A New Vision for Public Lands

State of Wyoming v. U.S. Dep’t of the Interior Confused Agency Overlap with Preclusion: BLM Had Authority to Promulgate the Fracking Rule for Public Lands, Not Tribal Lands

This chapter traces the developments leading to the formation of the modern Bureau of Land Management (BLM) across multiple presidencies. At the time, the Kennedy and Johnson administrations enthusiastically supported revamping how the BLM was to manage the public lands under its care. Here, the chapter introduces the Public Land Law Review Commission (PLLRC), which studies and recommends reforms in the nation's laws dealing with public lands (other than military lands and those in the national park system). It also takes a look at the Federal Land Policy and Management Act of 1976, or FLPMA, which incorporated many of the PLLRC's recommendations. The Federal Land Policy and Management Act began with a policy declaration once again reaffirming that public lands managed by the BLM “be retained in Federal ownership,” except under very narrow circumstances. It directed that BLM-managed public lands be managed on a “multiple use” and “sustained yield” basis. The 1979 “sagebrush rebellion” and subsequent developments in the West are also covered.

This article examines the organizational reputation of the Bureau of Land Management (BLM) using Daniel Carpenter’s reputation and power theory as a theoretical and methodological base. Federal Land Policy and Management Act (FLPMA) is utilized to guide and organize case selection, as it is the legal mandate behind BLM authority and represents the fullest extent of the agency’s activities. The findings of this case study indicate that the BLM has a negative reputation in all but the legal-procedural dimension. Three implications are identified: (a) FLPMA serves only to define the procedural-legal aspect of public planning process, (b) the inability of FLPMA to define a purpose to public lands management has its root in the large scope of activity required of the BLM by FLPMA, and (c) finally, retention has placed the BLM and the federal government in a precarious position of an owner rather than custodian of the public lands.

Lands with Wilderness Characteristics, Resource Management Plan Contraints and Land Exchanges: Cross-Jurisdictional Management and Impacts on Unconventional Fuel Development in Utah's Uinta Basin

In this timely and compelling work, John L. Smith skillfully engages the numerous and diverse factors at play in what he appropriately refers to as the endless war over public lands in the American West. While his focus is ostensibly on Cliven Bundy and his family's contentious relationship with the federal government, Smith uses Bundy to expose how one case about grazing rights—albeit a dramatic and famous one—can represent the complex and often bitter interaction between westerners and Washington, DC over federal land management. In so doing, Smith tackles a bevy of issues, including the rise of conservatism in the West that manifested during the 1980s as the Sagebrush Rebellion, the growing impact that “an age of social-media celebrity, YouTube stardom, citizen journalism” has had in aggravating political divides, and the rise of militias and extremism that have militarized public discourse (xv).Smith knows the topic and his subjects well, which is a significant strength of the book. As a native Nevadan and journalist who covered the Bundy battle with the federal bureaucracy for several years and for various news outlets, Smith demonstrates command of the material and an intimacy with those most closely involved in the story. His familiarity with the Bundy clan presents an opportunity to cover not only the public but also the more personal side of Cliven and his sons, principally through use of interviews and personal testimonies the Bundys used to promote their side of the eventual conflict. Smith also paints vibrant portraits of other people involved in the standoff and in the larger frame of local and federal relations. For instance, he includes an insightful chapter on former Senator Majority Leader Harry Reid.Smith's biography of Reid is an example of the author at his best: he combines a detailed explanation of Reid's upbringing and a familiarity with his hometown with an appreciation for how the senator's early experiences in local politics and his close connection to the Nevada mining industry laid the groundwork for his approach to land use and environmental policy and his power in the Senate. Smith utilizes Reid's story to represent the complex web of negotiation and compromise that public lands management often produces. As the author notes, Reid's “efforts to protect the land would earn him two national awards from the Sierra Club and the Stewart Udall Conservation Award for his work to protect public lands, yet he was also celebrated with a lifetime-achievement award from the Nevada Mining Association and given a place of honor in the American Gaming Hall of Fame—two industries known for their lack of environmental sensibilities” (201). Rather than suggesting that this rather problematical juggling act is unique to Reid, Smith provides examples of others who have tried to navigate public lands issues through a more moderate path, beholden to neither the Bundy-style version of privatization and private use of public resources nor the management style applied by federal bureaucracies such as the Bureau of Land Management. Reid's seeming ambivalence represents the complexity of land use management in much of the West, but Bundy captures headlines and galvanizes those on the extreme end of the spectrum, which has only further muddied the situation and reinforced the sense that the radical right has identified public lands use as a principal arena of combat.Smith covers considerable ground in his mostly thematic chapters with attention to the religious, social, economic, and political histories of Nevada and the Mountain West. While this approach provides several distinct essays that serve as chapters, the work lacks cohesion and focus in spots, which leaves the reader connecting the dots. A more concerted effort to explain ties between the recent rise of militia movements in the West with the expansion of the radical right in the 1970s and 1980s, for example, would lend credence to the historical dynamics at play in the Bundy movement. Moreover, such an array of coverage means that some topics lack depth. The Sagebrush Rebellion, for example, garners several mentions in the book and understanding it is necessary to ground the Bundy resistance in the past, but the roots of the rebellion and its relation to Ronald Reagan only received some twenty pages.In total, though, this is a great introduction to the Bundys and the larger contest over public lands, the rise of radical conservatism, and the volatility of contemporary politics. Smith's familiarity with the subject and his ability to weave together so many different threads work well this readable work on public land use conflicts in the American West. Saints, Sinners, and Sovereign Citizens should enjoy a wide academic and public audience.

Lands with Wilderness Characteristics, Resource Management Plan Constraints, and Land Exchanges: Cross-Jurisdictional Management and Impacts on Unconventional Fuel Development in Utah's Uinta Basin

 OHQ vol. 111, no. 3 the Forest Service (let aloneAmerica),it is true enough that the fire did facilitate the passage of this legislation. Still, Egan’s summary of the Weeks Act is incomplete and symptomatic of his failure to reckon fully with the most important consequence of the fire, which far from savingAmerica probably did the country damage over the long run. For a more convincing assessment of the fire’s legacy, serious readers will want to consult Stephen Pyne’s Year of the Fires:The Story of the Great Fires of 1910 (Viking, 2001).Pyne,a historian who knows more about fire than anyone else,points out that one of the key provisions of the Weeks Act, ignored by Egan, allowed for the federal government to provide grants to states to promote fire protection .This established a framework for the Forest Service to develop a massive agenda for fire suppression over the next several decades. The problem,as Pyne and other fire historians have made clear, is that excluding fire from forests has made the forests vulnerable to disease and created massive fuel build up, thus enhancing the conditions for conflagrations. Egan is aware of Pyne’s larger argument and attempts to take it into account,quoting Pyne’s conclusion that“the Great Fires of 1910 shaped the American fire landscape more than any other fire in any year throughout the twentieth century” (p. 273). Still, in an effort to preserve a heroic image of Roosevelt and Pinchot, Egan takes pains to separate the Forest Service’s commitment to fire suppression from TR’s and Pinchot’s original vision of conservation. Egan acknowledges that Pinchot “considered fire prevention to be a job of the service” but makes a distinction between “firefighting as an idea” for Pinchot and a “raison d’être,” as it was for others like William Greeley, Chief Forester in the 1920s (p. 270). This distinction is unconvincing. Egan himself notes that in promoting conservation, Pinchot “professed that wildfire was akin to slavery — a blight on the young country but something that could be wiped out by man”and that it was not until the 1930sthatPinchotrethoughtthese views(p.52). In the end, The Big Burn is informative and highly readable, though its narrative appeal comes at the expense of analytical nuance. A story of TR and Pinchot as crusading heroes whose agenda finds redemption through tragedynotonlyhastowritearoundtheevidence ,it also has to ignore a substantial body of scholarship that treats conservation, fire, the Progressive movement, and Roosevelt himself in a far more complicated way than takes place here. Jeffrey Ostler University of Oregon The Nation’s Largest Landlord: The Bureau of Land Management in the American West by James R. Skillen University Press of Kansas, Lawrence, 2009. Maps, notes, bibliography, index. 320 pages. $39.95 cloth. The Bureau of Land Management (BLM) has had a complex and turbulent history since its creation in 1946 out of the General Land Office and U.S. Grazing Service. James Skillen’s The Nation’s Largest Landlord is the first comprehensive and analytical history of the BLM.The agency, the largest land manager in the United States, oversees 256 million acres, covering grazing, minerals, timber, wilderness, fish and wildlife, and recreation activities. The BLM had its main roots in the General Land Office, the federal agency that oversaw the dispersal of much of the public domain in the nineteenth and twentieth centuries. Great ambiguity marked the BLM’s early history as the agency attempted to deal with the inherited issues surrounding property rights, federalism, and environmentalism. It had an often conflicting mandate to encourage natural resources developmentwhileprotectingthepublicinterestand encouraging recreation on public lands. To make sense of the BLM’s history, the authorfocuseshisnarrativeontwooverlapping  Reviews questions: what were the evolving purposes and goals of public land administration, and what was the decision-making process for determining those goals and purposes? Skillen divides his study into three main periods. During the first era, 1946 to 1970, the agency was dominated by resource interests bent on controlling the grazing, timber, and mineral development of public lands, while the agency sought to exert professional management based on a U.S. Forest Service model. In the second period...

It is the largest landholder in America, overseeing nearly an eighth of the country: 258 million acres located almost exclusively west of the Mississippi River, with even twice as much below the surface. Its domain embraces wildlife and wilderness, timber, range, and minerals, and for over 60 years, the Bureau of Land Management has been an agency in search of a mission. This is the first comprehensive, analytical history of the BLM and its struggle to find direction. James Skillen traces the bureau's course over three periods - its formation in 1946 and early focus on livestock and mines, its 1970s role as mediator between commerce and conservation, and its experience of political gridlock since 1981 when it faced a powerful anti-environmental backlash. Focusing on events that have shaped the BLM's overall mission, organization, and culture, he takes up issues ranging from the National Environmental Policy Act to the Sagebrush Rebellion in order to paint a broad picture of the agency's changing role in the American West. Focusing on the vast array of lands and resources that the BLM manages, he explores the complex and at times contradictory ways that Americans have valued nature. Skillen shows that, although there have been fleeting moments of consensus over the purpose of national forests and parks, there has never been any such consensus over the federal purpose of the public lands overseen by the BLM. Highlighting the perennial ambiguities shadowing the BLM's domain and mission, Skillen exposes the confusion sown by conflicting congressional statutes, conflicting political agendas, and the perennial absence of public support. He also shows that, while there is room for improvement in federal land management, the criteria by which that improvement is measured change significantly over time. In the face of such ambiguity - political, social, and economic - Skillen argues that the agency's history of limited political power and uncertain mission has, ironically, better prepared it to cope with the more chaotic climate of federal land management in the twenty-first century. Indeed, operating in an increasingly crowded physical and political landscape, it seems clear that the BLM's mission will continue to be marked by ambiguity. For historians, students, public administrators, or anyone who cares about American lands, Skillen offers a cautionary tale for those still searching for a final solution to federal land and resource conflicts.

Hydraulic fracturing, or “fracking,” continues to grow rapidly as an oil and gas extraction method in the United States, and its growth has recently led to the emergence of natural gas as the nation’s new leading energy source for power generation. However, the hydraulic fracturing process carries innumerable environmental and health-related concerns, and federal regulations to address these concerns have struggled to keep up with the blistering pace of fracking’s growth and development within the United States.In 2015, the Bureau of Land Management (BLM), under the Obama administration, promulgated a rule to ‘complement’ its regulations with respect to hydraulic fracturing on federal and Indian lands, citing the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA) as sources of statutory authority. This 2015 Fracking Rule faced intense opposition, first from industry and state parties within the federal court system, and later from the BLM itself under a newly-elected President Trump. This Note argues that the Bureau of Land Management has the statutory authority to regulate hydraulic fracturing on federal public lands under the MLA and FLPMA, by cause of the plain language, general history, and reasonable agency interpretation of these statutes. This Note further supports BLM’s authority to regulate hydraulic fracturing with justifications related to both natural resource protection and the effectiveness of federal-level regulation. Legal battles over BLM’s authority are ongoing, and the question of whether or not BLM has statutory authority to regulate fracking on federal public lands remains critical as the nation continues to struggle in deciding how to best utilize our commonly-shared lands and resources. Additionally, it will be increasingly important to continue developing and updating federal hydraulic fracturing regulations in order to increase our understanding of this extraction method, while hopefully mitigating its associated environmental and health risks.

A recent report by the United States General Accounting Office stated that the federal government's primary means of land reconfiguration, the land exchange, was so fraught with problems that it recommended Congress discontinue all land exchange programs. (1) At least one Congressional Representative, not apt to mince his words, stated that the Bureau of Land Management and the Forest Service, the two principal land management agencies, flat got conducting exchanges. (2) His comments reflect an all too common perception that something is fundamentally wrong with the way the federal government conducts land reconfiguration. Partially in response to such criticism, Congress has passed several pieces of legislation aimed at reforming the land reconfiguration process in recent years. The first was the Southern Nevada Public Land Management Act of 1998. (3) More recently, the Federal Land Transaction Facilitation Act of 2000 was signed into law. (4) Both Acts authorize the sale of land and the retention of the proceeds by the land management agencies in order to purchase private land better suited for conservation and protection. The two Acts differ remarkably in terms of scope and authority. In many ways the sale processes authorized by these Acts appear to solve or avoid many of the problems that have plagued the traditional land exchange process. Therefore, these laws are an important step in the evolution of western land reconfiguration. In other ways, these new laws fail to meet their statutory intent. Part I of this note will examine how the land disposition laws of the nineteenth century resulted in a fragmented pattern of western land ownership. In addition, it will detail how the land exchange process became the solution. Part II will explore some of the problems and criticisms of the land exchange process, which have lead many to claim that the federal government gets snookered conducting land exchanges. Part III will survey the Southern Nevada Public Lands Management Act of 1998 and the Federal Land Transaction Facilitation Act of 2000. This note will compare and contrast the scope and authority of the two laws and point out each Act's relative strengths and weakness. Finally, this note will conclude by submitting that while the two Acts are clearly aimed at encouraging better land management and reconfiguration, only the Southern Nevada Act will ultimately be successful. I. FRAGMENTED WESTERN LAND OWNERSHIP AND THE ROLE OF THE LAND EXCHANGE As of 1998, the federal government owned more then 29 percent of the United States total landmass, some 654 million acres. (5) Often called the public domain or the public lands, most of this land is concentrated in 12 western states. (6) But this represents only a fraction of what the federal government once owned. Beginning in mid-nineteenth century, the official policy of the United States was to dispose of the lands in order to promote settlement and development of the West. To further this policy Congress gave away lands through various provisions such as the Homestead Act of 1862 and the Desert Lands Act of 1877. (7) To increase settlement, Congress encouraged the building of railroads throughout the west by passing the Act of July 1, 1862, which helped finance the Union Pacific and Central Pacific railroads. (8) The Act granted the railroads alternating one square mile sections (640 acres) of lands along the route. (9) All told, the federal government granted over 130 million acres of land to the railroads in this alternating pattern. (10) The railroad grants resulted in the checkerboard problem, a pattern of ownership whereby neither a private owner nor the can gain access to its property without encroaching on the others land. (11) Adding to this intermingled pattern of western land ownership were an array of grants made to the states in order to promote education. …

The Biden–Harris Administration’s ambitious America the Beautiful Campaign to protect thirty percent of the United States’ lands and waters by 2030 will require a comprehensive inventory of conservation tools. This Article contributes to that inventory by identifying and evaluating a novel use of the authority of the Bureau of Land Management (BLM) to issue rights-of-way under Title V of the Federal Land Management & Policy Act (FLPMA) over the vast public lands managed by the agency, which account for roughly ten percent of the surface area of the United States. It contends that the BLM could issue a “conservation right-of-way” to a state, tribe, local government, or private party seeking to restore and protect ecological systems. Creating private rights to conservation in appropriate circumstances could address persistent asymmetries between active use of public lands — which tends to occur through private rights — and conservation use of public lands — which tends to occur through public policy. The BLM could plausibly deploy conservation rights-of-way in an array of circumstances, for example, to authorize the construction and maintenance of mitigation banks for wetlands or wildlife habitat or to monitor and maintain wildlife corridors. Conservation rights-of-way could be small in scale, nuanced and context dependent, and they could be issued in a distributed fashion at BLM field offices throughout the United States. These features suggest that conservation rights-of-way could serve as an important supplement to other conservation tools.

The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations. This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.

Although natural resource managers are concerned about climate change, many are unable to adequately incorporate climate change science into their adaptation strategies or management plans, and are not always aware of or do not always employ the most current scientific knowledge. One of the most prominent natural resource management agencies in the United States is the Bureau of Land Management (BLM), which is tasked with managing over 248 million acres (>1 million km2) of public lands for multiple, often conflicting, uses. Climate change will affect the sustainability of many of these land uses and could further increase conflicts between them. As such, the purpose of our study was to determine the extent to which climate change will affect public land uses, and whether the BLM is managing for such predicted effects. To do so, we first conducted a systematic review of peer‐reviewed literature that discussed potential impacts of climate change on the multiple land uses the BLM manages in the Intermountain West, USA, and then expanded these results with a synthesis of projected vegetation changes. Finally, we conducted a content analysis of BLM Resource Management Plans in order to determine how climate change is explicitly addressed by BLM managers, and whether such plans reflect changes predicted by the scientific literature. We found that active resource use generally threatens intrinsic values such as conservation and ecosystem services on BLM land, and climate change is expected to exacerbate these threats in numerous ways. Additionally, our synthesis of vegetation modeling suggests substantial changes in vegetation due to climate change. However, BLM plans rarely referred to climate change explicitly and did not reflect the results of the literature review or vegetation model synthesis. Our results suggest there is a disconnect between management of BLM lands and the best available science on climate change. We recommend that the BLM actively integrates such research into on‐the‐ground management plans and activities, and that researchers studying the effects of climate change make a more robust effort to understand the practices and policies of public land management in order to effectively communicate the management significance of their findings.

To meet the requirements of federal legislation, the Bureau of Land Management (BLM), Soil Conservation Service (SCS), and U.S. Forest Service (USFS) complete periodic assessments of the biologic and economic productive potentials of the nation's public and private natural resources.' Public land management agencies (BLM and USFS) are mandated by Congress to manage so that goods and services are produced at levels sustainable in perpetuity. The agencies' management plans, devised to accommodate their legislative directives, have been the subjects of several legal challenges.2 Insufficient accuracy of planning process information has been cited as one of the reasons for ruling against the management plans. Surveys conducted by BLM and USFS were found to be inadequate with respect to both sampling intensity and sample distribution across space and through time. Agencies must now base their resource management decisions on information which is significantly more accurate than that previously used. At the same time, because laws and regulations require selling nondeclining (even) flows of forage to avoid damaging public grazing lands, federal land managers tend to be conservative in the stocking levels they allow. If an error is made it will be on the safe

This chapter illustrates how federal and state governments and their agencies own 48 percent of Hawaiʻi’s land. The federal government owns or leases roughly 19 percent, and the Hawaiʻi State government owns 28 percent. While much of this land is in undevelopable park and reserve, management policies in federal and state statutes—especially those pertaining to the state’s public lands—permit a variety of private residential and commercial uses on these public lands. Moreover, federal land management and disposal policies affect the use of nearby private land in significant ways. Those aspects of public land policy that affect private uses on or near public lands are an indirect but potent tool for the management of private lands.