Conservation Rights-of-Way on Public Lands

Abstract

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.