A New Ninth Circuit Decision Raises the Question, Does FLPMA Matter?
Recently, the Ninth Circuit issued a decision which could have grave consequences for farmers, energy users and anyone who relies on exploration of federal land.
In a case called Shoshone-Bannock Tribes vs. Bureau of Land Management (BLM), the court addressed how a specific federal statute – the Federal Land Policy and Management Act (FLPMA) – interacts with Tribal rights and treaties.
In short, the Tribe won a victory, for now, holding an early 20th century treaty constrains BLM from allowing a company to explore federal land for minerals.
Put simply, the decision is alarming, particularly for anyone who cares about energy independence, food security and the prosperity of the American West.
Ordinarily, FLPMA resolves uncertainties when it comes to how federal land can be used.
When it comes to major projects like the one at issue in the case, predictability is the key, and while respect for treaty rights is a core principle of federal law, federal courts must also give effect to FLPMA’s mandate. The two should be reconciled, not placed in conflict.
But in its ruling, the Ninth Circuit declared FLPMA’s cornerstone duty to reset management of federal lands in the West is meaningless in the context of a Tribal treaty. Instead, the court held that treaty provisions from the early 20th century can override FLPMA’s framework, even on lands which have been under federal management for generations.
Respecting treaty rights is important, but it should not come at the expense of disregarding Congress’ clear statutory directives. So, while courts have put forth a narrative that FLPMA fundamentally changed land management in the West, the Ninth Circuit instead articulated a major loophole which renders the law nearly meaningless.
The Ninth Circuit was not painting on a blank canvas though. For years, federal courts have used FLPMA as a sword against projects on federal land but not given it the same credence when FLPMA would protect private conduct. This is just not right.
At Mountain States Legal Foundation (MSLF), we rarely cheer for larger or more invasive government. Our mission has always been to hold federal regulators in check. But in this case, the public’s interests are best served by giving effect to Congress’ clear statutory mandate in FLPMA.
This law protects projects providing energy, food and jobs – reflecting the pro-project public Congress had in mind, rather than the litigation-driven opposition of groups determined to stop every use of public lands.
Congress enacted FLPMA in 1976 to ensure federal lands would be managed for multiple use and sustained yield. These are terms of art which have legal meanings.
Congress required BLM to prevent “unnecessary or undue degradation,” precisely to strike a balance between development and conservation. For decades, this mandate has shaped how BLM regulates grazing, oil and gas production, timber harvests, mining projects and rights-of-way.
BLM doesn’t always get it right, but at least FLPMA is supposed to guide how decisions are made in these areas. And courts and agencies alike are supposed to treat the “multiple-use” standard as a real, enforceable standard.
It says nothing about deferring to older treaties which would constrain BLM from applying FLPMA in the usual course.
But this dedication to the law has eroded over the past years, including a recent effort by BLM to create leases rewarding applicants for perversely taking federal lands away from the public.
The agency is now proposing to walk this effort back, and MSLF will support BLM in making sure the effort was short-lived.
Now, however, the Ninth Circuit has reduced the multiple-use duty to a hollow formality in one context here.
This about-face undermines both the statute’s text and decades of agency practice. Worse still, it comes after “anti-use” groups spent decades wielding FLPMA to block grazing, oil and gas leasing, mining and timber harvests – all of which are uses of federal lands Congress elevated as national priorities.
If FLPMA was a sword for activists who wanted to block all of these projects yesterday, then how can the same premise suddenly provide no shield for American producers today? The law must be equally available to all.
The consequences of the Shoshone-Bannock Tribes vs. BLM case may be felt across the economy.
In the case, BLM had authorized a company to use land to obtain potash and phosphate – two common ingredients used in fertilizer for farmers.
Without reliable domestic sources of potash and phosphate, American farmers will have to consider relying on fertilizer imports from Morocco, Russia and China.
In broader terms, the decision may affect energy exploration, since Tribes can assert treaties which long ago disposed of their lands in favor of federal ownership but still come with strings attached.
Without confidence national-priority projects can be approved under a fair legal standard, the U.S. risks falling behind in securing the critical resources needed for affordable, reliable and responsible energy, manufacturing and national defense.
And without tools like active forest management, communities in the West will face more catastrophic wildfires which threaten lives, livelihoods and the very lands FLPMA was meant to protect.
To be sure, the Shoshone-Bannock Tribes vs. BLM case was a two-to-one vote at the Court of Appeals, meaning one of the three judges dissented from the holding. This dissent got it right – courts must give meaning to Congress’ words.
To say FLPMA doesn’t protect the process here is to say Congress wasted its breath, which is a conclusion the Supreme Court has rejected repeatedly when interpreting federal statutes.
Let’s hope the case doesn’t stop with a negative ruling because our energy independence, food security and the health of our forests and other lands demand a legal framework that means what it says.
If courts have meant what they said about FLPMA providing this framework, then they need to be consistent.
In this recent case, the Ninth Circuit worked hard to invent a loophole. It’s not there though. Pretending otherwise is a mistake.
Ivan London is a senior attorney at MSLF, practicing energy and natural resources law. He can be reached by visiting mslegal.org.
