Rebecca focuses her practice on public land access and energy development for oil and gas, solar, wind, geothermal, and transmission with an emphasis on federal environmental law. Rebecca represents clients in federal court and before state agencies, Congress, and the Departments of Interior and Energy and the U.S. Forest Service. She is an experie...nced advisor and trial lawyer in the areas of Federal Land Policy Management Act, National Forest Management Act, National Environmental Policy Act, Endangered Species Act, National Historic Preservation Act, and Clean Water Act. More

Trump NEPA Initiatives to Expedite Energy Infrastructure: “One Federal Decision”

One of President Trump’s first actions was to issue Executive Order 13766, “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects” (Jan. 24, 2017), directing the Council on Environmental Quality (“CEQ”) to begin efforts to identify high priority infrastructure projects and expedite federal environmental reviews required by the National Environmental Policy Act (“NEPA”). This was followed by the more detailed EO 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (Aug. 15, 2017) describing the “One Federal Decision” (“OFD”) policy. The CEQ, the Department of the Interior (“DOI”) and the Bureau of Land Management (“BLM”) have taken several actions to implement this presidential OFD direction.

The challenge the EO is trying to address is the integration and timely coordination of the multiple federal agencies, federal laws and permit decisions that are triggered by a major infrastructure project. Expediting NEPA is not new; Congress and prior administrations have addressed the need for permit streamlining for at least the last 15 years. For example, in 2001, President George W. Bush created a NEPA Task Force to modernize agency regulations implementing NEPA. In 2004, BLM issued a “cooperating agency” rule directing that BLM invite state, local and tribal governments to participate as cooperating agencies in the Bureau’s NEPA processes. In 2003, as part of the President’s Healthy Forest Initiative, bi-partisan legislation, the Healthy Forest Restoration Act, was enacted to expedite NEPA and court review of hazardous fuels reduction projects. Congress also created expedited NEPA for airports (Vision 100 Act of 2003), for highway and transit construction (SAFETEA-LU Act of 2005), and for oil and gas and LNG terminals (Energy Policy Act of 2005).

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Interior Reins in the MBTA to Remove a “Domestic Energy Burden”

Mining, oil and gas, wind, solar and transmission companies who have struggled to comply with the Migratory Bird Treaty Act of 1918 (MBTA) received an early Christmas present from the U.S. Department of the Interior’s lawyer. On December 22, 2017, the Principal Deputy Solicitor issued a binding Memorandum Opinion, M-37050, to limit the reach of the MBTA to intentional, unlawful acts of hunting and poaching. In a 41-page legal analysis, the Solicitor concludes, “The text, history and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control. . . . Interpreting the MBTA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants.” This action came in response to Executive Order 13783, Promoting Energy Independence and Economic Growth (March 28, 2017) and was a regulatory review specifically identified by Interior in the “Final Report: Review of the Department of the Interior Actions that Potentially Burden Domestic Energy,” (October 24, 2017) at pp. 32-33.

Why was addressing the MBTA a priority for the Trump Administration? For one, it was a “midnight rule” exemplifying the Obama-era regulation of the energy industry. On January 10, 2017, as the Obama Administration was drawing to a close, its Solicitor issued a legal analysis determining that the MBTA should be interpreted to cover “incidental take” (“apply broadly to any activity”) of migratory birds, and the U.S. Fish and Wildlife Service (USFWS) issued an implementing guidance document. “Incidental take” liability means that otherwise lawful actions like constructing a wind turbine, maintaining an oil and gas wastewater facility or constructing a transmission line could result in prosecutable take under the MBTA.1

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Monument Making, the Antiquities Act of 1906 and the Extent of Presidential Power

On April 26, 2017, President Trump issued an Executive Order (“EO”), “Review of Designations under the Antiquities Act,” to address what he called a “massive federal land grab.” The EO directs Interior Secretary Zinke to review all monument designations made under the Antiquities Act since 1996 that either exceed 100,000 acres or were “made without adequate public outreach and coordination” and make recommendations on legislative or administrative changes. The following week, on May 2, 2017, the House Natural Resources Subcommittee on Federal Lands held an oversight hearing, “Examining the Consequences of Executive Branch Overreach of the Antiquities Act,” to hear from witnesses in states with “widely opposed designations.” Why all the high-level interest in a 111 year-old law?

We last blogged on this topic in October 2015 to highlight how President Obama was using the Act’s authority for his conservation legacy and to note that Congress was reacting by considering legislation to limit the Act. President Obama used his last year in office to create or expand 15 monuments from the expansion of the enormous Hawaiian Papahānaumokuākea Marine National Monument (283.4 million acres) to the designation of the tiny Stonewall National Monument (0.12 acre) in New York and, in late December, the Utah Bears Ears National Monument (1.35 million acres). In total, as was described in the Subcommittee Hearing memo, President Obama used the Act 34 times “to lock up 553,599,880 acres of land and water as national monuments” which represents “66% of all monuments ever designated.” See list in CRS, “National Monuments of the Antiquities Act” App. C (Jan. 30, 2017).

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What's Up With Chevron and Does It Matter?

If you have paid any attention to the U.S. Senate confirmation process for Colorado’s Judge Neil Gorsuch to the U.S. Supreme Court, you’ve heard Chevron come up.  According to Senator Al Franken (D-Minnesota), “For anyone who cares about clean air or clean water or about the safety of our food and medicines, it’s incredibly important . . . [it] simply ensures that judges don’t discard an agency’s expertise without good reason.”  In a 2016 opinion, Judge Gorsuch called Chevron a behemoth and argued that it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the constitution of the framers’ design.”

Chevron refers to a U.S. Supreme Court decision decided 33 years ago, Chevron U.S.A., Inc. v. Natural Resources Defenses Council, Inc., 467 U.S. 837 (1984) that embodies the judicial doctrine of court “deference” to an agency’s interpretation of ambiguous federal statutes.1   In Chevron, the Supreme Court reasoned that an agency is the subject matter expert and should have the authority to make policy choices – within reason.

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The Dakota Access Pipeline and What It Means

On September 9, 2016, 30 minutes after winning and stopping the Standing Rock Sioux Tribe’s (“Sioux” or “Tribe”) request to enjoin the Dakota Access Pipeline (“DAPL”), the Obama administration upended the rule of law. The Departments of Justice, Army and the Interior issued a joint statement that the U.S. Army Corps of Engineers (“Corps”) “will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its pervious decisions regarding Lake Oahe site under the National Environmental Policy Act (“NEPA”) or other federal laws.” The Administration then asked the company to “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

The DAPL is the latest energy touchpoint. Tribes from all over the U.S. are joining the Sioux as they construct a winter encampment on the Corps-managed land. Neil Young has penned a new anthem, “Indian Givers,” arguing “There’s a battle raging on sacred land/our brothers and sisters have to take a stand.” Green Party presidential candidate Jill Stein and movie actress Shailene Woodley (“The Secret Life of the American Teenager”) have been jailed in support of this energy infrastructure protest.

The DAPL is a 4-state, 1,172 mile pipeline built to transport North Dakota Bakken oil to an Illinois refinery by Energy Transfer, a Texas company. None of the pipeline right-of-way is located on Sioux land, but is within ½ mile of the reservation boundary; over 90% of the right-of-way is on private land. Only 3% of the pipeline requires federal approval and only 1% affects federal waters of the U.S. and, thus, the jurisdiction of the Corps.

The $3.8 billion pipeline is 60% complete at a cost of $1.6 billion dollars. The Corps right-of-way at issue is under Lake Oahe, a flood control project managed by the Corps on land that once was part of the Sioux reservation.

The DAPL needed a number of Clean Water Act (“CWA”) permits from the Corps. On July 25, 2016, the Corps issued its Final Environmental Assessment for 200 crossings (37 miles) of jurisdictional water of the U.S. under Nationwide Permit #12 (“NWP 12”). The CWA NWP 12 authorizes pipeline construction where the construction will affect no more than a half-acre of regulated waters at any single crossing. In addition, the Corps had to analyze several Rivers and Harbors Act of 1899 (33 U.S.C. § 408) section 408 permits including the one at issue to cross a federal flood control project, Lake Oahe.

Any “federal action” under NEPA and “federal undertaking” under the National Historic Preservation Act (“NHPA”), like the CWA permits here, triggers compliance with the procedural requirements of NEPA and NHPA. NHPA § 106, among other things, requires federal agencies to “consult” with Native Americans on impacts of “undertakings” to historical and cultural resources. The consultation is required whether or not the action is on reservation land – an historic or spiritual connection to the land suffices. Compliance is the act of consultation; consensus or approval by the Tribe is not required. The Corps approach is to consider each separate pipeline crossing as a single “undertaking” for NHPA purposes, but does not treat the entire pipeline as one undertaking. Therefore, each separate crossing has a narrow geographic focus (“area of potential effect”) for NHPA consultation.

In the Tribe’s injunction request to the D.C. District Court, the Sioux argued that the Corps did not adequately consult and that construction of the pipeline in this area threatens graves and sacred sites. The court in an exhaustive analysis of the Corps consultation action found that “this is not a case about empty gestures . . . the Corps and the Tribe engaged in meaningful exchanges that in some cases resulted in concrete changes to the pipeline’s route.”

For the Sioux, the inadequacy of the consultation was its crossing-by-crossing focus. The Tribe argued that consultation should focus on the entire length of the pipeline. Because the Corps refused this focus for the consultation, the Tribe would not formally consult. The Advisory Council on Historic Preservation, a federally chartered entity with a NHPA-directed role to play in consultations, became involved and disputed the Corps’ assertion that the entire pipeline was not subject to the Corps’ jurisdiction.

The current status of the DAPL is that the several emergency injunctions of construction for portions of the pipeline on either side of Lake Oahe have been lifted. The company continues its pipeline construction on fee land despite the Administration’s renewed request that they voluntarily stand down. The D.C. District Court is poised to consider the case on the merits, while the D.C. Circuit prepares to consider the appeal of the D.C. District Court’s September denial of the injunction. Meanwhile, the Administration has begun a nationwide consultation process with Native Americans to improve the NHPA consultation process. The Corps has told the court that it will make a decision on the Section 408 permit for the Lake Oahe crossing in “weeks not months,” but cautions that its decision could require additional process. This could include supplemental NEPA, an environmental impact statement (“EIS”) or additional NHPA consultation. It is anticipated that such action will occur after the first Tuesday in November.

But this case is bigger than the DAPL. It represents the latest stage in the 350.org “Keep It in the Ground” movement to stop not only oil and gas development but the necessary infrastructure to transport it to market. Over the last few years, oil and natural gas pipelines have faced environmental and climate change opposition across the U.S. In October, climate activists targeted 5 cross-border pipelines transporting Canadian oil sands petroleum to U.S. markets by shutting down valves. The “Keep It in the Ground” movement is an effort with serious safety and economic implications for the oil and gas industry.

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Gold King Mine Spill Exposes the Legal Hurdles to Cleaning up Mines

This blog post was written by Katherine "Kate" Sanford who worked with WSMT as a summer intern from June 1 through August 10, 2016.

On August 5, 2015, Environmental Protection Agency (“EPA”) contractors inadvertently broke through a retaining wall at the closed Gold King Mine, causing over 3 million gallons of acidic, metal-laden water to flow into the Upper Animas Watershed in Southwest Colorado. The garish orange plume, which was estimated to contain around 900,000 pounds of heavy metals, made its way from Colorado, through New Mexico, and into Utah’s Lake Powell. Along the way, arsenic, lead, cadmium, copper, mercury, and zinc settled along the riverbeds of the San Juan and Animas Rivers. See Gold King Mine Accident Highlights Risks Posed by Abandoned Mines.

In the weeks and months that followed, downstream communities suffered from the spill: Durango rafting companies lost hundreds of thousands of dollars, and the Navajo Nation shut off two of its major irrigation systems, severing a lifeline for many farmers in the area. Meanwhile, the EPA took full responsibility for the disaster and worked quickly to build a $1.5 million dollar water treatment plant at the mine. Today, the water downstream is clear, but the cleanup is not over. The EPA has already spent $29 million in disaster response and may spend as much as $50 million before the task is complete.

Throughout the past year, the Gold King Mine spill has not only exposed the existence of abandoned mines that are leaking toxic water, but also the legal impediments to cleaning them up. There are an estimated 23,000 inactive mines in Colorado and 500,000 around the West. Federal investigators from the Department of Interior’s Bureau of Reclamation have found that tens of thousands of these abandoned mines are contributing to continuing pollution. But most of the companies that built the mines over the past 150 years have been out of business for so long that no one is around to take responsibility. To make matters worse, environmental statutes are hindering ”Good Samaritans” from mine clean-ups by burdening them with crippling legal liability. Consequently, the EPA is left with the expensive and arduous task of cleaning up almost all of them.

The Clean Water Act (“CWA”) is one example of a well-intentioned environmental law that poses a major hurdle to cleaning up abandoned mines. It affixes liability and responsibility to anyone who attempts to address a leaking mine, even if the owner had no role in creating the pollution and is working to clean it up. Similarly, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) imposes retroactive strict liability, meaning that current owners are liable even if the pollution was not their fault and even if the site was polluted before CERCLA was enacted. As a result, people are reluctant to try to clean up abandoned mining sites.

In the last year, several bills were introduced in Congress in response to the Gold King Mine spill to address these legal deterrents. Several of the bills are new versions of Good Samaritan legislation, which seek to reduce the liability of those who work to clean up abandoned mines. For example, senators from four different states introduced the Hardrock Mining Reform and Reclamation Act, which would reduce liability by amending the CWA so that Good Samaritans can obtain special permits. The Act would require mining companies to pay a 2% to 5% royalty for extracting mineral resources from public lands – a probable deal killer for an industry that pays no royalty. The Act would also create a reclamation fund to help pay for cleaning up abandoned mines. Similarly, the proposed Abandoned Mine Reclamation Safety Act would direct the Secretary of the Interior to create new regulations to facilitate the safe and environmentally responsible cleanup of abandoned mines.

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BLM Fracking Rule Dead—For Now

It was an interesting week for BLM’s hydraulic fracturing rule first finalized and then immediately challenged on March 26, 2015. On Monday (June 20, 2016), the BLM filed its final brief in the Tenth Circuit arguing that the Wyoming Federal District Court erred when it issued a nationwide injunction of the rule on September 30, 2015. On Tuesday (June 21, 2016), the Wyoming Federal District Court set aside the BLM’s fracking rule, finding "The BLM has attempted an end-run around the 2005 EPAct; however, regulation of an activity must be by congressional authority, not administrative fiat.”

The central question the court addressed was did Congress give BLM the authority to regulate fracking?

In addressing this question, the court examined the broad management authority granted to BLM/Interior in the several statutes relied on by BLM – Mineral Leasing Act (MLA), Federal Land Policy and Management Act (FLPMA) and two Indian mineral statutes—and then analyzed the more narrow authority granted to EPA in the Safe Drinking Water Act (SDWA) to regulate underground injections into drinking water and the specific exemption from the SDWA for non-diesel hydraulic fracturing in the Energy Policy Act of 2005 (EPAct 2005). Judge Skavdahl concluded that neither the MLA nor FLPMA give BLM specific authority to regulate fracking and that, further, neither statute gives BLM environmental regulatory authority.

In examining the MLA, the court found the statute was focused on protecting oil and gas formations—not groundwater— and “surface-disturbing” activities—not downhole activities. The court also rejected BLM’s argument that fracking falls directly within its “regulatory sphere” and that the Bureau had long-regulated fracking. “BLM’s only regulation addressing hydraulic fracturing worked to prevent any additional surface disturbance and impose reporting requirements and did not regulate the fracturing process itself.” The court next examined FLPMA and concluded the statute is a land use planning law and not an environmental law. “Congress delegated regulatory authority for environmental protection of underground water sources to the [EPA], not the BLM.”

Finally, the court looked to SDWA and EPAct 2005. CRS Report on SDWA/fracking. The court determined it was clear that “Congress intended to remove hydraulic fracturing operations (not involving diesel fuels) from EPA regulation under the SDWA’s UIC program.” The court’s decision to invalidate BLM’s fracking rule rested on the rationale that “it makes no sense to interpret the more general authority granted by the MLA and FLPMA as providing the BLM authority to regulate fracking when Congress has directly spoken to the ‘topic at hand’ in the 2005 EPAct.”

The decision is widely expected to be appealed by the BLM and the environmental group intervenors have already declared they will appeal. The BLM’s Tenth Circuit brief on overturning the preliminary injunction of the fracking rule is a likely preview of what those arguments will be. BLM understandably argues that the MLA and FLPMA have been read too narrowly by the court and that, rather, these federal statutes contain “capacious delegations” to BLM to regulate “all operations on federal leases.” BLM adds that, “FLPMA further enhances BLM’s authority to protect natural resources and the environment” and that authority is not limited to planning. Finally, in addressing the crux of the court’s analysis that the SDWA and the EPAct 2005 non-diesel fracking exemption are evidence of a congressional decision to exclude BLM from the regulation of fracking, the government points to legislative history of the SDWA that states, “The committee intends . . . that EPA will not duplicate efforts of the USGS [BLM’s regulatory predecessor] to prevent groundwater contamination under the Mineral Leasing Act.”  Good discussion of legal issues on appeal.

The government has 60 days to file an appeal, but given the importance of this rule, don’t be surprised if an appeal is filed in advance of 60 days.

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What’s Next, Post Keystone XL? “Keep it in the Ground!”

With the rejection of the Keystone XL pipeline by President Obama as part of the Administration’s “package” of climate change actions to deliver to the UN Conference on Climate Change in December, activists and their political allies have turned to the next battlefield – stopping the leasing of federal minerals. http://goo.gl/mU8qia

On November 4, Senator and presidential candidate Bernie Sanders (I-VT) and Senator Jeff Merkey (D-OR) introduced legislation to stop future federal oil and gas leasing in the Outer Continental Shelf and all federal leasing of onshore coal, oil, tar sands, gas and oil shale. The “Keep it in the Ground Act” also would prohibit the renewal of any “nonproducing” lease and cancel existing leases in federal waters off Alaska. See, S 2238, “To prohibit drilling in Outer Continental Shelf, to prohibit coal leases on federal land and for other purposes.” https://www.congress.gov/bill/114th-congress/senate-bill/2238

The President of the Natural Resources Defense Council ( and former Obama Interior Assistant Secretary) Rhea Suh applauded the legislation, “ Phasing out coal, gas and oil production in our federal lands and waters must be part of our broader strategy to shift from dirty fuels that drive climate change to clean energy.” Suh explained that, “Ending new leases for fossil fuels will prevent the release of 90% of potential emissions from federal fossil fuels. Federal lands and waters should be managed . . . to promote the rapid transition to the clean energy economy by keeping fossil fuels in the ground.” Bill McKibben, 350.org founder and anti-Keystone organizer, told Rolling Stone, “Effective action would require actually keeping most of the carbon the fossil fuel industry would like to burn safely in the soil.” The Center for Biological Diversity has led local “keep it in the ground” protests of BLM oil and gas lease sales in Wyoming and Colorado arguing federal fossil fuels represent 450 billion tons of carbon equivalent that should not be burned.

The movement, an offshoot of the fossil fuel divestment campaign, is informed by two studies that identified the potential GHG emissions from undeveloped fossil fuels. A study published in the journal Nature in January analyzed the question at a global scale and found that 80% of world coal reserves need to stay in the ground to avoid the “tipping point” of an elevation in global temperature of 2 degrees C. In the United States, The Wilderness Society and Center for American Progress retained Stratus Consulting in 2012 and 2014 to analyze the GHG emissions from extracting and burning federal fossil fuels. The 2014 update found that federal lands and waters “could have accounted for 24% of all energy-related GHG emissions in the United States in 2012” and “combustion of coal from federal lands accounts for more than 57% of all emissions from fossil-fuel production on federal lands.” See Center for American Progress (March 19, 2015). https://goo.gl/aPiMwJ .

At the end of September, Sierra Club, WildEarth Guardians, 350.org, EarthWorks among 400 environmental organizations presented a letter to President Obama calling on him to “keep federal fossil fuels in the ground.” The groups, citing the above reports, argue that federal leasing contributes “significantly” to U.S. and global GHG emissions and that under existing laws “you have the clear authority to stop new leases. With the stroke of a pen, you could take the bold action needed to stop new federal leasing of fossil fuels . . . .” An accompanying legal analysis argues that the Mineral Leasing Act, the Surface Mine Control and Reclamation Act, the Outer Continental Shelf Lands Act and the Federal Land Policy and Management Act grant considerable discretion to the Secretary of the Interior on whether to lease and that some of these acts grant the Secretary or the President the authority to withdraw lands from leasing. It is legally doubtful whether these acts would provide the authority to the Executive branch to cease all leasing of federal minerals which under the U.S. Constitution Article IV, Sec. 3 are under the plenary authority of Congress. Moreover in the Mineral Leasing Act (30 U.S.C, § 226(b)(1), Congress has directed quarterly lease sales and in the Mining and Mineral Policy Act of 1970 made clear that, “it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries …” 30 U.S. C. § 21a.

While the “Keep it in the Ground Act” stands no chance of passage in this Congress, and Interior Secretary Jewell has rejected this approach has oversimplifying “a very complex situation to suggest we could simply cut off leasing or drilling on public lands and solve the issues of climate change,” she has embraced a suite of regulatory initiatives that environmentalists and their supporters have argued are part of this initiative. For example, in March in a major policy speech previewing BLM regulatory reforms, Secretary Jewell stated, “[W]e also need to do more to address the causes of climate change. Helping our nation cut carbon pollution should inform our decisions about where we develop, how we develop and what we develop.”

The Wilderness Society argues that a soon-to-be issued BLM rule to reduce venting and flaring and the already published draft revisions to Onshore Orders 3, 4 and 5 (https://goo.gl/2Dckrm and https://goo.gl/idRLrd ) to require the installation of meters on federal wells will help to limit GHG emissions from federal leasing. They also argue, and are joined in this argument by Democratic presidential candidate Hillary Clinton, that Interior should raise the royalty rates for coal and oil and gas to account for “the full costs of carbon pollution.” In June, Clinton called for “additional fees and royalties from fossil fuel extraction [to be used] to protect the environment.” Secretary Jewell announced a proposal to consider raising the royalty rate earlier this year. http://goo.gl/eKbNny And, the recently issued BLM resource management plan amendments for the Greater sage-grouse demonstrate the BLM’s willingness to use its FLPMA authority to withdraw millions of acres of federal minerals and limit the leasing of oil and gas for conservation purposes. Each of these requirements will incrementally “keep” a portion of federal fossil fuels “in the ground” which is the goal of that campaign.

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Monument Making And The Presidency

Like presidents before him, President Obama is using the 1906 Antiquities Act, 16 U.S.C. § 431-433, as part of his presidential legacy. In September, 2014, Obama exercised this authority for the 12th time and expanded a national monument, created by his predecessor George W. Bush, from 87,000 square miles to more than 490,000 square miles to take the title as the president with the most acres preserved in the last 50 years. In July, 2015, President Obama designated three monuments, one requested by out-going Senator Harry Reid (NV-D) to protect 704,000 acres in southern Nevada, including a series of strange sculptures by artist Michael Heizer, petroglyphs and a migration corridor for deer and pronghorn – the Basin and Range National Monument. The President also designated the more controversial 330,780 acre Berryessa Snow Mountain National Monument in northern California on BLM and Forest Service land and a five acre monument preserving mammoth remains in Waco Texas.

House Natural Resource Chair Rob Bishop (R-UT) objected to the three monuments, scoffing that the lands were not “antiquities” and that the president’s action was a “land grab” by “the stroke of a pen.” These types of congressional complaints are as old as the Act. The 1906 Act authorizes presidents to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments and was enacted to prevent the looting and destruction of Native American sites. President Roosevelt established the first national monument in Wyoming – Devils Tower— in 1906 and followed that action with a total of 18 monuments including the designation of the Grand Canyon in 1908 to protect 800,000 acres from mining and development. The move was controversial, but in Cameron v. United States, 252 U.S. 450 (1920) the Supreme Court upheld the use of the Antiquities Act to designate the Grand Canyon. This has been the result for other legal challenges-- the statute is broadly written and courts have affirmed the president’s unilateral power to designate monuments—without public involvement or compliance with NEPA.

Preservationists see the Antiquities Act as a powerful tool to protect lands when Congress won’t act on wilderness bills and the Forest Service and BLM are hamstrung by congressional riders or litigation in the creation of quasi-wilderness lands. See for example the 11 years of litigation over the Clinton-era Roadless Rule and the 2011 congressional rider preventing the designation of “Wildlands” by then-Interior Secretary Salazar. Environmental groups their eye and the President’s ear on other monuments they would like the President to designate before he leaves office—including the 1.7 million acre Grand Canyon Watershed National Monument in Utah and Arizona, 1 million acres of desert in southern California and the 2 million acres surrounding the Canyonlands National Park in Utah.

Although the Republican House recently introduced several pieces of legislation to narrow the president’s power under the Act, (HR 1459, “Ensuring Public involvement in the Creation of National Monuments Act”) to require NEPA review of monuments greater than 5000 acres and an appropriations rider to block funding for monuments in Arizona, California, Colorado, New Mexico, Nevada, Oregon and Utah, it is unlikely that the Act will be changed. One of the last times the Act was changed, which explains the absence of Wyoming from the preceding list, was in 1950, after the creation of the monument that later became Grand Teton National Park. At that time, Wyoming’s first Senator Simpson was successful in enacting a requirement for congressional approval of all future monument designations in the state.

President Obama’s counselor, John Podesta, in 2014 remarks celebrating the Wilderness Act, indicated that President Obama’s national monument “signing pen still has some ink left in it.” If President Obama looks to the last Democratic president as an example, we can expect a lot of monument making in 2016. In his last year in office, President Clinton expanded or designated 18 monuments – the vast majority of the 22 monuments on his watch.

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ENERGY TRANSFORMATION: CLEAN POWER PLAN AND THE WEST

When candidate Obama was running in 2008, he identified energy as his top priority and described his goal as the “transformation of American energy” to address the threat of climate change. On August 2, 2015, the President and the EPA Administrator announced the final rule to implement his Clean Power Plan. The focus of the rule is the reduction of carbon emissions from 2005 levels by 32% in 2030.

The rule is issued under the authority of the Clean Air Act Section 111(d) in what many acknowledge is a big stretch for language that was drafted long before climate change was an issue. The rule came as the result of a 2012 settlement of litigation brought by environmental groups and several northeastern states against EPA. See a just-released Senate Majority Staff, Environment and Public Works Committee Report, “Obama’s Carbon Mandate: An Account of Collusion, Cutting Corners, and Costing Americans Billons” on this “sue and settle” tactic. http://goo.gl/gLaviN

The rule addresses new and existing power plants and establishes a different carbon target reduction from a 2012 baseline for each state. According to EPA, each state has the flexibility to choose how it meets its own carbon targets, but the rule is built on three EPA “building blocks”:
• Make fossil fuel power plants more efficient
• Increase generation form lower-emitting combined cycle natural gas plants for reduced generation from higher emitting coal/gas-fired power plants
• Increase generation from new zero-emitting renewable energy power sources
If a state refuses to develop a plan consistent with the rule, EPA will enforce a federal model plan. The rule encourages states to work together and to develop a “cap and trade” program, similar to a proposal that failed to pass Congress in the President’s first term.

EPA projects compliance costs for the rule of between $$5.1-8.4 billion, with an individual’s energy costs increasing by 3%-1% early in the compliance period, but dropping to a net “savings” in 2030 as a result of reduced energy consumption.

Winners and losers? Obviously coal is the big loser, but surprisingly natural gas also came up short with the Administration backing away from gas as a “bridge fuel” in favor of incentives to support wind and solar generation and demand reduction.

The rule is voluminous – existing power plants are addressed in over 1800 pages, new and modified plants are covered in 900 pages and the EPA model federal plan clocks in at 755 pages. See http://www2.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants

What does the rule mean for the West? Much to the relief of Alaska (and Hawaii) there is no carbon target for these states, yet. Several western states are already on track to meet their carbon targets by 2030 as the result of state law and/or an energy mix already reliant on renewables: California, Washington, Oregon, Nevada and South Dakota. The biggest loser among the states is North Dakota, which saw its 2030 target quadruple from an initially proposed 10.6% reduction to a 44.9% reduction in the final rule. Democratic North Dakota Senator Heidi Heitkamp described the rule as a “slap in the face.” Wyoming, which supplies 70% of the nation’s coal, saw its target double from the draft rule to a 37-44% reduction in the final rule. Wyoming elected officials uniformly attacked the plan with Wyoming Senator Barasso (R) calling it a “job crushing mandate.” Montana was also hit hard with a doubling of its draft goal to a 41% reduction. Montana’s Democratic Governor Bullock said he was “extremely disappointed” by the change, and Montana’s AFL-CIO, which had planned to attend a rally in support of the rule, withdrew in light of the impact of the changed targets on union jobs.

In Utah, where 80% of its power is coal-fired and its renewable energy is sold out of state, elected officials denounced the plan; Senator Orrin Hatch (R) said the rule is “unjustified and potentially devastating for Utah and the nation.” In Colorado, reaction to the state target of a 28% reduction was divided along party lines, with the Democratic Governor Hickenlooper saying he will work to implement the target while Republican Attorney General Cynthia Coffman is considering joining in litigation to challenge the rule. In New Mexico, Republican Governor Susana Martinez and Democratic Senator Tom Udall were united in their belief that New Mexico was ready to comply with the law. See EPA-prepared charts for good summary of state-by-state impacts. https://goo.gl/4rScB4

Opinion among green groups is divided with Environmental Defense Fund Fred Krupp praising the rule as “historic” and an example of Presidential leadership, while the climate researcher and former NOAA scientist, James Hansen, derided the rule as “practically worthless.” The New York Times, in a front page story this week seemed to be “shocked” (see “Casablanca”) that the coal industry was already planning on how to defeat the rule before the rule was published. http://goo.gl/x0yzd3

There is 100% agreement on one thing -- the Clean Power Plan is headed for the courts as soon as EPA publishes the official version of the rule in the Federal Register expected later this month.

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BLM Begins Regulatory Process to Increase Oil and Gas Royalties, Rentals, Minimum Bids, Bonding and Penalties

As promised by Secretary Jewell in March, see previous post, BLM is initiating a rulemaking process-- Announcement of Proposed Rulemaking (ANPR)-- to “solicit public comments and suggestions that may be used to update the BLM’s regulations related to royalty rates, annual rental payments, minimum acceptable bids, bonding requirements, and civil penalty assessments for Federal onshore oil and gas leases.” The comment period will close on June 5, 2015. At the end of the ANPR, the BLM poses a series of questions and readers will want to review the questions carefully for how best to respond to the ANPR. http://www.gpo.gov/fdsys/pkg/FR-2015-04-21/pdf/2015-09033.pdf

The BLM cites three principle reasons that compel their consideration of increasing the cost of developing federal oil and gas. 1) Three GAO reports, two in 2008 and the most recent in 2011, that have questioned whether BLM is obtaining an appropriate royalty for the development of federal oil and gas; 2) the finding that none of the regulatory rates have been adjusted for inflation or changed since they were put in place several decades ago; and 3) in order to ensure a fair return to the taxpayer. This effort will also further three initiatives that the Administration has been pursuing – higher royalties, the concept of “use it or lose it” for federal leases and an emphasis on enforcement and inspection by increasing bonding and penalties to ensure that companies are incentivized to do the right thing.

The current royalty rate is 12.5% and any change in the rate will be for leases issued in the future not existing leases. The proposed royalty changes will not apply to Tribal or Allotted leases issued under the Indian Mineral Leasing Act. BLM admits that adjusting the royalty rate is difficult, it references several studies it has done to get at the question, provides a chart of state royalty rates currently being used in states with federal oil and gas and considers that complex questions of economics are involved. “The BLM acknowledges that current oil and gas prices are low, relative to the average price over the past decade; however, recognizing the historic variability of those process, the BLM would be interested in information on the impacts of any royalty rate change at a range of oil and gas prices.”

In this ANPR, the BLM is also considering whether to raise the minimum acceptable bid for competitive leases; the bid amount has not been changed since enacted in 1987. For non-competitive leases the minimum bid is set by statute and can’t be changed by rule. As to increasing rental rates, “the BLM has not increased the rental rates ($1.50-2.00) since they were initially set in 1987 . . .” Similarly, as to bonding BLM has not “increased the minimum bond since 1960” and wants to consider whether the individual/lease, statewide and nationwide bond amounts are adequate to protect the taxpayer from the costs of reclamation. Finally, BLM, in response to a critical Inspector General report, wants to examine the regulatory caps on the penalties BLM can assess for trespass and other violations of law. Each of these proposed changes has the potential to add considerable cost to the already high cost of doing business on federal lands.

The breadth of the proposal is sure to attract the attention of Congress. Indeed, BLM recognizes that before it can change the minimum bid, the Mineral Leasing Act requires the Secretary to provide 90 days’ notice to the House Natural Resources Committee and the Senate Energy Committee. 30 U.S.C. 226(b)(1)(B). Congress and industry will all need to pay close attention to this process. In particular, it is important for the industry to respond to the questions that BLM has raised as well as the questions they have failed to raise in the ANPR by June 5, 2015.

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The Wyoming Historical Society . . .

The Wyoming Historical Society published an interesting piece by Wyoming reporter Dustin Bleizeffer on the history of coalbed methane development in Wyoming, “Coalbed Methane: Boom, Bust and Hard Lessons.” The article covers the boom of the early years of 2000’s and the current bust that has left companies bankrupt and the State addressing the abandoned infrastructure from the development. It is an interesting piece of recent oil and gas history describing how individuals and companies, litigation and government policies shape development on the ground. The article may raise some questions: What should or could have been done smarter? What lessons were learned by the regulators, the public and the industry? Will any lessons learned change management of the next resource boom?

Here is a link to the article:  http://www.wyohistory.org/essays/coalbed-methane-boom-bust-and-hard-lessons

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Energy Book Review: “The Big Rich: The Rise and Fall of the Greatest Texas Oil Fortunes,” Bryan Burrough (Penguin 2009)

Now that it looks like at least four of the Republican Presidential candidates claim a Texas connection - Jeb Bush, Ted Cruz, Rand Paul and Rick Perry - a look back at where the Texas connection to the White House began (hint: it wasn’t LBJ) is well-timed. http://www.chron.com/news/politics/article/A-look-back-at-presidential-candidates-from-Texas-6106289.php “The Big Rich,” by Texan and author of the seminal “Barbarians at the Gate: The Fall of RJR Nabisco,” Bryan Burrough, tells the fascinating story of the 20th century creation of the Texas oilman and how that led to the Texas place in presidential politics. This tale of oil and politics, (and movie stars, bigamy, island mansions, art, drugs and bankruptcies) is told through the lives of Roy Cullen of Houston, Sid Richardson and the Bass brothers of Fort Worth, Clint Murchison and H.L. Hunt of Dallas. Burrough explains, “If Texas oil had a Mount Rushmore, their faces would adorn it. A good ol’ boy. A scold. A genius. A bigamist. Known in their heyday as the Big Four, they became the founders of the greatest Texas family fortunes, headstrong adventurers who rose from nowhere to take turns being acclaimed America’s wealthiest men.” But this book is more than a biographical quartet; Burrough brings a reporter’s political analysis and lively writing style to put these lives and the birth of the modern oil and gas industry into the larger context of U.S. politics and popular culture. Texas oil and the money it created shaped our modern world including the politics of today. These Texans also shaped popular culture from the image of Spindletop, to Edna Ferber’s “Giant,” to “Dallas” and J.R. Ewing and the Dallas Cowboys. And, Burrough’s descriptions of how these four oilmen responded to the fluctuations of supply and demand and used and abused leveraged debt provide some food for thought for our 21st century era of low oil prices. A great read for anyone interested in U.S. history and the oil and gas industry. http://www.bryanburrough.com/books/the-big-rich/

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“Balanced Prosperous Energy Future” on Public Lands?

On March 17, 2015, Secretary Jewell presented what was billed as a “major speech” to describe her vision of a “balanced prosperous energy future” at the Center for Strategic and International Studies. Directly tying the U.S. “energy transformation” to the recovered U.S. economy, she noted, “The energy revolution we experienced in the past six years helped spur the recovery, but it has also been accelerated by the policies our country [read: the Obama Administration] has put in place.”

Secretary Jewell said that since 2008, U.S. oil production grew from 5 million to 9 million barrels per day and U.S. dependence on foreign oil is at the lowest point it has been in more than 30 years. She continued, “The amount of solar energy has increased ten-fold, and wind energy has tripled since 2008 . . . Families are driving farther than ever on a tank of gas . . .These shifts in U.S. energy markets aren’t marginal or temporary: They are tectonic shifts.”

But, she added, “you can’t talk about energy without talking about climate change.” She posed this question to the audience, “How do we modernize our energy programs to anticipate the new energy future?” Her prescription for meeting this challenge is interesting.

According to the Secretary, we “modernize” U.S. energy policy by increased federal regulation of fossil energy and federal promotion of renewable energy. To achieve this energy future, she highlighted these Obama ongoing and new reform efforts:
 Continuation of the 2010 onshore oil and gas leasing reforms that added two new layers of NEPA review before lease sales and reduced annual lease sales in any one state to one a quarter in geographic rotation. Results to date: BLM leasing at an historic low in last 25 years.
 Increased regulations for off-shore oil and gas drilling post-Macondo including: well design, production systems, blowout prevention and well control equipment.
 New fracking rule for oil and gas on federal and tribal lands—out this month.
 New methane controls for onshore oil and gas to cut “emissions and wasted gas that result from venting and flaring.”
 New stream protection regulations for coal mining operations.
 New off-shore oil and gas rule to “raise the bar on blowout preventers and well control measures.”
 New rules for off-shore Alaska oil and gas exploration.
 New reforms of the federal coal program to ensure a “fair return,” to federal and state governments and greater transparency and competitiveness.
 New coal regulations to answer this question: “How do we manage the coal program in a way that is consistent with our climate change objectives?”
 New oil and gas royalty policy - BLM will be taking comments on raising oil and gas royalty rates.
 New inspection fees for oil and gas (Congress needs to okay this request.)
 New legislation to eliminate oil and gas “tax credits and incentives” and invest instead in wind and solar incentives.
 More use of planning efforts like Master Leasing Plans “to open up access to resources in the right places” and close access to oil and gas leasing by “identifying places that are too special to drill.”
 Continue planning and policy efforts to promote on and off-shore renewable energy in order to expedite permitting times for renewable energy.

The Secretary concluded her list of regulatory reforms by stating that as a “grandmother,” she is “determined to make energy development safer and more environmentally sound in the next two years.”
Will this prescription of more federal regulation for fossil energy support the “tectonic shift” in U.S. energy production or act as a brake on the U.S. energy revolution? That is not a difficult question to answer.

Link to text of Secretary Jewell’s remarks:  http://www.doi.gov/news/pressreleases/secretary-jewell-offers-vision-for-balanced-prosperous-energy-future.cfm

 

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Sixty Years of Fracking Data – What Does it Say?

On January 27, 2015, the U.S. Geological Survey, the science arm of the U.S. Department of the Interior, published a scientific investigative report, supported by a separate data series, consisting of hydraulic fracturing and fracturing treatment records from 1947-2010. Over 1 million fracked wells and 1.8 million fracking treatment records were reviewed by the agency. This is the first time that such a comprehensive analysis of the practice and evolution of fracking has been made available to the public and should prove of great value inside and outside of the oil and gas industry. The report and data set survey the practice of fracking from its initial use to the present and consider drilling techniques, additives, proppants, treatment fluids and water use. This information was then compared by the agency to information in peer-reviewed articles. The Abstract summarizes a key finding, “[w]ater-intensive horizontal/directional drilling has also increased from 6 percent of new hydraulically fractured wells drilled in the United States in 2000 to 42 percent drilled in 2010. Increases in horizontal drilling also coincided with the emergence of water-based ‘slick water’ fracturing fluids. As such, the most current hydraulic fracturing materials and methods are notably different from those used in previous decades and have contributed to the development of previously inaccessible unconventional oil and gas production target areas, namely in shale and tight-sand reservoirs.” In sum, new fracturing technologies have unlocked previously inaccessible resources.

Gallegos, T.J. and Varela, B.A., 2015 “Trends in hydraulic fracturing distributions and treatment fluids, additives, proppants, and water volumes applied to wells drilled in the United states from 1947 through 2010—Data analysis and comparison to the literature: U.S. Geological Survey Investigations Report 2014-5131. http://dx.doi.org/10.3133/sir20145131 and “Data regarding hydraulic fracturing distributions and treatment fluids, additives, proppants, and water volumes applied to wells drilled in the United States from 1947 through 2010.” http://pubs.usgs.gov/ds/0868/

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Interior Will Make Greater Sage-grouse Determination Despite Congressional Rider

In a January 26, 2015 letter responding to the bi-partisan co-chairs of the Western Governors’ Association State-Federal Sage-Grouse Task Force, Interior Secretary Jewell stated that, despite a congressional rider prohibiting the U.S. Fish and Wildlife Service from issuing a listing rule, the Department will make a listing determination for the greater sage-grouse by the court-ordered deadline of September 30, 2015. “In line with that obligation, the [FWS] is on schedule to make a determination by that date, based on revised Bureau of Land Management and U.S. Forest Service land management plans, an enhanced rangeland fire strategy . . . and states’ plans to conserve the greater sage-grouse.”
In a 2011 settlement, FWS committed to making a final listing decision for the greater sage-grouse either as “warranted” (as endangered or threatened) or “not warranted” for listing under Section 4 of the Endangered Species Act September 30th. In December 2014, the appropriations bill signed by the President (H.R. 83) contained language prohibiting the FWS from writing or issuing a rule to list the greater sage-grouse.

Under ESA § 4, if FWS decides to list a species it must be done by notice and comment rulemaking. This process begins with a proposed rule and ends with a final rule between 90 days and 18 months later. The proposed rule must summarize the data upon which it is based, show the relationship of the data to the proposed rule and provide a summary of the factors affecting the species. At least a 60-day comment process is required. Within 12 months of the publication of the proposed rule, FWS must either publish or withdraw the proposed rule or upon a finding of “substantial disagreement regarding the sufficiency or accuracy of the available data” extend the deadline for no more than 6 months. For land users, an important component of a listing rule is the identification of specific activities that will, or will not, likely result in a “take” violation under ESA § 9. This section of the Act prohibits “take” of a listed species anywhere and everywhere – federal, state or fee lands.
With the congressional rider in place, FWS can’t issue a listing determination rule for the greater-sage grouse, or, as in the case of the now-listed as threatened Gunnison sage grouse (see prior post), FWS can’t issue an ESA § 4(d) rule providing for management flexibility. FWS can issue a not-warranted finding, complete the analyses for a listing determination or a ESA 4(d) rule, or issue an emergency listing rule for 240 days under ESA 4(b)(7). The nightmare scenario is that FWS will make a determination in September that the bird should be listed, but because of the rider won’t be able to give guidance in a rule on how the public can avoid “take”. Similarly, the ESA § 7 consultation process for federal actions would grind to a halt as federal agencies comply with the consultation process without any actionable information from FWS.

Over the last several years, the states that would be most affected by a listing have been working on state conservation plans and coordinating with the federal land management agencies in an effort to forestall a listing. On January 16, 2015, Governors Hickenlooper (CO-D) and Mead (WY-R) wrote to the Secretary with two questions, the first concerning the schedule for listing and the second asked “[w]hat funding was provided to support state and federal efforts focused on greater sage-grouse conservation? In particular, how will BLM use the $15 million appropriated to the agency?”
The Secretary’s response to the funding question was not encouraging, “[t]he Department intends to spend the $15 million appropriated . . . to complete the BLM land management plans and implement actions critical to sagebrush conservation and restoration . . . [and] will continue to work with the states to complete our land management plans, solicit their advice in developing our rangeland fire strategy, and prioritize actions on the ground to protect and restore sagebrush landscapes and important habitat.” Emphasis added. Secretary Jewell did conclude her letter by affirming the “shared goal” of getting to a “not warranted” finding.

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BLM Proposes Renewable Energy Leasing and Rights-of-Way Regulations

On December 16, 2014, the BLM closed a comment process on wind and solar competitive leasing regulations. What is equally of interest is that BLM is also using this rulemaking to turn their 2011 renewable energy policies into binding regulation. Wind and solar projects are permitted under Federal Land Policy Management Act (“FLPMA”) right-of-way (“ROW”) regulations (43 CFR 2800), but until now there were no specific wind and solar permitting regulations. The rulemaking wraps up key components of the Obama administration’s approach to renewable energy development on public lands.

In 2009, Secretary Salazar signed Secretarial Order No. 3285, “Renewable Energy Development by the Department of the Interior.” A year later, in early 2010, the Order was amended and identified renewable energy as a “top priority” of the Department. Early on, BLM was concerned about speculation and desired more control over where wind and solar projects were located. To address these issues, in 2011, BLM issued a series of new and amended Instruction Memoranda (“IM”) that provided guidance to the BLM on how to permit wind and solar projects. In the IM’s, the BLM added requirements for due diligence, Plans of Development, pre-application meetings and addressed the term of the grant, bonding, rental formulas and its “screening authority.”

In this proposed rule, BLM intends to make these policies binding rules on the regulated public. See § 2804.25, screening criteria; § 2805.11(b), ROW grant term of 30 years; § 2805.12(c), “terms and conditions” for renewable grants; § 2805.20 detailed bonding requirements; and §§ 2805.50 and .60 solar and wind rent formulas which include a “megawatt capacity fee” in addition to an area land rent.
The “smart from the start” siting policy was announced by Secretary Salazar in 2010. The new direction began with solar energy zones (“SEZs”), designated areas for development, in the Solar Programmatic Environmental Impact Statement completed in 2012. In 2011, BLM published an Announcement of Proposed Rulemaking, the first step in this proposed rule, to develop a competitive leasing program for wind and solar. To inform that process, BLM conducted a competitive auction in the Dry Lake SEZ in Nevada in 2014.

The proposed rule builds on this siting approach by creating a leasing process for wind and solar in designated leasing areas (“DLAs”) and provides incentives (reduction in rental fees, predictable bonds) for leases in DLAs. If competitive interest is shown in an area outside a DLA, BLM can create a competitive leasing process. Otherwise, applicants would continue to use the FLPMA ROW grant process. BLM expects to finalize the rule by October 2015.

The text of the rule may be found at: http://blmsolar.anl.gov/documents/docs/FR_Competitive_Leasing_Sep_30_2014.pdf.

See Related Post: BLM Buries Change to MLA Rights of Way in Wind and Solar Leasing Change

For more information of permitting renewable energy on federal lands, contact Rebecca W. Watson at rwatson@wsmtlaw.com.

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Top Ten Tips for Leasing on Federal Land

RMP – Review the BLM or U.S. Forest Service Resource Management Plan (“RMP”) covering the geographic area of interest on the agency website. Is it open for leasing? If so, go to the RMP Appendix to review the lease stipulations that apply to the lease parcel.

RMP Oil and Gas Amendment – Check the agency website to see if the RMP is current or undergoing an amendment process to address oil and gas development. An oil and gas RMP update can delay or stop leasing in some situations.

Controversy – Consider whether the area is the focus of heightened environmental concern that could result in lease protests and delays. Is it adjacent to a National Park, Roadless Area, in a Sage-grouse RMP core area, or an area proposed for wilderness?

EOI – A submission of an Expression of Interest (“EOI”) to lease is no longer confidential. Current BLM policy (IM-2014-004) directs BLM to publish the EOI on the BLM website. For confidentiality, submit anonymously or through a lease broker.

2010 Leasing Reform – Understand BLM IM-2010-117 which transformed BLM leasing with the addition of lease NEPA and other new processes. See below. Find this policy at the BLM.gov website under Information Center, Laws Regulations & policies.

Frequency of Lease Sales – The 2010 policy largely limits lease sales to 4 quarterly sales that rotate through a state annually. That means if your parcel is deferred it won’t come up for consideration for another year.

Public participation – The 2010 policy adds significant public participation to the lease process; lessees need to get involved in this process. BLM will

work with state, local and tribal governments, notify split-estate fee surface owners and “groups and individuals with an interest” in O&G leasing to participate in the lease NEPA process.

Lease Parcel NEPA – The BLM will prepare an Environmental Assessment (“EA”) for the lease sale and provide a 30-day comment period. Participate in the comment process to support BLM’s decision to lease your nominated parcels and respond to the opponent’s comments. If you need confidentiality, use a lawyer or industry association.

Lease decision – Post-EA, BLM will identify the lease parcels for sale. BLM may defer or withdraw parcels from the sale up to the day of the sale. BLM will treat your winning bid as a binding offer that can only be withdrawn under limited circumstances. BLM does not “accept” your offer until it actually issues the lease.

Protests – A protest to the sale of a lease parcel must be filed 15 days before the sale. BLM may sell a parcel “under protest,” but will not issue a lease until the protest is resolved. BLM tries to resolve a protest within 60 days from the lease sale. A decision to reject a protest will include simultaneous lease issuance. If post-protest stipulations are added to the lease, you may reject and obtain a refund. If BLM upholds the protest, withdraws the lease parcel and rejects your bid you will receive a refund. If BLM’s decision to reject the protest is appealed to the IBLA, you are not entitled to a refund but may intervene into the appeal to protect your issued lease.

FOR ADDITIONAL INFORMATION ON FEDERAL LEASING PLEASE CONTACT:

REBECCA WATSON rwatson@wsmtlaw.com

STEVE BAIN sbain@wsmtlaw.com

NORA PINCUS npincus@wsmtlaw.com

JENNIFER CADENA jcadena@wsmtlaw.com

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