A New Ninth Decision Raises the Question, Does FLPMA Matter?

Recently, the Ninth Circuit issued a decision that could have grave consequences for farmers, energy users, and anyone who relies on exploration of federal land. In a case called Shoshone-Bannock Tribes v. Bureau of Land Management, the court addressed how a specific federal statute—the Federal Land Policy and Management Act, or FLPMA—interacts with tribal rights and treaties. In short, the tribe won a victory, for now, holding that an early 20th Century treaty constrains BLM from allowing a company to explore federal land for minerals.  

Put simply, the decision is alarming, particularly for anyone who cares about energy independence, food security, and the prosperity of the American West. Ordinarily, FLPMA (pronounced “Flip-mah”) resolves uncertainties when it comes to how federal land can be used. When it comes to major projects like the one at issue in the case, predictability is the key. And while respect for treaty rights is a core principle of federal law, federal courts must also give effect to FLPMA’s mandate. The two should be reconciled, not placed in conflict.