IBLA Resolves Procedural Question for Review of Lease Suspension Decisions

Most decisions of the Bureau of Land Management (BLM) are appealable to the Interior Board of Land Appeals (IBLA). However, some decisions must first be reviewed by the applicable BLM State Director. Parties who wish to appeal from decisions issued under the oil and gas operating regulations (43 C.F.R. Part 3160) and unitization regulations (43 C.F.R. Part 3180) must first seek State Director review before appealing to the IBLA.

Until recently, it was unclear whether a decision granting, denying or lifting a suspension of a federal oil and gas lease was a decision issued under the Part 3160 regulations, and therefore subject to State Director review, or was a decision issued under the Part 3100 regulations appealable directly to the IBLA. The reason for this uncertainty was that regulations pertaining to suspensions of leases are found in both Part 3160 (43 C.F.R. §3165.1) and Part 3100 (43 C.F.R. § 3103.4-4). Consequently, in the past, if a suspension request was denied by the BLM, we advised clients to file both a State Director review request and a provisional notice of appeal with the IBLA. Of course, the duplicate processes added cost and time to the appeal. In their responses to such provisional notices of appeal, the solicitor’s office generally took the position that such decisions should first be reviewed by the State Director. Now there is a recent decision of the IBLA that clarifies that decisions challenging a BLM suspension decision should first be reviewed by the State Director under the State Director review regulations.

In Southern Utah Wilderness Alliance, 190 IBLA 152 (2017), the IBLA addressed the ambiguity as to the proper appeal route from suspension decisions. It acknowledged that suspsensions are addressed in both parts of the regulations but noted that the regulation at § 3165.1(b) directs the authorized officer to act on suspension applications filed under § 3103.4-4, so that the decision-making authority is more clearly placed in the Part 3160 regulations. The Board also noted that, historically, when the U.S. Geological Survey (USGS) managed operations on federal leases, suspension decisions were first appealable to the Director of the USGS and then to the IBLA. Finally, the IBLA cited to a few of its earlier decisions which, although not directly addressing the question of whether suspension decisions should first be reviewed by the State Director, at least assumed that was the proper route. With the Southern Utah Wilderness Alliance decision, it is now clear that review of any BLM decision granting or denying a suspension of an oil and gas lease must first be reviewed by the State Director under the regulation at § 3165.3(b).

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Standing to Challenge Decisions Approving Federal Units or Suspending Federal Leases

Non-governmental organizations that oppose oil and gas development have in the last few years begun to challenge not only Bureau of Land Management (BLM) decisions authorizing oil and gas drilling operations but also BLM decisions that could have the effect of continuing leases in effect that might otherwise expire. In two recent decisions, the Interior Board of Land Appeals (IBLA) reiterated its position that, in order to seek State Director review of a decision or to appeal a decision to the IBLA, the appellant must demonstrate that the “legally cognizable interests” of it or its members will be adversely affected by the decision under review. Southern Utah Wilderness Alliance, 190 IBLA 152 (2017) (SUWA); Citizens of Huerfano County, 190 IBLA 253 (2017) (Huerfano).

Legally cognizable interests can include cultural, recreational and aesthetic use and enjoyment of the lands. But there must be a causal relationship between the alleged injury to those interests and the BLM decision under review. In addition, the threat of injury must be real and immediate. In SUWA, the appellant challenged a BLM decision suspending leases committed to the Deseret Unit in the Uintah Basin. BLM granted the suspension because its approval of the drilling permit (APD) for the unit obligation well would be delayed for several months while analysis of the proposal under the National Environmental Policy Act (NEPA) was prepared. SUWA asserted that the suspension was improperly granted because the unit operator had allegedly delayed in developing the leases, its application was not supported by sufficient information, and the BLM should have prepared an environmental assessment or environmental impact statement on the suspsension application. The IBLA did not address the substance of SUWA’s allegations because it found that SUWA had failed to demonstrate that its members’ health, recreational, spiritual, educational, aesthetic and other interests would be directly harmed by BLM’s decision to approve the suspension. The Board concluded that SUWA’s interests would be harmed only if oil and gas development occurred (i.e., if the APD was approved). The suspension of the leases did not result in “real and immediate” harm to SUWA’s interests so there was no causal link between the alleged injury and the BLM decision to suspend the lease. Any injury to SUWA which might occur was contingent on a future decision to approve drilling. Therefore, the IBLA upheld the State Director’s decision dismissing SUWA’s State Director review request for lack of standing.

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