Joe Biden’s Bureaucratic Land Grab

Earlier this year, the Department of the Interior’s Bureau of Land Management (BLM) released its proposed Public Lands rule. The rule seeks new regulations to prioritize “the health and resilience of ecosystems” across the 10% of American land the bureau manages. It would do this by deeming “conservation” a specific “use” of these lands.

Unlike recent bipartisan conservation legislation, this new proposed rule would steamroll Congress’ constitutionally granted powers to determine the use of federal lands. Moreover, it could create a backdoor route restricting public recreation on these lands.

Among other items, the proposed rule seeks to invent what it terms “conservation leases.” These leases would grant an individual, company, or non-profit the right and obligation to restore or protect the ecosystem on public land rather than allowing the land to be used for activities such as fish and wildlife development and utilization — meaning the promotion of animal habitats — or outdoor recreation, which have been primary uses under the existing law for up to a decade. While the new regulation would not affect pre-existing authorized activities on the land, no future rights or leases would be issued that infringed on the objectives of a conservation lease for the duration of its term.

This bureaucratic scheme is built on sand; the executive branch has neither the constitutional power nor the explicit congressional authority to provide leases for landscape conservation. According to Article IV, section 3 of the Constitution, Congress has the exclusive power to “make all needful Rules and Regulations” concerning federal property, including public lands. Although Congress often tasks federal agencies and their leaders with developing these rules in practice, the administrative state does not enjoy a free hand to rewrite legislation on a whim.

The Biden Administration claims it has this authority under the Federal Land Policy and Management Act (FLPMA) of 1976, which directs the bureau to administer public land “on the basis of multiple use and sustained yield.” When crafting the statute, Congress carefully defined the key terms, including “multiple use,” “sustained yield,” and “principle or major uses.” In no section of the FLPMA is the BLM, while exercising the powers of the Secretary, explicitly empowered to issue leases exclusively for conservation. Moreover, the statute does not even use the term “ecosystem” or “conservation” except to describe some very particular tracts of land. Rather than modernizing the current law, the Biden Administration is trying to skirt the constitutionally mandated legislative process, most likely because they doubt Congress would embrace their policy vision.

Congress’ exclusive constitutional power to regulate federal land is not an obscure legal anachronism. The Great American Outdoors Act, for example, garnered overwhelming bipartisan support in both the House and Senate before President Trump signed it into law in August 2020. The law created the largest-ever mandatory investment in public lands to restore national park infrastructure, develop recreation areas, and protect wildlife refuges. Unlike the Biden Administration’s proposed rule, the previous sensible modernization of statutes became law without running roughshod over the democratic process.

The flawed rationale and potential future abuse of the proposed novel conservation leases may explain the administration’s efforts to avoid a vote in Congress. The administration asserts that “the proposed rule does not prioritize conservation above other uses; it puts conservation on an equal footing with other uses.” This insinuation that environmental considerations are maligned or overlooked considerations in federal decision-making is an egregious myth. From the National Environmental Policy Act to the Endangered Species Act, libraries could be filled with federal legislation and its associated caselaw that mandate and shape the consideration of environmental impacts in federal decision-making. But Congress’ notions of “multiple use” and “sustained yield” inform an understanding of the term “conservation” that is much broader than the preservation of landscapes. The administration’s proposed rule suggests that conservation is a discrete use among many; in reality, the existing framework makes conservation a factor in every existing land use.

Public access and unrestricted enjoyment of these public lands through outdoor recreation may, too, be in the crosshairs of conservation leaseholders. Hunting, fishing, and camping are all largely permitted across federal lands. However, the proposed rule warns that areas under conservation leases could be temporarily closed — to the public for up to a decade — due to “restoration activities or habitat improvements.” Without clear guidelines to safeguard community access, conservation leases may become a tool to restrict public recreation under the pretense of ongoing environmental restoration and mitigation for years at a time.

The Biden Administration’s efforts to “modernize” FLPMA after 47 years by adding new definitions to the statute through rulemaking may lead to a short-term policy change. But such a change is likely to be short-lived. The courts, or a different administration, will likely roll this proposal back if it is finalized as drafted unless Congress stops the rulemaking before that happens.

If the Biden Administration were serious about achieving long-term policy success, they would seek the authority they wanted from Congress. The Trump Administration demonstrated that recent conservation legislation can be bipartisan, focused, and achievable. It’s also the process our Constitution envisions.

David Bernhardt is Chair of the Center for American Freedom at the America First Policy Institute. He previously served as U.S. Secretary of the Interior.