“This plainly unlawful rule is a prime example of the administration’s self-defeating mining policy, and must be struck down,” said Rich Nolan, president and CEO, NMA. “Through rules that are designed to open the door to de facto land withdrawals, this administration continues to erect new barriers to responsible domestic mining projects, threatening to deepen our already grave foreign mineral reliance and blocking access to valuable coal resources at the exact moment minerals and energy demands are exploding. Our laws have always recognized the government’s responsibility to manage public lands for multiple uses. We are absolutely in support of conservation efforts, but they cannot be prioritized over all other lawful uses.”

This case concerns the Conservation and Landscape Health Rule, which BLM recently promulgated under the Federal Land Policy Management Act of 1976 (FLPMA). The rule establishes two new categories of leases for what BLM has misleadingly called land use: mitigation leases and restoration leases, which the complaint refers to collectively as conservation leases. NMA and the others believe these are leases for conservation and no more, and they are flatly inconsistent with the statutory scheme that BLM is tasked with implementing.

With the rule, BLM has converted a statute for managing the productive use of lands into one of non-use, prioritizing conservation values above, and to the exclusion of, the exclusively productive activities that FLPMA has governed for nearly half a century.

NMA and the other groups say the rule is plainly unlawful and must be set aside. Among other things, it interprets the word use in FLPMA to include non-use. It arrogates to BLM power to set aside land for conservation, which Congress has reserved to itself or elsewhere has granted in tightly limited circumstances. And it authorizes overarching land-use planning determinations— ones that prioritize conservation through mitigation and restoration leases and areas of critical environmental concern (ACECs) without the public involvement that FLPMA expressly requires.

The rule is also arbitrary and capricious, in part because it offers virtually no guidance as to when land can or will be set aside for mitigation or restoration and ACECs. To top it off, the rule is barred by the Congressional Review Act and was promulgated without complying with the National Environmental Policy Act (NEPA).