The states of Utah and Wyoming have filed a joint lawsuit challenging a controversial new rule by the Bureau of Land Management for failure to comply with the National Environmental Policy Act.

BLM’s Conservation and Landscape Health rule, which went into effect June 10, has been criticized by many western interests as threatening multiple use on public lands by prioritizing conservation.

NEPA requires agencies contemplating a major action to carefully consider possible environmental consequences. But BLM sidestepped the NEPA process with a “categorical exclusion” from performing an environmental analysis, the states allege.

Categorical exclusion means a category of actions that the agency has determined normally do not have a significant effect on the human environment.

BLM contends the categorical exclusion applies because the rule sets out a framework but is not self-executing in that it does not itself make substantive changes on the ground; thus the rule is administrative or procedural in nature.

Significant effect

However, the states argue the new rule does have a significant effect and doesn’t qualify for the exclusion.

“The public lands rule overhauls BLM’s substantive priorities under the Federal Land and Policy Management Act and represents a sea change in how the agency will carry out its mission moving forward, providing proposed guidelines for the management of all 245 million acres of federal public land — including millions of acres in the plaintiff states,” the complaint states.

“More specifically, it revises existing regulations and creates new land-management tools not contemplated or authorized under FLPMA,” it said.

NEPA demands a rule of such significance be subject to careful environmental study. But when BLM first proposed the rule, it previewed its intent to sidestep NEPA’s procedures, according to the lawsuit.

Pushback ignored

“The plaintiff states objected. So did local government entities, nonprofit organizations, industry groups, members of Congress and many others. Interested parties of all stripes entreated BLM to take the ‘hard look’ that NEPA requires before pushing through a rule that could harm the environment,” the complaint states.

The rule revises existing regulation, establishes two categories of conservation leases — designating conservation as a “use” in its mandate to manage for multiple use — and prioritizes the designation and protection of areas of critical environmental concern, it states.

BLM’s failure to comply with NEPA creates increased risk of environmental harm for the states, according to the complaint.

Environmental harm

For Utah, “the rule increases the risk of environmental harm by allowing BLM to hand control of leased land to individuals and entities that may refuse to coordinate with the state to manage water supply, wildfire risk and invasive plant and animal species … impairing the state’s ability to manage those risks,” the complaint states.

Conservation leases for passive management can lead to degraded landscapes, proliferation of noxious weeds and a heightened risk of catastrophic wildfires on state lands. Uncertainty over which lands will be leased or designated areas of critical environmental concern will impede implementation of rangeland improvement projects, the complaint states.

The issue is much the same in Wyoming with the added complication of needed coordination for the state’s conservation of sage grouse, which prioritizes maintenance and enhancement of sage grouse habitats and populations, the complaint states.

The states are suing the U.S. Department of Interior and BLM, asking the court to vacate the rule.