Public Land Law: An Introduction
- The Field of Public Land Law
The Federal Lands and Resources
Here and here are links to a map of the United States showing federal land and mineral holdings. The periodic, Public Land Statistics publication of the BLM is a treasure trove of facts and figures about federal land management. Current and past editions are found here. The National Atlas provides downloadable files of federal lands for each state.
Management of Federal LandsUpdate
The National Forest System
Here is a link to the Forest Service home page.
The BLM Public LandsUpdate
Here is a link to the BLM home page.
Here is a state-by-state table showing BLM-managed lands.
UpdateIn 2008, Secretary of the Interior Dirk Kempthorne issued an order officially designating the BLM lands the "National System of Public Lands." The curiously generic name does little to distinguish the BLM lands from the other systems of federal public lands, such as the national park system and the national wildlife refuge system. Nonetheless, the BLM Director at the time, James Caswell, stated "this official designation will ultimately make it easier for the public to identify these lands and more readily understand the multiple-use mission that Congress has given to the BLM." The new logo can be viewed here.
In 2011, Secretary Salazar began steps to place the agency that regulates surface mining of coal, the Office of Surface Mining, within the BLM. This would give the BLM regulatory responsibility over private surface mines and make it more like the U.S. Fish & Wildlife Service, which also is responsible for both a system of public lands (the national wildlife refuges) and a regulatory enforcement (of the Endangered Species Act, the Migratory Bird Treaty Act and others).
The National Wildlife Refuge System
Here is a link to the National Wildlife Refuge System home page.
The National Park System
Here is a link to the National Park System home page.
- The Preservation Lands and Other Generic Categories
- The Legal Offices
- The United States Congress
The Special Case of Alaska
Here is a link to maps of the public lands of Alaska
Note: The Future of Public Land Management
As the Obama Administration takes office, Leshy steps back and takes a "big picture" look at some of the current public land management challenges. Here are two essays containing his thoughts.
- The National Forest System
Perspectives on Public Land and Resources LawUpdate
UpdateThis 2007 report extends and confirms the economic findings of the Sonoran Institute study. UpdateA 2012 study funded by Sportsmen for Responsible Energy Development, a coalition that includes the National Wildlife Federation, Trout Unlimited, and scores of outdoor-oriented businesses, also confirms the economic findings of the Sonoran Institute study. The study indicates that:
the jobs, income and growth from the commodity production sectors in the rural Rocky Mountain West, while still significant, have not experienced the growth seen by the rest of the regional economy. Rural counties with greater areas actively conserved for recreation, conservation plus lower impact commodity uses – including balanced levels of timber, mining and energy development - actually enjoy relatively higher income, population and employment growth. Counties dominated by conservation and recreation lands also have higher property values and high proportions of higher-income workers.
History of Public Land Law: Ownership Rights and Obligations
Acquisition of the Public Domain
- From the Original Colonies
- From Foreign Nations
From Indian Tribes
Eric Kades fills in the somewhat surprising historical facts surrounding the land grants in dispute in Johnson v. M'Intosh. You can access "History and Interpretation of the Great Case of Johnson v. M'Intosh," published in Law and History Review 19:1 (2001).
What exactly invokes the doctrine of discovery? In his classic study, La Salle and the Discovery of the Great West (1879), Francis Parkman described the scene of European "discovery" of much of the land later covered by the Louisiana Purchase. Here is an excerpt from Parkman’s history, with the key legal language from the antiquated doctrine of discovery.
This is what a land patent looks like.
Disposition of the Public Domain
The Disposition SystemUpdate
Abraham Lincoln wrote that, in 1816, his father moved the family from Kentucky to Indiana "chiefly on account of the difficulty in land titles" in Kentucky. The Collected Works of Abraham Lincoln 4:62 (Basler ed., 1953-55). At the time, purchasing land in Kentucky "was to buy a lawsuit. During Lincoln's boyhood, his father Thomas Lincoln owned three farms but lost two of them because of faulty titles. In Indiana, however, thanks to the federal land ordinances … [establishing rectangular surveys before sales, buyers acquired] secure titles." Eric Foner, The Fiery Trial: Abraham Lincoln And American Slavery 5 (2010).
- The Survey and Early Land Laws
- Disposition by Foreign Governments
State Lands and Trust Doctrines
The Equal Footing Doctrine
UpdateJustice Sonia Sotomayor's 2009 appointment to the Supreme Court attracted attention to the note she wrote while a student, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, 88 Yale L.J. 825 (1978-79). The note argues that the equal footing doctrine does not prevent Congress from granting newly admitted states more property than existing states have. In particular, it argues that Congress could grant Puerto Rico seabed mineral rights up to 200 miles from shore. Does the argument work the other way? That is, could Congress admit Puerto Rico with no submerged land grants at all?Note: The Sagebrush Rebellion and County Supremacy Movements UpdateActs of sagebrush rebellion continue to flourish in the West. On Mar. 26, 2010, the governor of Utah made national news in signing HB 143, a new statute giving the state eminent domain authority over all federal lands that are not enclaves. At the same time, the governor signed a measure to allocate $3 million from the state's school trust fund to support litigation over the new authority, which seems clearly unconstitutional under the Property and Supremacy Clauses.
- The Public Trust Doctrine
Grants to States and More Trust Obligations
Note: State Management of Federally Granted Lands
UpdateThe Branson case upheld Colorado's "stewardship trust" program, which voters adopted by initiative in 1996. The initiative amended the state constitution, art. IX, section 10.
The Lincoln Institute tracks current trends in management of and revenues from state trust lands.
- Note: Other Grants to States
- Note: State Management of Federally Granted Lands
- The Equal Footing Doctrine
Grants to Private Parties
This is what a land patent looks like.
Here is an image of military warrant for public domain issued to a famous veteran.
Grants to Farmers and Ranchers
UpdateThe National Park Service is preparing to celebrate the 150th anniversary of the Homestead Act and you can get involved!
- Grants for Reclamation
- Grants of Timber
- Grants to Miners
- Grants to Farmers and Ranchers
- The Disposition SystemUpdate
Reservation, Withdrawal, and Reacquisition
The emergence of reservation, withdrawal and reaquisition as dominant themes of public land law coincided with an important shift in the American attitude. In a widely quoted portion of his classic study, A History of American Law (1973), Lawrence M. Friedman described it as follows:
The pioneer, the frontier individualist, had been the American culture hero, free, self-reliant, unencumbered by weakness that inhered in the cities. The frontier had been a symbol of an open society; opportunity was as unlimited as the sky. In 1893, Frederick Jackson Turner wrote his famous essay, "The Significance of the Frontier in American History." He traced the influence of the frontier on American character and institutions; but when he wrote the essay, Turner also announced that the frontier was irrevocably dead.
What really passed was not the frontier, but the idea of the frontier. This inner sense of change was one of the most important influences on American law. Between 1776 and the Civil War, dominant public opinion exuberantly believed in growth, believed that resources were virtually unlimited; that there would be room and wealth for all. The theme of American law before 1850 was the release of energy, in Willard Hurst's phrase. Develop the land; grow rich; all segments will gain. By 1900, if one can speak about so slippery a thing as dominant public opinion, that opinion saw a narrowing sky, a dead frontier, life as a struggle for position, competition as a zero-sum game, the economy as a pie to be divided, not a ladder stretching out beyond the horizon.
- The Emergence of Withdrawal and Reservation: Forests and Scenery
- Mineral Reserves
- Range Resources
- Acquisition of the Public Domain
Federalism on the Public Lands
Jurisdiction within Federal Enclaves
Recent U.S. circuit court decisions involving criminal convictions remind us that enclaves occur on national forests too. United States v. Fields, 516 F.3d 923 (10th Cir. 2008) (parcel of Ouachita N.F., Oklahoma); United States v. Gabrion, 517 F.3d 839 (6th Cir. 2008) (parcel of Manistee N.F., Michigan).
Note: Assimilation of State Law in Federal Enclaves
Intergovernmental Immunities & Revenue Sharing
Here is a link to the CRS library, containing useful reports on revenue sharing programs.
The Property Clause
Note 1 following Kleppe v. New Mexico
Here is a link to the most recent state-by-state figures on wild horse and burro populations on public lands.
UpdateThe federal government estimates that the public rangelands today support over 35,000 wild horses, which constitute a population of about 10,000 horses in excess of the carrying capacity. Even with over 30,000 animals in BLM corrals and pastures, the number of wild horses and burros on the rangeland continues to grow. BLM looking for Wild Horse Sanctuaries, Public Land News, Apr. 8, 2011, at 14. One result is unhappy ranchers. Consider whether the Rock Springs Grazing Association ranchers, described in this article, can compel the BLM to remove wild horses from their private lands. Do the claims of the ranchers conflict with Wyoming's "fence-out" rule for liability (see Light p. 129 and Omaechevarria p. 139)?
Note: Nuclear Waste Disposal
Fulfilling a campaign pledge, in 2010 President Obama's administration withdrew its NRC license application for a high-level nuclear waste repository at Yucca Mountain. The NRC first rejected the withdrawal application, but the matter is now before the full NRC on administrative appeal. The NRC posts several helpful documents on the high-level nuclear waste disposal issue. It also posts documents specifically relating to the Yucca Mountain repository application.
In 2011 the NRC deadlocked (PDF) on whether to allow the Obama Department of Energy to withdraw its application to build the Yucca Mountain repository. Litigation is expected to continue.
The Property Clause and Non-Federal Land
This map shows the location of the BWCAW withing the Superior National Forest. Here is another, somewhat more detailed map. Finally, this map shows land ownership in the area. Here are the current regulations limiting use of motors in the BWCAW. The remaining motorized recreation in the BWCAW continues to generate controversy. In March 2007, a coalition of environmental groups released this report documenting degradation from motors.
The National Park Service does have a program dealing with light pollution at Chaco Canyon. See here and here. This is part of a larger effort to increase awareness of and preserve the rare places where the sky remains realtively untainted by artificial light pollution: This is an article aimed specifically at the NPS. This 2007 article summarizes recent efforts to quantify and map the darkest skies in the U.S.
Update In 2012 the U.S. House of Representatives passed H.R. 5544, which would transfer to the state of Minnesota mineral-rich lands from the Superior National Forest outside of the BWCAW in exchange for some of the state trust lands at issue in Minnesota v. Block (p.173). Would management of transferred national forest lands be subject the state trust restrictions? Is this a fair solution to the tensions between the federal government and Minnesota?
- Note 1 following Kleppe v. New Mexico
- Other Constitutional Authorities over Federal Lands and Natural Resources
Here is a map of the Los Padres National Forest. Ventura County is part of the southern section. Mount Pico Blanco and the Granite Rock dispute is covered in the northern section.
Note 8 after Ventura County: Here is a Forest Service document discussing the 2005 round of oil/gas leasing in the Los Padres National Forest in Ventura County. The U.S. Environmental Protection Agency weighed in on the final EIS here. The BLM withdrew some of the recent leases in the fall of 2006. A press release explaining is here. The issue heated up again in February 2007, when a pipeline from existing oil/gas development in the area of the new leases burst. A news account of the pipeline spill is here. Oil and gas leasing in the Los Padres is not new to controversy. This 1971 press release from the Interior Department highlights the longstanding concerns.
Note: A "Dormant Property Clause"?Cooperative Federalism
More information about the following examples listed in the Fischman excerpt on cooperative federalism can be found at these links:
A 2009 GAO Report raises doubts about the ability of the Valles Caldera Trust to become financially self-sustaining by its 2015 statutory deadline. It is a helpful summary of this place-based collaboration's challenges and progress to date.
- Columbia River Gorge Commission
- Lower Colorado River plan (summary)
- San Diego HCP
National Bison Range
These two essays [Injustice on the Great Plains and Sharing jurisdiction is the worst thing for the nation’s bison range] offer briefs for and against the cooperative agreement between the federal government and the tribe on the National Bison Range.
- Nisqually National Wildlife Refuge
- Valles Caldera
- Jurisdiction within Federal Enclaves
Overarching Legal Issues
The APA and Judicial ReviewUpdate
Barriers to Judicial Review: The Procedural Obstacle CourseUpdate
Lujan v. National Wildlife Federation 497 U.S. 871 (1990)
- The Mahaweli Project (here) is the largest multi purpose development program ever undertaken in Sri Lanka, covering thirty-nine percent of the total island.
Update for the notes following Lujan v. National Wildlife Federation:
In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), a closely divided court found standing for Massachusetts to challenge the EPA’s denial of a petition to regulate greenhouse gases, including carbon dioxide. Justice Steven’s majority opinion endorses the trend exemplified by Akins. It emphasizes that a "widely shared" risk of injury does not defeat standing if a petitioner has an adequate personal stake in the outcome of a controversy to assure concrete adverseness. As landowner of coastal regions, Massachusetts’ risk of property loss due to rising sea levels is particular and concrete. The majority opinion highlighted three special circumstances that eased the plaintiffs’ burdens in establishing standing. First, Congressional power to "define injuries and articulate chains of causation" made this dispute "eminently suitable" to judicial resolution because the substance of the action turned on proper construction of a congressional statute. Second, the right to challenge the rejection of a rulemaking petition is essentially procedural. And, third, the "quasi-sovereign" interests of states also lighten the burden of establishing standing. As to redressability, the majority opinion found that for standing it is enough that the remedy can contribute to risk reduction, here through U.S. carbon emissions limitations, even though it alone cannot prevent or reverse global warming.
In Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009), the Supreme Court held that plaintiffs challenging a Forest Service rulemaking restricting public comment and administrative appeals did not have standing. The plaintiffs originally established standing for a Sequoia National Forest salvage timber sale, which fell under the rule excluding public comment and appeal. At the district court, the plaintiffs won an injunction against the sale and invalidation of the relevant rulemaking. The Ninth Circuit largely affirmed. Because the Forest Service reached a settlement on the Sequoia timber sale after the initial preliminary injuction, the Supreme Court found that the plaintiffs no longer had standing to bring the challenge to the rulemaking. Justice Kennedy joined with the dissenters in Massachusetts v. EPA to form a 5-4 majority holding that the plaintiffs failed to allege a concrete enough injury. Writing for the majority, Justice Scalia relied heavily on the Lujan standing cases to find that the affidavits lacked both site-specific harms and certain future intentions. The Forest Service conceded that it plans to conduct throusands of further salvage timber sales under the challenged regulations. But, without knowing where and when they will occur, the plaintiffs were unable to establish "injury-in-fact." The dissent criticized the majority's approach with the following analogy:
"To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity."
- Sovereign Immunity
Exhaustion of Remedies and
the Foreclosure RuleUpdate
In 2009 the Supreme Court reversed the 9th Circuit decision that overturned the Forest Service's regulations restricting appeals for some salvage logging and other activities. The Supreme Court held that the plaintiffs did not have standing to bring the challenge to the Forest Service rulemaking. Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009)
The Red Lodge Clearinghouse posts helpful information on administrative appeals here, including a sample appeal.
Ripeness and Agency Action
- Ohio Forestry v. Sierra Club 523 U.S. 726 (1998)
- Norton v. Southern Utah Wilderness Alliance 542 U.S. 55 (2004)
- Committed to Agency Discretion by Law
The Scope of Judicial Review
Wilderness Society v. Morton 411 U.S. 917 (1973)
- Aleyska Pipeline Service Company operates the Trans-Alaskan Pipeline System. Its site includes links to the history and operation of the pipeline system.
Udall v. Tallman 380 U.S. 1 (1965)
Note: The Chevron Doctrine and Deference to Special Forms of Agency Interpretations
- The Kenai National Moose Range is now the Kenai National Wildlife Refuge. The Kenai NWR is a miniature Alaska, including an example of every major habitat found in Alaska. And, oil/gas leasing is part of the refuge's mix of uses.
- Barriers to Judicial Review: The Procedural Obstacle CourseUpdate
The National Environmental Policy Act (NEPA)
- Update In February 2010, the Council on Environmental Quality released four draft guidance documents to address many of the most difficult NEPA issues encountered in public natural resources law: 1) consideration of greenhouse gas emissions; 2) clarifying the use of mitigation and montioring in NEPA documents; 3) when categorical exclusions from environmental impact states are appropriate; and 4) improving public access to NEPA decision-making.
- Metcalf v. Daley 214 F. 3d 1135 (2000)
- The Olympic Coast National Marine Sanctuary is entirely encompassed by the traditional harvest areas of the Hoh, Makah, and Quileute tribes, and the Quinault Indian Nation.
- Here is an image which illustrates the migration pattern of the Gray Whale.
- Here is the Treaty of Neah Bay which was signed between the Makah and the United States in 1855.
- The International Convention for the Regulation of Whaling was signed in December of 1946 and set up the International Whaling Commission.
- Robertson v. Methow Valley Citizens Council 490 U.S. 332 (1989)
- The Okanogan National Forest originated from the "Washington's Birthday Reserves" proclamation signed by President Glover Cleveland on February 22, 1897. The proclamation created 13 forest reserves covering 21 million acres in the western states.
- You can still ski at Methow Valley, but it is cross-country only.
UpdateHow much detail does NEPA require in an EIS discussion of mitigation? In December 2009 the Ninth Circuit found BLM's FEIS for expansion of a gold mine in Nevada to be inadequate because it failed to assess the effectiveness of mitigation proposed to address possible hydrologic impacts from mine dewatering. South Fork Band Council of Western Shoshone of Nevada v. U.S. Department of the Interior, 588 F.3d 718 (9th Cir. 2009). Without an assessment of effectiveness, the court determined that mitigation cannot fulfill the purpose described in Methow Valley, to evaluate whether anticipated environmental impacts can be avoided. In this case, the EIS described a monitoring regime and indicated that, if the monitoring indicated that mitigation measures were necessary, then the mining company would prepare a "detailed, site-specific plan to enhance or replace the impacted perennial water resources." The absence of detail about the tools employed in such a plan, or on when exactly the plan would be triggered, is common in EISs employing adaptive management to defer some decisions to a later date.
- Note: Can a Federal Agency Avoid an EIS by Regulating the Proposed Activity to Restrict its Impact?
- Note: Which Federal Actions Require No NEPA Analysis?
Note: The Place of NEPA in Public Natural Resources LawUpdate
Here is an example of how NEPA guides decision-making on public lands. Each National Forest has its own web site to document NEPA compliance in the course of management. Select a forest and browse an area you are familiar with.
- Note: NEPA and Climate Change Update
Increasingly, the EPA and environmental groups are pressuring action agencies to consider the effects of greenhouse gas emissions from projects in EAs and EISs. Among the range of topics covered by this casebook, the issue has come up most frequently in the context of oil, gas, and coal mining. In February 2010, the Council on Environmental Quality put forward for comment this draft guidance for considering greenhouse gas emissions in NEPA analysis.
Here is a summary of recent developments.
The Endangered Species ActUpdate
Introduction and Overview
Tennessee Valley Authority v. Hill 437 U.S. 153 (1978)
- The snail darter feeds mainly on aquatic snails and was declared an endangered species in 1975, information regarding the snail darter can be found at here.
- The Tennessee Valley Authority is the nation’s largest public power company.
- The Tellico Reservoir is located on the Little Tennessee River in East Tennessee; construction on the Tellico Dam began in 1967 and finished in 1979.
Section 4: Listing Species and Designating HabitatUpdate
Update for note 6 following Northern Spotted Owl v. Hodel:
In Trout Unlimited v. Lohn, 2007 U.S. Dist. LEXIS 42858 (CV06-0483-JCC W.D. Wash. June 13, 2007), the court disagreed with Alsea Valley and required the Fisheries Service to consider only wild stocks in making a listing decision. The case involved a downlisting of a run of the Upper Columbia River steelhead from endangered to threatened based on the post-Alsea Valley policy of including hatchery-bred fish in population counts. In finding the policy and the downlisting invalid under the ESA, the Trout Unlimited court observed that:
the record demonstrates that a healthy hatchery population is not necessarily an indication of a healthy natural population, and that in actuality, a healthy hatchery population can negatively affect the viability of a natural population. The scientific consensus is that artificial propagation has the potential to have either beneficial or deleterious effects on natural populations. Moreover, the possible negative effects of hatchery stocks on wild populations are scientifically well-established. AR 422 ("Hatchery salmonids have adverse impacts on wild stocks through interbreeding, ecological interactions in fresh water and mixed-stock fisheries. This results in losses in the genetic and life-history diversity of naturally-spawning stock."); AR 424 at 2 ("[H]atcheries relax selection on traits that are crucial for survival of wild salmon, and this is a subtle but . . . pernicious process."), 3 (describing overfishing, and ecological interactions and genetic effects that work to the detriment of wild fish). Thus, measuring the health of a salmon population by reference to the combined hatchery and natural populations does not necessarily provide an appropriate assessment of whether the natural population is on its way to becoming self-sustaining without human interference, and indeed, a healthy hatchery population may mask or obscure the decline of a natural population. Furthermore, the best available scientific evidence indicates that long-term reliance on hatcheries is at best an unproven strategy for the long-term conservation of a species or population, and may make its prospects for becoming self-sustaining more difficult with the passage of time.
The Ninth Circuit Court of Appeals will now likely have to resolve the split among its district courts over whether hatchery-raised fish are part of the salmon stocks properly counted and considered in making a listing decision.
Northern Spotted Owl v. Hodel 716 F. Supp. 479 (1988)Note: Critical Habitat
Note: Recovery Plans
Section 7: The Consultation and Conservation DutiesUpdate
The FWS Ecological Services offices post their biological opinions on the web. For instance, the FWS Arizona web site contains many BOs addressing grazing impacts on listed species similar to those litigated in the Arizona Cattle Growers' Ass'n case. Consider the "no jeopardy" statement and the ITS in the Fossil Creek Range Allotment BO for the Coconino National Forest's proposed range management regime. In other regions of the country, the FWS posts BOs not by state but by species impacted. Consider the variety of federal actions requiring formal consultation for their effects on the Indiana bat in the Midwest region.
The Consultation DutyUpdate
National Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (June 25, 2007), is a significant new case interpreting the consultation duty of the ESA. It should be read at p. 283-84 of the casebook. Notes and Questions regarding the significance of this Supreme Court decision follow the edited opinion in the link.
Consultations have been on a steady rise. The FWS reports that it completed twice as many consultations in 2002 as in 1996. In 2006 the FWS completed 26,762 informal consultations and 1,936 formal consultations. A more complete description is on page 12 of this 2008 environmental assessment.Here are examples of biological opinions concerning public natural resources:
- Fisheries Service B.O. on the U.S. Bureau of Reclamation's operation of the Klamath Project.
- FWS B.O. on a draft Forest Service land and resource management plan.
- FWS B.O. on BLM oil and gas development in the Powder River Basin of Wyoming.
- FWS B.O. on a five-year schedule of activities in the Olympic National Forest.
Thomas v. Peterson 753 F. 2d 754 (1985)Update
New Note: ESA and Climate ChangeUpdate
- The FWS listed the gray wolf as an endangered species in 1974. More information regarding the gray wolf, generally, is available here. The FWS delisted the Northern Rocky Mountain population segment in 2008, but a federal district court judge promptly reinstated the ESA protections. Defenders of Wildlife v. Hall (D. Mont. 2008). In addition to finding fault in the delisting decision's failure to ensure that subpopulations of wolves would be able to interbreed, the judge criticized Wyoming's plan to treat wolves as predators in most of the state. In 2009 the Obama Administration affirmed the January Bush Administration proposal to delist the gray wolf in the Michigan, Wisconsin, Idaho and Montana. Congress reversed Defenders of Wildlife v. Hall and reinstated the 2009 delisting rule. Finally, in 2012, Wyoming became the last state in the northern Rocky Mountain gray wolf area to adopt a wolf management plan acceptable to the FWS with this delisting rule (77 Fed. Reg. 55,530 (Sept. 10, 2012)). The FWS maintains a helpful website on wolf recovery.
- Nearly half of the Nez Perce National Forest in north central Idaho is designated wilderness.
- The Salmon River is also known as "The River of No Return." For more information see the Salmon River Scenic Byway.
- The Jersey Jack area is now referred to as Cove/Mallard and consists of two roadless areas encompassing 76,000 acres of coniferous forest in the Nez Perce National Forest.
- For more discussion of the controversy surrounding the Cove/Mallard area click here.
- Note 1: The August 2008 proposed revision of the consultation rule would allow action agencies to avoid formal consultation by making a "not likely to adversely affect" determination without the concurrence of the FWS. The proposed rule, which would be the first comprehensive overhaul of the consultation regulations since 1986, would also address the causation standard that the Services would use to determine the effects of agency actions. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.
- Note 2: The same proposed rule would clarify that the ESA consultation analysis excludes many effects that must be considered under NEPA. Under the proposed causation standards, species such as the polar bear, whose habitat is impaired by the effects of greenhouse gas emissions, would not trigger an effects analysis for many actions that increase greenhouse gas emissions. The proposed rule would narrow (or clarify, depending on your understanding of the existing standard) the definition of indirect effects to include only those "for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur." An essential cause is indispensable to the effect and has a closer connection to an effect than mere "but for" causation. "A conclusion that an effect is reasonably certain to occur must be based on clear and substantial information." The regulation would clarify that these standards for considering an effect relevant to the analysis are considerably more stringent than those under environmental impact analysis for NEPA. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.
Natural Resources Defense Council v. Kempthorne, 506 F. Supp.2d 322 (E.D. Cal. 2007), overturned a biological opinion for federal water projects on a number of grounds, including that it failed to consider data on climate change related to the threatened Delta smelt. The BO had assumed that the hydrology of the water bodies affected by projects would follow historical patterns for the next 20 years.Note: Counterpart RegulationsUpdate
Defenders of Wildlife v. Salazar, 842 F.Supp.2d 181 (D.D.C. 2012), overturned the “Healthy Forests” counterpart regulations.
In August 2008, the Interior Department proposed a significant revision of the consultation rule that builds on the experience with counterpart regulations. The proposed rule would extend to all agencies the option of determining the effects of their own actions on listed species without the concurence currently required of the Services (Fish & Wildlife or Fisheries). This self-consultation would be limited to situations where the action agency determines that it will not likely adversely affect a listed species (or critical habitat). The Bush Administration adopted the proposal in December 2008. President Obama has since announced his intention to review the rule and ordered agencies to continue seeking concurrence and consultation with the FWS in the interim. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.New Note: Recovery Crediting GuidanceUpdate
In July 2008 the FWS issued "guidance" authorizing federal agencies to employ recovery credit systems to promote recovery and mitigate adverse impacts from federal actions by sponsring habitat conservation on non-federal lands. The FWS promulgated the "guidance" under the same notice and comment procedures as a final rule would employ, so it may well have the same administrative law status as an informal rulemaking.
The idea behind the recovery credit systems ("RCS") is that federal agencies can offset adverse impacts to listed species and critical habitat by arranging for conservation measures on non-federal lands. The RCS model grew out of an experiment in Texas where the large Fort Hood military reservation arranged by contracts with neighboring landowners to provide habitat for the endangered golden-cheeked warbler. The army could then conduct military activities on the reservation that impaired the warbler habitat. The FWS allowed the military activities to occur as long as the credits from the private land contracts exceeded the impairment caused by the activities. The RCS policy anticipates that credits will be quantifiable units of measurement that represent a contribution to the recovery of a species. A credit could be a certain number of habitat acres or a specified quantity of water. The action agency operating an RCS would "bank" credits to be used when it engages in a series of projects covered under the RCS. Therefore, the RCS guidance anticipates that programmatic consultations would address the design issues that surround both accural and debiting the credits.
How do you think the Forest Service could use recovery crediting in complying with the ESA for a set of timber sales comparable to those challenged in Thomas v. Peterson?
The Conservation Duty
Sierra Club v. Glickman 156 F. 3d 606 (1998)
- The Edwards Aquifer serves the needs of almost two million users in south central Texas, the website also includes an interesting "species" link which discusses those mentioned within the case.
- The Consultation DutyUpdate
Section 9: The "Take" Prohibition
Babbitt v. Sweet Home 515 U.S. 687 (1995)
Note: Habitat Conservation Plans (HCPs) and "No Surprises"
- Northern spotted owls are monogamous and form long-term pair bonds, more information regarding the northern spotted owl is available here.
- Unlike the northern spotted owl, the population of the red-cockaded woodpecker is increasing. More information regarding the red-cockaded woodpecker is available here.
Here is an example of a large-scale HCP dealing with forestry, with links to the accompanying documentation.
The Relationship between Section 9 and Section 7
Arizona Cattle Growers 273 F. 2d 1229 (2001)
- The razorback sucker is an extremely rare, large-river species found only in the Colorado Basin, information regarding the razorback sucker is available here.
- The Arizona population of the cactus ferruginous pygmy-owl was delisted in 2006; more information regarding the ferruginous pygmy-owl is available here.
- The Arizona BLM manages 12.2 million surface acres of public lands and 17.5 millions subsurface acres.
- The New Mexico BLM received over half a billion dollars in oil and gas royalties in 2006.
- Introduction and Overview
Private Rights in Public ResourcesUpdate
Property Rights and "Takings" Compensation
Mountain States v. Hodel 480 U.S. 951 (1987)
Note: Private Property Interests in Federal Land
- This site provides program updates on managing wild horses in the Rock Springs district of Wyoming.
Note 6: The Federal Circuit reversed the cited Casitas case. Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008) awarded water rights owners compensation for a physical occupation. The physical occupation was the government's diversion of water from the irrigation project to a fish ladder for endangered steelhead trout. The court distinguished Tahoe-Sierra on the basis that not all per se takings categories are congruent and that water rights present distinct property attributes. The court discussed but did not decide whether the Tulare analysis is correct. The subsequent denial of a petition for rehearing also contains a lively debate among the judges over the physical occupation theory of compensation for water rights impaired by endangered species regulation. 556 F.3d 1329 (Fed. Cir. 2009).
Mobil Oil v. United States 530 U.S. 604 (2000)
- Note: This Minerals Management Service website describes how the offshore leasing program works.
Amber Resources Co. v. United States, 538 F.3d 1358 (Fed. Cir. 2008), relied on Mobil Oil to uphold a $1.1 billion restitution payment to OCS lessees. The breach of the leases occurred as a result of implementation of the 1990 amendments to the Coastal Zone Management Act, which subjected OCS lessees to greater regulation and made exploration/development more difficult. The payment refunded the bonus bids from the lessees' predecessors in interest.
- Property Rights and "Takings" Compensation
- The APA and Judicial ReviewUpdate
Federal Land Management
Access to and Across Federal LandsUpdate
UpdateAccess and Renewable Energy
Here is a January 2011 packet of supplemental materials on renewable energy projects on federal lands, which raise many challenging access issues for powerlines and roads.
UpdateThe BLM tracks all of the solar, wind and geothrermal energy projects on its renewable energy web site. For 2012, it gave priority status to 17 projects (9 solar, 6 wind, and 2 geothermal) representing about 7,000 MW. The web site describes these projects and offers interesting details about the potential and limitations of renewable energy development on public lands. Update
Sometimes access disputes mask larger disagreements about recreation and the value of land for development. This news story about access in the Bear Creek basin above Telluride has it all!
Access Across Nonfederal Land to Federal Land
If you want to get a feel for the place that spurred the Leo Sheep litigation, there is a short video of the area on the Wyoming parks web site.
Access Across Federal LandUpdate
R.S. 2477 Rights of WayUpdate
These maps show the extent of R.S. 2477 right-of-way claims in some of the more contentious regions of the country:
The Southern Utah Wilderness Alliance has posted some photos of Utah R.S. 2477 claims here [PDF].
Southern Utah Wilderness Alliance v. BLM
- The counties of San Juan, Kane, and Garfield are located in south-eastern Utah, see image here.
- There are mixed reactions to the existence of RS 2477 claims. The Wilderness Society views the claims as a threat to the protection of public lands, while others defend these claims as property rights which must be protected.
UpdateIn 2010 the Obama administration stipulated that five of the Kane County claims had perfected rights under RS 2477. This included Skutumpah Road, which cuts through Grand Staircase-Escalante National Monument. Update
Note 1: In The Wilderness Society v. Kane County, ---F.3d----, 2011 WL 79487, the Tenth Circuit, after an en banc rehearing, overturned the 2009 three-judge panel (noted below), and held that environmental groups may not challenge R.S.2477 claims. Only Judges Lucero and Holloway, the two judges from the majority of the 2009 three-judge panel, voted to grant standing to the environmental groups.
Note 1: On September 1, 2009, the Tenth Circuit decided the Wilderness Society v. Kane County case. Kane County had enacted an ordinance opening primitive routes on federal land to OHV use, claiming they were valid RS 2477 routes. The BLM had adopted a land use plan for the area that had closed the routes to OHV travel, subject to VER. Kane County removed BLM's "closed" signs from the routes, and replaced them with its own "open" signs. The federal government dithered in the wake of this action, so environmental groups brought a lawsuit alleging that, until the County established in court that its RS 2477 claims were valid, the County could not purport to regulate alleged RS 2477 routes in a manner that conflicts with federal management plans.
After finding that plaintiffs had standing to sue because their members used the area for primitive (non-vehicular) recreation that was interfered with by OHV use, the Tenth Circuit held for plaintiffs on the merits, and ordered the County to take the signs down.
Judge McConnell, author of the SUWA opinion (and who resigned from the bench shortly afterward to join the Stanford Law School faculty), wrote a lengthy dissent. He argued plaintiffs had no standing because the case was a property rights dispute between the county and the federal government, and plaintiffs had no property interest at stake. It was therefore up to the federal government, not the environmental groups, to challenge the county's action. Judge McConnell did say the County had "no right to erect misleading signs purporting to authorize OHV travel ... over the objections of federal land managers," and also conceded in a footnote that even if the County could establish good RS 2477 claims, the federal government retained "substantial regulatory authority" and "might well have authority to ban OHVs from some or all of the roads" in question as exceeding the "scope" of the RS 2477 right of way.
McConnell also argued that the court had already held in SUWA that a court adjudication of an RS 2477 claim was not a "prerequisite to the [claimant's exercising] rights under RS 2477." Is that a correct reading of the passage on p. 391, which says the County must advise the federal agency in advance of its claim?
In November and December 2011 Utah filed more RS 2477 quiet title actions over rights of way. The suits cover almost every county in the state and now amount to nearly 19,000 rights-of-way claims across federal lands.
In April 2008 the Montana Supreme Court addressed the R.S. 2477 issue in a private dispute about road access to a proposed amusement park and tram ride just outside of Butte. Our Lady of the Rockies, Inc. v. Peterson, --- P.3d ----, 2008 WL 867022 (Mont., April 01, 2008). Private landowners in the vicinity argued that the road location is either a private driveway or, if a public easement, limited in scope to a "12-foot-wide dirt road, not a 60-foot, 2-lane public highway barreling through [the Landowners’] properties." Though the 4-3 majority decision decided that the R.S. 2477 dispute was not squarely raised on appeal, both the dissent and the concurrence discuss it extensively. The discussion of Montana law contrasts with the Utah law relevant in the Southern Utah Wilderness Alliance case. The Montana case also illustrates how R.S. 2477 issues can pop up in ordinary private litigation among neighbors.
In 2011 a Utah district court applied the SUWA appeals court standards to a dispute over motor vehicle access up Salt Creek in Canyonlands National Park. The decision, San Juan County, Utah v. United States, 2011 WL 2144762 (May 27, 2011), is a good illustration of the difficult evidentiary issues involved in proving the existence of an old RS 2477 right-of-way. The court described the judicial process: "Beginning September 14, 2009, this case was tried to the court for nine days. The court heard testimony, received numerous exhibits, and conducted a site visit at Canyonlands National Park on October 6, 2009. The court heard closing arguments on October 9, 2009, and took the matter under advisement." Almost two years later the court ruled that the county failed to prove the existence of a highway prior to 1976.
The relevant Forest Service Regulations are here:
- Code of Federal Regulations [Section 251.110]
- Code of Federal Regulations [Section 251.111]
- Code of Federal Regulations [Section 251.112]
- Code of Federal Regulations [Section 251.113]
- Code of Federal Regulations [Section 251.114]
Here is a sample call for public comments and decision for a Hoosier National Forest ANILCA right-of-way permit. Here is an administrative appeal decision challenging an EA for an ANILCA right-of-way permit.
Update for Note 6Update
The U.S. Supreme Court denied cert. in Hale v. Norton, 476 F.3d 694 (9th Cir. 2007).
Update for Note 9Update
More recently, the Sixth Circuit Court of Appeals determined that the Fish and Wildlife Service has organic act authority to regulate private easements on national wildlife refuges. Burlison v. United States, -- F.3d -- (6th Cir. 2008) (2008 WL 2755472). The Burlison easement predated federal acquisition of the refuge parcel and was not acquired under RS 2477, ANILCA, or any other federal statute. The United States acquired the land subject to existing easements for roads. But the court held that the "sovereign police power" of the federal government under the property clause is sufficient to regulate such private easements. The key provision of the refuge system's organic act is 16 U.S.C. section 668dd(d)(1)(B), which delegates authority to "permit the use of . . . any areas within the [Refuge] System for purposes such as . . . roads" under regulations that the Interior Secretary may prescribe. The court rejected the plaintiffs' arguments that the road easement is not "within the System" because it is a dominant private property interest. The posessory interest of the United States in the land over which the easement runs is sufficient to consider the area "within the System" and thus subject to the agency's regulatory power.
Colorado Wild v. U.S. Forest Service, 523 F. Supp.2d 1213 (D. Colo. 2007), accepted the application of ANILCA to all Forest Service lands and applied the existing Forest Service regulations for road access rights of way. The court faulted a Forest Service decision to issue a road construction permit for failure to explore some reasonable alternatives and for unsupported deference to county commission determinations of reasonableness. An edited version of the case is here. After reading the case, consider whether ANILCA requires the Forest Service to provide access for the full project, a year-round, recreational development. Could the Forest Service limit access to just winter use as a ski resort /second-home development? What is the proper role of county determinations in deciding what constitutes reasonable use?
- R.S. 2477 Rights of WayUpdate
- Access Across Nonfederal Land to Federal Land
National Parks & Conservation Association v. Stanton
- The Niobrara National Scenic River remains one of Nebraska's most important recreational and ecological resources.
Executive Withdrawals and ReservationsUpdate
The President's Powers
Here is a Department of Energy web page describing the naval petroleum reserves that have their origins in Taft's executive order.Note: The President's Power to Guide Agencies by Executive Order
Modern Withdrawal Practice Under FLPMAUpdate
- Note: Is a Decision Not to Authorize an Activity on Federal Land a Withdrawal?
- Note: FLPMA Withdrawal Procedures and the Legislative Veto
UpdateCongress and the Interior Department may be headed for another showdown over FLPMA's emergency withdrawal provision, 43 U.S.C. 1714(e), and the regulation interpreted by National Wildlife Federation v. Watt. On June 25, 2008, the House Natural Resources Committee (the current name of the old Interior and Insular Affairs Committee) voted 20-2 for a resolution temporarily withdrawing lands adjacent to Grand Canyon National Park from new uranium claims. In September 2008, coalition of environmental groups sued the Interior Department after it refused to withdraw the lands. Here is the complaint. In October 2008 the Bureau of Land Management proposed to revoke the emergency withdrawal rule, which had been the basis of Judge Oberdorfer's National Wildlife Federation v. Watt decision forcing the Interior Department to comply with the House Interior Committee's directive to withdraw federal coal land in the Upper Great Plains. On December 5, 2008 the Interior Department published the final rule eliminating the congressional committee trigger for emergency withdrawals. Unlike the Oct. 2008 proposed rule, it retains the Secretary's authority to intiate emergency withdrawals.
UpdateIn July 2009, President Obama's Secretary of the Interior, Ken Salazar, published a proposed withdrawal for the area near the Grand Canyon under FLPMA's provision for tracts larger than 5000 acres. 74 Fed. Reg. 35887 (July 21, 2009). The total area of BLM and Forest Service lands proposed to be withdrawn for twenty years is almost one million acres. During the time that the proposal is pending, up to 2 years, the lands are closed to entry under the General Mining Law. Mineral leasing is not affected by the notice, which is concerned with possible adverse effects to the Grand Canyon watershed from uranium mining. This action is likely to settle the 2008 lawsuit. In October 2011 the Dept. of the Interior issued its final environmental impact statement on the proposed withdrawal.
UpdateIn January 2012, Secretary Salazar signed a record of decision formally withdrawing the area, more than 1 million acres, around Grand Canyon N.P. from hardrock mining for 20 years under FLPMA, 43 U.S.C. § 1714. In February 2012 the National Mining Association filed this complaint asking a federal court to overturn the withdrawal.
UpdateIn 2013 President Obama designated Rio Grand Del Norte National Monument in New Mexico and San Juan Islands National Monument in Washington. These new monuments will be managed by the BLM through its National Landscape Conservation System.
Withdrawals and Reservations Under the Antiquities Act
Tulare County v. Bush
- Giant Sequoia National Monument protects thirty-eight groves of giant sequoias.
- At the beginning of 2004, the Forest Service adopted a management plan for the Giant Sequoia National Monument which authorized logging. The record of decision and EIS are here. A federal district court enjoined the logging and the plan in California ex rel. Lockyer v. United States Forest Serv., 465 F. Supp. 2d 942 (N.D. Cal. 2006). The court found the plan's EIS inadequate under NEPA because it was "incomprehensible" and because it improperly tiered to a fire plan that itself violated NEPA. The court did not reach claims that the plan violated the term of the executive order creating the national monument. The Forest Service is now working on a new management plan and intends to employ a more collaborative approach. Details are here.
Note 4 after Tulare County v. Bush: Update
Western Watersheds Project v. BLM, 629 F.Supp.2d 951 (D. Ariz. 2009), refused to dismiss a challenge to grazing management in an area of the Sonoran Desert National Monument. The 2001 proclamation establishing the monument allowed grazing to continue in the area "only to the extent that the BLM determines it is compatible with the purpose of protecting the objects identified in the Proclamation." The court found that language to be law it could apply in reviewing BLM decisions. Id. at 968. At the time of the suit, the BLM had neither prepared a management plan nor made the compatibility determination. The court held that judicial review under the APA is available for the allegations that the BLM failed to comply with the terms of a presidential proclamation. The court noted "two ways in which agency action taken pursuant to an executive order or presidential proclamation may be subject to judicial review under the APA: (1) where Congress explicitly delegates authority to the President to issue directives to an agency, or (2) where the agency directives in a presidential order or proclamation “rest upon statute,” i.e., the directives are issued in accordance with or in furtherance of agency action that is specifically authorized or required by statute." Id. at 962. The court held that, although the Clinton proclamation did not explicitly refer to FLPMA, the proclamation's "directives are related to the BLM's management of federal land, and the BLM manages federal land pursuant to FLPMA, the only reasonable conclusion is that the directives are issued in furtherance of (or in accordance with) FLPMA; the directives rely on the BLM's independent statutory obligations under FLPMA. Thus, FLPMA appears to constitute the specific statutory foundation necessary to supply APA review of Proclamation No. 7397's directives to the BLM to prepare a monument plan and conduct a grazing compatibility determination." Id. at 967.
Note 7 after Tulare County v. Bush:
In 2007, the federal government choose Papahanaumokuakea as the name for the Northwest Hawaiian Islands National Monument. Here is its homepage. This page contains links explaining the meaning and pronunciation of the name. President Bush capped his historically expansive use of Antiquities Act reservations for marine conservation in his last days in office with a 2009 trio of national monuments that is nearly 200,000 square miles in remote reaches of the Pacific Ocean. The Marianas Marine National Monument, Pacific Remote Islands National Monument and Rose Atoll National Monument will be managed cooperatively by the Interior and Commerce Departments.
- The President's Powers
Land Exchanges, Sales, and Other TransfersUpdate
The following problem requires students to integrate the material on withdrawals, exchanges, and sales with the APA and NEPA in a litigation context:
- Land Acquisitions
The latest figures show that the federal government has now earned nearly $3 billion from Southern Nevada Public Land Management Act sales. But nominations for land parcels to be sold (made by real estate developers, through the county government) have slowed considerably since the end of 2005.
While some groups are working on a legislative expansion of the boundary for sales under the Southern Nevada Public Land Mangement Act, others are criticizing its implementation. So far, more land has been sold than acquired in Nevada under the Act. Instead, much of the revenue from Las Vegas-area land sales have supported municipal services in southern Nevada, going to schools, parks, and transporatation. An investigative report in the New York Times observed that:
Supporters say the law, which authorized competitive auctions, has been a godsend for a region dealing with rampant population growth, limited room to grow, scarce water and facilities overwhelmed by their own popularity. But critics see it as having created a limitless federal bank account that has encouraged and subsidized unbridled growth at the expense of taxpayers from the 49 other states, all while Nevada continues to draw new residents as a low-tax state disinclined to pay for such projects itself. Jesse McKinley & Griffin Palmer, Nevada Learns to Cash in on Sales of Federal Land, N.Y. Times, Dec. 3, 2007.
Federal Land Transaction Facilitation Act
A 2008 GAO Report criticizes the effectiveness of FLTFA outside of Nevada. It provides useful information about land sale adminstration.
The FLTFA expired in July 2011. Despite efforts through many bills in both the House and Senate that would revive the basic framework of FLTFA, it remained expired at the end of 2012.
Moving Federal Lands Around the Federal Family
The most recent chapter in the periodic effort to consolidate federal lands into a single agency or department occured in 2009, when the Government Accountability Office issued a report to Congress on the merits of and problems with moving the Forest Service to the Interior Department. The impetus for this particular study is fiscal; it came from the Rep. Norm Dicks from Washington, who chairs the House subcommittee on Interior appropriations. While the GAO did not conclude that considation would assure budget savings, it did discuss several, more practical initiatives to improve coordination and alignment of resource management across federal agencies. In summary, the costs of consolidation would dominate the short term but efficiency benefits could be realized in the long term:
According to many agency officials and experts with whom we spoke, where the Forest Service mission is aligned with Interior’s—in particular, the multiple-use mission comparable to BLM’s—a move could increase the overall effectiveness of some of the agencies’ programs and policies. For example, some officials stated that a move would help harmonize the Forest Service’s and BLM’s oil and gas, grazing, and other programs and potentially make the agencies’ internal administrative appeals processes similar. Conversely, most agency officials and experts believed that few short-term efficiencies would be realized from a move, although they said an opportunity would be created for potential long-term efficiencies, such as consolidating information technology systems. GAO Report at 4-5.
The report makes for interesting reading on how agencies with almost congruent mandates approach their tasks differently. The report is particularly helpful on the history of the establishment of administrative functions of public resource agencies and past efforts to rationalize them.
If the GAO could show a likely budget savings, would there be any reason to retain the current system of dispersed responsibilities?
Land Exchanges Update
National Audubon Society v. Hodel
- The Alaska Maritime National Wildlife Refuge is so large, totaling 4.9 million acres, that traveling between its two farthest points would be the equivalent of taking a trip from Georgia to California.
- Almost 70% of the19 million acres in the Yukon Delta National Wildlife Refuge are below 100 feet in elevation.
- The Kenai National Wildlife Refuge was originally established as the Kenai National Moose Range to protect the Alaska-Yukon moose.
New 2010 case to substitute for National Audubon Society v. Hodel. Click here for edited version of Center for Biological Diversity v. U.S. Department of the Interior, with notes and questions.
In addition to Center for Biological Diversity, excerpted above, the BLM suffered another setback from the Ninth Circuit in 2009 when the court overturned a land exchange involving construction of a landfill near Joshua Tree National Park. National Parks and Conservation Ass'n v. Bureau of Land Management, 586 F.3d 735 (9th Cir. 2009). In addition to finding a NEPA violation, the court also found that the BLM failed to abide by its regulations implementing FLPMA's appraisal requirement for land exchanges.
Note: Federal-State Land Exchanges
Organic Legislation for Public Land SystemsUpdate
Public Partcipation update:
On June 8, 2007, Judge Winmill turned the preliminary injunction in Western Watersheds Project v. Kraayenbrink into a permanent injunction and remanded the BLM's 2006 grazing regulations. The judge's final decision is here.
Update to note 6 following National Forest System Land Management Planning Final Rule Preamble
On May 11, 2007, the Forest Service announced its intent to prepare an EIS and re-propose an LRMP rule notwithstanding its disagreement with Judge Hamilton's decision. 72 Fed. Reg. 26775.
- Access to and Across Federal LandsUpdate
The Water Resource
The Acquisition of Water Rights on Federal Lands
- The Origins of Water Law on Federal Lands
- Federal Reserved Water Rights
Reserved Water Rights by Federal Land Category
- National Forests
- National Parks
- National Wildlife Refuges
- Wilderness Areas
- Wild & Scenic Rivers
- Bureau of Land Management ("BLM") Public Lands
- Modern Congressional and Executive Practice in Federal Land Reservations
- Adjudicating Federal Water Rights: The McCarran Amendment, State Water Adjudications and Related Issues
Beyond the Reserved Rights Doctrine: Other Means of Protecting Federal Interests
- Controlling Water by Regulating Access to Federal Land
- Claiming Water Rights Under State Law
- Federal Non-Reserved Water Rights
Federal Hydropower Licensing
This example of a FERC license order includes the terms of the license, the state water quality certification, and the Interior Department's section 18 prescriptions. Other orders are available on line by FERC region.
A comparative look at how another hydropower-rich nation, Brazil, licenses its facilities can be found in Daniel Sherwood Sotelino, "Complexo Madeira: Environmental Licensing for Large-Scale Hydropower in Brazil," 43 Envtl. L. Rep. News & Analysis 10055 (2013). Click here for a summary of the article.
- The Acquisition of Water Rights on Federal Lands
The Mineral Resource
Thomas Jefferson recognized minerals as valuable resources of public lands in his June 20, 1803 instructions to Lewis and Clark. He asked them to explore for, among other things, potential, "mineral productions of every kind; but more particularly metals, limestone, pit coal & saltpetre; salines & mineral waters, noting the temperature of the last & such circumstances as may indicate their character; volcanic appearances."
Hardrock Minerals: The General Mining Law of 1872
The most recent survey by the U.S. Geological Survey shows that, in 2009, domestic production of most of the important hardrock mineral commodities continued its 30-year decline as a proportion of total domestic consumption. As you consider the materials in this sub-chapter, consider whether the legal regime for disposal of hardrock minerals drives the mining industry overseas for cheaper production of minerals. For some of these minerals, there are national security concerns surrounding dependence on foreign sources of supply.
Here is a link to the Environmental Working Group's database on hardrock mining. This interactive map showing claims, patents, and mines is particularly revealing of the broad reach of the General Mining Law.
In 2011 the Government Accountability Office summarized its recent studies and noted:
In 2008, GAO reported that BLM, the Forest Service, and the U.S. Geological Survey (USGS) either do not routinely collect or do not consistently maintain data on the amount of hardrock minerals being produced on federal land, the amount of hardrock minerals remaining, and the total acreage of federal land withdrawn from hardrock mining operations. According to BLM and Forest Service officials, they do not have the authority to collect information from mine operators on the amount of hardrock minerals produced on federal land or the amount remaining. In contrast, USGS collects extensive data on hardrock mineral production through its mineral industry surveys . . . , but the agency does not collect land ownership data that would allow it to determine the amount of hardrock mineral production on federal land. As a result, comprehensive information on hardrock mineral production is generally not available to the public.
Abandoned Mines: Information on the Number of Hardrock Mines, Cost of Cleanup, and Value of Financial Assurances (GAO-11-834T 2011)
- What Minerals are Locatable under the Mining Law?
- What "Lands Belonging to the United States" Are Open to Claim Location?
How Is a Mining Claim Located?
The federal government has a web-based mapping program that allows viewers to see various kinds of mineral claims.
Here is an example of a certificate of location that a miner would file under state law, generally in a county courthouse, in order to protect the pedis possessio right and bolster a claim under the General Mining Law. Locations are alienable in a similar manner to most real property rights and may be transferred by deed.
- What Are a Mining Claimant's Rights Before Discovery? The Pedis Possessio Doctrine
Gaining Rights Against the United States: Discovery of a Valuable Mineral Deposit
Note: The Problem of "Common Varieties"
Discovery of Fuel Minerals: Uranium and Oil Shale
At the time of claim location, prospective miners are not required to identify the specific minerals they are seeking. Nonetheless, the BLM estimated that between 40 and 50 percent of the 92,000 new mining claims filed in Fiscal Year 2007 were directed at uranium ore. By 2013 the price of uranium had dropped to $40 per pound, but the uranium mining boom remains strong.
In 2008 the Interior Department issued a final rule for the oil shale leasing program, under section 369 of the 2005 Energy Policy Act. The rule specified lease areas, sale protocols, rental rates, and royalties. The relatively low royalty rates, at least for the first several years of commercial production, were a source of particular controversy. Should Congress itself specify the royalty rates for all mineral leasing?
Update After environmental groups challenged the 2008 rule, the Obama Administration agreed to a settlement in which it promised to rewrite the rule. In 2012 the BLM released the new rule with a new programmatic environmental impact statement that contains a wealth of interesting information concerning oil shale and tar sands mining.
Holding and Privatizing Mining ClaimsUpdate
Holding Claims: The Assessment Work Requirement
Privatizing: Patenting Claims
Update As of the end of F.Y. 2009, the BLM recorded 376,000 active, unpatented claims in good standing.
Inroads on the Freedom of the Mining ClaimantUpdate
UpdateThis news story about access in the Bear Creek basin above Telluride suggests that Chapman and Curry base their right to exclude hikers, in part, on ownership of hardrock mining claims. Is that possible after Curtis-Nevada Mines?Note: Processes for Challenging the Validity of Unpatented Mining Claims
Modern Environmental Regulation of Operations on Unpatented Mining ClaimsUpdate
Forest Service RegulationUpdate
Here is the "plan of operations" form miners must submit to the Forest Service for surface disturbance of national forest lands.
In March 2008 the Forest Service proposed a new set of regulations for hardrock mining that would mirror the approach of the 2001 BLM rule. Here is the proposed rule, from 73 Fed. Reg. 15,694 (Mar. 25, 2008). The Obama Administration appears to have abandoned this effort.
In June 2012 the Ninth Circuit made an important (7-4) en banc decision in Karuk Tribe of California v. U.S. Forest Service, --- F.3d ----, 2012 WL 1959231 (9th Cir. 2012). The court overturned Forest Service approvals for small-scale "recreational" placer mining operations in the Klamath River system for failure to comply with the ESA. Threatened coho salmon critical habitat is located in the Klamath River system, and the Forest Service did not consult with the listing agency before approving the mining operations. The ESA section 7 consultation requirement applies only to discretionary agency decisions. The district court and three-judge panel of the appeals court held that the Forest Service's approval of the NOI did not constitute a discretionary agency action. The 2012 decision reverses the holding.
The mining at issue fell in the middle category of scrutiny in the Forest Service regulations: it might cause disturbance of surface resources. (See casebook p. 602.) Such operations are subject only to a requirement that the miner submit a "notice of intent" (NOI) containing basic information. The Forest Service then must determine whether a plan of operations is required (because operations will "likely cause significant disturbance of surface resources") or whether the mining may proceed under the NOI. In this case, the Forest Service determined that the miners could proceed with the NOI alone, but conditioned approval on certain limitations to protect coho salmon habitat.
The en banc decision applied the Supreme Court's framework from Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007). First, the court found that the Forest Service's approval of the NOIs was an affirmative agency action because the mining could not legally proceed until the Forest Service authorized the mining operations through NOI approval (for this type of mining). The court rejected the argument of the miners and Forest Service that "the underlying mining activities are authorized by the General Mining Law, rather than by the agency's approval of the NOIs." (Karuk Tribe at *14.) The court responded that private activities can and do have more than one source of authority, and more than one source of restrictions on that authority. The Forest Service also contended that "approval of a NOI is merely a decision not to regulate the proposed mining activities." (Id.) The court responded that the Forest Service controls mining activities through the NOI process and pointed to approval letters' precise limitations on the mining.
Second, the court determined that "the decision whether to approve a NOI is a discretionary determination through which the agency can influence private mining activities to benefit listed species." (Karuk Tribe at *15.) The court noted that "the Forest Service can exercise its discretion to benefit a listed species by approving or disapproving NOIs based on whether the proposed mining activities satisfy particular habitat protection criteria. The agency can reject a NOI and require that the prospective miner instead submit a Plan of Operations, under which the Forest Service can impose additional habitat protection conditions." Thus the court was able to continue to skirt the issue of whether the Forest Service can forbid mining altogether by refusing to approve plans of operations, as we discuss in Note 3, casebook p. 606.
Judge Smith issued a blistering dissent to the decision and also extended his argument to criticize several recent Ninth Circuit environmental law decisions.
- BLM Regulation Update
In 2011 the Government Accountability Office summarized its recent studies and noted:
[T]he median [annual] amount spent for abandoned hardrock mines on public lands by BLM and the Forest Service was about $5 million and about $21 million, respectively. . . . One factor that contributes to costs for reclamation of federal lands disturbed by mining operations is inadequate financial assurances required by BLM. Since 2005, GAO has reported several times that operators of hardrock mines on BLM lands have not provided financial assurances sufficient to cover estimated reclamation costs in the event that operators fail to perform the required reclamation. Most recently, in 2008, GAO reported that the financial assurances that were provided for 52 operations were about $61 million less than needed to fully cover estimated reclamation costs, which could leave the taxpayer with the bill for reclamation, if the operator fails to do so.
Abandoned Mines: Information on the Number of Hardrock Mines, Cost of Cleanup, and Value of Financial Assurances (GAO-11-834T 2011)
Note 2: Interpreting “unnecessary or undue degradation"
In 2011, the D.C. Circuit decided a case involving a challenge to the BLM’s oil and gas management plan for the Pinedale Anitcline Project Area in Wyoming. Among the legal issues was whether the BLM violated its FLPMA duty to prevent unnecessary or undue degradation from the mining. Consider this edited version of Theodore Roosevelt Conservation Partnership v. Salazar, and the questions that follow it. The case interprets FLPMA in ways that may influence implementation of the BLM 3809 regulations, in addition to the oil/gas activities at issue.
The EPA, in its role as commenter on all draft EISs under section 309 of the Clean Air Act, has gotten involved in the debate over adequate assurance of long-term financing for monitoring and maintenance of former mine sites. This 2012 comment letter, on an expansion of the Phoenix copper mine in Nevada, raises the key issues about how the BLM can assure long-term funding for post-closure monitoring and management of the heap leach facilities and evaporation ponds. The concern is over degradation of surface and groundwater through heavy metals left behind after the mine completes operation. The EPA wrote:
The availability of adequate resources to ensure effective reclamation, closure, and post-closure management in a critical factor in determining the significance of the project’s potential impacts and its environmental acceptability. An adequate reclamation/closure bond and post-closure funding mechanism are needed to ensure that the costs of stabilizing, reclaiming, and managing the site after closure are covered by the mine operator for as long as they may be needed.
Do the 3809 regulations give the BLM adequate authority to respond to the EPA’s concerns? Do they compel the BLM to respond?
In January 2012 the EPA also published the 2010 Toxics Resease Inventory, which put the metal mining industry as the nation's largest discharger of toxic material, responsible for 41 percent of all releases. But, the inventory does not include toxic leaching from waste piles and tailings.
In 2009 the NAFTA tribunal dismissed all of the Glamis claims of expropriation and discrimination based on the BLM standards and also California state regulations. The U.S. State Department posts the final tribunal decision as well as other documents relating to the dispute at www.state.gov/s/l/c10986.htm.
- Forest Service RegulationUpdate
- Note: Regulating Hardrock Mining in National Parks
Note: Reforming the Mining LawUpdate
Congress is once again considering reforms to the General Mining Law. In November 2007, the House passed H.R. 2262, with a couple of dozen Republicans joining almost all Democrats in supporting the measure. The bill has been the subject of several hearings. John Leshy provided testimony and answers to questions posed by the House Natural Resources Committee, which places the proposed legislation in the context of comprehensive reform issues. Here is a complete list of recent testimony reflecting a wide range of views on mining law reform. In 2008 the action moved to the Senate, where Majority Leader Reid promised to pare down the environmental protection provisions of the House bill. Congress ultimately did not enact any GML reform legislation in 2008.
In 2012 the president of the Phillipines significantly reformed mining regulation under the country's 1995 legislation with Executive Order 79, which attempts to regulate mining in a more sustainable manner. Click here for a summary of a 2013 article about hardrock mining reform in the Phillipines, Reda M. Hicks, Nereus O. Acosta, Sedfey M. Candelaria, "Crafting a Sustainable Mining Policy in the Philippines,"" 27 Nat. Resources & Env’t, no. 3, 2013.
Renewable Energy Leasing
Update Here is a January 2011 packet of supplemental materials on renewable energy projects on federal lands, which raise many challenging leasing issues. Among the issues discussed in the packet are how renewable energy sites should be leased (or sold), how they should be priced, and mitigation of environmental impacts. Here is a description of the 2012 priority renewable energy projects on federal lands. The list includes solar, wind, and geothermal power.
UpdateThe BLM tracks all of the solar, wind and geothrermal energy projects on its renewable energy web site. For 2012, it gave priority status to 17 projects (9 solar, 6 wind, and 2 geothermal) representing about 7,000 MW. The web site describes these projects and offers interesting details about the potential and limitations of renewable energy development on public lands.
Update In July 2012 the federal government issued its final programmatic EIS for solar development of 17 solar energy zones on nearly 300,000 acres of public lands in the Southwest.
Update Fiscal Year 2008 revenues from mineral leasing were almost double the figures on p. 619 in the casebook from 2006. High commodity prices and $10 billion in bonus bids to lease offshore tracts auctioned by the United States accounted for the record-breaking total of $23.4 billion. This press release describes the various federal, state and tribal accounts to which the Interior Dept. distributes the money. Following the recession, Interior Department revenues fell and are only slowly recovering. Fiscal Year 2012 brought in $12.15 billion in mineral leasing revenue.
The BLM maintains state maps showing where current oil and gas leases are currently located, and which are producing, non-producing, or suspended. Here is a link to the Environmental Working Group's map on oil and gas leasing in the West.
Update The oil and gas boom of the past decade in North Dakota is nicely summarized in Chip Brown's reporting for the New York Times.
Mineral Leasing Systems in a Nutshell
The federal government now has a web-based mapping program to view various kinds of mineral lease locations.
Sample Onshore Lease:
Here is the standard form for a federal onshore oil/gas lease.
This document, entitled Uniform Format for Oil and Gas Lease Stipulations, provides guidance for the standardization of federal oil and gas lease stipulations, uniform definitions, format, and wording.
Here is the standard form for a federal coal lease.
Here is the standard form for a federal geothermal resource lease.
Here is the standard form for a federal lease of other resources under the MLA, including sodium, sulfur, phosphate, and potassium.
Sample Outer Continental Shelf Lease:
This website includes links to various forms used by permittees, lessees, and operators (including the following two links).
- Competition in Federal Mineral Development
What Is "Fair Market Value"?Update
Here is a BLM web site that collects reports, maps, and statistics on Powder River Basin coal leasing in Wyoming.
In 2007 the Departments of Energy, Interior and Agriculture released this report on federal coal resources. It contains helpful maps, especially of the vast Powder River Basin deposits, which constitute 55% of all U.S. owned coal.Update
Securing a fair market price for coal leases on public lands continues to present a challenge to the Interior Department. A 2012 study by the Institute for Energy Economics and Financial Analysis finds that low minimum bid standards have cost the United State $28.9 billion in lost revenue over the past 30 years in the Powder River Basin. Despite the scandals of the 1980s, the report finds that the federal government still has not fixed the competitive coal leasing system.
Mineral Leasing and Environmental Regulation
Kerr-McGee Corp. v. Hodel was not an unusual situation. Here is information on the extent of federal acquired minerals in the East subject to leasing.Note: The Surface Mining Control and Reclamation Act
UpdateIn 2011, Secretary Salazar began steps to place the agency that regulates surface mining of coal under SMCRA, the Office of Surface Mining, within the BLM. This would give the BLM regulatory responsibility over private surface mines and make it more like the U.S. Fish & Wildlife Service, which also is responsible for both a system of public lands (the national wildlife refuges) and a regulatory enforcement (of the Endangered Species Act, the Migratory Bird Treaty Act and others). On Nov. 28, 2011, however, Secretary Salazar postponed the merger indefinitely in response to complaints from members of Congress.
NEPA and Planning for Onshore Oil and Gas LeasingUpdate
Update In January 2010, the Interior Department announced a number of reforms to its onshore oil and gas leasing process. The new policy will increase the level of environmental review and opportunities for public comment prior to leasing. Here is a fact sheet describing the new policy, and here is a comparison of the new policy with the old one. In May 2010 the Interior Department implemented the new policy with the following memos to guide onshore o/g lease planning/review and categorical exclusions under the 2005 Energy Policy Act.
The BLM maintains a web site on the National Petroleum Reserve that links to maps and NEPA documents. The U.S. Geologic Survey hosts a web site explaining many of the issues associated with CBM development in the Powder River Basin.
Update Note 4: In 2013 the Secretary of the Interior approved a record of decision based on the comprehensive plan for o/g development and conservation in the National Petroleum Reserve, including construction of a pipeline to connect with the existing Trans-Alaska Pipeline System (TAPS). The BLM National Petroleum Reserve web site now contains the final supplemental EIS and an integrated activity plan that addresses the cumulative impacts of leasing on both the northwest and the northeast quadrants. The BLM prepared these documents in response to Judge Singleton's decision in National Audubon Society v. Kempthorne. In July 2008, the BLM announced its final decision to authorize oil and gas development in the northeastern quadrant of the NPR-A. However, in a reversal of its past position, the agency decided to exclude the environmentally sensitive Lake Teshekpuk area from leasing. The Sept. 24, 2008 NPRA lease sale on both the northeast and northwest quadrants brought in nearly $31 million to the Treasury. However, of the 4.8 million acres offered, only 1.7 million acres of leases sold.
In Wilderness Society v. Salazar, 603 F.Supp.2d 52 (D.D.C. 2009), the court upheld leasing in the northeast quadrant of the NPR-A against NEPA challenges. The court rejected the Wilderness Society's claim that the EIS failed to sufficiently analyze cumulative impacts on wildlife and to sufficiently evaluate site-specific adverse effects.
Note 5: Western Organization of Resource Councils v. Bureau of Land Management, 591 F.Supp.2d 1206 (D. Wyo. 2008), upheld a comprehensive EIS and ROD for the development of over fifty thousand CBM wells in the Powder River Basin. "The project would also authorize construction of 17,000 miles of road and 26,000 miles of pipeline; it would permit up to 1.0 trillion gallons of water to be pumped from groundwater aquifers onto the surface; allow for excavation of 3,100 unlined reservoirs of waste pits to hold some of the produced water and authorize the discharge of the remainder of the water, untreated, onto the ground." Id. at 1208-09. The analysis included the area covered in the Pennaco Energy case and clears the way for extensive development in the Buffalo district and surrounding BLM lands.
Note 7: The BLM BMPs required by the 2005 Energy Policy Act are here.Greenhouse Gas Mitigation and Fossil Fuel Development on Federal LandsUpdate
In the wake of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (rejecting the federal government's argument that greenhouse gases, especially carbon dioxide, are not pollutants under the Clean Air Act unless it can show that they do not contribute to climate change), the EPA has shown signs of a new assertiveness toward greenhouse gas emissions in its Clean Air Act duty to comment on all federal agency EISs. On June 1, 2007, the EPA sent this comment letter urging the Interior Department to deal with the methane emissions associated with a proposed mine expansion in Colorado. The EPA notes that methane is over twenty times more effective in trapping heat in the atmosphere than carbon dioxide and designates the DEIS analysis as one to which the EPA has significant objections. In particular, the letter recommends that:
the final EIS identify the magnitude of the emissions and discuss alternatives to allowing the methane resource to be vented directly to the atmosphere. Specifically, we recommend that the final EIS describe the range of alternative technologies available for capturing the methane and the potential economic and environmental benefits associated with capturing and utilizing a portion of the methane emissions.
Update WildEarth Guardians v. U.S. Forest Service, 828 F. Supp.2d 1223 (D.Colo. 2011), upheld the Forest Service's decision to exclude detailed treatment of methane flaring and capture as alternatives to venting in the FEIS for the West Elk coal mine.
By 2008, EPA had begun asking the BLM to quantify the amount of greenhouse-gases emitted by energy projects, and to compare the impacts of alternatives on greenhouse gas emissions. Here is an example from the Toquop Energy Project and another one from the Pinedale Anticline Oil and Gas Exploration and Development Project. Mitigating carbon and methane emissions, and possibly evaluating cumulative impacts, may not be far behind. This 2010 EPA letter commenting on the Keystone XL pipeline, which would nearly double the amount of Alberta tar sands crude oil used by the United States, is a good illustration of how the agency's stance toward accounting for greenhouse gas emissions has grown more aggressive. It also reflects the view that EISs should consider other future demand scenarios for fossil fuels than just "business as usual."
In 2008 the Ninth Circuit weighed in on the debate over how NEPA documents should consider the effects of greenhouse gas emissions. Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir 2008), remanded the agency's rule updating corporate average fuel economy (CAFE) standards. Among other problems with the rule, the court found the EA deficient. The EA had quantified the expected amount of carbon dioxide emitted from vehicles but failed to "evaluate the 'incremental impact' that these emissions will have on climate change or on the environment more generally in light of other past, present, and reasonably foreseeable actions." The court explained its reasoning:
Thus, the fact that "climate change is largely a global phenomenon that includes actions that are outside of [the agency's] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming." The cumulative impacts regulation specifically provides that the agency must assess the "impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7.
The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct. Any given rule setting a CAFE standard might have an "individually minor" effect on the environment, but these rules are "collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7; see also Native Ecosystems Council, 304 F.3d at 897 (holding that the Forest Service's road density standard amendments must be subject to cumulative impacts analysis because otherwise, "the Forest Service will be free to amend road density standards throughout the forest piecemeal, without ever having to evaluate the amendments' cumulative environmental impacts."). Thus, NHTSA must provide the necessary contextual information about the cumulative and incremental environmental impacts of the Final Rule in light of other CAFE rulemakings and other past, present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions.
In 2009 John Leshy and Mark Squillace proposed this amendment to the Mineral Leasing Act to enable the BLM to better regulate methane emissions from coal mines. Methane released to the atmosphere contributes more than 20 times the heat-trapping intensity as does the same amount of carbon dioxide over a 100-year period. The West Elk mine, describe above as the subject of the EPA comment letter and the WildEarth Guardians law suit, emits enough methane to equal the heat-trapping effects of a 150 megawatt coal-fired power plant. Currently, the MLA does not appear to authorize the BLM to allow a coal lessee to capture methane without undergoing a separate lease auction for the gas.
In February 2010, the Council on Environmental Quality put forward for comment this draft guidance for considering greenhouse gas emissions in NEPA analysis.
This website describes how BLM currently approaches NEPA compliance for onshore oil and gas leasing impacts on climate change. It also links to helpful examples of BLM’s actual analysis.Note: Oil and Gas Leasing on the Offshore LandsUpdate
The Interior Department's Mineral Management Service provides maps of current outer continental shelf oil and gas leasing areas.
UpdateIn 2007 the Department of the Interior proposed expanding the area of the outer continental shelf eligible for leasing. Here is the program proposal and a map of the area. UpdateHere is the now-notorious Minerals Management Service approval for BP's exploratory well that began spewing oil into the Gulf of Mexico on April 20, 2010 after the Deepwater Horizon rig exploded and sank. The MMS issued the approval as a categorical exclusion under NEPA pursuant to this manual provision. Many if not most of the drilling in the Gulf proceeds under this categorical exclusion. The 2007 EIS for the Gulf lease sales that included the BP site anticipated blow-outs to have only localized effects on water quality, negligible effects on fisheries, and no significant impacts on any wetlands. UpdateThe administrative reforms in the wake of the 2010 Deepwater Horizon disaster include renaming the Minerals Management Service (MMS) the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE). Secretarial Order No. 3302 (June 18, 2010). In January 2011, Secretary Salazar announced that BOEMRE would be split into the Bureau of Ocean Energy Management, which will be in charge of the development of offshore energy, and the Bureau of Safety and Environmental Enforcement, which will enforce safety regulation. The Washington Post (1/20/11) reports that over one thousand employees from the former agency will be reassigned in the new structures, which are to start operating by October 2011. The revenue collection arm of the former MMS was moved in 2010 to the new Office of Natural Resources Revenue. UpdateHere is the 2011 final report of the Oil Spill Commission investigating the Deepwater Horizon disaster. It recommends both congressional and executive reforms to off-shore o/g drilling.Geothermal ResourcesUpdate
The rise in fossil fuel energy costs has made federal geothermal leasing more important, and lucrative. Geothermal energy now accounts for some 17 percent of all renewable energy in the United States. Half of that is produced under federal leases. Since the 2005 Energy Policy Act established a new competitive leasing system, the Interior Department has taken in $57 million in bonus bids. That represents a significant growth in geothermal development.
Here is a link to the BLM's growing geothermal energy leasing program.
In October 2008, the BLM and Forest Service released a Final Programmatic Environmental Impact Statement for the entire public lands geothermal leasing program. It is expected to expedite processing a backlog of lease applications.
Here is an interactive map of geothermal leases.
Pursuant to the 2005 Energy Policy Act, Pub. L. No. 109-58, section 222, all Geothermal Steam Act leases now are initially put out for competitive bidding. The 2005 law, section 224(a), also lowered royalties for geothermal resources to 1-2.5 percent for the first ten years, and 2-5 percent after that.
- Mineral Leasing Systems in a Nutshell
Federal Minerals That Are Subject to Sale
What Happens When Different Minerals Are Targets of Development on the Same Federal Lands?
Split Estates: Issues Where Mineral Interests are Separated from Surface InterestsUpdate
Federal Minerals Under Private SurfaceUpdate
These maps compare the federal surface estate with the vast federal ownership of coal in the Powder River Basin. The colorful map on p. 14 of this document is an excellent graphic of federal control of Powder River Basin coal. Other maps in this document illustrate the richness of these deposits. The Powder River Basin Resource Council also contains an excellent collection of materials on oil, gas, and CBM leasing. In particular, students may be interested in the sample surface use and damage agreements that the Council promotes.
- What Minerals Are Reserved?
Protecting the Environment and Surface Values in Developing Federally Reserved MineralsUpdate
The BLM's response to the 2005 Energy Policy Act's mandate to study the split estate issue with respect to adverse effects on private surface resources is here.
In 2007 the New Mexico joined Wyoming in passing a "Surface Owners Protection Act" that requires compensation for, among other things, "lost land value, lost use of and lost access to the surface owner's land and lost value of improvements caused by oil and gas operations." 2007 New Mexico Laws Ch. 5 (H.B. 827).
The new statute also requires bonds in the absence of surface owner agreeents and specifies a range of damages that courts may award for violations of the Act.Note: Determining Whether Federal Rights are Reserved in Dispositions
Private Minerals Under Federal Surface
- What Minerals Are Reserved?
- Authority of the United States to Control Development of Reserved Mineral Rights
The technological development of "fracking" shale deposits to yield oil and gas is reviving interest in mineral development under federal land, especially in the East.
UpdateMinard Run Oil Company v. U.S. Forest Service, 2009 WL 4937785 (W.D. Penn. Dec. 15, 2009), enjoined a settlement agreement that applied NEPA to notices to proceed with development of privately owned mineral rights beneath the Allegheny N.F. The court distinguished Duncan Energy Company on the grounds that 1) Duncan Energy Company did not involve direct application of NEPA, only the "limited authority" to regulate (without prohibiting) drilling; and 2) the Duncan Energy Company surface estate had been acquired by the federal government under the Bankhead-Jones Act, a different statute from the Weeks Act at issue in Minard Run Oil, and one with a somewhat broader grant of regulatory authority to the Forest Service. The court concluded that the Forest Service's limited regulatory authority from the Weeks Act and the acquisition deeds meant that its involvement in the approval process for mineral development did not rise to the level of a major federal action requiring NEPA compliance.
In 2011 the Third Circuit affirmed the distict court opinion in Minard Run Oil Company (click here for edited version of the case). The edited case provides a helpful discussion of the kinds of private mineral rights under federal lands. The public land management agencies treat reserved mineral rights development differently from outstanding mineral rights development. How important is that distinction in this case? How important is the statutory authority under which the Forest Service acquired the surface estate? How important is the underlying state property law governing the relative rights of mineral and surface owners?
The Minard Run Oil Company circuit court opinion overturns the Forest Service's asserted permitting authority over private mineral rights in part because it would have "no logical stopping point." Do you agree? Which way does Duncan Energy Company cut? To illustrate its concern, the court provides the example of a right-of-way holder who might need to obtain a Forest Service permit prior to exercising the easement. Does Minard Run spell the end to Forest Service regulation of the exercise of RS 2477 rights-of-way?
If the 1911 regulatory requirements noted in footnote 1 included a permit, would the Forest Service have won the case? Or, would Pennsylvania property law have limited its application? What exactly is the role of state property law in the exercise of mineral rights on federal lands?
For a look at how agency regulation of private mineral rights has recently played out for other land management systems, see Dunn-McCampbell Royalty Interest v. National Park Service, 630 F.3d 431 (5th Cir. 2011) and Zachary Gerson, The Unrealized Authority of the Fish and Wildlife Service to Protect National Wildlife Refuges from Surface Disturbance due to Private Mineral Rights, 29 STAN. ENVTL. L.J. 181 (2010).
Agency Split Estate Regulations and Application
- Federal Minerals Under Private SurfaceUpdate
- Hardrock Minerals: The General Mining Law of 1872 Update
The Timber Resource
Traditional Forest Service Management
- The Multiple-Use, Sustained-Yield Act of 1960
- The Resources Planning Act of 1974
The Watershed: Clearcutting, the Monongahela Decision, and the Passage
of The National Forest Management Act of 1976
Note: The Role of the National Forests in American Forest Policy
The National Forest Management ActUpdate
- Timber Harvesting Methods and Physical Suitability
- The Diversity Mandate
Other NFMA Provisions
- Economic Suitability: The "Below-Cost Timber Sales" Issue
- Rotation Age and Culmination of Mean Annual Increment ("CMAI")
- Sustained Yield and the Concept of Nondeclining Even Flow ("NDEF")
Revision of the Forest Service Planning RegulationsUpdate
Important Update: 2012 Final LRMP RuleUpdate
The Dept. of Agriculture published its final rule on Apr. 9, 2012. The Forest Service will begin planning under the new regulations on May 9, 2012. At the time of promulgation, 68 out of 127 LRMPs were overdue for revision, so the agency has a massive planning task ahead. Here is an edited version of the new rule with notes and questions. The Forest Service touts many advantages of the new rule relative to the 1982 framework, including planning efficiency (saving time and money), compatibility with adaptive management, and an emphasis on ecological restoration. The most important element of the new rule is the revival of the 1982 species viability mandate, though in a somewhat modified form. The Service has posted a wealth of material, including an EIS evaluating the rule, on its planning web site.
Update In August 2012 the Federal Forest Resource Coalition, along with other commodity producers and recreational vehicle users, filed this complaint in D.C. district court challenging the Obama Administration's final LRMP rule along the lines suggested in the notes following our edited version of the new rule.
Obama Administration LRMP Revisions Update
In February 2011 the Department of Agriculture published this draft LRMP rule. Until it promulgates a final regulation, the Forest Service will employ the 2000 rule, which itself allows forests to employ the 1982 LRMP regulations. As of 2010, over half the national forests were overdue for LRMP revision. They are expected to continue to plan in accordance with the 1982 rule, which has been the common practice for the past decade. No national forest has ever used the 2000 rule provisions.
- The 2000 Regulations
The 2005 regulationsUpdate
The first LRMP prepared under the 2005 rule (for the Comanche and Cimmarron National Grassland in Colorado and Kansas) finally came out in March, 2007. Later that month U.S. District Court Judge Phyllis Hamilton enjoined the rule for violations of the APA, NEPA, and ESA. Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). The court did not address whether the rule met the standards of the NFMA.
The APA violation stemmed from provisions in the 2005 final rule that were not "logical outgrowths" of the proposed rule and did not represent a natural evolution in the drafting of standards. The court took particular note of the Forest Service’s claim that the EMS approach, which was not in the proposed rule, represents a "paradigm shift" for the agency.
The court found improper the Forest Service’s use of a categorical exclusion to satisfy the CEQ regulations that call for an EA or EIS for programmatic rules and changes. The court held that the 2005 rule may have significant effects on the environment. Therefore the agency should have, at minimum, prepared an EA.
Similarly, because the 2005 rule may affect listed species or critical habitat, the Forest Service violated section 7 of the ESA by not initiating consultation.
In January 2008, the United States and the timber industry intervenors dropped their appeal of Judge Hamilton's decision. In the subsequent months of 2008, the Forest Service released an EIS (notwithstanding its disagreement with Judge Hamilton's decision) and promulgated a new rule that is virtually identical to the 2005 rule overturned by Judge Hamilton (73 Fed. Reg. 21468 (Apr. 21, 2008)). You can view the EIS and other material related to the 2008 rulemaking here. The EIS explains that the agency can find no environmental impacts from the LRMP rule (the preferred alternative) because it does not actually authorize any projects "on the ground." The coalition of environmentalists that fought the 2005 rule promptly returned to court challenging the 2008 rule on the basis that the new EIS inadequately addresses environmental impacts, particularly those stemming from elimination of the viable populations requirement. Here is the 2008 complaint. In the meantime, national forests prepare LRMPs under a 2008 interim directive.
In June 2009 the environmentalists won their suit against the 2008 LRMP rule. A federal district court found that the Dept. of Agricuture violated both NEPA and the ESA by failing to evaluate the impacts of the change to the new rule. Here is the opinion, Citizens for Better Forestry v. U.S. Dept. of Agriculture, 632 F. Supp.2d 968 (N.D. Cal. 2009). The court determined that the 2008 EIS "does not actually analyze the environmental effects of implementing the Rule. Instead, the EIS repetitively insists . . . that the rule will have no effect on the environment because it merely sets out the process for developing and revising LRMPs and is removed from any foreseeable action that might affect the environment." The court specifically discussed the effects from the change in the viability standards from the 1982 and 2000 rules as an issue that an EIS must analyze. The ESA compliance suffered from similar problems. Perhaps the most controversial aspect of the new decision upholds standing despite the 2009 Supreme Court decision of Summers v. Earth Island Institute, 129 S. Ct. 1142. The district court distinguished Summers by noting that procedural injury is the entire basis for the LRMP challenge, whereas the Summers challenge involved a claim that the Forest Service violated a substantive standard in an administrative appeals statute.
In August 2009 Agriculture Secretary Vilsack announced that the United States would not appeal Citizens for Better Forestry. Instead it will develop yet another new regulation for the LRMP process. Until it promulgates a new regulation, the Forest Service will employ the 2000 rule, which itself allows forests to employ the 1982 LRMP regulations. As of 2010, over half the national forests were overdue for LRMP revision. They are expected to contine to plan in accordance with the 1982 rule, which has been the common practice for the past decade. No national forest has ever used the 2000 rule provisions.
Note 7: In 2009 the U.S. Supreme Court reversed the 9th Circuit decision overturning some of the Forest Service restrictions on administrative appeals. The Supreme Court held that the plaintiffs did not have standing to bring the challenge to the Forest Service rulemaking. Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009).
Note 7: A rider in the F.Y. 2012 appropriations bill for the Forest Service eliminated the administrative appeals process. Pub. L. No. 112-74, division E, section 428. Instead, Congress instructed the Forest Service to extend the pre-decisional objection process it uses for hazardous fuel reduction projects to all its other resource management decisions.
Wildfire Management Update
Here is the influential Beschta report on wildfire and salvage logging cited by Blue Mountains Biodiversity Project (p. 740).
Sierra Club v. Bosworth, --- F.3d ----, 2007 WL 4246103, C.A.9 (Cal.), December 05, 2007 (NO. 05-16989), enjoined the Forest Service regulation applying a categorical exclusion from NEPA analysis to "fuel reduction" timber sales up to 1000 acres and prescribed burns up to 4500 acres.
Global climate change seems to be exacerbating the fire problem caused by accumulated fuels. Higher temperatures and drought in the Southwest, for instance, are reducing the area of high-elevation forests. Dr. Thomas W. Swetnam, director of the Laboratory of Tree-Ring Research at the University of Arizona has found that that wildfire rates indicate the changing climate. "Since the mid-1980s, about seven times more federal land has burned than in the previous time frame, he found, and the fire season has been extended by more than two months." Timothy Egan, Heat Invades Cool Heights Over Arizona Desert, N.Y. Times, Mar. 27, 2007. (Westerling et al., Warming and Earlier Spring Increase Western U.S. Forest Wildfire Activity, 313 Science 940 (2006).)
In 2008, the federal costs of fire suppression are now three times what they were in 2001. Most of that money appears to be spent on protecting private property in the wildand-urban interface. An April 2009 GAO report, Wildland Fire Management (GAO-09-444T), found continued hemorrhaging of Forest Service and Interior project budgets in order to fund fire supression. The GAO reports that, in recent years, wildland fire management has cost the federal government an average of $2.9 billion annually.
Ecology Center, Inc. v. Austin Overruled
In July 2008, the Ninth Circuit, en banc, overruled Ecology Center, Inc. v. Austin. The case is The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008). Here is an edited version of the case, with notes and questions.
The National Forest Roadless
Despite the injunction against implementation of the 2005 Roadless Rule, the Forest Service pressed ahead with state-by-state rulemakings to deal with roadless area management. In October 2008, the agency published this final rule, which would govern roadless area management in Idaho. In 2011 Judge Winmill upheld the Idaho roadless rule as consistent with both NEPA and the ESA. Western Watershed Project v. U.S. Forest Service, Slip Copy, 2011 WL 337944 (D. Idaho Jan. 29, 2011). Colorado submitted a roadless rule petition in 2006, which it revised in 2009 and 2010. In 2012 the Forest Service issued an FEIS on the Colorado petition, and a final rule reflecting the preferred alternative: a tailored rule that exempts some roadless areas near coal mines, mineral leases, and ski resorts.
Note 2: In August 2008 the Wyoming district court reinstated its injunction against the Clinton rule. Wyoming v. U.S. Department of Agriculture, -- F. Supp.2d --, 2008 WL 3397503 (D. Wyo. 2008). Judge Brimmer used the occasion to criticize Magistrate Judge LaPorte's 2006 decision to invalidate the Bush rule and reinstate the Clinton rule. The Forest Service must now deal with these conflicting national injunctions until the circuit courts sort it out. In December 2008, Magistrate Judge Laporte, "in the spirit of comity," partially stayed her injunction "as to states outside the Ninth Circuit and New Mexico" while the appeals pend. Here is her decision. In June 2009 Judge Brimmer declined to limit his nationwide injunction to the Tenth Circuit. While that conflict simmers, the Obama Administration announced in May 2009 that it would impose a one-year moratorium on most roadbuilding and timber harvesting in the roadless areas while it reviews the issue.
In August 2009 the 9th Circuit upheld Magistrate LaPorte's decision on the merits and affirmed the reinstatement of the 2001 roadless rule as relief. California ex rel. Lockyer v. U.S. Dept. of Agriculture, 575 F.3d 999 (9th Cir. 2009). Relying in part on Kootenai Tribe v. Veneman, 313 F.3d 1094 (9th Cir. 2002), discussed at note 5, p. 751 of the casebook, the court found that the 2005 rule undermined the beneficial effects of the 2001 rule without evaluating the impacts as required under NEPA and the ESA. Until NEPA and ESA compliance occur, the court held that the greater protections of the 2001 rule should apply. The conflict with Judge Brimmer's decisions remained until 2011. In October 2011, the Tenth Circuit finally issued a decision on the 2001 roadless rule in Wyoming v. U.S. Department of Agriculture, 661 F.3d 1209 (10th Cir. 2011). It overruled Judge Brimmer's orders and agreed with the Ninth Circuit that the rule complied with NEPA and other relevant federal laws. The 2001 rule is now reinstated nationwide, except in Idaho and Colorado, where the state-tailored roadless rules control.
The Northwest Forest Plan: A Study in Science, Law, and PoliticsUpdate
In 2007 the BLM and Forest Service finished the supplemental EIS on elminating the "survey and manage" requirement of the Northwest Forest Plan, in response to the remand in Northwest Ecosystem Alliance v. Rey. The agencies decided again to eliminate the "survey and manage" review of timber projects. The agencies predict a savings of $13 million in administrative costs by eliminating the requirements, and an increase in timber harvests of 70 million board feet per year.
The 2007 records of decision (one for the USFS and one for the BLM), the 2007 supplemental EIS, and the original, 1994 EIS are here.
In 2009 Judge Coughenour remanded the 2007 NWFP revisions because of NEPA violations. Conservation Northwest v. Rey, 674 F. Supp.2d 1232 (W.D. Wash. 2009). The Obama Administration has not been inclined to appeal the case or restore the Bush Administration's roll-back of "survey and manage."
Is the Northwest Forest Plan the best example of large-scale adaptive management? A recent analysis suggests that, despite its flaws, it may well be. See Bernard T. Bormann et al., Adaptive Management of Forest Ecosystems: did Some Rubber Hit the Road?, 57 BioScience 186 (2007). Subscribers to EBSCO can access the article here.
- Traditional Forest Service Management
The Range Resource
The Nature of the Grazing Interest on Federal LandsUpdate
- Introduction to The Taylor Grazing Act (TGA)
The Grazier’s Legal Interest in Public Lands
Here is an example of a grazing permit.
The BLM Forms Central public website is a good source of material on implementation of grazing and other programs.
Here is a list of BLM forms and applications related to grazing permits. Application for a preference based term permit on BLM lands requires four (4) forms as well as supporting the application with documentation and evidence:Four Required Forms
1) Grazing Application - Grazing Schedule -- Form 4130-1
2) Grazing Preference Application and Preference Transfer Application -- Form 4130-1a
3) Grazing Application - Supplemental Information -- Form 4130-1b
4) Assignment of Range Improvements - Form 4120-8
Here is an internal BLM checklist that outlines the steps required to issue a grazing permit that arises from an acquisition of base property. It contains reference to the regulations as they were revised in 2006 (before they were enjoined), thus some of the regulatory cites on the form are currently inaccurate. Still, it is what BLM uses.
Administration of the TGAUpdate
Update to note 10 following Public Lands Council v. Babbitt
On June 8, 2007, Judge Winmill permanently enjoined the entire 2006 Bush grazing rule and reinstated the 1996 rule upheld in Public Lands Council. Western Watersheds Project v. Kraayenbrink (CV-05-297-E-BLW D. Idaho 2007). The court agreed with that the plaintiffs that the 2006 regulations:
loosen restrictions on grazing. They limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM’s monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM’s authority to sanction ranchers for grazing violations. While the BLM justifies the changes as making it more efficient, the BLM was not their originator – it was the grazing industry and its supporters that first proposed them. Certainly the industry has a vital interest in being regulated efficiently, but the new regulations reach far beyond that prosaic purpose. According to the federal agency charged with protecting endangered species – the Fish and Wildlife Service – the new regulations "fundamentally change the way BLM lands are managed," and "could have profound impacts on wildlife resources."
The court found that the BLM may not implement such regulations until it has complied with the ESA consultation requirement and taken the requisite "hard look" at environmental impacts under NEPA.
In 2010 the Ninth Circuit upheld Judge Winmill's decision halting implementation of the 2006 grazing rule. Western Watersheds Project v. Kraayenbrink, 620 F.3d 1187 (9th Cir. 2010), Opinion Amended and Superseded on Denial of Rehearing en banc by 632 F.3d 472 (Jan 19, 2011).
In 2011 the Supreme Court denied cert., Public Lands Council v. Western Watersheds Project, 80 U.S.L.W. 3016 (Oct. 3, 2011). That definitely buries the Bush Administration rule and restores the Clinton-era regulations.
In 2013, public land grazing fees will remain at the statutory (1978 Public Rangelands Improvement Act) minimum of $ 1.35 per AUM, where they have been since 2007. This represents a rise of twelve cents from the fee in place in 1966. Do you think NEPA requires the BLM to revise its (most recent) 1988 environmental assessment of the impact of grazing fees on rangeland health? Private landowners in Montana currently charge an average of about $20 per AUM (compared to $3 in 1966). The average market value of private range resources varies from state to state.
Note: Enforcing the Range CodeUpdate
Wilkie v. Robbins, 127 S.Ct. 2588 (2007), dismissed once and for all the federal racketeering and constitutional tort claims against the BLM employees that allegedly engaged in a pattern of harassment that included trespassing and permit violation charges. The court found that the federal racketeering law is not applicable to misconduct of public land managers.
Range Allocation and Analysis under FLPMA
- FLPMA Planning and Grazing Management on a Broad Scale
Allotment Management on a Fine Scale
This 2001 grazing bill, which includes the Comb Wash allotment covered in the case on p. 827, illustrates Professor Feller’s observation on p. 811 that the actual number of cattle authorized in a permit may far exceed the number actually grazed. The bill (p.2) indicates that 127 head (501 AUMs) were active on the allotment while 396 (1771 AUMs) were not used. Since 2002 no cattle at all were grazed in the Comb Wash allotment, despite the 2002 permit, which authorizes 508 head.The permittee has requested and been granted authorization for total non-use of the allotment every year since 2002. Nonetheless, trespassing cattle from neighboring allotments do graze Comb Wash.
The stipulations to the 2001 bill, especially #4, respond to the Comb Wash decision. The absence of similar stipulations in the 2002 permit is now the subject of an administrative appeal by the attorney representing NWF in the Comb Wash case (Professor Feller). In 2009 the BLM settled the appeal and completed the EA ordered by Judge Rampton in 1993. Here is the new permit.It and the 2002 permit illustrate typical BLM grazing permits.
Here are Professor Feller's photographs of Comb Wash and vicinity.
- Voluntary Retirements of Grazing Permits and the Economics of the New West
The Wildlife Resource
The National Wildlife Refuge SystemUpdate
This is a searchable database for the establishment purposes of each of the national wildlife refuges.
Here is the most recent information on the lands of the refuge system. The annual lands report shows the size and composition of each refuge unit, and breaks down refuge holdings by state and by category.
This 2008 outside assessment of the refuge system describes the gap between the Improvement Act's mandates and on-the-ground management. Many of the current difficulties of the system appear to stem from the declining budgets. Here is what the report says about operating constraints:
Refuge System budgets have been in decline over the past several years and actual purchasing power has declined about 11% (between the FY 2003 and the requested FY 2008 budget). During this period of budget decline some Refuge System costs have increased due to inflation and annual adjustments, e.g. salaries. As a result, the Refuge System has not been able to maintain its level of operational activity from one year to the next – services and personnel have had to be cut back.
Concurrent with declining budgets, the Refuge System has also experienced an increase in administrative requirements. Together, these factors have had a negative effect on the Refuge System’s ability to achieve its core goals – refuge managers have less time, and less money, to focus on the accomplishment of their mission than was the case five years ago. The areas most impacted have included: the Refuge System’s ability to conduct adequate monitoring and inventory work; the law enforcement program, which simply has too few officers to enable the Refuge System to provide adequate law enforcement coverage; and the rate of growth of the Refuge System, which has declined markedly over the past five years.
History and Issues of Administration
The map on page 2 of this brochure shows the extent of the refuge system.
State Law and Refuge System GoalsUpdate
Maps and other information on the National Elk Refuge are here.
Here is the full text of the FWS Policy on Biological Integrity, Diversity and Environmental Health.
The federal government released its final EIS for bison and elk management in the National Elk Refuge, Grand Teton National Park, and the John D. Rockefeller, Jr., Memorial Parkway connecting the two: Visit Here
The April 2007 record of decision chose the alternative that would reduce wintering elk numbers to approximately 5,000 on the refuge and to 1,600 in the park. Winter feeding would be reduced but not eliminated. A case study of the issues involved with elk management on the NER can be found in the first section of this article.
In 2008 a coalition of environmental groups challenged the 2007 elk management plan. The complaint alleged violations of the Refuge System organic act, NEPA, and the APA. The complaint argued that the plan violates both the mandate to maintain biological integrity, diversity, and environmental health" and the conservation mission to sustain "healthy populations of … wildlife" from the 2007 Refuge Improvement Act. In 2010 Judge Leon granted the federal government's motion for summary judgment. Defenders of Wildlife v. Salazar, --- F.Supp.2d ----, 2010 WL 1140719 (D.D.C. Mar. 26, 2010). The judge found that the Interior Department need not commit to a date-certain termination of winter feeding, and that the lack of criteria in the adaptive management plan for phasing out feeding did not violate NEPA's requirements to discuss mitiagion. The court endorsed the "plan to make a plan" approach. The decision finds that the 2007 Improvement Act provides the FWS with enough discretion to support the plan, which "strikes a reasonable balance between maintaining population levels and mitigating disease." The court relied heavily on the FWS's promise to phase out winter feeding to sustain the decision under the organic act. The plaintiffs are currently considering an appeal.
Defenders of Wildlife v. Salazar, --- F.3d ----, 2011 WL 3375575 (D.C.Cir. Aug 05, 2011), affirmed the district court decision and added the following cautionary dictum:
We do not know precisely how [the agencies implementing the elk supplemental feeding program] will proceed, and that makes it impossible, at this stage, to declare that their plan is arbitrary and capricious simply because it does not specify a particular date by which the practice will cease. Should the agencies act unreasonably in establishing criteria for the transition or in otherwise carrying out the plan, that will be a different issue for another panel.
Individual Refuge Establishment Purposes
Here is the full text of the FWS Policy on National Wildlife Refuge System Mission and Goals and Refuge Purposes.
The Compatibility Criterion (note 4 after Ruby Lake cases)Update
The web site for Ruby Lake NWR contains information about current management and resources.
Here is the full text of the FWS Policy on Compatibility.
UpdateStevens County v. U.S. Dept. of Interior, 2007 WL 2407063 (E.D. Wash. 2007) upheld a FWS decision to reduce grazing on the Little Pend Oreille NWR. The Court interpreted the 1997 Refuge Improvement Act's mandate that compatibility determinations be based on "sound professional judgment" to grant deference to the FWS in applying general scientific literature to explain conditions observed in site-specific evaluations of range conditions. UpdateIn Delaware Audubon Society v. Secretary of the U.S. Department of the Interior, 612 F.Supp.2d 442 (D. Del. 2009), a district court enjoined the FWS from allowing farming at Prime Hook NWR. Cooperative farming is a common practice on the refuges where farmers cultivate commodity crops, e.g. corn and soybeans, in exchange for labor to benefit wildlife, e.g. planting winter crops. The court found that the FWS signed 37 cooperative farming agreements between 1995 and 2007 at Prime Hook without making the compatiblity findings required by the organic act. Part of what made the farming at Prime Hook so controversial was the use of genetically engineered crops by farmers, in contravention of a 2001 FWS policy. FWS biologists found that planting the genetically modified crops ran the risk of "biological contamination, increased week resistance, and damage to soils."
- History and Issues of Administration
Wildlife Conservation and Management on Other Federal Lands
The National Park System
The May 2009 credit card reform legisation contains a rider ordering the national parks and wildlife refuges to allow visitors to carry loaded firearms, which may increase wildlife poaching. Most of the debate, however, focused on public safety. The legislation endorses a Bush Administration rule that a federal district court remanded. Credit Card Accountability Responsibility and Disclosure Act, Pub. L. No. 111-24, section 512; 123 Stat. 1734, 1764-66 (2009).
- National Forest and BLM Public Lands
APHIS "Wildlife Services" (formerly ADC) collects many studies and describes its programs.
The Forest Service maintains this website on range management in the Fishlake National Forest.Note: Protecting Subsistence Uses of Wildlife Resources on Federal LandsThe BLM provides detailed information about subsistence uses of Alaskan public lands.
- The National Park System
The Migratory Bird Treaty Act (MBTA)Update
UpdateThe FWS does issue permits for takes of migratory birds protected by the MBTA in certain limited circumstances, described here, at the site dealing with take. Here is the permit application for MBTA take of nuisance Canada geese. The FWS now authorizes most states outside of the West to kill resident Canada geese without permits under the depredation order at 50 C.F.R. 21.61(d).
The grisly toll of bird deaths may be explored at U.S. Fish & Wildlife Service, Migratory Bird Morality: Many Human-Related Threats Afflict Our Migratory Bird Populations.
Professor Julie Lurman summarizes the recent MBTA cases dealing with incidental takes in "Agencies in Limbo: Migratory Birds and Incidental Take by Federal Agencies," 23 J. Land Use & Envtl. L. 39 (2007).
- The National Wildlife Refuge SystemUpdate
The Recreation Resource
The U.S. FWS conducts periodic surveys of wildlife-dependent recreation and the results are posted here. The most recent data reveal a steady decline of hunting and fishing but a steady increase in wildlife observation (including photography and birdwatching). Since 2001, the proportion of the U.S. population that hunted declined 4%; that fished declined 12%. Wildlife watchers increased 8%. Though the number of anglers declined, the total expenditures for fishing equipment and fishing trips increased by 5% and 7% respectively.
Acquisition of Lands for Recreation: The Land and Water Conservation Fund Update
A helpful report providing a historic overview of LWCF appropriations and issues is Jeffrey A. Zinn, Land and Water Conservation Fund (Congressional Research Service 2005). [PDF]
Friends of Shawangunks, Inc. v. Clark
The National Park Service maintains a helpful web site on LWCF grants and standards for conversions. [Link]
UpdateNote 5: In 2006, Save Our Parks v. Kempthorne rejected a challenge to the Interior Department’s conversion approval for the park land under the new Yankee Stadium. 2006 U.S. Dist. LEXIS 85206 (S.D.N.Y). The court distinguished Friends of the Shawangunks on the basis that the original LWCF grant for Macomb's Dam Park in the Bronx gave its purpose as "rehabilitation of sports and playfields," and did not address scenic or buffer issues. In 2008 the New York Times reported that the replacement acreage for the Macombs Dam Park, on which the new Yankee Stadium is being constructed, includes a rooftop ballfield on a parking garage, an existing schoolyard, and a pedstrian walkway. Harvey Araton, Showing Power But Weakening a Neighborhood, N.Y. Times, Mar. 31, 2008, at D7. Neighborhood residents complain about the trade-off between a contiguious large park and the replacement parcels, which are scattered sites. Timothy Williams, Costs and Delays Mount for Replacing Parks Lost to New Yankee Stadium, N.Y. Times, May 25, 2008, at A20. Update
New Note: State Park Closures
California's 2009 budget crisis led Governor Schwarznegger to propose closing 220 state parks in order to yield a savings of $70 million over this fiscal year and twice that over the following year. In response, the National Park Service sent the governor this letter threatening a loss of LWCF monies, and possible federal take-over of some parks. Is mothballing a park purchased with some LWCF money a "conversion" under section 6(f)(3)?
The National Park SystemUpdate
The NPS Organic Act and National Park Establishment StatutesUpdate
Here are some photos of the disputed Salt Creek Road from Southern Utah Wilderness Alliance v. Dabney.
In 2011 a federal district court upheld the Park Service's placement of a gate and restrictions on traveling by vehicle up Salt Creek. San Juan County, Utah v. United States, 2011 WL 2144762 (May 27, 2011). The court applied the Tenth Circuit's SUWA (casebook p. 387) standards to facts found at trial in holding that the county did not perfect an RS 2477 right-of-way because the creek bed was never a "highway."NPS Management Policies
The NPS Management Policies are a rich source of information on park administration.
New 2010 case to substitute for Wilderness Public Rights Fund v. Kleppe on p. 935. Click here for edited version of River Runners for Wilderness v. Martin, with notes and questions.
Note 7: In 2006 the NPS issued a record of decision and a final Colorado River Management Plan adopting the modified preferred alternatives in the EIS. This site contains links to the plan and ongoing research on recreational impacts on the Colorado River. It also contains links to the ROD, the EIS, and other historical documents dealing with use of the River. River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) upheld a "raft" of challenges to the 2006 management plan.
Recreation Management and NEPA
Sierra Club v. United States Update
Note 1 Update: In September 2009 the United States settled the NEPA litigation over recreation management in Yosemite Valley when it agreed to terminate all new commercial deveopment in the area until it prepares a new plan, estimated to come out in 2012. The NPS promised to focus its new plan on capping the use of the popular valley in order to preserve the environment and visitor experience. Here is the settlement agreement. The Merced River Plan web site contains a wealth of information about the current (third round of) planning effort for Yosemite Valley.
While Yosemite NP continues to struggle with cars in the Valley, Zion National Park has moved to a mass transit system to carry visitors during peak months through its central valley. Information on the Zion shuttle busses is here.
Note 4 after Sierra Club v. United States
For an example of a cruise ship concession permit for Glacier Bay National Park click here.
- The NPS Organic Act and National Park Establishment StatutesUpdate
Special Recreational and Conservation OverlaysUpdate
UpdateNote 10: A new line of criticism of National Heritage Areas is emerging. This 2007 Heritage Foundation report opposes growth of the NHA system becasue it poses a threat to private property rights through the influence of community groups and management entities (which themselves have no land use control power) funded by federal legisation. Their influence may result in zoining that limits the extent to which landowners may develop property if local governments incorporate NHA management plans into local ordinances. The Heritage Foundation report challenges the conclusion of a 2004 GAO study that found no adverse effects of NHAs on property rights.
Under the National Trail System Act, scenic and historic trails may be designated only by Congress. However, the Secretaries of the Interior and Agriculture may create national recreational trails. In 2007, the Interior Secretary designated the one thousandth national recreational trail. This web site describes the program.
Congress, has also busily designated trails, which now sum up to more than 9000 miles. However, Congress has appropriated very little for easement or land acquisition.
Sometimes the interpretation of old federal laws authorizing grants of rights-of-way in exchange for railroad construction proves determinative in takings challenges to rails-to-trails conversions. In Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005), landowners who purchased or homesteaded land subject to prior railroad rights-of-way won a takings claim when the abandoned route converted to a public trail. Relying on Leo Sheep, the court rejected the federal government's argument that the the ambiguities of the 1875 statute should be resolved in favor of the United States retaining the property interests underlying the rights-of-way.
Managing Recreation on Federal Lands: Fees, Concessions and Permits
Recreation Fees Update
FLREA implementation has generated a passionate opposition to recreation fees.
UpdateAdams v. U.S. Forest Service, --- F.3d ----, 2012 WL 400440 (9th Cir. 2012) endorsed the district court's approach in U.S. v. Wallace. The case presented another challenge to the Forest Service's implementation of fees in the Mount Lemmon High Impact Recreation Area. Employing a close textual analysis of the act, the court found that FLREA's prohibition on charging fees "solely for parking" excluded charging for people who drove, walked, boated, rode a horse, or hiked through federal recreational lands and waters without using facilities and services. The court found that FLREA "unambiguously prohibits the Forest Service from charging fees in the Mount Lemmon HIRA for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailsides, or hike through the area without using the facilities and services.”
- Recreation Concessions
- Recreational Permitting on National Forests and BLM Public Lands
- Recreation Fees Update
Off-Road Vehicle RegulationUpdate
UpdateThe latest GAO report on public land management of off-highway vehicles (OHVs, as ORVs are now commonly called) compiled figures indicating that this kind of fmotorized recreation nearly quadrupled between 1993 and 2008 (from 3 million vehicles to 11 million). The key federal agencies affected, the Forest Service and BLM, have yet to get a firm handle on managing the impacts from OHVs. A comprehensive, current account of Forest Service and BLM ORV management is John C. Adams & Stephen F. McCool, Finite Recreation Opportunities, 49 Nat. Res. J. 45 (2009).
- Wheeled ORVs
Snowmobiles and Jet SkisUpdate
The sparring between the U.S. district courts of Wyoming and D.C. continues. The latest episode involves Greater Yellowstone Coalition v. Kempthorne, 2008 U.S. Dist. LEXIS 69802 (D.D.C. Sept. 15, 2008) (Judge Sullivan) and this unpublished retort by Judge Brimmer from Wyoming. In December 2008 the NPS reinstated the 2004 temporary rule limit of 720 snowmobiles per day in Yellowstone. Here are the planning documents for winter use of Yellowstone N.P.
The Obama Administration has now reopened comments on the Bush Administration's latest rule and promised to conduct yet another new EIS. 74 Fed. Reg. 36640 (July 24, 2009). Until it has a chance to propose and promulgate a final rule, the Obama Administration has indicated it will impose a limit of 318 snowmobiles per day for the coming winter seasons ending with 2010-11. In 2011, the Park Service published a DEIS and proposed a new rule that would allow 110-330 snowmobiles per day to enter the park under a schedule published annually.
UpdateNPS Personal Watercraft Rule
Bluewater Network v. Salazar, --- F.Supp.2d ----, 2010 WL 2680823 (D.D.C. 2010) overturned two of the special rules allowing personal watercraft because their environmental assessments did not adequately consider all environmental impacts. The case raises questions about whether other parks that promulgated special rules with FONSIs have valid PWC use.
Federal Liability for Recreational Mishaps
Note: Fees and the Sightseer Statutes
The Discretionary Function Exception
Here is the Burning Man Festival web site, which continues to attract tens of thousands of people to the wild event at the Black Rock Desert playa.
- Acquisition of Lands for Recreation: The Land and Water Conservation Fund Update
The Preservation Resource
- The Origins of Federal Wilderness Preservation
UpdateThe Wilderness Society v. U.S. Fish & Wildlife Service
In 2008 the FWS released a wilderness stewardship policy to guide management and designation of wilderness areas in the national wildlife refuge system. It deals specifically with fish stocking (section 2.18) and commercial activities (section 2.12). Special provisions address the relationship between Alaska wilderness areas and ANILCA (part 5). Does the stewardship policy or the court decision encourage active management to restore natural elements (e.g. fish stocks) of a wilderness to historic levels of abundance? In other words, does wilderness management focus on activity prohibitions or restoration? Should it? See John Nagle, The Spritual Values of Wilderness, 35 Envtl. L. 955 (2005).
UpdateNew 2010 case to substitute for Wilderness Society v. U.S. Fish & Wildlife Service on p. 1031, through Note 7 on p. 1038. Click here for edited version of Wilderness Watch v. U.S. Fish & Wildlife Service, with notes and questions.
Note: Mining and Wilderness
Note: Grazing and Wilderness
Note: Other Wilderness Management Issues
Expanding the Wilderness System
The National Forest System
UpdateWyoming v. U.S. Department of Agriculture (10th Cir. Oct. 2011) upheld the 2001 Forest Service roadless rule (covered on pp. 748-752 of the casebook) against a Wilderness Act challenge. The court found that protecting inventoried roadless areas under the rule did not violate the Wilderness Act requirement that only Congress may designate wilderness areas. Administrative designations of areas where new roads will be prohibited are not the functional equivalent of wilderness area designations.Note: Future Wilderness Consideration and the "Release" Issue
Bureau of Land Management Lands
- The Inventory Process
- Interim Management: FLPMA § 603 (c)
- Mineral Leasing in Wilderness Study Areas
- The National Forest System
- External Threats from Non-Federal Lands
External Threats from Other Federal Lands
Problem: Geothermal Leasing Adjacent to Yellowstone National Park
- Designating Wild & Scenic Rivers
- Managing Wild & Scenic Rivers
Preservation of Archaeological, Cultural and Historical Resources
Update In 2009 Congress added paleontological resources, especially fossils, to the list of public land preservation concerns. The Paleontological Resources Preservation Act, which was part of the 2009 Omnibus Public Land Management Act (Pub. L. No. 111-01, Sections 6301- 6311), requires public land managers to "develop appropriate plans for inventory, monitoring, and the scientific and educational use of paleontological resources, in accordance with applicable agency laws, regulations, and policies." (Sec. 6302.) It also requires permits for fossil collecting, other than casual collecting for reasonable, non-commercial, personal use.
- Archaeological Resources
Cultural and Religious ResourcesUpdate
Note 3: Update to Navajo Nation v. U.S. Forest Service.
In August 2008 the Ninth Circuit, in an en banc rehearing, reversed the 2007 circuit court decision. Navajo Nation v. U.S. Forest Service, --- F.3d ----, 2008 WL 3167692. In 2009 the Supreme Court denied cert., 129 S.Ct. 2763. Judge Fletcher, who wrote the 2007 opinion, filed a vigorous dissent. The en banc decision focuses on whether the Snowbowl expansion permit places a "substantial burden" on a person's exercise of religion under the RFRA. The court concludes that it does not. The court interprets the RFRA "substantial burden" test to be the same as that applied by the Supreme Court in first amendment disputes. The key passage follows:
The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment—serious though it may be—is not a “substantial burden” on the free exercise of religion.
The court adds this footnote to the end of the paragraph:
The dissent's assertion that we misunderstand the “nature of religious belief and practice” is misplaced. One need not study the writings of Sir Francis Bacon or William James to understand “religious exercise invariably, and centrally, involves a ‘subjective spiritual experience.’ ” We agree with the dissent that spiritual fulfillment is a central part of religious exercise. We also note that the Indians’ conception of their lives as intertwined with particular mountains, rivers, and trees, which are divine parts of their being, is very well explained in the dissent. Nevertheless, the question in this case is not whether a subjective spiritual experience constitutes an “exercise of religion” under RFRA. That question is undisputed: The Indians’ religious activities on the Peaks, including the spiritual fulfillment they derive from such religious activities, are an “exercise of religion.” Rather, the sole question is whether a government action that affects only subjective spiritual fulfillment “substantially burdens” the exercise of religion. For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the Plaintiffs as damaged spiritual feelings. Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not “substantially burden” religion. * * *
In making its determination, the en banc court relied on the district court finding that "no plants, springs, natural resources," or shrines would be "physically affected by" the spreading of artificial snow made from reclaimed sewage effluent. The dissent states that the reclaimed water does contain residual organic contaminants. Of course, so does naturally occuring river water. Do you think that the physical/chemical properties of the reclaimed water should be dispositive? Or, is the spraying activity of the snowmaking the key injury here? What national forest management activities would the en banc decision preclude under the RFRA?
In 2012 the 9th Circuit denied a NEPA claim by the groups opposing the snowmaking project at the San Francisco Peaks. Save the Peaks Coalition v. U.S. Forest Service, --- F.3d ----, 2012 WL 400442.
Note 5: following Lyng v. Northwest Indian Cemetery Protective Association: For a better sense of how the NPS handles the sensitive issue of climbing on Devils Tower, see Devils Tower Climb.
Here is the part of the NPS guide to Rainbow Bridge N.M. that requests visitors to refrain from walking under the arch due to the religious significance of the site.
Update Note 6: The Supreme Court reversed and remanded the 9th Circuit decision in Buono. Salazar v. Buono, 130 S. Ct. 1803 (2010). It instructed the lower courts to reevaluate the Establishment Clause claim in a broader context of the history and circumstances of the cross.
Note: The Constitution and Free Speech on Federal Lands
Boardley v. U.S. Dept. of the Interior, 615 F.3d 508 (D.C. Cir. 2010), overturned the National Park Service regulations (36 C.F.R. sections 2.51 and .52) requiring permits for expressive activities. Although the regulations were content-neutral, the court found them overbroad enough to sustain a facial challenge by a person attempting to distribute free religious tracts at Mount Rushmore National Memorial. The court held that restrictions on free speech must be narrowly tailored; the NPS regulations burdened too broad a range of speech that did not impinge on governmental interests.
Historical Resources Update
Here is the National Park Service's National Register of Historic Places. This search engine allows you to find places listed in any county. The Advisory Council on Historic Preservation also mainstains a helpful web site on the NHPA.
Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep’t of the Interior, 755 F. Supp.2d 1104 (S.D. Cal. 2010), enjoined BLM authorization of a large-scale solar power project in the California Desert Conservation Area because the BLM failed to fulfill its consultation duty under section 106 of the NHPA. In this case, the tribe could use the NHPA to protect cultural and archeological sites on federal public land because the tribal government is treated in a similar manner as state historic preservation offices under the NHPA regulations.
- Wilderness PreservationUpdate
For a clean, content free version of the outline, click here