Under the Bureau of Land Management’s recently promulgated Conservation and Landscape Health Rule, 43 C.F.R. §§ 6100-6103.2, the BLM must seek to achieve “ecosystem resilience,” which encapsulates an ecosystem’s ability to handle disturbance and continue to benefit human communities. Achieving resilience will require the bureau to consider conservation as a valid use of land, and treat it on a par with traditional land uses such as mineral exploration, timber harvesting, and grazing. The rule further permits the BLM to grant preservation and restoration leases, as well as identify and protect certain untouched landscapes. In achieving this ecosystem resilience, the bureau will also seek to incorporate Indigenous Knowledge into its management plans and decisions.

On July 24, 2024, the State of Alaska filed a suit, Alaska v. Haaland, 3:24-cv-00161-SLG, in the Federal District Court of Alaska, which seeks to have the rule overturned. The State alleges the BLM had no authority to promulgate the rule, failed to follow proper procedure in adopting it, and the rule violates both federal law and the major questions doctrine.

The State claims the BLM lacked authority to create the rule because, unlike traditional land uses, conservation is not a use, but a prevention of land from use. According to the State, designating conservation in this way actually violates the congressional mandate that the BLM utilize lands for multiple uses. The State also alleges the rule’s restoration and maintenance leases would withdraw land from public use and occupancy, and further violate federal restrictions on the government’s ability to set aside land. The State additionally claims that no federal statutes authorize the BLM to manage lands for the purpose of ecosystem resilience and landscape intactness.

According to the State, the bureau also failed to follow the necessary procedures to implement the rule, because it did not conduct an environmental impact study, as required by federal law. Though such studies are generally not required for rules that are more procedural than directly impactful on the environment, the State alleges the new public lands rule imposes substantive rather than procedural requirements, and therefore such a study is required.

The State further argues that the rule violates the Alaska National Interest Lands Conservation Act (ANILCA), Public Law 96-487. ANILCA protects Alaskans’ access to State and private lands, maintains the rights of the State and Alaska Native Corporations to select and receive lands, and prevents additional Alaskan lands from entering the conservation system—with the requirement that Congress approve any public land withdrawals greater than 5,000 acres. The State alleges the rule empowers the BLM to take actions that result in public land withdrawals without Congress’s approval, and therefore the rule violates ANILCA.

Finally, the State alleges the rule violates the major questions doctrine, a relatively new proposition which requires clear authority for agency actions that will have far-reaching economic and social impacts. The State believes the BLM failed to show sufficient authority for the public lands rule, which will cause drastic changes to land management not only in Alaska, but in eleven other western states.

U.S. District Judge Sharon Gleason has not had an opportunity to offer substantive rulings on the case. But on September 30, 2024, a group of organizations, collectively known as the “Northern Center Movants,” asserted their right to intervene in this litigation; or, alternatively, for the court to permit them to participate. The Northern Center Movants are composed of the Northern Alaska Environmental Center, Alaska Wilderness League, Badlands Conservation Alliance, Center for Biological Diversity, Citizens for a Healthy Community, Diné Citizens Against Ruining Our Environment, San Juan Citizens Alliance, Sierra Club, and WildEarth Guardians.

To hold the right to intervene in the litigation, the Northern Center Movants must show their motion to intervene is timely, they have a significant and protectable interest in the property or transaction at issue, the outcome of the litigation will affect their ability to protect that interest, and the existing parties might not adequately protect the asserted interest. The Northern Center Movants allege their motion is timely because litigation is in its early stages, and no existing party will be negatively affected by the intervention. The petitioners also argue that, because their member organizations seek to protect and enjoy public lands, and many had already submitted comments regarding the rule’s adoption, they have an interest in seeing the public lands rule approved. They claim that, should the District Court set aside the public lands rule, their respective missions, as well as their enjoyment of pristine and clean environments, will be hampered. Finally, the Northern Center Movants claim the BLM will not adequately represent their interests in this litigation, because the bureau must focus on broader public interests, while the Movants seek only to further the conservation of public lands.

In the alternative to intervention as of right, the Northern Center Movants seek permissive intervention, which requires their motion be timely enough not to prejudice an existing party, and the Movants’ claims or defenses “share with the main action a common question of law or fact.” The Northern Center Movants argue they should be permitted to intervene because the litigation is at an early stage and their intervention will not prejudice another party, and the movants intend to respond directly to the State’s arguments and assert defenses of law and fact consistent with the arguments at issue in the case.

As of now, the federal government has not taken a position on whether the Northern Center Movants’ motion to intervene should be granted. The State has opposed the proposed intervention, arguing that the Northern Center Movants are sufficiently represented by the federal government. The State has also argued that should the Northern Center Movants be granted intervention, the court should impose reasonable limitations on the Movants’ participation.

Realistically, the intervention of the Northern Center Movants is unlikely to have a significant effect of the outcome of this case, since the State of Alaska’s complaint centers more on legal issues than factual ones. Nevertheless, should the motion to intervene be granted, the group seems likely to take a harder pro-conservation stance than the named defendants. This motion to intervene also shows that conservation groups regard the public lands rule as an essential regulatory change that offers various tools for furthering conservation and environmental protections.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.