Legal Updates

Advisory Council on Historic Preservation Recommends Cancellation of Oil and Gas Leases in Montana

On September 21, the Advisory Council on Historic Preservation (ACHP), an independent federal agency with a key advisory role in National Historic Preservation Act (NHPA) § 106 “effects” determinations, recommended that long-ago issued federal oil and gas leases should be cancelled and that future mineral development should not occur within the Badger-Two Medicine area, located in northwestern Montana. As discussed in posts from April 16 and July 27, in 1982, BLM issued 46 oil and gas leases on Forest Service-managed surface in the Badger-Two Medicine area, an area adjacent to the Blackfeet Indian Reservation. However, in spite of numerous attempts to develop these leases, the leases were indefinitely suspended by BLM. While 29 of the leases have been voluntarily relinquished, 18 leases remain. These 18 leases, held by Louisiana-based Solenex LLC, are the focus of litigation currently pending in the Washington D.C. Federal District Court for the District of Columbia.

The ACHP recommendation raises challenging First Amendment issues concerning the accommodation owed to Native American traditional cultural beliefs under the NHPA. In its recommendation, ACHP stated that oil and gas development could irrevocably harm the 165,588-acre area, which encompasses lands within the Blackfeet Indian Reservation and the Lewis and Clark and Flathead National Forests designated as a “Traditional Cultural District” under NHPA. “The proposed undertaking and the entire Solenex leasehold is located within the Badger-Two Medicine TCD, a historic property of religious and cultural significance to the Blackfeet Tribe. . . The Blackfeet Tribal Business Council described the TCD in Resolution No. 260-2014 (2014) as ‘one of the most cultural and religiously significant areas to the Blackfeet People since time immemorial.’” AHCP Comments (9/21/15) at 4. While the ACHP recommendation argues that BLM should cancel the Solenex leases, none of which are located on the Blackfeet Reservation, the Council’s recommendation goes on to advise against any future oil and gas development in the entirety of the Badger-Two Medicine Area. The Council’s recommendation is not binding on federal agencies, in this case BLM and the U.S. Forest Service, or the courts, but under NHPA the agencies are required to “take into account” the Council’s findings in writing before making a decision. Moreover, given its important role under NHPA as the primary federal historic preservation policy advisor to the President and Congress, its recommendation is likely to carry significant weight as BLM and the Forest Service decide the future of oil and gas development in the area. Meanwhile, if BLM does decide to cancel the Solenex leases, it will be up to the courts to decide if this is authorized under the Mineral Leasing Act and what, if any, compensation is owed to the leaseholders.

ACHP’s recommendation can be found at: