Property Clause Power Play: The BLM's Conservation Rule and Loper Bright

This article examines the implications of Loper Bright on public land management through rulemaking. Part II provides a comprehensive overview of the case, its holding, and its potential ramifications. Part III delves into the history of the Administrative Procedure Act (“APA”), to illuminate the evolution and underlying rationale for agency deference. Part IV analyzes the constitutional framework underpinning the BLM’s statutory authority, rooted primarily in the Property Clause, which delegates the task of making “needful” rules governing public lands to Congress and to federal land management agencies.

Finally, Part V argues that the Rule is valid, whether a reviewing court applies de novo review, Skidmore respect, or arbitrary and capricious review. The Rule legitimately exercises the BLM’s congressionally delegated authority under FLPMA, aligning with the statute’s multiple use mandate and conservation provisions, and finding support in FLPMA’s legislative history and established judicial precedent.