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Are Conservation Leases the Key to Resolving Competing Demands on Public Lands?

  • Shawn Regan
  • This article was originally published by the Liberty and Ecology Blog.

    Most conservation issues involve balancing competing uses of natural resources. Should a parcel of land be developed for energy production, harvested for timber, grazed by livestock, managed as wildlife habitat, or set aside as open space? In a world of scarce resources, the main question is: How do people best resolve these competing demands?

    On private lands, the answer is simple: They negotiate. When my organization, PERC, sought to conserve habitat for elk and other wildlife on private lands near Yellowstone, we worked with a rancher to come up with a deal. In exchange for setting aside a portion of their ranch for migrating elk, PERC paid the rancher and helped build a fence to separate cattle from the elk habitat. The outcome benefited both the landowner and wildlife. The “elk occupancy agreement,” as we’ve called it, has been widely praised by environmentalists and ranchers alike.

    Contrast that with disputes over public lands. Under current law, conservation groups cannot negotiate with ranchers or other users to resolve competing demands over public lands. “Use it or lose it” rules require leaseholders to graze, drill, mine, harvest, or otherwise “use” their leases, or else they risk losing their permits. These requirements preclude conservationists from participating in the markets for public land leases and forbid existing leaseholders from being compensated for voluntary conservation efforts. This means environmental groups often have no other way to influence public land management than by filing lawsuits, lobbying for regulations, or advocating for restrictive policies.

    With no ability to negotiate, public lands are often characterized by conflict, litigation, and endless political fighting. This has sparked interest in finding better ways to resolve competing demands over public lands in ways that promote negotiation instead of conflict and encourage middle-ground solutions instead of scorched-earth political or legal battles. PERC researchers have put forth one such idea: allow conservationists to lease public lands for conservation purposes, just as other users can purchase leases to develop or graze them.

    A Seismic Shift?

    In April, the Bureau of Land Management unveiled a draft rule that would, among other things, take steps toward authorizing conservation leasing. The proposal seeks to put conservation “on an equal footing with other uses” by clarifying that conservation is a valid “use” of public lands and allow groups and individuals to acquire “conservation leases” to restore lands or mitigate impacts to other lands.

    The proposal has been described as a “seismic shift” in public land management. Vast amounts of BLM land are currently leased for various resource uses. But until now, the market for these leases has been limited to narrowly defined “uses” such as grazing, mining, logging, and other traditional activities. If implemented, this rule could change that, giving conservationists a seat at the natural resource leasing table.

    This would be an important change. As PERC researchers recently described in the journal Science, outdated “use it or lose it” rules should be updated to reflect new environmental realities and emerging conservation values. Indeed, across the West, states have already moved in this direction: In recent decades, most western states have implemented reforms that enable conservationists to lease or acquire water rights to boost stream flows and allow farmers to profit from conserving water. Western states have also begun to allow conservation leasing on state trust lands.

    Similar markets for conservation are quietly flourishing on private lands. Nonprofit land trusts and other conservation groups routinely partner with ranchers and other landowners to conserve private lands. These arrangements—whether in the form of conservation easements, payments for ecosystem services, habitat leases, or occupancy agreements—are mutually beneficial and largely non-controversial.

    By revising public land rules to enable conservation leasing, the BLM could provide some of the same opportunities to strike cooperative, win-win agreements with existing resource users on public lands. If designed and implemented effectively, the new rule could open up the potential for broader markets for voluntary conservation similar to ones that already occur on private lands.

    The Proposal, an Advance but Not Perfect

    While the proposal is a significant advance it’s not without shortcomings. The draft rule is vague and short on specifics, which has created confusion and concern over how the rule might be implemented. For example, the rule is unclear about which lands would be eligible for conservation leases, how long the leases would last, how they would be priced, and how they would affect other future uses.

    Importantly, the draft rule differs from what PERC researchers have proposed in several important ways. For one, the rule stops short of creating markets for voluntary conservation on public lands. The draft states that conservation leases are “not intended to provide a mechanism for precluding other uses” and suggests that such leases may be limited to areas that are not currently leased for grazing, mining, or other activities. This would prevent groups from resolving competing demands over the use of public lands through direct negotiation.

    The rule also does not allow conservationists to acquire leases simply to protect resources from other uses or resolve conflicts over existing uses. Rather, conservation leases would be limited to restoration or mitigation projects—in other words, active efforts such as restoring a degraded stream or enhancing habitat. Although there is ample opportunity for such projects on public lands, this could limit the scope of conservation leasing.

    Looking Ahead

    Despite these shortcomings and unanswered questions, the draft rule is a step in the right direction. If designed effectively, it could empower conservationists to channel their interests through voluntary market mechanisms rather than the legal fights and zero-sum political battles that are common on public lands today.

    The prospect for conservation leasing is not limited to this particular rule, however. The BLM is also in the process of revising its grazing regulations, which presents another opportunity for the agency to embrace voluntary markets for conservation.Reforms to grazing regulations could expand conservation leasing beyond the limited restoration and mitigation projects envisioned in last month’s proposed rule. For instance, the BLM could relax its “use it or lose it” requirements for federal grazing permits to give ranchers greater flexibility over the use of their permits. This would allow conservationists to negotiate with ranchers over lands that are currently used for grazing to advance the kind of win-win partnerships that are already occurring on private lands, similar to PERC’s elk occupancy agreement.

    The BLM is seeking public comments on its new draft rule until June 20. PERC plans to submit detailed comments encouraging the agency to embrace a system of conservation leasing that allows groups to resolve their competing demands over the use of public lands through voluntary negotiation—just as they often do on private lands today.

    Written By
    • Shawn Regan
      Shawn Regan
      • Vice President of Research

      Shawn Regan is a research fellow and vice president of research at PERC.  He is the executive editor of PERC Reports.

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