Title: Synopsis of the Public Lands Management Decisions Symposium
Authors: C. Elmo Brown and Jim Kreutzfeld
Publication: The Outcrop, August 2005, p. 16-17
“No longer can we as geologists, geophysicists, landmen and engineers simply stick to the myopia of our professions (or our respected professional associations) and remain silent on public land use and access issues,” stated Peter Dea of Western Gas Resources in the opening remarks of the Federal Land Use symposium held on June 9th at the Marriott Hotel in Downtown Denver. In fact, the half-day symposium, chaired by the RMAG’s Public Issues committee member Logan MacMillan and sponsored by the RMAG and CO-AIPG, attracted 120 attendees who were already interested in learning how to be more involved in these exact issues. Mr. Dea’s opening remarks were followed by a series of four speakers who expanded on the theme of the meeting with a special emphasis on how to interact within the NEPA process (outlined in the Outcrop article of May 2005).
Duane Zavadil of Bill Barrett Corp. explained that individuals and corporations need to be involved in the federal lands planning process because poorly worded or thought out Resource Management Plans (RMPs) are an easy target for lawsuits from those opposed to multiple use of public land. This is especially true in the western United States, where the bulk of expected new gas reserves coincide with a high concentration of federally regulated territory. Currently, under the RMP process, Federal agencies like the Bureau of Land Management (BLM) or the U.S. Forest Service (USFS) are required to set up guidelines for district-wide multiple use plans. These plans should include guidelines for accessing all resources including the exploration and exploitation mineral resources.
Currently, according to Andrew Bremner of the Independent Petroleum Association of Mountain States (IPAMS), more than 20 RMPs are underway in the western states, covering about 40% of federally managed land. Some RMPs are already complete and in place like the one for the Vernal, Utah, BLM district. This RMP was approved after receiving 74,000 remarks during the public comment period. Of these, 72,000 were form letters with the bulk of them coming from one computer. Mr. Bremner explained that even though the volume of comment carries weight, the BLM appreciates and pays heed to comments that help the agency create a more comprehensive document. One of the most important problems that the BLM tries to avoid is to not miss active or potential plays in the Mineral Potential Report. Only interaction of industry with the determining agency can guarantee identification of issues and a plan to effectively develop all resources.
Bret Sumner, of the law firm Fulbright & Jaworski, L.L.P., listed four case studies of lawsuits brought against industry by outside environmental groups. Mr. Sumner stated that federal law mandates federal agencies to “establish guidance, objectives, policies, and management actions for public lands to maximize resource values for the public through a rational, consistently applied set of regulations and procedures which promote the concept of multiple use management.” Lawsuits by environmental groups are usually based on these criteria: failure of the controlling agency’s action plan to take into account environmental consequences, failure to explore reasonable alternative strategies, an inadequate NEPA document, and failure to prepare necessary documents. Companies can preempt some of these problems by talking with the BLM or USFS and by helping the agency to recognize potential problems and issues. Since the Interior Board of Land Appeals and the Federal Courts tend to defer to the expertise of the controlling agency when a government decision is challenged, industry can also help the agencies by locating qualified professionals who can provide the science necessary to back up the agency’s decisions. These actions help insure that the agency has the expertise and the data in hand well before a lawsuit is filed.
The final speaker, Zeke Williams of the Faegre & Benson, L.L.P law firm, pointed out that without industry input, the expertise of federal agencies tend to win lawsuits at about a 50% rate. He also stated that the well-funded environmental groups are suing more and more with the number of lawsuits filed just in 2002 approximately 50% higher than for the combined total filed in the 23 years prior to 1998. According to Mr. Williams, there are five key instances for industry participation in the NEPA process. These are: in the initial scoping process where goals are identified for the planning document, in the comment period after completion of the draft document, in the comment period after presentation of the final document, during administrative appeal of record of decision, and finally in the courts.
At the end of the symposium, Fred Barrett of Bill Barrett Corp. summarized the day’s presentations. All of the day’s speakers stressed that the BLM and USFS are at a disadvantage for assuring public access for resource development activities during the drafting stage of the RMP without input from industry. With environmental groups pursuing a well-coordinated effort during the process to hinder public access and to allow maximum flexibility for future litigation, industry participation is crucial during the RMP drafting process in order to close language loopholes and insure future accessibility to public lands. A proactive industry can provide the BLM and USFS valid scientific studies and quality expertise to support RMP policies that will in turn weaken future litigation efforts. The earlier individuals within industry get involved in the policy making process, the better future access will be to public lands.