preclude other,
subsequent authorizations so long as those subsequent authorizations
are compatible with conservation use.'' First, the BLM has failed to
define what is a ``compatible'' use under the conservation leasing
program. There is no assurance that forest management, like treatments
to improve forest health and resiliency, can be considered a
conservation tool and, ultimately, a ``compatible use'' within the
meaning of the proposed rule. Second, the use of the term ``so long
as'' indicates the BLM's clear intent to negate all other uses, in
conflict with FLPMA's multiple-use, sustained yield mandate.
Overall, the proposed rule's conservation leasing program could put
legally valid and ecologically necessary forest management projects at
risk. This would be a perverse outcome that directly conflicts with the
Biden Administration's focus and prioritization of the nation's forest
health and wildfire crisis. Further, the use of a conservation lease
for ``restoration'' or ``mitigation'' will remove operable lands from
BLM's timber sale program. The BLM needs to carefully consider how the
conservation leasing program can be done ``without permanent impairment
of the productivity of the land and the quality of the environment with
consideration being given to the relative values of the resources . . .
.'' \26\
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\26\ 43 U.S.C. Sec. 1702(c).
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VI. The proposed rule does not clarify how the government will receive
fair market value for conservation use.
Section 102(a)(9) of FLPMA requires that the United States receives
fair market value of the use of the public lands and their resources
unless otherwise provided for by statute. The proposed rule seeks input
on fair market value assessment, but only in the context of
conservation leases. The proposed rule lacks direction on how such
values would be assessed for actions or inactions associated with
conservation use outside of leases; nor does it direct how, if
assessed, such value would be received by the government.
Fair market value for tangible uses such as timber or grazing
rights can be determined using a competitive open market system. How
the BLM is to assess the value of the ``protection'' of 100 ``intact''
acres of BLM land through inaction is unclear. Moreover, if the BLM was
able to assess fair market value for those 100 acres set aside from any
other uses, from whom would they receive that value? The proposed
rule's discussion of fair market value generates more questions than
answers, and the BLM must provide greater clarity before finalizing the
rule. The lack of information raises questions about government
accountability, transparency, and proper oversight of any leasing
program and the determination of fair market value for public assets
that are collectively owned by the American people.
VII. The concept of carbon offset credits is misguided and should not
be permitted through conservation leases.
The proposed rule's section 6102.4 discusses FLPMA authorizations
to regulate the use, occupancy, or development of public lands through
leases, and outlines the concept of conservation leases under these
authorizations. Specifically, the proposed rule asks for public comment
on whether the rule should expressly authorize the use of conservation
leases to generate carbon offset credits.\27\
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\27\ 88 Fed. Reg. at 19,591.
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The BLM is asking the wrong question in the proposed rule. The
question should not be whether to authorize the use of conservation
leases to generate carbon offset credits. The question should be
whether the concept of carbon offset credits is an effective strategy
to slow the effects of climate change through increased net carbon
sequestration and decreased net carbon emissions. The effectiveness of
delaying or halting the potential harvest of timber, or the use of
other renewable resources, to enable polluters the ability to continue
to emit greenhouse gases through carbon offset credits is highly
controversial and uncertain--scientifically, economically,
environmentally, and socially--and we urge the BLM to take a hard look
at the many facets of this practice to determine if its expansion to
BLM land is in the public's best interest.
The Intergovernmental Panel on Climate Change's (IPCC) 2022 6th
Assessment reaffirmed the carbon mitigation benefits of sustainable
forest management, the benefits of substituting wood for more carbon
intensive building products, and the potential negative consequences of
policies that reduce sustainable timber harvests as the demand for wood
products shifts to other countries (known as ``leakage'') with less
stringent environmental protections:
carbon storage in wood products and the potential for
substitution effects can be increased by additional harvest,
but with the risk of decreasing carbon storage in forest
biomass when not done sustainably (Smith et al. 2019b).
Conversely, reduced harvest may lead to gains in carbon storage
in forest ecosystems locally, but these gains may be offset
through international trade of forest products causing
increased harvesting pressure or even degradation elsewhere
(Pendrill et al. 2019b; Kastner et al. 2011; Kallio and Solberg
2018).\28\ (emphasis added).
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\28\ IPCC, Climate Change 2022: Impacts, Adaptation, and
Vulnerability. Contribution of Working Group II to the Sixth Assessment
Report of the Intergovernmental Panel on Climate Change, Cambridge
University Press, Cambridge, UK and New York, NY, USA, 3056 pp. (2022).
We urge the BLM to follow the guidance of the IPCC and consider the
effects of sustainable forest management, substitution, and leakage
when determining the effectiveness of carbon offset credits.
A. Sustainable forest management is a more effective tool to sequester
carbon.
Active forest management is more effective in capturing and storing
atmospheric carbon in forest and wood product carbon pools than a
policy of hands-off management that precludes periodic harvests and the
use of wood products. This notion is supported by analysis of the most
recent U.S. Forest Service Inventory and Analysis (FIA) program's
report that summarize differences in growth (and hence sequestration)
between owner types reflecting these different management
strategies.\29\,\30\ This is also consistent with the
findings and recommendations of international scientific bodies,
including the IPCC. In fact, the IPCC's 4th Assessment recognized the
carbon mitigation benefits of forests and wood products:
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\29\ Oswalt, Sonja N., et al., Forest Resources of the United
States, 2017: a technical document supporting the Forest Service 2020
RPA Assessment. Gen. Tech. Rep. WO-97. Washington, DC: U.S. Department
of Agriculture, Forest Service, Washington Office, p. 223 (2019),
available at https://doi.org/10.2737/WO-GTR-97.
\30\ Palmer, Marine et al., Washington's forest resources, 2007-
2016: 10-year Forest Inventory and Analysis report, Gen. Tech. Rep.
PNWGTR-976. Portland, OR: U.S. Department of Agriculture, Forest
Service, Pacific Northwest Research Station, p.79 (2019).
``Mitigation options by the forestry sector include extending
carbon retention in harvested wood products, product
substitution, and producing biomass for bio-energy. This carbon
is removed from the atmosphere and is available to meet
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society's needs for timber, fiber, and energy.''
``In the long term, a sustainable forest management strategy
aimed at maintaining or increasing forest carbon stocks, while
producing an annual sustained yield of timber, fiber or energy
from the forest, will generate the largest sustained mitigation
benefit.''
Other research supports the notion that, if the role of forests in
combatting climate change is to reduce global greenhouse gasses through
maximizing the sequestration of carbon from atmospheric CO2,
then increasing the acreage of young, fast growing small trees is the
most prudent management approach. A 2016 study in the Pacific Northwest
concluded that, although large trees accumulated carbon at a faster
rate than small trees on an individual basis, their contribution to
carbon accumulation rates was smaller on an area basis, and their
importance relative to small trees declined in older stands compared to
younger stands. It also noted that although large trees are important
carbon stocks, they play a minor role in additional carbon
accumulation.\31\
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\31\ Gray, A. N., et al., Carbon stocks and accumulation rates in
Pacific Northwest forests: role of stand age, plant community, and
productivity, Ecosphere 7(1):e01224. 10.1002/ecs2.1224 (2016).
These conclusions support the practice of regular harvests at an
age where tree growth begins to slow, storage of that tree carbon in
long-lasting wood products, and proactive reforestation. A failure to
do so would hamper that acre's ability to maximize carbon sequestration
through the replacement of slow growing large trees with fast growing
small trees and the storage of those large trees in long-lasting wood
products. Not storing that carbon in wood products also poses the risk
of losing the carbon in standing trees from high intensity wildfire,
which is becoming increasingly prevalent on public lands in western
states. A 2022 study estimated that wildfires in California in 2020
emitted 127 million metric tons of carbon into the atmosphere, making
the greenhouse gas (GHG) emissions from wildfires the second most
important source in the state, after transportation.\32\ For context,
the U.S. Forest Service recently disclosed that the agency only
``commercially harvests one tenth of one percent of acres within the
National Forest System each year. Harvests designed to improve stand
health and resilience by reducing forest density or removing trees
damaged by insect or disease make up 86 percent of those acres. The
remainder are final regeneration harvests that are designed to be
followed by reforestation.'' \33\ There is extraordinary opportunity to
increase the practice of sustainable forest management on federal lands
as an effective tool to sequester carbon.
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\32\ Jerrett, Michael, et al., Up in smoke: California's greenhouse
gas reductions could be wiped out by 2020 wildfires. Environmental
Pollution, Volume 310, 2022, 119888,ISSN 0269-7491, available at,
https://doi.org/10.1016/j.envpol.2022.119888.
\33\ 88 Fed. Reg. 24,497 (April 21, 2023).
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Harvesting trees and transferring the stored carbon to wood
products allows a land manager to ``stack'' the sequestration potential
of that land. For example, assume an objective to maximize carbon
sequestration on 100 acres over a 150-year period starting at year
zero. Without active management and timber harvest, those trees would
grow to 150 years and represent the only carbon sequestered on those
100 acres at the end of the 150-year cycle (assuming they don't burn in
a wildfire). Alternatively, the trees could be harvested on a 50-year
rotation and stored in wood products. After 150 years, there would be
carbon stored in an existing 50-year-old stand, plus carbon stored in
wood products from an additional two 50-year-old stands previously
harvested. The figure below illustrates the concept of stacking.\34\
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\34\ McKinley, Duncan C., et al., A synthesis of current knowledge
on forests and carbon storage in the United States, Ecological
Applications, 21(6), pp. 1902-1924 (2011).
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
A 2013 study from the Journal of Sustainable Forestry
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summarized these concepts well:
More CO2 can be sequestered synergistically in the
products or wood energy and landscape together than in the
unharvested landscape. Harvesting sustainably at an optimum
stand age will sequester more carbon in the combined products,
wood energy, and forest than harvesting sustainably at other
ages.\35\
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\35\ Oliver, Chadwick Dearing, et al., Carbon, Fossil Fuel, and
Biodiversity Mitigation With Wood and Forests, Journal of Sustainable
Forestry, 33:3, 248-275 (2014), DOI: 10.1080/10549811.2013.839386.
To further illustrate, Figure 5 shows the volume growth of a
Douglas-fir forest across five different ``site'' growing ground
scenarios.\36\ Basal area is a measurement of the ``volume'' of tree
stems across a given acre. Basal area correlates to carbon
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sequestration as it describes how much tree volume exists.
\36\ McArdle, R. E., et al., The yield of Douglas-fir in the
Pacific Northwest, Technical Bulletin No. 201, Department of
Agriculture, Forest Service (1961).
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Consider the curve for ``Site III.'' At 50 years, that acre has
accumulated about 205 square feet (sq. ft) of basal area. At 150 years,
that acre has accumulated about 325 sq. ft of basal area. If the trees
on that acre were left to grow for 150 years, 325 sq. ft of basal area
and associated carbon would be sequestered by the end of the cycle. If
those trees were cut and replanted every 50 years in a 150-year period,
615 sq. ft worth of basal area and associated carbon would be
sequestered (205 sq. ft x 3=615 sq. ft) by year 150. With this
scenario, a land manager could capture nearly twice as much tree
growth, and sequester nearly twice as much carbon, on a 50-year harvest
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cycle than by leaving those trees to grow for 150 years.
Since basal area is only a measure of tree volume above ground, it
does not account for tree volume below ground in the form of roots.
Root growth is also a form of carbon sequestration. The concept we
applied to above-ground growth could be replicated to below-ground
growth. Consider the scenario where an acre of Douglas-fir is left to
grow for 150 years. At the end of the cycle, there would be one network
of roots below the ground. When trees are harvested the roots are left
underground. So, in the scenario where trees are harvested every 50
years over the 150-year cycle, there will be three root networks
underground at the end of the cycle instead of one. That additional
below-ground growth further contributes to the overall sequestration
capacity of any given acre of land.
B. Leakage.
Leakage occurs when emissions that are prevented in one locale are
simply transferred to another region. Deferred harvests on BLM lands
through the leasing of carbon offset credits will result in reduced
timber supply in the region where those leases are sold. If certain
mills must reduce lumber production due to a lack of available timber,
this lumber production and the related emissions will merely shift to
another state or country to meet domestic demand with additional
transportation-related emissions.
A 2019 study calculated that there is nearly 82 percent leakage in
California from the implementation of its carbon cap-and-trade
program.\37\ That means that 82 percent of the projects do not confer
global greenhouse gas benefits because the emissions occur elsewhere.
Productivity per acre in the Pacific Northwest, where the BLM manages
over 2.5 million acres of forest land, is about 74 percent higher than
the U.S. average and therefore for every acre removed from harvest in
the Pacific Northwest, an average of 3.85 acres with average U.S.
productivity are required elsewhere to fill the void.\38\ If the wood
supply comes from more boreal regions (e.g., Russia and Canada), we can
expect the impact to be even larger.
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\37\ Haya, Barbara and William Stewart, POLICY BRIEF: The
California Air Resources Board's U.S. Forest offset protocol
underestimates leakage (July 12, 2019).
\38\ Oswalt, Sonja N. et al., Forest Resources of the United
States, 2017: a technical document supporting the Forest Service 2020
RPA Assessment, Gen. Tech. Rep. WO-97. Washington, DC: U.S. Department
of Agriculture, Forest Service, Washington Office, p. 223 (2019),
available at, https://doi.org/10.2737/WO-GTR-97.
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C. Substitution.
Substitution occurs when a different product is used in place of
the wood product that is withheld from the market by harvest deferral.
In the case of softwood lumber, this substitution may occur with
concrete, steel, or other composite materials that have much higher
emissions associated with their production--leading to a net increase
in carbon emissions due to the harvest deferral. A 2018 study yielded
results that showed a significant reduction in greenhouse gas emissions
for structures using wood as a building material as opposed to concrete
or steel.\39\ A 2021 study clearly showed the potential of carbon
emission reductions that could be achieved in mass timber construction
compared to the construction of traditional concrete mid- to high-rise
buildings.\40\
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\39\ Laurent, A. B., et al., Comparative Lifecycle Carbon Footprint
of a Non-Residential Steel and Wooden Building Structures. Curr Trends
Forest Res, CTFR-128 (2018).
\40\ Puettmann, M. et al., Comparative LCAs of Conventional and
Mass Timber Buildings in Regions with Potential for Mass Timber
Penetration. Sustainability 2021, 13, 13987 (2021).
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Published displacement and substitution factors are available to
quantify the efficiency of using a wood-based product to reduce
greenhouse gas emissions to the atmosphere compared to a non-wood
alternative product. A 2020 meta-analysis quantified the range of
greenhouse gas benefits of wood substitution and provided a clear
climate rationale for increasing wood substitution in place of other
products, provided that forests are sustainably managed and that wood
residues are used responsibly.\41\ A 2021 study published in The
Journal of Sustainable Forestry used recently published life cycle
assessment data for analysis that compares the carbon consequences of a
`no-harvest' alternative for Pacific Northwest forests to a range of
alternative uses.\42\ They found that accounting for only the harvested
wood products (e.g., no substitution or solid waste disposal site
storage) generates 1.2 times greater benefits than no harvest
alternatives. When substitution is considered, the carbon benefit
increases 1.6 to 5.9 times better than no harvest alternatives,
depending on end uses. These climate mitigation benefits are real,
measurable, and predictable. The BLM must consider and analyze these
factors when assessing the effectiveness of carbon offset credit
leases.
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\41\ Sathre, R. and J. O'Connor, Meta-analysis of greenhouse gas
displacement factors of wood product substitution, Environmental
Science & Policy 13(2): 104-114 (2010).
\42\ Lippke, B., et al., The Plant a Trillion Trees Campaign to
Reduce Global Warming--Fleshing Out the Concept, Journal of Sustainable
Forestry 40(1): 1-31 (2021).
The National Council for Air and Stream Improvement (NCASI)
recently conducted an analysis of the effect of deferred harvests on
carbon storage, carbon sequestration rates, carbon emissions, and costs
in a review document entitled ``NCASI Review of Carbon Implications of
Proforestation.'' \43\ Below is a summary of its findings:
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\43\ NCASI, Review of Carbon Implications of Proforestation (2020),
available at, https://www.ncasi.org/wp-content/uploads/2020/12/
Review_Carbon_Implications_Proforestation_Dec 2020.pdf.
The analysis was based on recent forest inventory data on
private, planted Douglas-fir forests in Oregon and Washington.
One of the scenarios included a 10% reduction in overall
harvest volumes compared to a current baseline, resulting in
extending the average harvest age by 12 years. Emissions from
substitute products were estimated using published displacement
factors, which express the emissions from a non-wood product
per unit of emissions from the use of a comparable wood
product. Positive values indicate that using a non-wood
substitute causes more GHG emissions than using a wood product.
Reported average factors for construction lumber substitutes
range from 0.54 (Smyth et al. 2017) to 1.2 (Leskinen et al.
2018) to 2.1 (Sathre and O'Connor 2010). The deferred harvest
scenario resulted in about a 4.5% reduction in annual net
sequestration rates after considering substitution effects
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(using the most conservative displacement factor).
The NCASI analysis compared net carbon sequestration over 100 years
for four forest management alternatives: proforestation (continuous
forest growth, no timber harvest--essentially what a BLM carbon offset
credit lease would resemble), a 10% reduction in harvest through
extended rotations, the current baseline of forest management practices
on private, planted forests, and a 10% increase in harvest levels
through more active forest management. Table 2 and Figure 8 from the
NCASI review clearly show that alternatives that reduce timber harvests
result in a net reduction in the carbon sequestered in private, planted
Douglas-fir forests in the Northwest.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
We urge the BLM to strongly consider this compendium of
scientific literature and empirical data before concluding that
generating carbon offset credits is an effective way to reduce net GHG
emissions.
VIII. The proposed rule's changes to the designation and protection of
Areas of Critical Environmental Concern violate FLPMA.
Section 202 (c)(3) of FLPMA directs the BLM to give priority to the
designation and protection of areas of critical environmental concern
(ACEC). Section 1610.7-2 of the proposed rule codifies this
prioritization, specifically during the land use planning process, but
also outside of the land use planning process. Subsection (c)(3)
requires managers to actively solicit ACEC ``nominations'' from the
public when developing new plans or revising existing plans. This
subsection also acknowledges that nominations can be submitted and
considered outside of the land use planning process, effectively
creating an open solicitation period for ACEC nominations. Upon
receiving such nominations, the proposed rule allows for ``interim
management'' to be applied until the BLM assesses whether those
nominations are consistent with current RMPs. There is no language in
the proposed rule that requires this ``interim management'' to be
consistent with current RMPs; in fact, it suggests that it may not be
because the BLM would impose it while they ``assess whether the
nomination is consistent with current Plans.'' This open nomination
period and interim management option has the potential to significantly
disrupt ongoing management activities, particularly by those
stakeholders who oppose such activities.
Furthermore, we believe that the authorization to permit ACEC
nominations and establish ``interim management'' that may be
inconsistent with existing Plans violates Section 202 of FLPMA. FLPMA
does not grant the authority to establish ACECs outside of land use
planning. Section 202(a) states that ``[t]he Secretary shall, with
public involvement and consistent with the terms and conditions of this
Act, develop, maintain, and, when appropriate, revise land use plans
which provide by tracts or areas for the use of the public lands.''
\44\ Section 202(c) permits the prioritization of ACECs ``[i]n the
development and revision of land use plans.'' \45\ However, there is no
authorization that allows the BLM to accept ``nominations'' for ACECs
at any time and to establish ``interim management'' that may disrupt
ongoing activities that are consistent with existing RMPs.
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\44\ 43 U.S.C. Sec. 1712(a).
\45\ 43 U.S.C. Sec. 1712(c).
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The proposed rule also seeks to eliminate public notification of
nominated ACECs by removing the existing requirement in current
regulation 1610.7-2(b) that the BLM publish a Federal Register notice
relating to proposed ACECs and allow for 60 days of public comment. The
proposed rule indicates that the 60-day notification process is
redundant with ``other Federal Register publication requirements that
apply to land use planning.'' What the proposed rule fails to
acknowledge is that ACEC nominations that occur outside of the land use
planning process would not be publicly vetted through other Federal
Register publication requirements that apply to land use planning. The
removal of the 60-day public notification period would enable a back
door for ACEC nominations to be adopted free of public review and
participation.
The combination of 1) permitting ACEC nominations outside of the
land use planning process; 2) elimination of the 60-day public comment
period; and 3) the establishment of ``interim management'' that may be
inconsistent with existing RMP direction, would effectively provide an
avenue for any person to disrupt ongoing management activities
consistent with current Plan direction without public participation.
Such actions go far beyond FLPMA's direction to prioritize the
designation of ACECs and violate Section 202 of the Act.
IX. The Economic and Threshold Analysis is flawed; the proposed rule
will likely have a significant material effect on several
facets of the economy.
The BLM determined that the proposed rule did not meet a threshold
established by Executive Order 12866, which requires the Office of
Management and Budget review if a proposed regulation would ``have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.'' We
believe that the single use nature of the proposed rule and the
uncertainty surrounding the management directives associated with that
single use will adversely affect certain sectors of the economy, the
productivity of those economies, competition, and jobs in a material
way. The Threshold Analysis does not consider these effects and,
therefore, concludes incorrectly that the proposed rule is not
economically significant.
The Threshold Analysis asserts that the proposed rule requirements
are consistent with the BLM's mandate to manage the public lands for
multiple use and sustained yield, avoid unnecessary and undue
degradation, and do not appreciably restrict the decision-space
compared to a baseline without the proposed rule. As already discussed,
the proposed rule would establish a new approach of single use
management on BLM land, potentially on millions of acres of public
land. Public input on uses for local management units would be confined
to the conservation framework, and BLM land managers' decision space
would be significantly restricted. The BLM's assertion to the contrary
in its Threshold Analysis reflects a flawed understanding of the
proposed rule, FLPMA, and existing regulations; and its conclusion that
the proposed rule is not economically significant reflects a flawed
understanding of the natural resource economy.
The forest products industry represents the economic and social
fabric of many rural communities in western states. The BLM's timber
programs in Montana, Idaho, and Oregon generate over $800 million in
total economic output and support 3,579 jobs.\46\ Montana, where the
BLM manages 1.3 million acres of forest land, is home to a forest
products industry that is one of the largest components of
manufacturing in the state and employs over 7,200 people, earning $320
million annually.\47\ The economic activity associated with this direct
employment generated additional economic opportunities by relying on
other industries for raw and intermediate inputs and services, thus
indirectly bolstering employment and wages in additional sectors.
Public lands supplied 57 percent of the harvest in 2018. Between 2014
and 2018, one large mill, one plywood plant, and numerous small mills
in Montana closed permanently. Timber processing capacity dropped from
635 MMBF in 2014 to 489 MMBF in 2018.
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\46\ BLM, A Sound Investment for America, (2022), available at,
Socioeconomic Data/Bureau of Land Management (blm.gov).
\47\ Morgan, Todd A., Montana's Forest Industry Employment and
Income Trends, Declining Harvest Volumes and Increasing Productivity,
Bureau of Business and Economic Research, University of Montana. Forest
Industry Technical Report No. 8 (2018).
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The BLM manages 770,000 acres of forest land in Idaho. More than
12,700 workers were directly employed by Idaho's forest industry during
2019, with 9,350 in primary and secondary wood products and paper
manufacturing, 2,200 in forestry and logging, and 1,100 in forestry
support activities. Together, these workers earned about $1.03 billion
during 2019.\48\
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\48\ Simmons, Eric A., et al., Timber Basket of the Interior west:
Idaho's Forest Products Industry and Timber Harvest, Forest Industry
Research Program, University of Montana (2019), available at, http://
www.bber.umt.edu/pubs/forest/fidacs/ID2019%20Tables.pdf.
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In Oregon, where the BLM manages over 2.5 million acres of forest
land, the forestry sector generates over $18 billion in output, over
71,000 jobs, and over $8 billion in state gross domestic product. For
every one million board feet of timber harvested on BLM lands in
western Oregon, 13 local non-federal jobs are created or maintained,
and an estimated $647,000 of non-federal employment income is
introduced into local economies.\49\ The total economic contribution
from the BLM's timber harvest is greater than employment income alone.
In 2019, BLM timber sales contributed approximately $625 million to
Oregon's economy.
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\49\ USDI, BLM, PRMP/FEIS for the RMPs for Western Oregon; Volume
2. Table 3-181, pp. 778 (2016).
Technical reports from both 2010 \50\,\51\ and 2012 \52\
completed for the Forest Service determined, among other things, that:
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\50\ Hayes, Steven W., et al., Montana's forest products industry
and timber harvest, 2018. Resour. Bull. RMRS-RB-35. Fort Collins, CO:
U.S. Department of Agriculture, Forest Service, Rocky Mountain Research
Station. 54 p. (2021), available at, https://doi.org/10.2737/RMRS-RB-
35.
\51\ Ince, P.J.; et al., U.S. forest products module: a technical
document supporting the Forest Service 2010 RPA assessment. Res. Pap.
FPL-RP-662. Madison, WI: U.S. Department of Agriculture, Forest
Service, Forest Products Laboratory. 61 p. (2011).
\52\ Skog, Kenneth E., et al., Status and Trends for the U.S.
Forest Products Sector: A Technical Document Supporting the Forest
Service 2010 RPA Assessment. General Technical Report FPL-GTR-207.
Madison, WI: U.S. Department of Agriculture, Forest Service, Forest
Products Laboratory. 35 p. (2012).
The forest products sector helps sustain the social,
economic, and ecological benefits of forestry in the United
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States.
Product revenues sustain economic benefits that include
jobs and income.
Ecological and social benefits can be supported by timber
revenue to landowners that help keep land in forests and by
forest treatments that can help maintain ecological
functions.
Wood products fulfill fundamental needs per capita and
have remained competitive with alternate means of meeting
those needs.
U.S. lumber production and demand are expected to increase
through 2040.
Impacts to the economies in these states caused by reductions to
federal timber supply are well documented. In March 2019, Swanson
Group, which has been a family operated company since 1951, was forced
to permanently close its sawmill in Glendale, Oregon. According to a
Random Lengths report, Swanson said the closure was necessitated by log
supply constraints forced on the company by federal timber policy.\53\
In 2016, after over 90 years in business, Rough & Ready permanently
closed its sawmill in Cave Junction, Oregon, representing the last
sawmill in Josephine County. In 1975, the county boasted 22 sawmills.
By 2003, that number dropped to six. Today, there are zero. In an
interview with the newspaper The Oregonian, the family-owned mill's co-
owner cited a lack of federal timber supply for the closure despite the
fact that 80 percent of the forest land surrounding the mill is
federally managed. The closure resulted in the loss of 85 jobs in a
town with a population of less than 2,000.\54\
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\53\ Timber Industry News, Swanson Group to permanently close its
Glendale sawmill (March 14, 2019), available at, https://
www.timberindustrynews.com/swanson-group-permanently-close-glendale-
sawmill/.
\54\ Oregon Live, Closure of Rough & Ready mill in Josephine County
highlights logging stalemate in Congress (April 19, 2013), available at
https://www.oregonlive.com/environment/2013/04/
closure_of_rough_ready_in_mill.html.
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The management paradigm outlined in the proposed rule would result
in highly uncertain outputs from BLM managed land. Those outputs
comprise the raw material that forms the foundation of the rural
economies in Oregon, Idaho, and Montana that we outline above. This
uncertainty is a function of the single use nature of the proposed rule
and the directives to attain this use outlined in the proposed rule.
Since FLPMA was enacted, the BLM managed its lands based on the
principle of multiple use with local public input used to identify and
prioritize those uses. If finalized, this rule would lead the BLM down
an entirely new path where outputs and benefits from BLM land would be
entirely a function of how ``conservation'' is interpreted and applied
by each BLM managing unit. This uncertainty is exacerbated by
directives for ``protection of intact landscapes'' and ``restoration''
described in sections 6102.1, 6102.2, and 6102.3. These sections
essentially divide BLM lands into two categories: those that are intact
and those that are not. The management, or lack thereof, of these lands
would be driven exclusively by either the protection and maintenance of
intactness or the need to apply restoration to achieve intactness.
Under this paradigm, an acre of BLM forest land, for example, may
be identified as ``not intact'' and in need of intermediate timber
harvest to ``restore'' its intactness or identified as ``intact'' but
in need of intermediate timber harvest to ``protect'' its state. The
timber outputs from those treatments would be a function of the level
of restoration or protection warranted, and therefore unknown. Another
acre may be identified as ``intact'' and not in need of any active
management. Timber outputs from that acre would be zero.
If this proposed rule is finalized, the impact to the level of
timber outputs from BLM managed forest land would be highly uncertain
due to the impetus for management being solely based on intactness.
Only after BLM managers assess whether their managed land is intact or
not intact could they estimate the level of timber supply available to
local economies as an output from either restoration or protection
treatments. And that estimate would be unpredictable as conditions
change with fluctuating environmental stressors. Notable decreases from
the current output levels or erratic and unpredictable outputs would
alter the regional flow of timber supplies, disrupt local milling
infrastructure, and cause domestic timber supply shortages (some of
these impacts are further discussed in our section regarding leakage).
The BLM's conclusion that the proposed rule would not cause
uncertainty and disruptions to the flow of timber products off BLM
lands surrounding these rural communities that would amount to material
adverse effects is baseless. This conclusion ignores the empirical data
cited above that clearly links economic outputs and employment to
timber product outputs from local sources. It also ignores the evidence
that reductions in federal timber supply cause strains on competition
that force mills to reach far beyond their historic purchasing circle,
impacting neighboring regions.
X. The effects of the proposed rule warrant the preparation of an
Environmental Assessment or Environmental Impact Statement.
The proposed rule fails to comply with NEPA. NEPA requires federal
agencies to prepare an Environmental Impact Statement (EIS) for all
``major Federal actions'' that may significantly affect the quality of
the human environment. 42 U.S.C. Sec. 4332(C). NEPA's requirement ``is
a deliberate command'' that applies to all major federal actions,
subject to limited exceptions.\55\
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\55\ Cape Hatteras Access Preservation All. v. U.S. Dep't of
Interior, 344 F. Supp. 2d 108, 134 (D.D.C. 2004) (citation omitted).
---------------------------------------------------------------------------
The proposed rule indicates that the BLM intends to apply the
Department Categorical Exclusion (CX) at 43 C.F.R. Sec. 46.210(i) to
comply with NEPA. However, the BLM cannot rely on a CX if
``extraordinary circumstances in section 46.215 apply.'' \56\ Because
the proposed rule has ``highly controversial environmental effects,''
has ``highly uncertain and potentially significant environmental
effects or involve unique or unknown environmental risks,'' and
violates FLPMA, the O&C Act, and potentially other federal laws, the
BLM was required to prepare an Environmental Assessment (EA) or
EIS.\57\
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\56\ 43 C.F.R. Sec. 46.210.
\57\ See 43 C.F.R. Sec. 46.215.
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As outlined above, we believe that the outcomes stemming from this
single use mandate are highly uncertain and present a high likelihood
of negative repercussions to natural resource-based economies and the
livelihoods of the rural communities that depend on them.
CEQ's NEPA implementation regulations indicate that EISs may be
prepared for programmatic Federal actions, such as the adoption of new
agency programs.\58\ The sweeping nature of this proposed rule and the
scope of its implementation across 245 million acres of BLM managed
land warrant its classification as a new agency program. Shifting the
agency's current multiple use mandate toward a single use directive of
``conservation'' across such a large expanse of land and the creation
of conservation leases signifies a ``new program.''
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\58\ 40 C.F.R. Sec. 1502.4(b).
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Under NEPA, the BLM was required to address the proposed rule's
significant environmental impacts and consider reasonable alternatives
in an EIS or, at a minimum, an EA.\59\ The BLM, however, has done
neither. The BLM's failure to take a ``hard look'' at the environmental
impacts of the proposed rule is arbitrary and capricious, an abuse of
discretion, and contrary to the procedural requirements of NEPA and the
Administrative Procedures Act.\60\
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\59\ 42 U.S.C. Sec. 4332(2)(C).
\60\ 5 U.S.C. Sec. 706(2); 42 U.S.C. Sec. 4332(2)(C).
---------------------------------------------------------------------------
In sum, the proposed rule is as a major federal action, as defined
by existing regulations, and extraordinary circumstances present
preclude the BLM from relying on a CX and, therefore, warrant the
preparation of an EA or EIS.\61\
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\61\ 40 C.F.R. Sec. 1508.1(q).
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XI. The proposed rule has been pushed forward in a manner inconsistent
with FLPMA's state and local government coordination
requirements.
Section 202(c)(9) of FLPMA requires the Secretary of the Interior
to coordinate ``the land use inventory, planning, and management
activities of or for such lands with the land use planning and
management programs of other Federal departments and agencies and of
the States and local governments.'' \62\ In coordinating, the BLM must
consider the ``policies of approved State and tribal land resource
management programs.'' \63\ The requirement to ``coordinate'' requires
that the BLM treat the land use planning and management activities of
State and local governments on par with its own and harmonize the BLM's
land use inventory, planning, and management activities with the
activities of State and local governments ``to the extent consistent
with the laws governing the administration of the public lands.'' This
coordination requirement is broad and applies to regulations,
directives, policies and guidance documents that impact land and
resource planning and management.
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\62\ 43 U.S.C. Sec. 1712(c)(9).
\63\ 43 U.S.C. Sec. 1712(c)(9).
---------------------------------------------------------------------------
In order to properly coordinate with State and local governments,
the Secretary must: ``to the extent [the Secretary] finds practical,
keep apprised of State, local, and tribal land use plans,'' ``assure
that consideration is given to those State, local, and tribal plans
that are germane in the development of land use plans for public
lands,'' ``assist in resolving, to the extent practical,
inconsistencies between Federal and non-Federal Government plans,'' and
``provide for meaningful public involvement of State and local
government officials, both elected and appointed, in the development of
land use programs, land use regulations, and land use decisions for
public lands, including early public notice of proposed decisions which
may have a significant impact on non-Federal lands.''
AFRC has several members that are county governments. It is clear
that the BLM did not coordinate with these local governments in the
development of the proposed rule and, therefore, violated FLPMA.
XII. Conclusion.
In conclusion, AFRC is hopeful that management of all BLM land
directed by FLPMA will remain guided by active public participation
based on the principles of multiple use. We are deeply concerned that
adoption of this proposed rule as it is currently structured will
undermine both public participation and multiple use, traditions and
values that the American public expects.
We urge the BLM to withdraw the proposed rule, or, at a minimum,
engage in a more inclusive and transparent process that would start
with an advanced notice of proposed rulemaking that clearly outlines
what ``problem'' the BLM is seeking to solve, what outcome the BLM is
hoping to achieve, and what information the government is lacking and
seeking to obtain from the public, issue experts, and interested
stakeholder groups. In no case should the proposed rule move forward
without addressing the specific policy and legal concerns and
objections outlined above.
Sincerely,
Travis Joseph,
President/CEO
______
The Chairman. Again, thank you to the witnesses for being
here today.
Members of the Committee may have some additional questions
for our witnesses, and we will ask that they respond to these
in writing. Under Committee Rule 3, members of the Committee
must submit questions to the Committee Clerk by 5 p.m. on
Wednesday, June 21, 2023. The hearing record will be held open
for 10 business days for these responses.
If there is no further business, without objection, the
Committee on Natural Resources stands adjourned.
[Whereupon, at 1:31 p.m., the Committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Fulcher
June 14, 2023
Hon. Deb Haaland, Secretary
U.S. Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
Re: Bureau of Land Management Proposed Rule, Conservation and Landscape
Health
Dear Secretary Haaland:
On April 3, 2023, the Bureau of Land Management (``BLM'') released
a proposed rule for ``Conservation and Landscape Health'' (the
``Proposed Rule''). This Proposed Rule, if adopted, could fundamentally
alter the future management of BLM lands to the detriment of
recreation, livestock grazing, mineral extraction, renewable energy
production, and other common uses on BLM lands. In 1976, Congress
declared in the Federal Land Policy and Management Act (``FLPMA'') that
the BLM must manage its lands ``on the basis of multiple use and
sustained yield.''\1\ Yet this Proposed Rule seeks to define
``conservation'' as a ``use'' within FLPMA's multiple use framework.\2\
This reframing of the term ``multiple use'' would contravene FLPMA and
violate Federal case law in Public Land Council v. Babbitt, where the
10th Circuit Court of Appeals found that the BLM lacks the statutory
authority to prioritize conservation use to the exclusion of other
uses.\3\ The Proposed Rule could push BLM lands into a protection-
oriented management regime more akin to the National Park Service than
an agency statutorily obligated to promote multiple use and sustained
yield.
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\1\ 43 U.S.C. 1701(a)(7).
\2\ 88 Fed. Reg. 19583.
\3\ See Public Lands Council v. Babbitt, 167 F. 3d 1287 (10th. Cir.
1999), where the 10th Circuit held that the BLM could not issue a
grazing lease for the purpose of conservation.
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We oppose the Proposed Rule and urge the BLM to start over,
withdraw its proposal, and instead focus its efforts on working closely
with states, local governments, and stakeholders on rulemaking that
will truly enhance active management and actual conservation of BLM
lands within the framework of multiple use and sustained yield.
National Environmental Policy Act
We anticipate the Proposed Rule would have a significant impact on
the environment, thus warranting analysis through an environmental
impact statement under the National Environmental Policy Act
(``NEPA''). However, the BLM has declared that the Proposed Rule's
``environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis'' \4\ and thus the Proposed Rule
will be categorically excluded from NEPA analysis. Federal case law
requires the BLM to ``adequately explain its decision'' ``[w]hen an
agency decides to proceed with an action in the absence of an EA or
EIS''.\5\ BLM's rationale for using a categorical exclusion does not
adequately explain its position.
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\4\ 88 Fed. Reg. 19583, at 19596.
\5\ Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir. 2007).
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The decision to categorically exclude from NEPA the Proposed Rule,
which has such far-reaching implications, is a peculiar choice for the
BLM when other major BLM rulemaking efforts are being analyzed under
NEPA. For example, the BLM's ongoing rulemaking for its revised grazing
regulations includes a full environmental impact statement--with states
and counties able to participate in the cooperating agency process and
provide input and cooperation. The environmental impact statement for
the BLM grazing regulations will be subject to the Council on
Environmental Quality NEPA requirement that an environmental impact
statement include a discussion of ``[p]ossible conflicts between the
proposed action and the objectives of Federal, regional, State, Tribal,
and local land use plans, policies and controls for the area
concerned.'' \6\ This requirement will give states and counties the
opportunity to identify conflicts between the BLM's proposed grazing
rule and their respective state and county resource management plans.
Unfortunately, no such opportunity will exist for the Proposed Rule
since the BLM is not preparing an environmental impact statement.
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\6\ 40 C.F.R. Section 1502.16(a)(5)
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The BLM's Proposed Rule could impact the environment in many ways.
One salient example is vegetation treatments, which the BLM currently
uses to improve rangelands for both wildlife and livestock while
reducing the risk of catastrophic wildfires. The Proposed Rule could,
depending on implementation, seriously inhibit the BLM's ability to
conduct vegetation treatments on BLM land due to the Proposed Rule's
focus on protecting ``intact landscapes.'' Thus, the Proposed Rule
could have a tremendously negative impact on native plant species,
watersheds, and air quality if adopted. The potential for severe
environmental consequences of the Proposed Rule clearly warrants
analysis through an environmental impact statement. States, local
governments, and stakeholders deserve the opportunity to have their
voices heard through the cooperating agency process included in the
development of an environmental impact statement.
Existing Conservation on BLM Lands
Tens of millions of acres of BLM lands across the western Unites
States are already protected under strict Federal designations such as
national monuments, wilderness areas, wilderness study areas, areas of
critical environmental concern, etc. That acreage is in addition to
millions of acres of other protected, non-BLM public lands such as
national parks, U.S. Forest Service wilderness areas, and U.S. Forest
Service inventoried roadless areas. Of the remaining BLM lands still
open to multiple use, there is still a very high bar set before any
kind of surface disturbing activities can be authorized, and many
barriers to development in existing BLM resource management plans. In
short, the Proposed Rule seems to be a solution in search of a problem
when so much BLM land in the western United States is already under
strict Federal protection.
The Proposed Rule seems to misinterpret the very notion of
conservation. Conservation is not a hands-off ``use'' that excludes
more active uses. Conservation is an essential element of the regular
activities, best management practices, and proper stewardship that
occur on BLM land every day. Conservation, by its plain meaning,
encompasses the stabilization of eroding stream banks, predator control
to protect threatened and endangered species, removing encroaching
pinyon and juniper trees to restore healthy sagebrush rangelands,
reclamation work on former mining sites, adaptive grazing systems to
better conserve native plants, improved fencing to protect riparian
areas, controlled burns to reduce fuel loads, installation of wells and
pipelines to provide water to native wildlife, wildfire suppression,
enhancements to recreational infrastructure that reduce the impacts of
visitation, and so much more. The way to enhance conservation on BLM
lands is to promote the multiple use of those lands and encourage the
principles of conservation in all of those uses. A new BLM rule
designed to exclude productive and sustainable uses on BLM land will
only contravene the principles of conservation.
Specific Provisions
1610.7-2--Areas of Critical Environmental Concern \7\
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\7\ 88 Fed. Reg. 19596.
Areas of Critical Environmental Concern (``ACECs'') are special
land designations created by Congress under FLPMA that allow the BLM to
determine what special management attention is needed to protect
important historical, cultural, and scenic values. While the BLM must
prepare and maintain inventoried lands that may qualify as ACECs, the
designation of those ACECs can only occur when the BLM adopts or amends
the relevant resource management plan (``RMP''). Congress specifically
prohibited the BLM from changing management of lands that may qualify
for ACEC designation until the official designation of the ACEC in a
BLM RMP.\8\ FLPMA states that ``[t]he preparation and maintenance of
such inventory or the identification of such areas shall not, of
itself, change or prevent change of the management or use of public
lands.'' \9\ Prior to ACEC designation, states, counties, and the
public have various opportunities to weigh in on whether the potential
ACECs should be designated or receive any change in management.
---------------------------------------------------------------------------
\8\ 43 U.S.C. 1711(a).
\9\ Id.
---------------------------------------------------------------------------
The BLM's Proposed Rule would flip the principle on its head, in
direct violation of FLPMA. The Proposed Rule states that if ACEC
nominations are received outside of the land use planning process,
``interim management may be evaluated, considered, and implemented to
protect relevant and important values until the BLM completes a
planning process to determine whether to designate the area as an
ACEC'' (emphasis added).\10\ In short, the Proposed Rule would allow
the BLM to start managing potential ACECs in their inventories as ACECs
without going through the planning process and without any input from
states, local government, or the public. This ``interim management''
would constitute a clear violation of FLPMA if it resulted in a
``change of the management or use of public lands'' prior to formal
designation.\11\
---------------------------------------------------------------------------
\10\ 88 Fed. Reg. 19596.
\11\ Supra, note 7.
---------------------------------------------------------------------------
Historically, ACEC designations have been used judiciously by the
BLM in western states, with full consideration given to the concerns of
states, local governments, and stakeholders. Existing ACECs are spread
throughout western states and are limited to relatively small areas. If
the Proposed Rule is adopted, we anticipate a tremendous expansion of
lands managed with ACEC-level protections after being nominated by
members of the public and placed under ``interim management'' outside
of the formal ACEC designations process.
6102.1--Protection of Intact Landscapes \12\
---------------------------------------------------------------------------
\12\ 88 Fed. Reg. 19599.
The Proposed Rule introduces a new concept to BLM land management--
the protection of ``Intact Landscapes.'' Intact landscapes would be
---------------------------------------------------------------------------
defined as:
``. . .an unfragmented ecosystem that is free of local
conditions that could permanently or significantly disrupt,
impair, or degrade the landscape's structure or ecosystem
resilience, and that is large enough to maintain native
biological diversity, including viable populations of wide-
ranging species. Intact landscapes have high conservation
value, provide critical ecosystem functions, and support
ecosystem resilience.'' \13\
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\13\ 88 Fed. Reg. 19598.
The Proposed Rule would then require the BLM to identify intact
landscapes on public lands, and manage these lands to protect them
``from activities that would permanently or significantly disrupt,
impair, or degrade the structure or functionality of intact
landscapes.'' \14\ While the specific activities that would harm these
intact landscapes are not identified in the Proposed Rule, we are
concerned that different forms of multiple use such as conifer removal
projects, livestock grazing, renewable energy development, mining, oil
and gas exploration, road improvements, dispersed camping, and many
other activities could be deemed to ``disrupt, impair, or degrade'' in
different situations. Management of intact landscapes under the
Proposed Rule will likely threaten many of the activities currently
occurring on BLM lands.
---------------------------------------------------------------------------
\14\ 88 Fed. Reg. 19599.
---------------------------------------------------------------------------
For example, enormous swaths of BLM land in the United States could
fall under the vague category of ``intact landscapes.'' Approximately
244 million acres of surface estate in the western United States falls
under the BLM's domain, with resilient ecosystems that include viable
populations of wide-ranging species and biological diversity. Western
BLM lands cover vast, unbroken stretches of ground, contiguous with
other parcels of public land. The majority of that land could,
arguably, provide high conservation value, critical ecosystem
functions, and support ecosystem resilience. In fact, it is conceivable
that almost all of the West's BLM land could qualify as ``intact
landscapes'' under the BLM's vague and overly-broad definition. If the
Proposed Rule is implemented, much of the West's remaining multiple use
land could be subject to new management restrictions for intact
landscapes--a significant departure from FLPMA's intent.
The healthy condition of BLM land in much of the western United
States gives credit to the ranchers, hunters, recreationists, and
others who use BLM lands responsibly and sustainably, often working to
leave the landscape in better condition for future users. In some parts
of the West, mining, oil, and gas companies have invested significant
sums to reclaim and restore lands to previous ecosystem functionality
and biodiversity. Healthy populations of native wildlife on BLM land
give credit to state wildlife managers and their partners. And it also
gives credit to the Federal, state, and local partners who have worked
over the decades to improve watersheds and rangeland health through
active management. The Proposed Rule's proposed restrictions on
``intact landscapes'' could ultimately punish westerners for being good
stewards of the land.
Fear of this unintended punishment accompanies the Proposed Rule in
many similar states. The types of active management most needed to
restore or improve landscape health could be disallowed in the pursuit
of the BLM's new protections for ``intact landscapes.''
6102.4--Conservation Leases \15\
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\15\ 88 Fed. Reg. 19600.
Under the Proposed Rule, the BLM will be able to grant a
``conservation lease'' to individuals, environmental advocacy groups,
businesses, non-governmental organizations, or Tribal governments.\16\
States and local governments appear to be excluded. Conservation leases
will be issued to ensure ``ecosystem resilience'' and to protect,
manage, and restore natural environments, cultural or historic
resources, or ecological communities.\17\ There do not appear to be any
size limitations on lands placed under a conservation lease, which can
last for up to 10 years.\18\ Other than valid existing rights, the BLM
will not authorize any other uses on the leased lands that are
inconsistent with the purpose of the conservation lease.\19\ Only
``casual use'' by the public of the leased lands will be allowed
without specific BLM authorization.\20\ Potential costs for
conservation leases are not included in the Proposed Rule.
---------------------------------------------------------------------------
\16\ Id.
\17\ Id.
\18\ Id.
\19\ Id.
\20\ Id.
---------------------------------------------------------------------------
Allowing environmental organizations, businesses, or members of the
public to lease public lands for the exclusion of other uses runs
completely contrary to the principles of multiple use and sustained
yield. Public lands are intended to be just that--open to the public,
not available for environmental organizations to rent to the exclusion
of others. If the BLM ``shall not authorize any other uses of the
leased lands that are inconsistent with the authorized conservation
use,'' (emphasis added) \21\ the States are very concerned that
activities such as vegetation management, livestock grazing, hunting,
dispersed camping, road improvements, or other activities could be
considered ``inconsistent'' and disallowed from leased lands. Allowance
of conservation leases could allow wilderness advocacy organizations to
lease large swaths of BLM land and essentially impose de facto
wilderness on public lands without congressional approval. States and
counties are not only excluded from holding conservation leases, but do
not appear to have any role in the BLM approval process for a
conservation lease. Nor is there any indication that the BLM would need
to analyze the potential impacts of a proposed lease under NEPA.
---------------------------------------------------------------------------
\21\ Id.
---------------------------------------------------------------------------
While there could be some value in a program for states or local
governments to hold conservation leases on BLM lands (for example, it
could be beneficial if a state agency could hold a conservation lease
on a BLM site where it was conducting a vegetation project in order to
meet the objectives of the project) the Proposed Rule does not appear
to allow for any kind of state or local government involvement in
conservation leasing.
The BLM's mandate is to accommodate a variety of uses for the
public's benefit. This balance, though often difficult to achieve,
works well across much of the BLM lands in the western United States,
where activities such as motorized recreation, livestock grazing,
hunting, and mountain biking, often occur on the same parcel of land
without conflict, and where energy or mineral development can occur
with little if any impact on the surrounding landscape. The BLM must
find ways to work with states, counties, and local partners to better
achieve this balance rather than allowing outside organizations to
dictate what occurs on public land.
Subpart 6103--Tools for Achieving Ecosystem Resilience \22\
---------------------------------------------------------------------------
\22\ 88 Fed. Reg. 19603.
The Proposed Rule requires the BLM to use standards and guidelines
for land health in their land use plans.\23\ While the Proposed Rule
appears to allow some local flexibility for the development of specific
standards, the Proposed Rule states that the BLM must manage ``all
lands and program areas to achieve land health.'' \24\ This provision
could have negative ramifications for a number of uses, such as solar
energy, wind farms, geothermal development, mines, oil and gas wells,
or transmission lines. While the State and BLM share the goal of
maintaining healthy lands, the BLM's multiple use mandate must allow
for intensive surface disturbing activities in some locations,
activities that will likely conflict with a mandate to achieve land
health on ``all lands.'' Some uses of BLM land, such as transmission
lines, renewable energy projects, and mining of critical minerals, are
essential for America to expand emerging technologies and ensure energy
security. Such uses may become extremely difficult, if not impossible,
to site on BLM lands under an ``all lands'' approach to land health
standards. The BLM must consider a more flexible approach to land
health standards that allows for a broader array of uses, including
some with surface-disturbing impacts.
---------------------------------------------------------------------------
\23\ Id.
\24\ Id.
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Conclusion
The continuation of multiple use and sustained yield mandates for
BLM lands is essential for our states. Western states will struggle to
grow and thrive without the flexibility and balance Congress requires
in BLM land management. We urge the BLM to set aside the Proposed Rule
in favor of a new, collaborative process with states, local
governments, and stakeholders coming to the table.
Sincerely,
Governor Spencer Cox Governor Brad Little
State of Utah State of Idaho
Governor Greg Gianforte Governor Joe Lombardo
State of Montana State of Nevada
Governor Kristi Noem Governor Mark Gordon
State of South Dakota State of Wyoming
______
Submissions for the Record by Rep. Curtis
June 20, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
On behalf of the Motorcycle Industry Council \1\ (MIC), Specialty
Vehicle Institute of America \2\ (SVIA), and Recreational Off-Highway
Vehicle Association \3\ (ROHVA)--together referenced as the
Associations, I write in support of H.R. 3397, To require the Director
of the Bureau of Land Management to withdraw a rule of the Bureau of
Land Management relating to conservation and landscape health.
---------------------------------------------------------------------------
\1\ The Motorcycle Industry Council (MIC) is a not-for-profit,
national trade association representing several hundred manufacturers,
distributors, dealers and retailers of motorcycles, scooters,
motorcycle parts, accessories and related goods, and allied trades.
\2\ The Specialty Vehicle Institute of America (SVIA) is the
national not-for-profit trade association representing manufacturers,
dealers, and distributors of all-terrain vehicles (ATVs) in the United
States. SVIA's primary goal is to promote safe and responsible use of
ATVs.
\3\ The Recreational Off-Highway Vehicle Association (ROHVA) is a
national, not-for-profit trade association formed to promote the safe
and responsible use of recreational off-highway vehicles (ROVs--
sometimes referred to as side-by-sides or UTVs) manufactured or
distributed in North America. ROHVA is also accredited by the American
National Standards Institute (ANSI) to serve as the Standards
Developing Organization for ROVs. More information on the standard can
be found at https://rohva.org/ansi-standard/.
As you are aware the BLM's proposed rule titled, ``Conservation and
Landscape Health,'' proposes changes that are too broad in nature and
sweeping in scope to realistically be implemented, or even understood
in totality. It is impossible to understand how a brand-new
conservation leasing program will work when at the same time, a newly
defined ``conservation'' is being elevated to a use on equal footing
with other uses. We also believe that some of the proposed changes to
the management of BLM lands are foundational changes not envisioned by
Federal Land Policy and Management Act (FLPMA) and are convinced that
the proposals taken in total warrant Congressional action to implement
---------------------------------------------------------------------------
as a whole.
As a result, we urge the Committee to report H.R. 3397, and for the
full House of Representatives to quickly take up and pass the
legislation.
Please see the attached comments the Associations prepared for
submission to the BLM which outline our concerns with the proposed rule
in more detail.
Thank you for your consideration.
Sincerely,
Senior Vice President Government Relations
Motorcycle Industry Council
Recreational Off-Highway Vehicle Association
Specialty Vehicle Institute of America
[all]