Science article argues that conservation should be allowed to pay its own way on public lands

The law too often restricts resource rights on public lands to extraction activities and precludes conservation

The Bureau of Land Management (BLM) auction in February, 2016, for oil and gas drilling rights near Arches National Park was unremarkable. The high bidder, Tempest Exploration Co. LLC, paid $2,500 for the 1,120 acre lease by credit card and began paying annual rental fees. What soon did prove remarkable, though, was the revelation that the company had been created by the environmentalist, Terry Tempest Williams. She intended to keep the oil in the ground. BLM promptly canceled the lease.

This extractive bias against conservation is legally mandated for most of America’s public resources. When our public lands laws were written almost a century ago, the goal was to put the lands to productive use as quickly as possible. If you found valuable minerals and staked a claim, it was yours. If you diverted surface waters and put them to a beneficial use, they were yours. This practice has largely continued to the present day, where there is a “use it or lose it” requirement for bidding on access to public lands. If you want to keep the trees standing, the oil in the ground, or the range free from grazing, you’re not allowed to bid at all.

In a piece published today in the journal Science, Allow “nonuse rights” to conserve natural resources, my co-authors and I argue that it is well past time to end this practice

The focus on extraction activities on public lands may have made sense when the nation actively sought to promote the productive use of its natural resources and settle the West. Such rules, however, are outdated today. Preventing conservation interests from participating in resource markets betrays current values and foments controversy.

When conservation advocates are unable to participate in markets, they are forced to pursue what are often less effective and less efficient strategies such as litigation or lobbying for regulation. These battles pit resource-dependent communities against conservation organizations, resulting in controversy and outcomes that are vulnerable to shifts in political influence.

Current examples are easy to find. Near the end of its term, the Trump administration finalized plans to allow logging in areas of Alaska’s Tongass National Forest, lease oil and gas in parts of the Arctic National Wildlife Reserve, and expand livestock grazing in national monuments that had previously been deemed off limits to such activities. While environmentalists vehemently opposed these policies, they had few options other than litigation because such groups lacked rights to these resources or even the ability to acquire them. The Biden administration is attempting to undo some or all of these policy changes, but nothing prevents a future administration from reversing course yet again, as has happened in the past.

Rejecting outdated legal shackles, conservationists’ exercise of non-use rights should hold the same status as extractive interests in acquiring public resource rights. This approach will allow market mechanisms to reveal unmet demands for additional conservation of publicly managed resources currently subject to political decision-making and create more durable conservation outcomes.

There is good reason to think that conservationists will acquire non-use rights for ecologically or scenically valuable lands given the opportunity. Even with the current obstacles, groups have found ways to purchase federal energy leases, negotiated livestock grazing permit retirements with ranchers, and outbid logging companies for timber leases as a means of preserving open space, keeping fossil fuels in the ground, and leaving trees standing.

These examples have been far and few between, though, because of the many obstacles in complying with the default rules that require leaseholders to extract, graze, harvest, or otherwise develop public resources. In the interests of good governance and effective resource management, it is time to respect 21st century values in our public lands laws.

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Reader Comments

6 Replies to “Science article argues that conservation should be allowed to pay its own way on public lands”

  1. Great piece. One question—are the lease payments the only payments due? Do the lessees also have to give the government a cut of the profits from extraction? If so, how would these “losses” be made up if no one knows what the eventual profits would be?

  2. This is an important point, particularly for oil & gas. Some states earn considerable revenue from royalty payments and this loss would certainly be of concern to them. We dedicate a paragraph in the article to this issue.

  3. Jim raises an important issue that deserves more study. The Terry Tempest Williams example, however, is problematic because she only got the lease because no one bid on it when it was put up for auction. She was therefore able to buy it “over the counter” by paying the first month’s rental fees of $1.50/acre. https://archive.sltrib.com/article.php?id=4467584&itype=CMSID. More importantly, if this had been a truly valuable oil and gas property the bidding would have been much higher than what Williams paid — at least $100/acre or $112,000. I’m not suggesting that some conservation group might be willing to raise that kind of money to protect less than two square miles of land but I’m not sure I want the public to have to compete with oil and gas companies to protect ecologically important public lands. It seems to me that the BLM should not make such lands available for lease in the first instance.

    1. Mark raises an important point, and my response is “yes and…” BLM should not make ecologically important lands available for lease in the first instance but, when they do, conservation interests should be able to compete against extractive interests for how the lands should be put to use (or non-use).

      The price that Willams paid is not really the point. The highest value for some parcels will be for oil & gas, and that’s fine. For some parcels the most valuable use may be conservation. The key is that right now conservation is not allowed to compete. That’s a problem if we are concerned about “public” values being expressed regarding the use of public lands.

  4. Oil and gas leases normally require “bonus” (an up-front fee for entering into the agreement),”rental” (a fee to be paid while there is no active work and no production; and as share of any production. normally, no rental is owed while the lessor is actively working on the developing the well or the well is producing. So the initial amount paid tells you little. Then there is the benefit or damage to be caused by paying taxes and providing the product to the marketplace. Perhaps we ought not to be producing oil and gas at all; but, obtaining the lease with no intent to produce is a bad faith manipulation of the process

    1. It’s only a bad faith manipulation if the process is designed only to allow extractive interests to bid on oil & gas leases. If the bidding process were open, then this would be an understood possibility. There is still the challenge, as you and Matthew Metz point out, of how to account for lost revenue later through royalty payments. Our article suggests some ways to address this but it would need to be carefully thought out.

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About Jim

James Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at the UCLA School of Law and at the Bren School of the Environment …

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