EXCLUSIVE — A group of Western states is prepared to sue the Biden administration if it advances the current version of its proposed public lands rule, arguing that the effort, which seeks to elevate conservation leasing, is a violation of federal law and poses significant harm to energy, mining, and agricultural interests in the region.
The Bureau of Land Management’s proposed Public Lands Rule seeks to allow the agency to lease federal lands for conservation purposes under its existing “multiple-use” framework, essentially giving groups opposed to new fossil fuel development the same right to bid on federal leases as oil companies, miners, and cattle ranchers.
FIVE SUPREME COURT CASES TO WATCH WHEN JUSTICES RETURN FROM SUMMER RECESS
The rule has generated widespread opposition, with more than 215,300 industry groups and others weighing in during the Bureau of Land Management's mandatory public comment period, which ended Wednesday.
And now, states are prepared to face off with the agency in court.
In an exclusive interview with the Washington Examiner, Montana Attorney General Austin Knudsen described the Bureau of Land Management’s proposed rule as a “flagrant violation” of federal law.
In his view, the Bureau of Land Management's proposal is a direct violation of the Federal Land Policy and Management Act, a 1976 law created by Congress to govern federal land use that some critics have argued could be used to stifle new resource development, such as oil drilling and mining activity.
In writing the 1976 law, Congress specified that the Bureau of Land Management should make lands available for mining operations, motorized recreation, natural gas leases, guide concessions, hunting and fishing, scientific study, and more. And by allowing conservation to be considered on an equal playing field, opponents contend businesses, industries, and people whose livelihood depends on public lands would suffer.
Others have taken aim at the Biden administration's avenue for the change, stressing that it is Congress, not a federal agency, that must amend and approve any updates to the legislation.
“If the Biden administration and [Bureau of Land Management Director] Tracy Stone-Manning want to change federal law, to put conservation on the same footing as other federal land uses, then they should go to Congress to try to do that,” Knudsen said.
“Federal courts have been very clear on this,” Knudsen added. “You don't get to issue sweeping rule changes like this that are tantamount to a major law change.”
Why it matters
As Knudsen and other attorneys general have noted, federal lands comprise “significant portions” of their states, including 63% of lands in Idaho, 30% in Montana, 65% in Utah, and 60% in Alaska.
The federal acres are rich with minerals, oil and gas resources, timber, wildlife, and other land resources, all of which are crucial to their economies.
The changes under the Bureau of Land Management proposed regulation would be “devastating” to Montana’s economy, as well as so many of the states nearby, Knudsen said.
“We've got tons of federal land — and the land is used for grazing, for mining, for timber, a lot of different things,” he said. “And if suddenly [the Bureau of Land Management] was going to say, ‘Well, no, we're going to allow conservation groups to come in here and bid on these leases, to basically just shut these public lands off,’ that's going to be devastating to our states’ economies as well.”
The effort has also sparked an outcry from renewable energy and fossil fuel groups, who fear the rule would force various project developments to a halt.
Among the industry groups who urged against the rule are the American Exploration and Mining Association, or AMEA, which said it “fundamentally violates FLPMA in multiple ways,” as well as the Nevada Farm Bureau Federation, the Montana Electric Cooperatives’ Association, and the South Dakota Cattlemen’s Association, who filed separate letters detailing their opposition.
"In light of the numerous legal infirmities and substantial policy concerns for implementation, IPANM respectfully requests that [the Bureau of Land Management] withdraw and reconsider the proposed Planning Rule," said Jim Winchester, the executive director of the Independent Petroleum Association of New Mexico.
What’s next
The draft rule was announced by the Interior Department in March and is expected to be finalized by the end of the year.
If approved in its current form, Knudsen told the Washington Examiner, the next step is “probably a multistate lawsuit” in which the attorneys general will seek a court injunction to get the rule blocked. That’s an outcome Knudsen said he is “very confident” they’d receive in federal court.
Any court challenge would likely receive the backing from most, if not all, of the same states who signed on to the letters of opposition sent to Interior Secretary Deb Haaland and Stone-Manning earlier this week.
Asked about the prospect of a court challenge, Knudsen confirmed he and other states have had some “preliminary talks” about a lawsuit.
There is “definitely an appetite” among Western states to go forward with a lawsuit if the Bureau of Land Management does not significantly alter its proposed rulemaking before it is finalized, he said, adding: “I have no doubt we’ll get a big coalition of states.”
Before that happens, however, the Bureau of Land Management must review and conduct a public comment analysis on the input from the public. Then, the Bureau of Land Management will either modify or finalize the rule, clearing the way for a legal challenge.
Knudsen said they are still holding out hope that the Bureau of Land Management “will do the right thing and back away from this rule,” though he noted that in their view, the odds of a significant change are slim to none.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“We're kind of waiting and hoping the administration will do the right thing, but I'm not going to hold my breath,” he said.
The Washington Examiner reached out to the Bureau of Land Management and the Department of Interior for comment.