Pendley’s illegal stint at BLM invalidates backcountry conservation areas in Montana

Mule deer swim across the Missouri River in the Upper Missouri Breaks National Monument. (Danita Delimont/Alamy Stock Photo/via High Country News)

In central Montana, sagebrush-covered hills roll gently down toward Arrow Creek before dropping off in dramatic cliffs where the creek joins the Missouri River. This Bureau of Land Management land, near the Upper Missouri River Breaks National Monument, is prime habitat for deer, elk and game birds. Arrow Creek’s remote location and its renown as a hunting destination made it an ideal candidate to debut a new land-management designation: the backcountry conservation area.

Backcountry conservation areas were conceived as a compromise between giving land the full protections — and restrictions — of a designated wilderness area, and offering no protections at all: a way to conserve big game wildlife while still supporting recreational access.

In July 2020, the BLM designated the nation’s first backcountry conservation areas in Montana. But the agency did not outlaw oil and gas drilling within their boundaries — and state officials and some public-lands advocates say that could make the designation meaningless.

“The idea is a really good idea, but the backcountry conservation areas we got are just words on a paper,” said Aubrey Bertram, eastern Montana field director for the Montana Wilderness Association.

Now, even the watered-down version of the Montana designations has been thrown out. In October, Federal District Court Judge Brian Morris ruled that the management plans establishing the Montana backcountry conservation areas were invalid because William Perry Pendley, the de facto head of the BLM, was unlawfully filling that position.

The ruling, and the lawsuit that led to it, underline how — and why — state officials, conservationists and members of the public have lost trust in an agency that’s undone land protections and scrapped previous compromises over the past four years.

First proposed during the Obama administration, backcountry conservation areas have been championed primarily by hook-and-bullet conservation groups. BLM land classifications range from recreation- to preservation-focused — categories that differ according to how much road-building or timber-harvesting is allowed and whether motorized vehicles or bicycles are permitted.

The new designation was meant to bridge partisan and ideological divides by blending habitat protection with recreational access, allowing some road construction and vehicle travel while preventing future industrial development.

“In places where rural folks are wary of overly restrictive land designations, backcountry conservation areas provide durable conservation that won’t be rolled back,” said Joel Webster, the senior director of Western Programs for the Theodore Roosevelt Conservation Partnership.

The inaugural backcountry conservation areas covered nearly 120,000 acres of land in western and central Montana. Under the plans establishing them, oil and gas drilling could not occur unless the BLM determined that it wouldn’t harm wildlife or recreation.

Even though the lack of significant fossil fuel deposits in the areas made drilling unlikely, oil and gas companies could stake claims anyway: Speculators often lease BLM land with marginal development potential, paying as little as $1.50 an acre. Such leases can prevent the agency from conducting habitat restoration or trail maintenance. (The BLM did not respond to requests for comment.)

This has led Montana land managers to question the designation’s conservation value. “What really matters is, ‘What does it protect?’ ” said John Tubbs, director of Montana’s Department of Natural Resources and Conservation. Without clear and binding restrictions, such as withdrawing the land from oil and gas leasing or banning commercial logging, the state lacked confidence that the new category would actually safeguard the landscape, Tubbs said.

The October ruling that scrapped the Montana backcountry conservation areas stemmed from a successful lawsuit brought by the state against the BLM. The court agreed that Pendley’s tenure violated laws limiting how long political appointees can serve without Senate confirmation. (Pendley’s official nomination was withdrawn because of his anti-public land record; as of press time, he continues to serve as the BLM’s acting director.)

Environmental groups asked the court to extend the Montana ruling and thereby invalidate scores of the regulations, environmental impact statements and resource management plans that Pendley oversaw. A suit filed by Colorado conservation groups, for example, charges that expanded oil and gas leasing in the state is illegal because Pendley played a role in approving it. Meanwhile, the Interior Department, which oversees the BLM, is expected to appeal the Montana case to the 9th Circuit Court of Appeals.

Hugo Tureck grows grain on a flat bench of land above Arrow Creek and runs cattle through the proposed backcountry conservation area and down to the Missouri. He supported the new designation back in 2015.

But as the plans came to fruition, the BLM stopped holding local resource advisory committee meetings and communicating with residents. If they had called him, he said, he would’ve told them there’s no reason to allow oil and gas leasing in the drainage. “If you think about oil and gas, you’re on the wrong side of the river,” said Tureck. “There’s nothing out here.”

This story originally appeared online Nov. 13, 2020 at High Country News, hcn.org. Carl Segerstrom is an assistant editor at High Country News, covering Alaska, the Pacific Northwest and the Northern Rockies from Spokane, Washington. Email him at carls@hcn.org or submit a letter to the editor