Federal Land Management: When “Multiple Use” and “Sustained Yield” Diverge

Federal Land Management: When “Multiple Use” and “Sustained Yield” Diverge

Legal Sidebari

Federal Land Management: When
“Multiple Use” and “Sustained Yield”
Diverge
June 21, 2023
The Federal Land Policy and Management Act (FLPMA) has provided the framework for federal
management of public lands since 1976. Among other things, FLPMA instructs the Secretary of the
Interior (Secretary) to manage public lands “under principles of multiple use and sustained yield.” This
Legal Sidebar explains a potential change that the Bureau of Land Management (BLM), an agency within
the Department of the Interior tasked with management of federal lands, has proposed in how it
implements the dual mandate of multiple use/sustained yield on federal lands.
The Supreme Court has described “multiple use management” as “a deceptively simple term that
describes the enormously complicated task of striking a balance among the many competing uses to
which land can be put.” Because FLPMA includes more than 200 million acres in its definition of public
lands, many parties have significant interests in the interpretation and application of this short phrase
multiple use and sustained yield.
Understanding the meaning of that phrase starts with FLPMA itself. The statute envisions management
that balances the use of the resources of public lands with the preservation of those resources for future
generations. It defines sustained yield as “the achievement and maintenance in perpetuity of a high-level
annual or regular periodic output of the various renewable resources of the public lands consistent with
multiple use.” FLMPA offers a more detailed definition of multiple use that obliges BLM to manage the
lands under its purview “so that they are utilized in the combination that will best meet the present and
future needs of the American people,” allowing for periodic adjustments “to conform to changing needs
and conditions” and taking into account “the long-term needs of future generations for renewable and
nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed,
wildlife and fish, and natural scenic, scientific and historical values.” It also requires “harmonious and
coordinated management of the various resources without permanent impairment of the productivity of
the land and the quality of the environment with consideration being given to the relative values of the
resources and not necessarily to the combination of uses that will give the greatest economic return or the
greatest unit output.”
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These statutory definitions create some obligations and constraints for BLM’s land management policies,
but they also allow the agency some latitude to interpret the subjective concepts found in these statutory
definitions as it sees fit. Federal case law has interpreted multiple use/sustained yield obligations in the
context of FLPMA and in the related Multiple-Use Sustained-Yield Act of 1960, which sets forth
management principles for national forests administered by the U.S. Forest Service. That case law
suggests that the courts will be deferential to agency evaluations and interpretations related to land
management, particularly where those decisions are informed by technical expertise. One court noted that
the multiple use/sustained yield and related obligations in the act “breathe discretion at every pore.”
To date, BLM has not made a comprehensive attempt to explain how it interprets its authority and
obligations under FLPMA’s multiple use and sustained yield principles. The phrases multiple use and
sustained yield barely appear in BLM’s FLPMA promulgated regulations, although BLM’s forest
management regulations include a framework for “sustained-yield forest units” in certain regions in
accordance with FLMPA and other statutory obligations. Instead, BLM’s interpretation of its multiple use
and sustained yield goals must be inferred from its decisions on a case-by-case basis. BLM has
promulgated a variety of manuals, handbooks, and memoranda to guide staff and stakeholders in
particular decisions, but those sources often refer to multiple use and sustained yield principles in the
abstract rather than providing details about implementation. For example, BLM’s handbook on “Land Use
Planning” provides that agency plans should be crafted “under the principles of multiple use and
sustained yield.”
On March 30, 2023, BLM took a step to define more explicitly how it will balance the competing goals of
multiple use and sustained yield principles, issuing a proposed rule to amend its regulations to prioritize
healthy ecosystems. The text of the proposed rules focuses on the “sustained yield” aspect of BLM’s
obligation, noting that it is imperative that the agency “steward public lands to maintain functioning and
productive ecosystems and work to ensure their resilience.” By resilience, the agency means that
“ecosystems and their components can absorb, or recover from, the effects of disturbances and
environmental change.”
The proposed rule focuses on the protection, resilience, and restoration of public lands, framing the
conservation policies contained in the proposed rule as necessary to allow BLM to “effectively manage
for multiple use and sustained yield in the long term.” BLM highlights three tools for protecting
resilience: protection of intact native habitats, restoration of degraded habitats, and informed
decisionmaking—particularly with respect to plans, programs, and permits.
The proposed rule would create a new regulatory framework to allow the agency to focus land
management practices that protect this resilience. FLMPA directs BLM to adopt Land Use Plans for tracts
or areas under its purview and to ensure that management decisions about particular projects or actions
conform to those plans. This proposed rule would apply a “fundamentals of land health” analysis, which
is currently used on grazing areas, to all BLM lands. It would also amend and codify the process for
designation of “areas of critical environmental concern” (ACECs). The latter change includes a
requirement that the agency consider “ecosystem resilience, landscape-level needs, and rapidly changing
landscape conditions” in ACEC designation and management considerations. These new types of analysis
and area designations would be incorporated into its management plans to guide project-level
decisionmaking.
Perhaps the most significant change proposed in the rule is the creation of “conservation leases,” a
proposed new program that would allow BLM to issue leases on federal lands “for the purpose of
pursuing ecosystem resilience through mitigation and restoration.” Details on this proposal are sparse, as
BLM is soliciting comments on the appropriate format, duration, scope, and even name for the proposed
leasing program. BLM also clarified that the program “is not intended to provide a mechanism for
precluding other [federal land] uses, such as grazing, mining, and recreation” and that “[c]onservation
leases should not disturb existing authorizations, valid existing rights, or state or Tribal land use

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management.” BLM’s explanation for the conservation leases suggests that they could be used in
conjunction with other multiple use goals to achieve an appropriate balance between those goals. For
example, BLM suggests that the project sponsor for a renewable energy project might also enter into a
conservation lease to compensate for the loss of wildlife habitat that the renewable energy project may
cause.
Stakeholders who wish to participate in this rulemaking process may do so by submitting comments to
BLM. Comments are due July 5, 2023. Additionally, some Members of Congress have suggested that
legislation may be appropriate to address the proposed rule. Members in both the House and the Senate
have drafted legislation directing BLM to withdraw the proposed rule and to prohibit adoption of the rule
“or any substantially similar rule” in the future. These opponents of the proposed rule argue that it could
infringe on “long-standing multiple uses (of federal lands), like grazing, timber management, and mineral
development.” Congressional supporters of the proposed rule may also consider enacting the programs
and priorities contemplated by the proposed rule into legislation, as a future Administration would
otherwise be free to amend or repeal the rule.

Author Information

Adam Vann

Legislative Attorney

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