Mt. Whitney group, eastern Sierra Nevada range, outside Lone Pine, California. Photo: Jeffrey St. Clair.

The comment period has just closed on the Trump administration’s process to rescind the Conservation and Landscape Helath Rule, which has been framed as the signature conservation legacy of the Biden administration. In the ping-pong match of partisan reversals that happen every time a new party takes over the White House, its repeal was probably inevitable. But for all the pros and cons and debate swirling around the Conservation Rule (and it was far weaker than it should have been), the coming rescission gives us a clean slate to develop the Conservation Rule that our lands and wildlife really deserve, a gold standard against which past and future conservation actions can be measured.

To start with, a strong Conservation Rule can be built on the conservation achievements of Congresses past. Industry complained that Biden’s Conservation Rule improperly elevated conservation uses, but the Biden Rule did very little of that. We don’t need a Conservation Rule to put conservation on the same level as industrial exploitation, because federal law has done that for us already. A strong rule recognizes this, and directs the federal agencies to follow that law, for a change. In 1960, the Multiple Use Sustained Yield Act directed the Forest Service to manage our national forests for multiple uses, as follows: “the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” In 1976, the Federal Land Planning and Management Act (FLPMA) gave the Bureau of Land Management its own multiple-use legal requirement. It requires 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.”

Furthermore, under FLPMA, “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 … 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.”

By directing federal agencies to manage for watersheds, wildlife and fish, public recreation, and other conservation values as multiple uses alongside timber, range, and mineral extraction, Congress put conservation on the same level of extraction on public lands. It’s the law. A strong Conservation Rule gives the agencies marching orders to follow that law, which is a strong and decisive position.

In the endless debates about balancing extractive uses and wringing profits from lands with public recreation and land and wildlife conservation, there are any number of perspectives on the proper balancing of competing uses. How about making the ecological health of the land first among equals, by having a Conservation Rule that specifies that commercial activities, be they livestock grazing, mining, or drilling will be allowed only in cases and at levels where they are compatible with maintaining healthy native ecosystems? The industries themselves are constantly telling us that their activities don’t interfere with, and indeed even promote, abundant wildlife and healthy lands. Let’s put that rhetoric to the test by making it a prerequisite to doing business on public lands or extracting public minerals. These industries say they can do it, indeed they ask the public to believe it. A strong Conservation Rule requiring scientific verification, and consequences for failing to provide that, would place the burden of proof on their shoulders to show that they can live up to their talking points.

The contributions of Indigenous peoples, who had been successfully coexisting with the natural world in North America lands for eons, must be part of a new Conservation Rule. The Biden-era Conservation Rule supported the incorporation of Indigenous knowledge, a good thing. It promised meaningful consultation with Tribal governments, already required by the National Historic Preservation Act for culturally important sites, but expanded consultation to include all aspects of land management in which Tribes have an interest (including fish and wildlife protection). In addition, it allowed Tribal governments to become co-managers of federal lands.

A strong Conservation Rule would continue this co-management policy, but eliminate the special inside influence that state and local governments have exercised as “cooperating agencies.” This privilege has been abused in the past by anti-environmental and pro-extraction state and local governments, which have effectively become lobby groups for the oil, livestock, timber, and mining industries, giving these industries an undeserved inside influence to make their special interests dominant over conservation-oriented multiple uses like public recreation, watersheds, and fish and wildlife. The backroom influence of cooperating agency status has created a privileged role for state and local governments to determine proposed actions and plan alternatives that get adopted by federal agencies, and this needs to stop. Federal public lands are to be managed for all Americans, not just local interests and their economic interests. Let state and local governments comment during the environmental review process just like every other citizen and interest group.

Our land-use agencies designate Sensitive Species, which are plants and wildlife that are disappearing because they are sensitive to human disturbances. Until now, there has been precious little to compel conservation measures to recover these species once they’re listed. Biden’s Conservation Rule recognized that FLPMA requires the Bureau of Land Management to prevent “unnecessary or undue degradation of the lands,” but defined “unnecessary” and “undue” in such vague terms that no conservation gains ever resulted from this mandate. Let’s define “unnecessary” as any activity that could be feasibly accomplished through a lower-impact means or in a lower-impact location, and “undue” as any activity that causes a population decline for any Sensitive Species or a significant loss or degradation of its habitat. “Undue” should also be defined to include livestock grazing that results in anything less than full compliance with Land Health standards. Using rare wildlife and plants, and the ecological health of the land, as barometers for whether commercial activities are allowable gives industries the incentive to develop methods compatible with healthy ecosystems, and provides a yardstick to monitor ongoing uses.

The Biden team was on the right track when they decided to increase protections for Areas of Critical Environmental Concern (ACECs). FLPMA requires agencies to prioritize the designation of these areas whenever a new land-use plan is written, but for decades there was no consistency around whether drawing these lines on the map would create any conservation improvements on the ground. In practice, ACEC designation does not reliably provide more environmental protections. A Conservation Rule should add more enforceable safeguards. It should also retain the Biden Rule provision that lands nominated for ACEC status be protected from degradation while under consideration.

A Conservation Rule could call for the inventory and protection of Bureau of Land Management lands with the same roadless characteristics that the Forest Service already protects. Many species of wildlife, including elk and wolverines, avoid roads and would benefit from keeping wild and undeveloped lands in that state. If minerals were offered for development, there are ways to get at them without putting roads and facilities and mine pits on the surface. And for both agencies, let’s include a requirement to inventory the public lands every 20 years, and establish new Wilderness Study Areas for all lands that qualify.

A Conservation Rule could place a moratorium on federal agencies killing native species of wildlife, except in instances where human life was imminently and directly under threat. It would shut down the livestock industry’s death squad, USDA Wildlife Services, and stop agencies from authorizing commercial users of public lands to kill wildlife. It would shut down dangerous poisoning practices. It would result in naturally-balanced ecosystems and improved biodiversity. This is common sense: The public loves wildlife, and so agencies (and commercial entities who use public lands) should not be in the business of killing them. A moratorium on funding state and local entities to undertake the killing would be necessary to make the policy stick.

Wild horses have been subject of endless controversy, with the majority of the general public supporting them and a tiny minority engaged in the livestock industry opposing them, alongside some state agencies. How about a Conservation Rule that fully implements the Wild and Free-Roaming Horses and Burros Act, managing for viable populations of wild horses on those lands where they existed when the law was enacted, and ensuring a thriving natural ecological balance and healthy wildlife populations where the lands have been designated for them? If there are lands designated for wild horses that also are leased for domestic livestock, then if there is a problem with maintaining a thriving natural ecological balance, then the Conservation Rule would require that livestock be eliminated to solve the problem, in accordance with federal regulations already in place (43 CFR § 4710.5). By driving this kind of balanced management and ecologically improved outcomes, the Conservation Rule would NOT for the first time require that conservation goals be achieved in wild horse management, but instead achieve these conservation goals by requiring that federal agencies for the first time follow the laws and regulations that are supposed to guide their actions.

The spread of invasive weeds like cheatgrass, medusahead wildrye, buffelgrass, and ventenata are one of the biggest crises facing western public lands. They destroy wildlife habitat and increase fire risk. A Conservation Rule should address the causes of these invasions – chiefly the destruction or loss of native vegetation and biological soil crusts – by making the maintenance of natives one of the baseline requirements for any authorized activity. And while we’re at it, let’s require agencies to stop planting non-native, invasive plants like crested wheatgrass and forage kochia on public lands, to stave off the next invasive weed problem. A priority should be placed on restoration of native vegetation, which is the best way to give our landscapes the resilience necessary to meet the challenges of climate change and provide for wildlife, plants, and humans into the future.

If we want to tinker with leases on public lands, the idea of creating a new “conservation lease” seems a lesser idea compared to simply letting the public compete for commercial leases alongside commercial exploiters, and then letting them exercise those leases for conservation purposes. Members of the public ought to be able to bid against oil and gas corporations for mineral leases, like Bidder 70 only legally, and then choose not to dig out the minerals and fuel the changing climate. Why not? And for livestock leases, conservation-minded people should be able to buy them and then retire them permanently, letting them go back to nature. Cattle and sheep compete with native wildlife, after all, and often convert native vegetation to unpalatable and fire-prone weed infestations. Letting the public acquire grazing leases – anywhere, at any time – and retire them permanently supports every other multiple use. And as long as livestock grazing occurs somewhere on public lands, the multiple-use requirements of federal law are satisfied. Where that happens, let’s limit forage removal to 25% to leave plenty of forage for the native species.

If we’re going to bother putting together a Conservation Rule, let’s make it a landmark achievement that makes a real difference on the ground. Our public lands are stressed by new challenges – a changing climate with more frequent drought and fire, along with a biodiversity crisis as human-caused disturbances cause native species to wink out across broader and broader geographies. Congress hasn’t produced an environmental law that moved the needle for almost 50 years, since the veritable spate of legislation that gave us the Wilderness Act, the Clean Water Act, the Endangered Species Act, and so many more. The Roadless Rule was the last Executive Branch initiative that meaningfully improved conservation, and that was 25 years ago. It’s high time for our elected leaders, and their underlings, to put forward an environmental initiative that actually means something. A Conservation Rule to match our mountains, as we suggest here, might just fit the bill.

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