November 2, 2020

Submitted via

 USDA-Forest Service Attn: Director-MGM Staff
1617 Cole Boulevard, Building 17
Lakewood, CO 80401

Re: Proposed revisions to Oil and Gas Resources regulations, 36 CFR Part 228, Subpart E RIN 0596-AD33

To Whom It May Concern:

The undersigned submit these comments on the proposed rule issued by the Forest Service on September 1, 2020, regarding revisions to 36 C.F.R. Part 228, Subpart E. Oil and Gas Resources: Proposed rule, 85 Fed. Reg. 54,311 (Sept. 1, 2020) (the “Proposed Rule”). Many of the undersigned also submitted comments on the Forest Service’s Advanced Notice of Proposed Rulemaking, which are attached and incorporated herein by reference. Comments dated October 15, 2018 (“ANPR Comments”), attached as Exhibit 1.

The Forest Service’s overall approach to revising its oil and gas regulations undermines its statutory obligations and its commitment to manage our national forests and grasslands “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” The Forest Service’s stated intent for the proposed changes is “to streamline and reduce redundancies to improve agency efficiency and better align Forest Service regulations with those used by the Bureau of Land Management.” 85 Fed.Reg.

54,312. The Forest Service also states:

The proposed rule would streamline the approach that the Agency follows to identify lands open toleasing and stipulations to protect surface resources on lands open to leasing by establishing that the Forest Service has one decision point. That being consent to leasing made at the completion of the leasing analysis. This approach better aligns the Forest Service leasing availability analysis methods with those followed by the Bureau of Land Management.

85 Fed.Reg. 54,315. However, the Forest Service is not the Bureau of Land Management (BLM); it operates under different laws and regulations and should not cede its authority to the BLM in an attempt to streamline oil and gas development.

It is indefensible that the Forest Service is proposing a rule that will escalate fossil fuel development on our national forests, at the same time the agency is experiencing a historic fire season that is driven by climate change. Well over ten million acres of national forest land have burned this year due to the impacts of climate change. As droughts continue and heat waves ensue, this year’s fire season is likely a glimpse of what’s to come. The proposed rule, if finalized, will intensify and expedite fossil fuel development on national forests, which in turn will exacerbate climate change and add more fuel to the fire. It is our hope that the Forest Service will come to its senses and propose policies to combat climate change, not make the problem worse.

I. The Proposed Rule is not consistent with the Forest Service’s legal obligations.

Both the proposed revisions and the process that the Forest Service is conducting are inconsistent with the Forest Service’s legal obligations.

A. The Proposed Rule’s implementation of FOOGLRA is incoherent and unlawful.

The Federal Onshore Oil and Gas Leasing Reform Act of 1987 (FOOGLRA), Pub. L. 100-203, § 5101-5102, constrains the Department of the Interior by preventing it from issuing any oil and gas lease on National Forest System Lands over the objection of the Forest Service. 30 U.S.C. 226(h). Under the Forest Service’s current regulations and a joint Memorandum of Understanding that has been in place for nearly 15 years, the Forest Service exercises its FOOGLRA authority and engages with the BLM under a cooperative process. The Proposed Rule upsets the current process and the statutory scheme by requiring the Forest Service to prematurely decide to approve of BLM leasing prior to consideration of the location, number, timing, and effects of specific leases. The convoluted process created by the proposed regulations would violate FOOGLRA, the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), cause the Forest Service to abandon its role in supervising what oil and gas leases are issued on its lands, require the “approval” of leases sight-unseen, and ultimately result in unsupported decision-making and a proliferation of litigation. The perverse consequences of the proposal would harm the Forest Service, forest users, and the environment, and would in fact result in more delays and uncertainty for industry.

1. The Mineral Leasing Act, FOOGLRA, and current regulations.

In general, the leasing aspect of oil and gas development on public lands is managed by the BLM under its Mineral Leasing Act authority and follows a three-step process: First, the BLM (or in the case of Forest System lands, the Forest Service) develops general plans, known as resource management plans or land management plans. Second, the BLM issues leases for particular parcels after conducting a public bidding process. Third, the lessee applies to the BLM for a permit to drill. See generally New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 716 (10th Cir. 2009).

FOOGLRA amended the Mineral Leasing Act and, among other things, added subsections (g) and (h) to 30 U.S.C. § 226. Under FOOGLRA, (1) The BLM may not issue an oil and gas lease over the Forest Service’s objection, 30 U.S.C. § 226(h); (2) The Forest Service is responsible for regulating surface activities related to any BLM lease, id. § 226(g); (3) No permit to drill may be issued for a lease “without the analysis and approval” of a surface operation plan by the Forest Service (referred to as a Surface Use Plan of Operations or SUPO), id. § 226(g); and (4) The Forest Service is responsible for regulating bonds and sureties for drillers to ensure reclamation and restoration, and BLM may not lease to an entity that the Forest Service has determined is in violation of such requirements or of a SUPO. Id. § 226(g).

Current Forest Service regulations implement the Forest Service’s objection authority under FOOGLRA in a cooperative, two-phase process. First, at the “leasing analysis” step, the Forest Service identifies which areas will be open or closed to oil and gas development, in accordance with its land management plans and NEPA, and notifies the BLM of these decisions. 36 C.F.R. 228.102(c), (d). This step corresponds to the first step of the BLM leasing process, in terms of generally designating areas available for leasing; BLM then proceeds to consider open areas for potential lease sales. Second, at the “verification” phase, the Forest Service considers the specific lands being considered for leasing by the BLM. The Forest Service reviews its decision, verifies the adequacy of NEPA documentation, and authorizes the BLM to offer the lands for leasing. Id. 228.102(e). If the NEPA documentation is inadequate or there are significant new circumstances, additional analysis must be completed before the Forest Service makes its final determination. Id. If leasing and drilling is inconsistent with the Forest Service’s land and resource management plan, the Forest Service may not give the BLM authorization to proceed until the plan is amended or revised. Id.

The current regulations thus provide specific criteria for when the Forest Service will object to or authorize a BLM lease sale for parcels on Forest System lands, and create a check by which the Service reviews specific lands prior to each lease sale.

The Forest Service and BLM implement FOOGLRA and the current regulations under a joint Memorandum of Understanding. See Memorandum of Understanding Concerning Oil and gas Leasing Operations (Apr. 2006), BLM MOU W0300-2006-07, Forest Service Agreement No. 06-SU-11132428-052, The MOU describes the Forest Service’s role as:

cooperat[ing] with the BLM to ensure that management goals and objectives for oil and gas exploration and development activities are achieved, that operations are conducted to minimize effects on natural resources, and that the land affected by operations is reclaimed. The Forest Service must authorize the BLM to offer specific lands for lease before the BLM can issue leases on those lands.

Id. at 3.

2. The Proposed Rule’s implementation of the Forest Service’s FOOGLRA authority.

The Proposed Rule would change the current process to one that favors approval of lease sales with less environmental review and less oversight in general. The proposed regulations instruct the Forest Service to conduct a “leasing consent analysis” on all Forest System lands to determine which lands will be open or closed for leasing. Proposed Rule, new 36 C.F.R. 228.103(a)-(b), 85 Fed. Reg. at 54,323. The primary consideration in that analysis is whether lands “are ineligible for leasing by statute, regulation, or withdrawal by the Secretary of the Interior.” Id. § 228.103(b)(1). Upon completion of the analysis for each forest or area, the Forest Service will issue a “leasing consent decision” to the BLM, identifying which lands are open for leasing, open for leasing subject to lease stipulations, or closed to leasing. Id. § 228.103(c). This consent decision constitutes the Forest Service’s decision under FOOGLRA, as the leasing “consent” is expressly defined to mean “the Forest Service’s not objecting to such leasing on lands reserved from the public domain or the Forest Service’s consenting to such leasing on acquired National Forest System lands.” Id.§ 228.101.

The proposed regulations eliminate the “verification” step in section 228.102(e) of the current regulations, and do not provide for any review of NEPA documentation created during the process leading up to a lease sale, nor any consideration of particular leases after the area-wide “leasing consent decision” has been made. The proposed regulations state that the Forest Service “may withdraw consent to lease prior to a Bureau of Land Management lease sale,” but do not indicate when the Forest Service may or should consider doing so, or what circumstances would be sufficient to withdraw consent. Id. § 228.103(e). Notably, the Forest Service glosses over the importance of this second, important step, stating that: “the Forest Service has one decision point. That being consent to leasing made at the completion of the leasing analysis.” 85 Fed.Reg. 54,315. As discussed below, this statement is incorrect, and the new approach in the Proposed Rule cannot be reconciled with FOOGLRA.

3. The Proposed Rule upsets the statutory scheme and is unlawful.

a) The Proposed Rule fails to explain significant policy changes.

The Proposed Rule does not adequately explain the reason for the shift from the verification and authorization process under the current regulations, which involves analysis and objection with respect to specific lands and leases, to a generalized consent process, which applies to whole forests and areas. Nor does it explain the change in timing of the decision whether to object under FOOGLRA, from the current post-NEPA, pre-lease sale timing to the proposed pre-NEPA decision at the initial “open to leasing” stage. Nor does the Proposed Rule explain the elimination of the standards in the current regulations at 36 C.F.R. § 228.102(e) for when the Forest Service will exercise its objection authority. The Proposed Rule reverses each of those aspects of current Forest Service policy without reasoned explanation. See, e.g., F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) ); Encino Motorcars, LLC v. Navarro, –––U.S. –––, 136 S. Ct. 2117, 2125, 195 L. Ed. 2d 382 (2016) (While “[a]gencies are free to change their existing policies,” they “must provide a reasoned explanation for the change.”; United Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 F.3d 728, 744 (D.C. Cir. 2019) (agency cannot jettison procedural safeguards it previously found to be important without offering reasoned consideration of the benefits of keeping those safeguards).

The only explanation for these changes in the Proposed Rule is that the new approach purportedly “better aligns the Forest Service leasing availability analysis methods with those followed by the Bureau of Land Management.” 85 Fed. Reg. at 54,315. But the current regulations already contain a process for determining leasing availability, that is, creating the schedule of lands that are open or closed to leasing. It is not clear how the removal of NEPA analyses from that process will better align with the BLM’s process. Nor is it clear why folding the second, verification step of the current rules into a single step in which the Forest Service simultaneously determines land availability and its consent to leases, will better align with the BLM’s process. The primary results of the Proposed Rule’s process is to hand additional control to BLM by consenting to leasing on nearly every parcel that is legally available. Doing so under the guide of “alignment” is at best disingenuous, and not supported by any specific rationale.

The preamble to the Proposed Rule states that the current verification step “is not a second, more detailed analysis,” and is “largely duplicative.” 85 Fed. Reg. at 54,315. Those characterizations are incorrect as a matter of law and do not accurately describe the Forest Service’s current process. The verification step is the time at which the Forest Service considers the environmental impacts of particular leases, determines whether NEPA has been complied with, and determines whether or not to exercise its FOOGLRA authority with respect to particular leases. See current 36 C.F.R. § 228.102(e)(1)-(3). Those actions are not “duplicated” at any other point in the pre- lease process under current rules, and the Proposed Rule’s removal of them will lead to a process under which they will not occur. The Proposed Rule fails to grapple with the consequences of these changes or articulate reasons why the new process will be workable (or legal), much less an improvement.

b) The Proposed Rule lacks standards and would lead to universal consent to leasing.

The Proposed Rule’s “leasing consent decision” provision does not provide meaningful standards for when the Forest Service will “object” to a lease under FOOGLRA. Current regulations require consideration of NEPA and consistency with forest management plans. Compare current 36 C.F.R. § 228.102(e)(1). The proposed process for making “leasing consent decisions” does not mention NEPA, consistency with forest land management plans, or impacts on other forest uses and values, implying that those factors are not sufficient to withhold or withdraw consent (to the extent they are even considered). See proposed 36 C.F.R. § 228.102(b).

Having removed the standards and criteria in the existing process, the Proposed Rule replaces them with no criteria whatsoever. There is no indication in the Proposed Rule as to when the Forest Service can or should withhold consent to leasing, except, that lands are to be deemed not open to leasing if they are “ineligible for leasing by statute, regulation, or withdrawal by the Secretary of the Interior.” Proposed 36 C.F.R. § 228.103(b)(1). Areas that are legally ineligible for leasing are already declared closed under current regulations. See current 36 C.F.R. 228.102(c)(1)(iii). And regardless, the BLM cannot issue a lease for a parcel when doing so is unlawful by statute or regulation. While illegality is an important reason for the Forest Service to object to a lease, the Proposed Rule makes legal ineligibility the first and only criterion used by the Forest Service to determine whether an area is open to leasing and whether it will not object to leases in that area. Indeed, although the proposed regulations contemplate the development of “alternatives,” including no-leasing alternatives, it appears that the Forest Service would always provide consent under the proposed regulations unless a parcel is “ineligible” for leasing by statute or regulation. See proposed 36 C.F.R. § 228.103(b)(1).

The Proposed Rule thus whittles the Forest Service’s FOOGLRA objection authority out of existence. The Forest Service identifies lands ineligible for leasing by statute or regulation, Proposed 36 C.F.R. § 228.103(b)(1), makes a “leasing consent decision” that those lands are closed to leasing, id. § 228.103(c)(iii), and then designates all other areas as open to leasing (perhaps with certain lease stipulations), id. § 228.103(b)(2)-(7), (c)(i)-(ii). For any not-ineligible areas, the leasing consent constitutes a decision that the Forest Service is “not objecting” to any lease on those lands. Id. § 228.101. BLM could then offer any parcel on those lands in a lease sale without further action from the Forest Service—without consideration of environmental impacts under NEPA, without consideration of consistency with the Forest Service’s land management plan, and without consideration of whether the Service should exercise its FOOGLRA authority with respect to any specific lease. The BLM is not required to coordinate with the Forest Service or provide notice of upcoming lease sales under the Proposed Rule, making it unlikely the Forest Service would have further involvement in any decisions relating to leasing after it has determined an area is open for potential leasing. The proposed scheme thus essentially nullifies the Forest Service’s statutory authority under FOOGLRA. The Proposed Rule’s lack of meaningful standards for when to object to a lease and the near-universal authorization for leasing that would result are unlawful.

c) The Proposed Rule eliminates consideration of specific potential leases.

The proposed regulations purport to create a “leasing consent decision” process (at section 228.103(c)), but this “consent” merely involves identifying whether certain areas should be open or closed to potential leasing. It involves no analysis of any individual lease sale at the time of offering, and shifts the decision-making process forward in time to this initial “consent” stage.

Decisions under the proposed regulations will also not be informed by the analysis required under NEPA. The elimination of the lease-specific analysis is a failure to properly determine whether to object under FOOGLRA, which by its text applies to leasing – not just availability for leasing – and provides that the Forest Service may object to “any lease.” The Proposed Rule therefore violates FOOGLRA by codifying an unreasonable interpretation of the statute.

d) The Proposed Rule directs the Forest Service to consent to leasing without conducting NEPA analysis of specific leases.

By undertaking “leasing consent decisions,” and thereby making decisions not to object to leasing, without undertaking NEPA analysis or considering NEPA analysis done by BLM, the Forest Service will inevitably violate NEPA. As explained in more detail in Section I.C.1(a), below, the Proposed Rule violates NEPA in several ways. In particular, the Proposed Rule’s scheme of eliminating Forest Service authorization at the lease sale stage sets up NEPA violations.

First, to the extent the Forest Service makes leasing consent decisions without first conducting any needed NEPA analysis, potentially relying on outdated analysis, it violates NEPA. A decision that the Forest Service is “not objecting” under FOOGLRA requires that there be adequate, current analysis in an environmental impact statement (EIS) to support the leasing availability decision, as discussed in more detail below; taking such action prior to ensuring there is compliant NEPA analysis in an EIS, as the Proposed Rule contemplates, is unlawful.

Second, because the area-wide consent decisions are decisions not to object under FOOGLRA, they are decisions not to object to any and all specific leases within those lands without completing needed site-specific NEPA analysis. This too violates NEPA. Because FOOGLRA objections are made with respect to leases, the Forest Service must engage in site-specific NEPA analysis prior to making a decision whether or not to object to “any lease.” 30 U.S.C. § 226(h).

Third, if the Forest Service makes an initial, area-wide decision not to object, but takes no action to assess a specific lease sale or BLM’s site-specific analysis (or lack thereof), then the Service is also abdicating its obligations under NEPA. NEPA obligates the Forest Service to prepare its own analysis of the potential environmental impacts of an action and cannot wholly defer to an analysis performed by another agency. 42 U.S.C. § 4332(C); see State of Idaho v. Interstate Commerce Commission, 35 F.3d 585, 595-96 (D.C. Cir. 1994); Anacostia Watershed Society v. Babbitt, 871 F. Supp. 475, 483-86 (D.D.C. 1994)

Fourth, the Proposed Rule’s process also implicates whether the Forest Service is properly using its objection authority. Statutes should be read together, and the right to object under FOOGLRA should be read as incorporating consideration of whether a lease sale will comply with other federal laws, as the Forest Service does under current regulations. In addition to NEPA, this change implicates compliance with the Endangered Species Act, Wilderness Act, Wild and Scenic Rivers Act, Clean Water Act, Clean Air Act, and Mineral Leasing Act for Acquired Lands. By the same token, the Forest Service must conduct NEPA analyses for lease sales that include an analysis of whether to object to the leasing under FOOGRLA (whether this constitutes a no-action alternative or, if the Forest Service objects in part or conditionally objects, additional alternatives). By failing to conduct lease-specific NEPA analyses, the Forest Service will violate both FOOGLRA and NEPA.

Relatedly, under current regulations and the MOU, BLM and the Forest Service cooperate to ensure that leasing is consistent with the Forest Service’s management plans and that the Forest Service affirmatively authorizes any leasing prior to a lease sale. Under the Proposed Rule, once the Forest Service has decided that an area is not ineligible for leasing—and, simultaneously, that it will not object under FOOGLRA—there would be no reason for the BLM to communicate with the Service until after a lease has been signed and the BLM is considering an application for a permit to drill. This is inefficient and confusing, and likely will lead to violations of NEPA and additional litigation. In particular, where BLM does not communicate with the Forest Service prior to individual lease sales, it would largely nullify the Service’s ability to object or withdraw consent for individual lease sales. This outcome would conflict with FOOGLRA. The change in the timing of the Service’s decision-making will cut the Forest Service out from input into the BLM’s NEPA process and prevent the Forest Service from considering the best, up-to-date information on proposed drilling prior to lease sales. Although nothing in the Proposed Rule prohibits the Service from being a cooperating agency on a future BLM NEPA analysis, the proposed scheme seems certain to create new and unnecessary problems.

4. The Forest Service should abandon the Proposed Rule in favor of current regulations.

The Proposed Rule would lead to an abandonment of the Forest Service’s role in determining whether national forests and grasslands should be leased for oil and gas development. The Forest Service plays an important and distinct part in that process, as FOOGLRA requires. The Proposed Rule would make a mockery of the Forest Service’s FOOGLRA authority, violate NEPA, and lead to a proliferation of environmentally hazardous oil and gas development projects on Forest Service lands that conflict with the Service’s mission and the interests of the public. The Proposed Rule should be abandoned in favor of the current regulations, under which the Forest Service verifies that particular leases comply with NEPA and forest management plans, and makes decisions under FOOGLRA with respect to particular proposed leases after considering up-to-date information.

B. The Proposed Rule is inconsistent with the Forest Service’s obligations under the National Forest Management Act.

The Forest Service’s mission is “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.”1,of%20present%20a nd%20future%20generations This reflects the policy and directives in the National Forest Management Act (NFMA):

It is the policy of the Congress that all forested lands in the National Forest System shall be maintained in appropriate forest cover with species of trees, degree of stocking, rate of growth, and conditions of stand designed to secure the maximum benefits of multiple use sustained yield management in accordance with land management plans.

16 U.S.C. § 1601(d)(1). NFMA refers to the Multiple Use Sustained Yield Act (MUSYA), which provides “it is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 538. The MUSYA also defines multiple use:

‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.

15 U.S.C. § 531(a). While BLM also manages the public lands pursuant to a multiple use mandate, the definition in the Federal Land Policy and Management Act (FLPMA) has an important addition, providing for “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” 43 U.S.C. § 1702(c) (emphasis added). The difference in BLM’s approach to multiple use management underscores the importance of the Forest Service complying with its own mission and definition of multiple use, and the problem with the Forest Service deferring to the BLM by seeking to “better align Forest Service regulations with those used by the Bureau of Land Management” through the Proposed Rule.

The Forest Service itself acknowledged as much in 1990 in the preamble to its publication of the final oil and gas rules, rejecting the notion asserted by certain commenters that the agency was statutorily obliged to give minerals development a preference over other multiple uses. As the Forest Service explained, “none of the statutes cited or any other statute mandates that surface use for mineral development is to be given preference over other uses of National Forest System lands.” 55 Fed.Reg. 10,423-01, 10,424 (March 21, 1990). Moreover, the agency emphasized that determinations of which multiple uses were to be allowed or disallowed were to be “considered on their merits and decisions should be made as to which mix of land uses would best meet the needs of the public.” Id. This bedrock concept—that National Forest System lands should be managed in the public interest—remains just as strong today as it did in 1990.

NFMA also provides for the “development and maintenance of land management plans for use on units of the National Forest System.” 16 U.S.C. § 1604(b); see Lamb v. Thompson, 265 F.3d 1038, 1042 (10th Cir.2001). “NFMA establishes a two-step process for forest planning.” Id. First, the Forest Service prepares a forest plan. The creation of a forest plan requires the preparation of an EIS. 16 U.S.C. § 1604(g)(1); 42 U.S.C. § 4332(2)(C); see Colo. Off–Highway Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130, 1132 (10th Cir.2004). “Second, the Forest Service is required to implement the forest plan by approving or disapproving specific projects. Projects must be consistent with the governing forest plan and are subject to the procedural requirements of NEPA.Lamb v. Thompson, 265 F.3d at 1042 (citing 16 U.S.C. § 1604(i)). By removing the requirement from 36 C.F.R. § 228.102(c)(1) for the Forest Service to first verify that “leasing of the specific lands has been adequately addressed in a NEPA document, and is consistent with the Forest land and resource management plan,” the Forest Service is further undermining its compliance with NFMA.

Moreover, the proposed elimination of Forest Service review and authorization at the lease sale stage is inconsistent with NFMA’s requirement that activities be consistent with the governing forest plan. In adopting the 1990 regulations, the Forest Service anticipated that decisions to offer individual leases (even on lands previously determined to be available for leasing) might not be consistent with the terms of the forest plan in effect at the time of a given lease sale. 55 Fed. Reg. 10,423, 10,430 (Mar. 21, 1990) (“If the issuance of leases for the specified lands is not consistent with both the general and the specific management direction in the approved forest plan in effect at that time, the Forest Service may not authorize the Bureau of Land Management to offer the lands for leasing unless the forest plan is amended.”). A forest plan may have been revised or amended after the earlier leasing availability decision, or the plan may impose resource protection requirements not addressed in the leasing availability decision. Just as in 1990, the Forest Service must continue to review and authorize individual leases to ensure compliance with the governing forest plans.

The Forest Service should reevaluate its proposed regulatory changes. They are inconsistent with the Forest Service’s mission and its obligations under NFMA.

C. The Forest Service has failed to comply with the National Environmental Policy Act.

1. The agency’s abbreviated process fits this administration’s priorities, but violates the intent and procedures of NEPA.

1. The agency’s abbreviated process fits this administration’s priorities, but violates the intent and procedures of NEPA.1. The agency’s abbreviated process fits this administration’s priorities, but violates the intent and procedures of NEPA.

NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). NEPA’s substantive intent is to:

encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation.

42 U.S.C. § 4321. To fulfill this mandate, “it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources” in order that the United States may, inter alia, “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.” Id. at § 4331(b)(1).

As the Supreme Court teaches, “the thrust of [NEPA] is … that environmental concerns be integrated into the very process of agency decision-making.” Andrus v. Sierra Club, 442 U.S. 347, 350 (1979). Thus, while “NEPA itself does not mandate particular results, but simply prescribes the necessary process,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989), agency adherence to NEPA’s action-forcing statutory and regulatory mandates helps achieve NEPA’s noble purpose and policies. See 42 U.S.C. §§ 4321, 4331. As explained by NEPA’s implementing regulations:

Ultimately, of course, it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork – even excellent paperwork – but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on [an] understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.

40 C.F.R. § 1500.1(c) (emphasis added).

NEPA’s ability to “foster excellent action” is a product of its specific procedural mandates, namely that federal agencies—such as the Forest Service—take a hard look at the direct, indirect, and cumulative impacts of a proposed action; consider reasonable alternatives to that proposed action; meaningfully involve the public in the NEPA process; and, where impacts may be significant, prepare a comprehensive EIS. Below, we detail these responsibilities as they apply to this rulemaking.

We note that the Council on Environmental Quality (CEQ) recently issued a final rule rewriting the entirety of its 1978 regulations. 85 Fed. Reg. 43,304 (July 16, 2020) (to be codified at 40 C.F.R. Part 1500). The new rule purports to apply to all new NEPA processes initiated after September 14, 2020 and provides agencies with discretion to apply it to ongoing NEPA processes begun before that date. 40 C.F.R. § 1506.13 (2020). With respect to this rulemaking, the Forest Service should not seek to apply the final rule. This process has been underway for more than two years and is clearly not suitable for new governing principles at this later point in the process. At the outset, the Forest Service is still subject to its own regulations as well as those issued by the Department of Agriculture (Agriculture). To ensure that the environmental consequences of an action are properly considered Congress directed “to the fullest extent possible” that “all agencies of the Federal Government shall . . . “develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking.” 42 U.S.C. § 4332(B). Consistent with the statute’s mandate, both Agriculture and the Forest Service adopted implementing regulations. Unless and until Agriculture and the Forest Service revise their regulations through an appropriate notice and comment rulemaking process, the Forest Service is still bound by both its current regulations and the 1978 version of the CEQ regulations.

The new CEQ regulations are also being challenged in multiple lawsuits and we anticipate that they will be invalidated. Moreover, even if they do ultimately go into effect, the new regulations cannot overcome the plain language of the statute and the weight of decades of precedent. The plain language of NEPA requires a thorough analysis of environmental effects. NEPA requires federal agency recommendations on “major Federal actions significantly affecting the quality of the human environment” to be accompanied by a detailed statement that discusses, among other things, the “environmental impact of the proposed action,” “[a]ny adverse environmental effects which cannot be avoided should the proposal be implemented,” and “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity.” 42 U.S.C. § 4332(2)(C). Since well before the issuance of any regulation, courts have confirmed that this language requires federal agencies to analyze the potential effects, including the indirect and cumulative impacts, of their actions. See, e.g., Hanly v. Kleindienst, 471 F.2d 823, 830-31, 836 (2d Cir. 1972); City of Rochester v. U.S. Postal Service, 541 F.2d 967, 972 (2d Cir. 1976) (citing Scientists’ Inst. for Pub. Info. v. Atomic Energy Comm’n, 481 F.2d 1079, 1086-87 (D.C. Cir. 1973)). Further, the Supreme Court has held that NEPA requires consideration of the “cumulative or synergistic environmental impact” of multiple proposals pending concurrently before an agency, and stated that such impacts “must be considered together. Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976), citing NEPA, 42 U.S.C. § 102(2)(C). In addition, NEPA’s statutory language requires consideration of alternatives. Id. §§ 4332(2)(C), (E). The Forest Service may not seek to narrow the scope of the potential environmental consequences of the changes in the Proposed Rule.

We emphasize here the critical importance of effective public involvement. NEPA’s implementing regulations provide that “Federal agencies shall to the fullest extent possible … [i]mplement procedures to make the NEPA process more useful to decision-makers and the public” and “encourage and facilitate public involvement in decisions which affect the quality of the human environment” and, further, “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R. §§ 1500.2(b),(d), 1506.6(a); see also Id., at § 1501.4(b). “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA . . .” 40 C.F.R. § 1500.1(b).

As the Ninth Circuit has rightly explained, NEPA works “through the creation of a democratic decisionmaking structure that, although strictly procedural, is ‘almost certain to affect the agency’s substantive decision[s].’” Or. Nat. Desert Assoc. v. BLM, 531 F.3d 1114, 1120 (9th Cir. 2008) (quoting Robertson, 490 U.S. at 350). By requiring agencies “to place their data and conclusions before the public … NEPA relies upon democratic processes to ensure—as the first appellate court to construe the statute in detail put it—that ‘the most intelligent, optimally beneficial decision will ultimately be made.’” Id. (quoting Calvert Cliffs’ Coordinating Comm. v.

U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971)). This process, in turn, ensures open, honest and public discussion “in the service of sound decisionmaking.” Id. at 1143.

NEPA’s democratic decision-making structure is particularly important here. Given the extent of the Forest Service’s forest, grassland, and prairie ecosystems, the colossal threat posed by climate change, chronic staffing and resource limitations, and intensifying questions regarding the propriety and public interest value of oil and gas development on our federal public lands in the face of climate change, the stakes could not be higher. Accordingly, the Forest Service should tread carefully taking into account the full extent of the Proposed Rule’s potential impacts.

The Forest Service is proposing to change the way oil and gas leasing and management occurs on millions of acres of national forests and grasslands. As discussed above, the Forest Service cannot simply reverse the policies and procedures upon which the public has relied. When reversing a prior policy that “has engendered serious reliance interests,” the agency must provide a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. at 515; see also . Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020) (citations omitted) (Agencies must “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy interests.”).

The primary goal is to expedite leasing and permitting by streamlining NEPA’s analytic and procedural requirements in furtherance of the Trump administration’s “Energy Dominance” agenda. See Proposed Rule, articulating the purpose of to “modernize existing procedures to streamline processes and promote efficiency” and citing Executive Order 13783, Promoting Energy Independence and Economic Growth. 85 Fed.Reg. 54,311, 54,313.2The programmatic environmental assessment articulates a slightly broader purpose and need. However, as discussed directly below and throughout these comments, it remains unreasonably narrow and fails to further or adhere to the agency’s statutory mandates.  This broad rewrite will alter regulations that have governed the agency decision-making process and peoples’ expectations for decades. It implicates management of fossil fuels in an era when climate change is the single biggest environmental issue, and it aims to alter how and when NEPA reviews occur and to reduce opportunities for engagement in mineral leasing and management decisions affecting National Forest lands. Despite these significant changes, this administration is seeking to rush these changes through with only a programmatic environmental assessment3Environmental Assessment for Proposed Rule to Revise Code of Federal Regulations 36 CFR Part 228, Subpart E: Oil and Gas Resources (June 27, 2019) (available at  (PEA) and avfinding of no significant impact (FONSI) with minimal public engagement and the less than adequate analysis. The process fails to comply with NEPA.

Here, despite the scope and broad impact of potential changes, the Forest Service has provided minimal opportunities for public comment and ignored and denied requests for additional engagement opportunities. Quite simply, the agency has not encouraged public involvement or made diligent efforts to engage the public. The Forest Service has also failed to meaningfully respond to comments submitted on the ANPR, including proposed alternatives and recommendations for analyzing impacts to climate change, as discussed in more detail below, although this is required under the APA. See Perez v. Mortg. Bankers Ass’n, 575 U.S. , 135 S. Ct. 1199, 1203 (2015) (“An agency must consider and respond to significant comments received during the period for public comment.”); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. at 1913 (“[W]hen an agency rescinds a prior policy its reasoned analysis must consider the ‘alternative[s]’ that are ‘within the ambit of the existing [policy].’”; Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013) (“[A]n agency must consider and explain its rejection of ‘reasonably obvious alternatives.’” (quoting NRDC v. SEC, 606 F.2d 1031, 1053 (D.C. Cir. 1979))). At least one court has described “significant comments” as “those which raise relevant points and which, if adopted, would require a change in the agency’s proposed rule.” Am. Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir. 1992). These actions ignore procedures outlined in NEPA and undermine the law’s intent.

a) The Forest Service’s purpose and need fails to further and adhere to statutory mandates, and it is unreasonably narrow.

The Forest Service must articulate a purpose and need that furthers and adheres to the agency’s statutory mandates. While the Forest Service has some discretion over a project’s “purpose and need,” that discretion is not unlimited. The Forest Service may not, for example, define the “purpose and need” so narrowly that it forecloses consideration of a reasonable range of alternatives. Westlands Water Dist. v. U.S. DOI, 376 F.3d 853, 867 (9th Cir. 2004); see also City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997) (“. . . an agency cannot define its objectives in unreasonably narrow terms.”). Yet that is what the agency has done in this process.

The Advanced Notice of Proposed Rulemaking made clear that this rulemaking is being driven by the Trump administration’s “Energy Dominance” agenda, as expressed in Executive Orders 13212 and 13783. 83 Fed. Reg. 46,459. The Proposed Rule continues this focus and the PEA maintains that the revisions are necessary to modernize the regulations, streamline analysis and procedure, and reduce permitting times. PEA, pp. 6-7. The PEA states the purpose and need of the rulemaking is to “modernize and streamline … also … to better align the regulations with those of [the BLM] to reduce redundancy and promote efficiency in managing federal oil and gas resources on National Forest System Lands.” PEA, p. 1.” While the PEA also refers to a related purpose to balance energy development with protection of national forests and grasslands (PEA, 7), the Proposed Rule does not reflect or fulfill this purpose.

The overarching purpose of the Proposed Rule, the PEA and their content only reflect the administration’s policy goals of energy dominance over all other uses, and fail to adhere to the agency’s statutory mandates. For example, the Proposed Rule’s singular focus on streamlining subverts the broader goals of other statutes, including FOOGLRA, NFMA, and NEPA, as discussed in detail in Sections I.A and I.B, above. The agency is using an impermissibly narrow purpose to justify elimination of critical obligations and opportunities to consider the potential environmental effects of its decisions under NEPA, as discussed in further detail in Section I.C.2 below.

Public comments, including our ANPR Comments, proposed numerous elements the agency could incorporate into its purpose and need to ensure compliance with important statutory mandates. See ANPR Comments, Exhibit 1, pp. 6-7. In particular, we urged that “streamlining” be defined to exclude “actions that eliminate or weaken climate, conservation, or public involvement protections.” Id. The Forest Service, however, ignored these citizen proposals in the PEA and only vaguely acknowledged them in the Executive Summary of Public Comments. See Exec. Summary, p. 3.

Here the Forest Service’s decision to maintain an impermissibly narrow purpose and need led to consideration of only two alternatives: a no action alternative and the proposed action. The only action alternative considered by the agency would most certainly weaken climate, conservation, and public involvement protections by expediting permitting of leasing and development while eliminating critical opportunities for consideration of environmental impacts. The agency used this narrow scope to dismiss relevant public comments as “outside the scope of the decision to be made.” See, PEA, p. 9 (dismissing issues related to procedural requirements of NEPA, particularly opportunities to comment on site-specific analyses).

The Forest Service is improperly relying on a purpose and need that is narrowly crafted to further its political agenda. This purpose and need, and the Forest Service’s interpretation of it, tainted the agency’s environmental analysis and resulted in a Proposed Rule that, if implemented, will undermine compliance with mandatory statutes.

b) The Forest Service failed to consider reasonable alternatives.

The “heart” of the NEPA process is an agency’s duty to consider “alternatives to the proposed action” and to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. §§ 4332(2)(C)(iii), 4332(2)(E); 40 C.F.R. § 1502.14(a). An agency must “[r]igorously explore and objectively evaluate all reasonable alternatives” and specifically “[i]nclude the alternative of no action.” 40 C.F.R. §§ 1502.14(a), (d). Like any EIS, a properly-drafted EA must include a thorough discussion of reasonable alternatives to a proposed action. 40 C.F.R. § 1508.9(b)(extending the obligation to address alternatives to environmental assessments); see also Davis v. Mineta, 302 F.3d 1104, 1120 (10th Cir. 2002).

Operating in concert with NEPA’s mandate to take a hard look at impacts, the Forest Service’s consideration of reasonable alternatives empowers the agency to “sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decision maker and the public.” 40 C.F.R. § 1502.14. This conclusion is premised on well-established precedent and authority. As the Tenth Circuit has explained, “[w]ithout substantive, comparative environmental impact information regarding other possible courses of action, the ability of [a NEPA analysis] to inform agency deliberation and facilitate public involvement would be greatly degraded.” N.M. ex rel Richardson v. BLM, 565 F.3d at 708. That analysis must identify multiple viable alternatives, so that an agency can make “a real, informed choice” between the spectrum of reasonable options. Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1039 (9th Cir. 2008).

Here the Forest Service examined only two alternatives: a no action alternative and the proposed action. This narrow range ignores reasonable alternatives and undermines the agency’s analysis. The agency simply ignored consideration of any alternative that would potentially reduce the amount of oil and gas leasing and permitting on National Forest lands, even though such an alternative could potentially meet the purpose and need, further other statutory mandates, and help create a clearer picture of potential impacts.

In particular, the Forest Service’s dismissal of a Climate Alignment Alternative is problematic. Here the agency is revising regulations to govern leasing and development of oil and gas resources on National Forest lands with a primary goal of expediting permitting. Meanwhile the agency has never undertaken a broad-scale programmatic evaluation of the impacts of its oil and gas program on climate to inform how and whether it should proceed. In effect, the agency is accelerating blindly forward without even considering the direction it is headed or the pace it has been going.4Importantly too, as discussed in sections below, failure to consider a Climate Alignment Alternative undermines any claim that the USFS took a hard look at potential impacts.

Consideration of alternatives, including the proposed Climate Alignment Alternative, that could reduce or eliminate new oil and gas leasing is reasonable to further and adhere to statutory mandates, including those enacted since 1990. See PEA, p. 6; see also discussion of requirements to manage to protect renewable resources and resiliency under NFMA in Section I.B above.

Further, despite the agency’s conclusions to the contrary, a Climate Alignment Alternative clearly comports with other stated purposes of this effort, if undertaken in compliance with NFMA. Consideration of such an alternative would help the Forest Service appropriately balance energy resources use and development with protection of national forests…” PEA, p. 7.

Addressing climate at this level could help clarify internal agency procedures, including future NEPA analyses, and reduce confusion so that leasing and permitting reviews could be processed more efficiently. Id. Also, in order to effectively modernize its oil and gas regulations, the Forest Service should consider them in the context of the single biggest environmental issue of our time. Id.

The Forest Service also failed to consider other reasonable alternatives because it so narrowly defined its purpose and need. For example, the agency says its existing oil and gas regulations need to be modernized to streamline analytical and procedural requirements to improve efficiencies and reduce permitting times. PEA at 7; see also ANPR, 85 Fed.Reg. at 46,459- 46,460. The agency’s singular focus on eliminating regulatory requirements motivated it to exclude reasonable alternatives that could effectively modernize regulations and reduce permitting times and add to efficiencies.

For example, our ANPR Comments proposed an Operational Capacity Alternative as well as an alternative addressing the amount of leasing allowed. See ANPR Comments, Exhibit 1, p. 8.

Such an alternative would reduce any backlog of permits and ensure more efficient processing by guaranteeing the Forest Service only consented to leasing and development it had capacity to manage. These alternatives presented a reasonable approach for an agency that is chronically understaffed and under-resourced. Nonetheless, the Forest Service refused to examine them, pointing to efforts to maintain adequate staff. PEA, pp. 15-16. While the Forest Service identifies a need to achieve efficiencies, it is only interested in achieving those efficiencies by “streamlining” or reducing regulations and not by right-sizing its program. The agency’s refusal to consider these alternatives is unreasonable.

Our ANPR Comments also proposed alternatives to narrow the scope of leasing through the Inventoried Roadless Area Protection Alternative, the Categorical Determination of Unsuitability for Areas with low Development Potential Alternative, and the Alternatives for No Leasing, or Identifying Locations and Amount of Leasing (ANPR Comments, Exhibit 1, p. 8); all would help the Forest Service modernize and streamline analytical requirements by eliminating the need to consider new leasing in areas where such development may be inappropriate or controversial.

Another proposed alternative would have streamlined analysis and expedited permitting by focusing those activities in areas already developed. ANPR Comments, Exhibit 1, pp. 7-8 (proposing the Existing Producing Field Alternative). Such an alternative could clarify agency procedures and reduce confusion so that leasing proceeds more efficiently by eliminating leasing in the most sensitive and controversial areas and by concentrating leasing in areas where impacts have already accrued. Further, such an alternative would enable the Forest Service to “guide management of federal oil and gas resources on National Forest lands in a manner that appropriately balances energy resources use and development with protection of national forests…” PEA, p. 7. The agency erroneously concluded that these alternatives would not meet the purpose of its project. Id., p. 15. In fact, such alternatives could clearly help effectuate the purpose and need.

Our ANPR Comments also proposed an alternative to improve key aspects of the regulations by clarifying the Forest Service’s obligations in connection with: (1) proposed leasing analysis and leasing decisions; (2) proposed limits on lease stipulation waivers, exceptions, and modifications; (3) clarification of procedures to develop surface use plans of operation; and (4) clarification of language regarding inspections and enforcement to ensure compliance with lease stipulations and conditions of approval. ANPR Comments, Exhibit 1, p. 9 (proposing Regulatory RecommendationsAlternative).

In particular, the Forest Service should analyze in detail an alternative that streamlines—but does not eliminate—the requirement that the Forest Service must authorize specific lands at the lease sale stage. As discussed below, elimination of Forest Service lease sale-stage authorization will have significant adverse consequences for lands, wildlife and water resources: under the proposed rules, BLM will inevitably approve leases based on forest-wide leasing consent decisions that are outdated and do not consider site-specific conditions. The Forest Service can advance its stated purpose to “modernize and streamline” its regulations, and “better align” them with BLM regulations, without eliminating this important safeguard. Our ANPR Comments offer several suggestions in this regard, such as conducting better and more detailed forest-level leasing consent analyses, and keeping them current. Further, such an alternative could include procedures to require timely completion of Forest Service lease sale review and authorization decisions, and better coordination with BLM’s leasing process.  The Forest Service cannot ignore this reasonable alternative that would have fulfilled its statutory mandates and satisfied its stated purpose and need, while also avoiding unnecessary damage to forest resources.

c) The Forest Service failed to take a hard look at potential impacts.

NEPA dictates that BLM take a “hard look” at the environmental consequences of a proposed action and the requisite environmental analysis “must be appropriate to the action in question.” Metcalf v. Daley, 214 F.3d 1135, 1151 (9th Cir. 2000); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). In order to take the “hard look” required by NEPA, the Forest Service is required to assess impacts and effects that include: “ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8. (emphasis added).

This is where the Forest Service’s impermissibly narrow purpose and need along with the agency’s failure to consider reasonable alternatives comes home to roost. By focusing so narrowly on “streamlining” and dismissing numerous reasonable alternatives that could bring efficiencies and modernize oil and gas regulations, the agency has failed to consider and disclose the true environmental consequences of its actions.

For example, the agency’s dismissal of a Climate Alignment Alternative obviated any need to consider the potential benefits of using climate change and/or a carbon budget to guide oil and gas leasing and permitting decisions (as well as leading to ignoring detailed comments regarding analyzing the impacts to climate change)—even though it may help achieve the purpose of this action. The absence of substantive, comparative environmental information regarding a climate- conscious alternative undermines the process and public involvement, and it taints the whole process. N.M. ex rel Richardson v. BLM, 565 F.3d at 708.

The Forest Service disclosed some climate-related impacts associated with the no-action and the proposed action alternatives. However, those alternatives and their potential impacts provide no clear basis for comparison. The Forest Service concludes the effect to climate change between the two alternatives would be similar. PEA, p. 36. That, of course, is intentional. This process is being driven by a political agenda of “Energy Dominance.” Actually disclosing the impacts of that agenda, for example, by comparing its impacts to the impacts of not leasing or leasing and developing based on a carbon budget, would undermine the entire the agenda. Here the Forest Service has tailored the process to avoid taking a hard look at environmental consequences and disclosing those to the public.

More broadly, the Forest Service’s PEA arbitrarily ignores the reasonably foreseeable impacts from the Proposed Rule. The entire premise of this rulemaking is to promote more energy development on national forest lands by eliminating regulations that supposedly “encumber energy production, constrain economic growth [and] prevent job creation,” as directed by Executive Order 13783. 82 Fed. Reg. 16093 (Mar. 31, 2017). In response to Executive Order 13783, The U.S. Department of Agriculture (USDA) identified 30 C.F.R. Part 228 as having requirements that “unnecessarily obstruct, delay, curtail, or other impose significant costs on” oil and gas production. Id.; USDA Final Report Pursuant to Executive Order 13783 on Promoting Energy Independence and Economic Growth (Oct. 2017)5Available at: Consistent with that goal, the Forest Service designated this as a “significant” rulemaking under Executive Order 12866, 6Draft Regulatory Impact Analysis, p.ii (Nov. 15, 2019) (available at meaning that it “may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” 58 Fed. Reg. 51,735 (Oct. 4, 1993).

The Forest Service’s analysis of the impacts of the Proposed Rule, however, contradicts these findings: it claims that the Proposed Rules will have no “measurable impact on rates of oil and gas production on National Forest System lands.” Draft Regulatory Impact Analysis (RIA), p. iv. Similarly, the preliminary EA for the proposed rules claims that they will not result in increased leasing or drilling permit applications, will have no impact on greenhouse gas emissions, and does not identify any impacts to roadless areas. PEA, pp. 35-37. The PEA also asserts there will be no effect on endangered or threatened species listed under the Endangered Species Act. PEA, 11. These conclusions are arbitrary and capricious: the Forest Service cannot revise its regulations with the goal of increasing oil and gas development, while simultaneously denying that those changes will affect the rate of such development and its impacts.

Notably, the Draft RIA lists “expedited access to leasable oil and gas resources on National Forest System lands” as a benefit of the proposed rules (Draft RIA, p. 13), but fails to assess the resulting environmental impact, which could be significant. For example, the Forest Service highlights that there are 1,586 parcels “containing almost 1.3 million acres of National Forest System lands” where leasing decisions are “pending” and which “suggest[ ] more potential for oil and gas development in those areas.” Draft RIA, pp. iii, 7-8, 9. To put this in context, there currently are a total of 5,490 existing leases (covering 4.2 million acres) on national forests. Id., 3. Thus, the Forest Service’s aim of “addressing the backlog” of pending parcels (Id., p. iii), could result in more than a 30 percent increase in the acreage of national forests leased for oil and gas development. The Forest Service cannot ignore the reasonably foreseeable impacts of such a change on climate change, wildlife, roadless areas and other lands, and water resources.

For many of the changes in the Proposed Rule, the Forest Service simply concluded there would be “no environmental effects” and did not discuss the potential effects. PEA, pp. 33-34. For other changes, the PEA purports to evaluate impacts but ultimately dismisses them. For instance, despite the significance of removing the formal step for the Forest Service to evaluate proposed leases before they are included in lease sales, the PEA characterizes the change as one that just “clarifies that the Forest Service has one decision point in the leasing process, and that is identifying lands to which it would not object, or consent to, the BLM leasing.” PEA, p. 34. As shown above, the Forest Service arbitrarily denies this change would likely lead to leasing of substantially more lands with less environmental analysis and public input. By mischaracterizing the change, the Forest Service has failed to evaluate its effects.

The PEA also fails to take a hard look at potential impacts of modifying the NEPA verification process prior to leasing. This proposal will eliminate a critical point of engagement for the Forest Service in the leasing process and ignores the potential impacts to the public, to the agency (which would be left with no standards to guide engagement between the consent stage and the issuance of a lease), and the environment.

While the current NEPA verification process does not involve a formal public comment opportunity, the public does engage the agency during this period, as the agency is reviewing lease nominations. More importantly, though, the NEPA Verification and Validation Form (VVF) that the Forest Service completes during this period and prior to providing consent to lease to BLM is a critical tool for the public and decisionmakers. The VVF creates a clear record of the agency’s deliberation process and confirming NEPA compliance. Among other things, it presents a clear showing that new information and changed circumstances have been considered by Forest Service prior to the sale of a lease and an irretrievable commitment of resources. The Proposed Rule would eliminate all of these opportunities and obligations, but the impacts to the public are not discussed in the PEA.

The problem with eliminating this step for the agency is that there will be no process, standards or record for consideration of new/changed circumstances between the leasing availability decision and the actual leasing decision. That creates confusion rather than reducing confusion as suggested in the PEA. This issue is completely ignored in the agency’s analysis.

More problematic, though, are the potential impacts that elimination of this critical step will have on sensitive forest resources. Elimination of the NEPA verification step eliminates any obligation or standards to ensure the Forest Service considers new information and changed circumstances that transpire between the time when a leasing availability decision is made and when a decision to lease occurs. The Forest Service’s management of roadless areas present a poignant example. As the Forest Service notes in the PEA, there are many oil and gas leases overlapping with inventoried roadless areas.7See PEA at 31(“The Forest Service estimates that there are about 322,000 acres in existing oil and gas leases that overlap with roadless areas nationwide. This constitutes about 7 percent of the over 4.2 million acres of lands under lease for oil and gas resources, and 0.5 percent of the total roadless acres.”) Some of those overlap with National Forests where leasing availability decisions were made before applicable roadless rules were made effective.

As a result, under the Proposed Rule and without the NEPA existing verification process, the Forest Service could issue new oil and gas leases in these roadless areas without ever considering the effects of an applicable roadless rule. Here the Forest Service failed to take a hard look at these potential impacts, and the agency failed to take a hard look at various other resources that could be affected when the agency issues leases pursuant to an old leasing availability decision without any verification of the adequacy of NEPA at the point when a lease will be sold.

The NEPA analysis is further hampered by the Forest Service’s conflicting conclusions about the overall effects of the Proposed Rule. First, the Forest Service states it:

expects that revising the … regulations as proposed will result in procedural efficiencies that will benefit the agency by reducing redundancies and making procedures more understandable and easier to implement. The regulations do not change the applicability of nondiscretionary laws, requirements to conduct tribal consultations, or requirements to follow National Environmental Policy Act procedures.

PEA, p. 35. However, the PEA also states that the Forest Service:

does not expect the regulatory revisions will drive a notable increase or decrease in the number of leases or in the rate at which lands are nominated for lease by the oil and gas industry. … This is because industry interest in oil and gas resources on National Forest System lands is driven by market forces, such as demand and price of these commodities. Applications to lease or to develop oil and gas resources on National Forest System lands are made in response to favorable market conditions, which are outside the agency’s purview and control.

PEA, p. 35. At the same time, the Forest Service touts the way the Proposed Rule will lead to faster approvals of leasing and development, but then concludes (for purposes of evaluating whether there will be environmental effects) that the new regulations will not affect the amount of leasing. The Forest Service seeks to justify its extremely limited analysis of the Proposed Rule, stating:

The proposed revisions are procedural in nature and do not substantively change the Forest Service approach to managing federal oil and gas resources. Instead, the revisions aim to incorporate statutory requirements, modernize and streamline analytical and procedural requirements, and simplify and clarify internal agency procedures to improve efficiency.

PEA, p. 41. However, the PEA and the Proposed Rule point to E.O. 13212 (Actions To Expedite Energy-Related Projects) and E.O. 13783 (Promoting Energy Independence and Economic Growth), including the latter order’s focus on removing impediments to energy development, as the basis for the rulemaking, which confirms the Forest Service’s intent to increase leasing and reduce environmental analysis – changes worthy of a meaningful analysis of likely environmental consequences.

As noted above, with increased leasing and development, and less consideration of environmental impacts, there will be effects on our climate. However, instead of looking at these effects, including detailed recommendations in our comments (see, NOPR Comments, Exhibit 1, pp. 10-23), the Forest Service concludes: “As a result of the proposed rule’s procedural nature, the effect to climate change would be similar to the no action alternative.” PEA, p. 36. This reference and the national scope of the rulemaking do not relieve the Forest Service of its obligation to evaluate climate effects from the emissions associated with oil and gas development permitted under the Proposed Rule. The Forest Service has quantified the current scope of leasing, potential development and related emissions:

– “Currently, there are active oil and gas leases on 53 of the 155 National Forest System units.” PEA, p. 1
– “There are 3,165 federal oil or gas wells on existing leases on National Forest System lands. In 2018, these collectively produced about 21.5 million barrels of oil, and 118 million cubic feet of natural gas, along with other petroleum products. This production represents 0.6% of the nation’s oil production and 0.3% of the nation’s natural gas production.” PEA, pp. 17-18.
– “About 4.2 million acres, or about 2%, of National Forest System lands are under lease in 5,490 oil and gas leases. About 2,665 of those leases (1.6 million acres) have active production occurring.” PEA, p. 19.
– “The Forest Service estimates that there are about 322,000 acres in existing areas on existing oil and gas leases overlap with roadless areas nationwide. This constitutes 7% of the 4.2 million acres of lands under lease for oil and gas resources.” PEA, p. 31
– During the entire life cycle, crude oil and natural gas development on National Forest System lands in fiscal year 2018 resulted in 217,186 short tons of methane (CH4), 10,346,336 short tons of carbon dioxide (CO2), and 17,985 short tons of nitrogen oxide (N2O). The total is 19.2 MMT18 of CO2 equivalent, however when end use is not accounted for that drops to 3.9 MMT of CO2. In 2017, the U.S. generated approximately
253.5 MMT of CO2 equivalent from petroleum and natural gas systems. PEA, p. 25; Table 2, pp. 26-27; Appendix C p. 47-49.
– Future Development: “Year 2031 marks the highest level of projected oil production (35 percent higher than 2018). Beyond 2031 to the end of the projection period in 2050, a gradual decline in oil is offset by an increase in natural gas production such that emissions increase slightly. With a calculated 35 percent increase in National Forest System emissions for 2031, the contribution to global emissions remains essentially the same percentage, increasing by 1/100th of a percent. The contribution of greenhouse gas emissions from National Forest System oil and gas compared to global emissions is predicted to remain below 0.05 percent as shown in table 2.” PEA, p. 26;. Table 2, pp. 26-27; Appendix C pp. 47-49.

The Forest Service must quantify the direct, indirect and cumulative effects of emissions attributable to oil and gas leasing and development. “Direct” emissions are emissions from production, including venting, flaring, and leaks, of subsurface federal minerals that underlie national forest, grassland, and prairie lands under the agency’s jurisdiction. “Indirect” emissions include transportation, downstream uses, and combustion of oil and gas produced from those federal subsurface minerals. Courts have held that downstream emissions are “reasonably foreseeable” indirect impacts. See Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 549 (8th Cir. 2003) (agency must evaluate potential air quality impacts associated with increase in coal consumption); S. Fork Band Council v. BLM, 588 F.3d 718, 725-26 (9th Cir. 2009) (air quality impacts associated with transport and off-site processing are indirect effects); Dine Citizens Against Ruining Our Env. v. U.S. Office of Surface Mining Reclamation & Enforcement, 82 F. Supp. 3d 1201, 1214 (D. Colo. 2015) (agency must discus the mercury- related indirect effects of proposed mine expansion).

“Cumulative” emissions require consideration of the project’s emissions alongside other foreseeable emissions. With respect to cumulative impacts, NEPA requires that BLM consider incremental climate change impacts “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, 1508.25(c). Analysis of cumulative impacts protects against “the tyranny of small decisions,” Kern v. BLM, 284 F.3d 1062, 1078 (9th Cir. 2002), by confronting the possibility that agency action may contribute to cumulatively significant effects even where impacts appear insignificant in isolation. 40 C.F.R. §§ 1508.7, 1508.27(b)(2). “The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008). Applied here, a cumulative impacts analysis should include at least the following past, present, and reasonably foreseeable emissions. Applied here, this includes at least the following past, present, and reasonably foreseeable emissions:

• from state or private leases underlying national forest, grassland, and prairie lands;
• from state or private leases communitized, unitized, or pooled with BLM leases for subsurface minerals underlying national forest, grassland, and prairie lands, whether or not those state or private leases underlie Forest Service-managed surface lands; and:
• from the federal oil and gas program as a whole.

The Forest Service must also analyze the actual effects of those emissions. See Ctr. for Bio. Diversity v. Natl. Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008) (while agency “quantifies the expected amount of CO2 emitted from light trucks … the EA does not discuss the actual environmental effects resulting from those emissions”). “The harms associated with climate change are serious and well recognized,” and environmental changes caused by climate change “have already inflicted significant harms” to many resources around the globe. Mass. v. EPA, 549 U.S. 497, 521 (2007); see also id. at 525 (recognizing “the enormity of the potential consequences associated with manmade climate change.”).

d) The Forest Service pre-determined that it prepare an environmental assessment and finding of no significant impact.

In our NOPR Comments, we recommended that the Forest Service prepare an environmental impact statement. NOPR Comments, Exhibit 1, pp. 24-26. As the Forest Service explains:

If a proposed action does not qualify for a categorical exclusion or there is uncertainty about how it would affect the environment, the Forest Service performs an environmental assessment to determine if there are significant environmental impacts. If not, the agency would issue a “finding of no significant impact.” However, if there may be significant impacts, the agency is then required to develop an environmental impact statement (EIS).8See (emphasis added)

However, all indications are that, in preparing the Programmatic Environmental Assessment, the Forest Service did not make a good faith effort to evaluate whether there are significant environmental impacts from the Proposed Rule. Recently released documents show that the Forest Service had decided to prepare an EA and not an EIS months before the Forest Service even published its Advanced Notice of Proposed Rulemaking in September 2018. See, excerpts from FOIA response, attached as Exhibit 2. A May 23, 2018, email from Leslie Vaculik to Samuel Gaugush and others states: “The decision was made last week to do EAs.” A May 24, 2018, response from Samuel Gaugush states: “I did not see any examples of EAs for a regulation revision”; and after reasons that would explain why that is are redacted, Mr. Gaugush provides examples of EISs prepared to accompany rulemakings. Leslie Vaculik responds: “Nick made the decision to do an EA.”

The purpose of preparing an EA is to determine whether significant impacts may occur – not to rubberstamp a plan to avoid preparing an EIS. As discussed in our NOPR Comments, this rulemaking meets the standard for significant impacts and justifies preparation of an EIS, despite the foregone conclusion evidenced in the PEA and FONSI.

2. The Proposed Rule narrows the analysis of leasing in violation of NEPA.

In implementing NEPA, Congress made clear its intent that all agency regulations and procedures comply with the national environmental policy outlined in the law. See 42 U.S.C. § 4333. NEPA requires assessment of all “reasonably foreseeable” impacts before an “irretrievable commitment of resources” is made. 42 U.S.C. § 4332(2)(C)(v). Courts consistently hold that “issuing an oil and gas lease without an NSO [no surface occupancy] stipulation constitutes such a commitment.” N.M. ex rel. Richardson v. BLM, 565 F.3d at 718, citing Pennaco Energy, Inc. v. United States DOI, 377 F.3d 1147, 1160 (10th Cir. 2004), Sierra Club v. Peterson, 230 U.S. App. D.C. 352, 717 F.2d 1409, 1412 (1983). Agency regulations confirm the same. See, e.g., BLM Handbook H-1624-1 (“By law, these impacts must be analyzed before the agency makes an irreversible commitment. In the fluid minerals program, this commitment occurs at the point of lease issuance.”).

Here, though, the Proposed Rule ignores the Forest Service’s independent and affirmative duty to consider potential impacts at the leasing stage, and go so far as to strip the process that ensures agency compliance with NEPA. Meanwhile, the agency has also proposed to remove direct references to NEPA in §228.102(c) and §228.102(e)(1) of the existing regulations. Rather than acknowledging settled law and maintaining procedures that ensure NEPA compliance prior to the sale of new leases on National Forest lands, the proposed regulations attempt to avoid and subvert the goals of NEPA, in clear violation of the law and the intent of Congress.

Under the current Forest Service oil and gas regulations, the agency is required to undertake a broad programmatic availability analysis and decide what lands should be opened or closed to leasing. 36 C.F.R. §228.102(c). The availability decision dictates what lands may be open to leasing for decades and the analysis is revised only every 20 years or so. At the leasing stage, current regulations require the Forest Service to verify that NEPA has been adequately addressed and that no significant new information or changed circumstances necessitate updated analysis. 36 C.F.R. §228.102(e). To achieve this, Forest Service executes a brief NEPA Verification and Validation Form (VVF)—a checklist of relevant criteria to help agency officials ensure existing NEPA adequately covers the decision to be made. Although brief, this review has an important standalone purpose that must be met by the Forest Service, and is not redunadane. As the agency tasked with managing these lands, the Forest Service – not BLM – has the primary experience, knowledge, and expertise to analyze impacts on specific areas and make these decisions. Further, since leasing availability decisions may be a decade or more old when leasing decisions are made, the likelihood of new information and changed circumstances is high. And, because leasing decisions represent an irretrievable commitment of resources, it is critical for the Forest Service to have in place an affirmative process to consider new information and changed circumstances.

Nonetheless, the Proposed Rule eliminates a step in the leasing process that directs the Forest Service to verify the adequacy of existing NEPA at the lease sale stage, and to make modifications to a lease that may be necessitated by new information and changed circumstances. The proposed regulations also eliminate any process for reviewing stipulations, which sometimes require update and modification, and they remove any opportunity for the Forest Service to ensure that surface occupancy is possible on a nominated parcel.

The PEA underscores the import of this NEPA verification step by confirming that provisions necessary for protection of National Forest resources, like roadless areas, for example, are sometimes not added until specific lands are authorized for lease:

Under procedures in the current oil and gas regulations, requirements to follow roadless rule provisions are incorporated during the leasing availability analysis in section 228.102(d), or during authorizing specific lands for lease section 228.102(e).

PEA, p. 30 (emphasis added). There could be many reasons that necessary protections are not addressed in a programmatic leasing decision. For example, protections may be necessary based on new information and changed circumstances that transpired after a leasing availability decision was finalized and prior to consideration of a new nomination.

The agency ignores this potential problem in its analysis of the Proposed Action, however, by claiming that “any new leases in roadless areas would include applicable lease notices or stipulations, as applicable, for roadless area protection.” PEA at 36. This ignores the fact that leasing availability decisions are made on long intervals and involve broad geographic areas. By stripping the agency of any procedures to validate NEPA, assess the adequacy of proposed stipulations, and confirm other important details of a proposed lease nomination prior to the sale of that lease, the Forest Service is subverting procedural and analytical requirements of NEPA.

The new regulations assume that a leasing availability decision, even one that may have been made a decade or more in the past, would satisfy the Forest Service’s obligations under NEPA and adequately reflect new information and changed circumstances, and that once an availability decision is made there is no longer a need to ensure nominated parcels allow surface occupancy. The new regulations provide that the Forest Service can withdraw consent to lease prior to a lease sale (see proposed regs at § 228.103(e)), and the agency claims that this will “allow more flexibility to consider changed circumstances and to address new resource issues as they arise.” PEA at 34. However, the Proposed Rule eliminates any standards or criteria the Forest Service could use to support withdrawal of consent. These changes, combined with removal of direct references to NEPA in the original §228.102(c) and §228.102(e)(1), represent a clear intent to subvert and circumvent the law’s requirements. Elimination of the verification step prior to leasing will result in more confusion and conflict, rather than more flexibility.

Importantly, the Forest Service has an independent obligation to comply with NEPA at the lease sale stage, using site-specific analysis, before an irretrievable commitment of resources is made. That obligation cannot be met with a BLM-prepared analysis undertaken at the lease sale stage alone. A federal agency does not satisfy NEPA “by simply relying on another agency’s conclusions about a federal action’s impact on the environment.” Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Comm’n, 146 App. D.C. 33, 449 F.2d 1109, 1122-27 (D.C. Cir. 1971). For example, the Fourth Circuit recently vacated a special use permit granted by the Forest Service for the Atlantic Coast Pipeline because the agency failed to undertake the required “independent review” of the proposal, instead adopting another agency’s EIS that did not consider factors that the Forest Service must. See Cowpasture River Pres. Ass’n Forest Serv., 911 F.3d 150, 170-73 (4th Cir. 2018), cert. granted on other grounds, United States Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 207 L. Ed. 2d 186 (2020))..

It is possible that the Forest Service could adopt an analysis undertaken by BLM at the lease sale stage. 40 C.F.R. § 1506.3(c); see also Anacostia Watershed Soc’y v. Babbitt, 871 F. Supp. 475, 485 (D.D.C. 1994) (adoption guidelines apply to EAs and EISs). However, to do that, the Forest Service would have to perform its own “independent review,” 40 C.F.R. § 1506.3(c), and determine for itself that the analysis adequately addresses all of the likely significant environmental impacts, and then issue its own decision. That is what happens under the current regulations, where the Forest Service explicitly verifies site-specific NEPA analysis before determining to not object under FOOGLRA.

The proposed new regulations do not require—or even discuss—adoption and consent. Nor do they provide any other framework, standards, or direction for how the Forest Service will comply with its NEPA obligations at the lease sale stage. Instead, the new regulations abdicate all affirmative responsibilities and fail to conform to national environmental policy outlined by Congress in NEPA. See Massachusetts v. EPA, 549 U.S. 497, 532–33 (2007) (agency charged with implementing a statute generally lacks authority to deviate from or abdicate its statutory responsibilities).

D. The Proposed Rules are arbitrary and capricious in violation of the Administrative Procedure Act.

The proposed rules also fail to provide a reasoned explanation of the costs and benefits of the changes to Forest Service regulations. As discussed above, the Forest Service’s assertion that the proposed rules will have no effect on the rate of oil and gas leasing and development contradicts the entire premise of this rulemaking, as well as its own figures on the “backlog” of pending lease parcels.

But even accepting the theory that these rules won’t promote more drilling on national forest lands, the Forest Service’s assessment of costs and benefits is arbitrary and capricious.

According to the Draft RIA, the only measurable benefit of the proposed rules would be $100,000-$200,000 in administrative savings each year. Draft RIA, p. v (“the total or aggregate net benefits associated with the proposed rule . . . are likely to be small or slightly more than the estimated $100,000 to $200,000 per year for leasing analysis and processing expressions of interest”). Those savings would result from no longer preparing occasional supplemental EISs updating Forest Service leasing availability decisions.9Draft RIA, p. 13 (noting that seven such SEISs have been prepared over 21 years since 1998, and estimating that 50-100% of those SEISs would have been unnecessary under the proposed rules)  Those savings are de minimis: the entire $100-$200,000 nationwide savings from the proposed rules amount to only 1-4% of the cost to drill a single well. 10See Draft RIA, pp. 5, 12 (estimating that most wells drilled on national forest or grasslands today cost $5-$8 million to drill)

The Forest Service, however, never accounts for the environmental cost of those minimal savings because it takes the position that failing to update its environmental analyses will have no impact on protection of forest resources. Draft RIA, p. 10 (“Environmental and public health and safety protections . . . are not affected by the proposed revisions and are therefore not a component of the analysis.”); see also NEPA discussion, above. This approach is arbitrary and capricious because there will be a significant environmental cost from eliminating Forest Service review and authorization at the lease sale stage.

There is a reason the Forest Service has been preparing supplemental EISs: they are often necessary to make an informed and protective decision on proposals to lease specific lands. As discussed elsewhere in these comments and our ANPR Comments, forest-wide leasing availability decisions are often decades old when individual parcels are considered for leasing. Moreover, the forest-wide analyses are very broad in scope and typically lack any detail regarding specific areas. For example, in its Southern region, the Forest Service has typically made such availability decisions during forest plan revisions. The analysis in the forest plan EISs, however, is not site-specific. Therefore, it does not address potential impacts of leasing and drilling on specific lands, waters, habitats, and recreational and scenic values. Moreover, given that many of these forest plans were last revised before unconventional oil and gas development became widespread, the underlying EISs contain no analysis of the effects of modern oil and gas drilling and hydraulic fracturing. These stale EISs would be entirely inadequate to support or tier to decisions made decades later regarding whether to consent to lease sales. See, e.g., Revised Land and Resource Management Plan for the Jefferson National Forest (January 2004). As a result, eliminating lease-sale review and authorization by the Forest Service virtually ensures that BLM will overlook important resources and new information relevant to environmental concerns. The Forest Service ignores those risks.

The existing rules recognize this point, expressly requiring a finding by the Forest Service that individual leases were “adequately addressed in an environmental document,” and stating in the 1990 preamble that “[i]f existing environmental document(s) are not adequate to satisfy NEPA, additional environmental document(s) will be prepared,” and the Forest Service cannot authorize those leases until they are complete. 55 Fed. Reg. at 10,430.

In effect, the Forest Service highlights alleged “benefits” from its proposed rules—avoiding expenses for additional review and NEPA analysis—while asserting the environmental costs of those changes are “not a component of the analysis.” Draft RIA at 10. This is classic arbitrary and capricious decision-making. See Michigan v. EPA, 576 U.S. 743, 752 (2015) (Administrative Procedure Act requires agencies to consider both costs and benefits of their decisions); Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1198–1203 (9th Cir. 2008) (agencies “cannot put a thumb on the scale by undervaluing the benefits and overvaluing the costs of more stringent standards”); Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30-31 (1983) (rulemaking is arbitrary and capricious if agency “entirely failed to consider an important aspect of the problem”).

E. The Forest Service has failed to comply with the Endangered Species Act.

“The Forest Service recognizes that listed species and critical habitat are likely to be present on National Forest System lands, and future oil and gas activities may be considered in the same areas.” PEA, p. 11. Nonetheless, “the Forest Service has made a ‘no effect’ determination for the purposes of the Endangered Species Act, and is sharing that finding with the U.S. Fish and Wildlife Service and National Marine Fisheries Service.” Id. The Forest Service claims that consultation is not required until the leasing or project stage, when it will have a better understanding of impacts. However, the Forest Service has also committed to increasing the speed at which leasing and development is approved while decreasing environmental review.

As discussed in detail in our NOPR Comments (Exhibit 1, pp. 10-11), the threshold for consultation under the Endangered Species Act (ESA) is low and promulgating nation-wide regulations triggers the consultation obligation. Interior Department regulations implementing the ESA broadly define the scope of agency actions subject to consultation. See 50 C.F.R. §402.02 (definition of action). “Examples [of actions] include, but are not limited to: . . . (b) promulgation of regulations.” Id.; accord Forest Guardians v. Forsgren, 478 F.3d 1149, 1159 (10th Cir. 2007) (emphasizing that “the very definition of ‘action’ in § 402.02 tells us that ‘promulgation of regulations’ . . . constitutes ‘action’”). “Actions” that courts have recognized “may affect” listed species include the issuance of a new, nationally-applicable regulation that is less protective than an earlier version of the regulation which “would impose greater protections.” Cal. ex rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1019 (9th Cir. 2009); see also All. for Wild Rockies v. U.S. Dept. of Agric., 772 F.3d 592, 598–99 (9th Cir. 2014) (“[W]e have recognized that environmental management plans constitute federal agency actions under the ESA.”); Citizens for Better Forestry v. U.S. Dept. of Agric., 481 F. Supp. 2d 1059, 1097 (N.D. Cal. 2007) (“[P]rogrammatic rules . . . are covered by ESA’s procedural requirements.”).

The Forest Service’s conclusion that there will be no effect requiring consultation under the ESA is similar to its conclusion that there will be no significant impact under NEPA – it is contradicted by the breadth of the Proposed Rule and the likely consequences despite the Forest Service’s efforts to claim otherwise. The Forest Service must consult with U.S. Fish and Wildlife Service to comply with the ESA.

II. The specific proposed revisions should not be adopted.

As discussed above, this rulemaking process is inconsistent with the Forest Service’s legal obligations. The specific revisions proposed to the current rules are similarly inconsistent and should not be adopted.

A. The Proposed Rule improperly removes the requirement to obtain Forest Service consent before leasing specific lands.

As discussed in detail above, FOOGLRA provides: “The Secretary of the Interior may not issue any lease on National Forest System Lands reserved from the public domain over the objection of the Secretary of Agriculture.” 30 U.S.C. § 226(h). This statutory provision is mirrored in the BLM’s leasing regulations, which provide: “The authorized officer shall not issue a lease and shall reject any lease offer on lands to which the surface managing agency objects or withholds consent required by statute.” 43 C.F.R. § 3101.7-2(b). Notably, BLM’s regulations also provide that: “The authorized officer shall review all recommendations and shall accept all reasonable recommendations of the surface managing agency.” 43 C.F.R. § 3101.7-2(c). The Memorandum of Understanding also confirms the two agencies’ roles, including a provision that BLM cannot offer or issue leases without the agreement of the Forest Service.

The current regulations address specific lands for leasing separately from determining lands available for leasing under a forest land and resource management plan or a leasing analysis:

Leasing decisions for specific lands. At such time as specific lands are being considered for leasing, the Regional Forester shall review the area or Forest-wide leasing decision and shall authorize the Bureau of Land Management to offer specific lands for lease subject to:

(1) Verifying that oil and gas leasing of the specific lands has been adequately addressed in a NEPA document, and is consistent with the Forest land and resource management plan. If NEPA has not been adequately addressed, or if there is significant new information or circumstances as defined by 40 CFR 1502.9 requiring further environmental analysis, additional environment analysis shall be done before a leasing decision for specific lands will be made. If there is inconsistency with the Forest land and resource management plan, no authorization for leasing shall be given unless the plan is amended or revised.

(2) Ensuring that conditions of surface occupancy identified in § 228.102(c)(1) are properly included as stipulations in resulting leases.

(3) Determining that operations and development could be allowed somewhere on each proposed lease, except where stipulations will prohibit all surface occupancy.

36 C.F.R. § 228.102(e). However, the Proposed Rule removes this separate step in the process, including only a reference in 36 C.F.R. § 228.103(e): “The authorized Forest Service officer may withdraw consent to lease prior to a Bureau of Land Management lease sale.” This reference is insufficient to ensure that the Forest Service is provided an opportunity to review lease parcels before they are included in a specific lease sale.

If the Forest Service updates this regulation, it should be to strengthen the requirements for ensuring there is sufficient NEPA and protective conditions. On the Wayne National Forest in Ohio, the Forest Service’s decision to rely on a 2006 Forest Plan EIS, and not accept public comment, to justify its consent to 2017 BLM leasing proposals has frustrated the ability of the public to present relevant information to the agency. Prior lease sales proposed in Alabama and elsewhere in the East, such as West Virginia, Ohio, and Arkansas, generated significant public outcry due to the lack of site-specific environmental analysis of leasing particular parcels. Such analysis and an opportunity for public input would have revealed the failure to anticipate conflicts with important resources and public uses of the forests.

Similarly, in 2017, the Forest Service proposed consenting to lease of up to 54,000 acres of National Forest System lands within the Ruby Mountains District of the Humboldt-Toiyabe National Forest, including lands with exceptional recreational and scenic value, and containing habitat for Lahontan Cutthroat Trout, mule deer, greater sage-grouse, and significant cultural resources. The relevant land and resource management plan from 1986 predates the 1987 Federal Onshore Oil and Gas Leasing Reform Act, which established the Forest Service’s consent requirement for oil and gas leasing, and hence cannot constitute a valid determination of availability nor consent to leasing.11See U.S. Dep’t of Agriculture, Amendment #9, White Pine and Grant-Quinn Oil and Gas Leasing Availability Analysis, Humboldt National Forest Land and Resource Management Plan, pp. 1-6 (2000)  The Forest Service ultimately prepared an oil and gas leasing availability analysis, including a NEPA analysis, and determined these lands should not be available for leasing. 12Decision Notice and Finding of No significant Impact for Ruby Oil and Gas Leasing Availability Analysis, available at: The decision was based on: public concerns, geologic conditions, natural amenities, consideration of environmental effects, Tribal concerns, and economic considerations. Decision Notice, p. 3. This updated evaluation led to a more informed outcome and the Forest Service should be protecting its authority and strengthening the requirements to ensure changed conditions are addressed, not ceding its decision-making authority to the BLM.

B. The Forest Service should retain and strengthen public and agency oversight of surface use plan of operation approval processes.

The Forest Service should retain provisions that provide oversight by the public and the agency itself for decisions to approve a surface use plan of operation (SUPO). In accordance with BLM regulations, prior to any surface-disturbing activities for leases on public lands, a lessee must submit an application for permit to drill (APD) for each planned well site, which includes a SUPO that describes the prosed drilling program. 43 C.F.R. § 3162.3-1(c). The SUPO must address the environmental hazards of drilling and mitigation efforts for such hazards. Id. § 3162.3-1(d), (e). As required by the existing Forest Service regulations, additional requirements exist for SUPO approval of oil and gas operations on National Forest lands. 36 C.F.R. § 228.107. Such additional requirements are one of the only opportunities where the Forest Service and the public can ensure that specific impacts to surface resources are avoided, minimized, or mitigated to satisfy its various land management obligations. However, as laid out below, the Proposed Rule undermines this crucial oversight opportunity by removing public notification requirements and the ability for the Forest Service to provide oversight and review of a SUPO prior to final approval. These revisions should be abandoned.

Additionally, the PEA for the Proposed R makes note of the proposed changes to SUPO procedures and mentions the average 35 SUPOs approved per year from 2013-2017. However, the PEA does not analyze the impacts of the proposed changes on public participation and agency review of SUPOs. In particular, the Forest Service should provide data regarding the levels of public participation in response to SUPO decisions. The Forest Service should also disclose the additional conditions beyond what the applicant provided that are imposed by the agency as a part of its SUPO review, and how those conditions have protected surface resources. Such disclosure would allow for full analysis of impacts associated with the proposed changes of SUPO review.

1. The Forest Service should retain and strengthen public engagement opportunities, including by retaining the requirement that the forest officer give public notice of the decision to approve a SUPO.

The Forest Service should retain provisions that notify the public about decisions to approve a SUPO. Under the existing regulations, the “authorized Forest officer shall give public notice of the decision on a [SUPO] and include in the notice that the decision is subject to appeal under 36 CFR part 214 or 215.” 36 C.F.R. § 228.107(c). Prior to sending its decision to BLM, the existing regulations require public notice of the Forest Service’s ultimate decision on the SUPO, including the outcome of any appeal. Id.; see Ctr. for Biological Diversity v. U.S. Forest Serv., 444 F. Supp. 3d 832, 843 (S.D. Ohio 2020).

In general, SUPO decisions provide important information about activities resulting from oil and gas proposals. In a SUPO decision, the Forest Service ensures adequate measures to protect surface resources. 36 C.F.R. § 228.107(a). The public is often one of the best sources of information on what surface resources may be present and what measures are important to consider. Indeed, public input on SUPO decisions has had significant impacts. As just one example, in response to a forest supervisor decision authorizing a SUPO in the Gunnison National Forest, groups filed an appeal challenging the approval. 13U.S. Forest Service, Letter to Kyle Tisdale (Jun. 14, 2013), available at: As a result of the public participation, the forest supervisor subsequently withdrew the decision. 14Id.

Despite the importance of public notice and participation in these decisions, the proposed rule removes the language requiring public notice of a decision on a SUPO. In support, the preamble states the proposed rule removes “obsolete references to Agency administrative appeal procedures since they are no longer in use, in deference to the Agency’s existing administrative appeal regulations at 36 CFR part 214 and the Agency’s objection procedures at 36 CFR part 219.” 85 Fed. Reg. at 54,317. However, instead of updating any obsolete references to reflect current appeal and objection procedures, the Forest Service attempts to remove the public notice requirement entirely.

The Forest Service should continue to provide public notice of a decision to approve a SUPO and enshrine opportunities for public participation and appeal processes. Moreover, the Forest Service should advance opportunities for public participation and not limit it by eliminating public notice from its regulations. As forest officers make decisions on SUPOs, opportunities for public participation will provide continued oversight and allow for integration of local knowledge into these local decisions.

2. The Forest Service should retain its ability to review SUPOs based on NEPA compliance and the environmental consequences of the operations.

The Forest Service should also retain provisions that allow forest officers to review the environmental consequences of a SUPO and compliance with NEPA. In reviewing a SUPO, the existing regulations reflect the authorized forest officer’s obligation to “comply with [NEPA].” 36 C.F.R. § 228.107(a). The forest officer must also ensure that the SUPO “is acceptable, or is modified to be acceptable, to the authorized Forest officer based upon a review of the environmental consequences of the operations.” Id. § 228.107(a)(4); San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1044 (10th Cir. 2011) (“Before approving the SUPO, the Federal Defendants must ensure that the SUPO is consistent with federal law, and, for wells in the San Juan Forest, the Forest Plan”) (internal citation omitted); see also Wyo. Outdoor Council v. Bosworth, 284 F. Supp. 2d 81, 83 (D.D.C. 2003) (“The Forest Service evaluates the SUPO for its environmental consequences and stipulation consistency and either approves it as submitted, approves it subject to conditions, or disapproves it”).

Currently, forest officers consider existing NEPA analysis, environmental effects, and environmental consequences in their decisions regarding a SUPO and provide their analysis in their decision notices. For example, in a Forest Service decision authorizing a SUPO in the Shoshone National Forest, the Forest Service relied on an environmental assessment (“EA”) prepared jointly with BLM for the APD and SUPO.15U.S. Forest Service, Decision Notice and Finding of No Significant Impact, Scott Well #2 Wind River Ranger District 2-3 (Apr. 25, 2011), available at:; Shoshone National Forest Wind River Ranger District and Bureau of Land Management Lander Field Office, Scott Well #2 Project Final Environmental Assessment (Apr. 22 2011), available at:  The forest officer approved the SUPO with the project design features described in the EA and issued a finding of no significant impact (FONSI) based on review of the EA.16U.S. Forest Service, Decision Notice and Finding of No Significant Impact, Scott Well #2 Wind River Ranger District 2-3 (Apr. 25, 2011), 5, available at: The Shoshone National Forest SUPO decision also identified key issues and environmental consequences from the EA, including the effects of the proposal on grizzly bears, lynx, elk, and water quality.17Id. at 2-3.  Other recent SUPO decisions analyze the numerous environmental consequences of approval. 18See U.S. Forest Service, Surface Use Plan of Operations Approvals Associated with North Fork Mancos Master Development Plan for Oil and Gas Exploration and Development Decision Notice 4-7 (Jan. 20, 2020), available at: (analyzing the effects of the SUPO on big game forest access, Colorado Roadless Areas, water resources, air quality, greenhouse gases, and emergency response)

Despite the importance of analyzing the environmental consequences and integrating their consideration into SUPO decisions, the proposed rule eliminates references to NEPA and purports to remove the forest officer’s regulatory obligation to ensure environmental consequences are considered. Under the proposed rule, a SUPO must “[contain] the mandatory components of Onshore Order 1 and § 228.105,” be “consistent with the lease, including the lease stipulations, and applicable Federal laws,” and be “consistent with, or can be modified to be consistent with, the applicable land management plan.” Proposed § 228.107(b)(1-3). Though the preamble states the proposed rule “improve[s] references to Onshore Order 1,” it fails to provide any rationale for removing additional conditions of review by forest Officers on a SUPO. 85 Fed. Reg. at 54,317. While the forest officer should comply with the mandates of Onshore Order 1, it should not lessen its ability to provide additional oversight and environmental analysis. Nor can the proposed rule eliminate or short-circuit the Forest Service’s existing obligations to comply with NEPA.

Notably, the existing regulations provide clarity for the agency and the public about crucial opportunities for consideration of environmental impacts associated with each step in the process. This includes the very granular and site-specific nature of a SUPO— which analyzes impacts that are mostly likely not considered at the programmatic stage. As such, the Forest Service should preserve references to NEPA and reviews of the environmental consequences of operations in SUPO decisions.

C. The Proposed Rule significantly and improperly expands the conditions under which a forest officer may grant an operator an extension of a deadline to come into compliance.

Additionally, the Forest Service should retain the narrow conditions where an operator may request and a forest officer may grant an extension of a notice of noncompliance. The existing regulations provide that a forest officer shall issue a notice of noncompliance when

the operator is not in compliance with a reclamation or other standard, a stipulation included in a lease at the direction of the Forest Service, an approved surface use plan of operation, the regulations in this subpart, the applicable onshore oil and as order, or an applicable notice to lessees, transferees, and operators.

36 C.F.R. § 228.113(a). In the existing regulations, the operator may request a deadline extension for a notice of noncompliance, but the forest officer shall not extend a deadline specified in a notice of noncompliance unless:

The operator requested an extension and the authorized Forest officer finds that there was a condition beyond the operator’s control, that such condition prevented the operator from complying with the notice of noncompliance by the specified deadline, and that the extension will not adversely affect the interests of the United States. Conditions which may be beyond the operator’s control include, but are not limited to, closure of an area in accordance with 36 CFR part 261, subparts B or C, or inaccessibility of an area of operations due to such conditions as fire, flooding, or snowpack.

36 C.F.R. § 228.113(a)(2). In other words, there are stringent conditions limiting when an operator may be granted an extension so as not to undermine compliance with the operator’s various obligations designed to protect national forest resources and ensure compliance with the law.

Despite this, the Proposed Rule unduly grants extensive latitude to operators for deadline extensions for notices of noncompliance. Section 288.112(c) of the proposed rule provides:

The operator may request an extension of a deadline specified in a notice of noncompliance if the operator is unable to come into compliance by the deadline. The operator has sole discretion to extend compliance deadlines.

If finalized, operators could create their own deadlines and be in a period of indefinite noncompliance without oversight from the Forest Service. This creates a scenario where the Forest Service cannot enforce its own laws, policies, and regulations and could render meaningless various requirements designed to protect surface resources. In other words, the fox would be guarding the henhouse. Nor does the preamble provide adequate reasoning for this shift in responsibility. The preamble merely states “[t]he proposed rule would clarify an operator’s opportunity to correct issues of noncompliance” and “update the methods for notifying operators of noncompliance issues by including electronic means of notification.” 85 Fed. Reg. 54,318.

The Forest Service must continue to monitor and address instances of noncompliance and retain authority over deadline extensions for notices of noncompliance. Moreover, such deadline extensions should only be granted in specific instances where there is a condition beyond the operator’s control. Thus, the Forest Service should maintain its existing rules for granting deadline extensions for notices of noncompliance.

D. The Forest Service should not incorporate a least restrictive constraints approach to defining lease stipulations.

The Proposed Rule would add language to 36 C.F.R. § 228.103(b)(6) to provide that lease stipulations shall be “only as restrictive as necessary to protect the resources for which the stipulations are applied.” While the Forest Service indicates that this language is required by the Energy Policy Act of 2005, it does not clarify its meaning or reiterate the importance of complying with its particular obligations for managing national forests and grasslands. This language can be read to undermine consideration of resource protection and shift the focus to how development can be allowed. Further, by including this in a section that addresses how stipulations will be “consistently applied and coordinated between agencies,” the Forest Service implies that the BLM’s stipulations or approach to managing resources would simply be applied to leases for development on Forest Service lands. The Forest Service should not merely incorporate these standards.

The Forest Service’s oil and gas regulations must be clear that lease stipulations will reflect the Forest Service’s mission and mandate under NFMA and the MUSYA, and will be crafted to protect the renewable resources of national forests and grasslands. Where National Forest System resources play an important role in mitigating the effects of emissions from energy development activities as noted by the Forest Service itself in the Proposed Rule,19Preliminary EA, pp. 14-15  the Forest Service must explicitly consider how using the “least restrictive” language as written would lead Forest System unit managers to approve leases without supporting the appropriate balance among uses that must be achieved under NFMA and MUSYA. Courts have rejected arguments in the past that energy development must be allowed to accommodate multiple use. See e.g. N.M. ex rel. Richardson, 565 F.3d at 710 (“BLM argues that an alternative that closes the entirety of the Otero Mesa to development violates the concept of multiple use. But this argument misconstrues the nature of FLPMA’s multiple use mandate. The Act does not mandate that every use be accommodated on every piece of land; rather, delicate balancing is required.”).

Rather, the Secretary and individual National Forest System unit managers must consider the stipulations needed to protect the renewable resources of national forests and grasslands. This may at times mean imposing stipulations that are more restrictive than the BLM might not impose in a similar situation. Therefore, while the language from the Energy Policy Act of 2005 may be applicable to leasing National Forest System lands, the Forest Service should make clear that the language is more nuanced than its plain text and does not discharge the unique statutory obligations the Forest Service must also satisfy.

E. The Forest Service can and should regulate development even when it does not hold the mineral interest.

The Proposed Rule adds language to 36 C.F.R. § 228.100(b): “These regulations do not apply to development of nonfederal oil and gas interests pursuant to reserved and outstanding rights.” While valid existing rights may interfere with the Forest Service’s regulation of the leasing process, the Forest Service still has an obligation to manage national forests and grasslands to protect the value of other renewable resources and multiple uses. As the manager of the surface, the Forest Service has the authority to impose conditions as part of granting access. The Forest Service can impose restrictions on development through conditions of approval to protect important ecological and cultural values, such as requiring directional drilling from existing well pads or phasing development to ensure limited disturbance at any given time, and to require preparation of NEPA analysis. Federal agencies have exercised this authority previously where needed to protect other resources. For instance, in 2008, the BLM required preparation of an environmental impact statement as part of a request to conduct a 2-D seismic exploration project in the Carrizo Plain National Monument, even though the lease at issue was for private minerals. See, letter from Tim Smith, Monument Manager, to Vintage Petroleum, attached as Exhibit 3.

Instead of adding the proposed language, the Forest Service should clarify that, while it cannot necessarily control the issuance of leases for development of nonfederal oil and gas interests, it can and will seek to evaluate environmental impacts, ensure they are addressed prior to permitting access, and exercise its authority to avoid and minimize adverse impacts to surface resources. If the Forest Service does not do so, it needs to expand its NEPA analysis for the proposed rules to address the reasonably foreseeable impacts to national forest resources from an abdication of Forest Service authority on split estate lands with nonfederal minerals.

F. Inspections and compliance requirements should not be weakened.

The Forest Service must maintain a robust inspection and compliance regime to protect our resources from oil and gas pollution on Forest Service lands.  Operators also owe similar duties to all of us who use and enjoy Forest Service resources. This proposed rule substantially absolves both the Forest Service and the oil and gas operators from critical aspects of inspections, compliance, and enforcement.

Troublingly, proposed new 36 C.F.R. § 228.111 removes the existing law’s (228.112(c)) directive 2036 C.F.R. § 228.112(c) reads: Compliance with other statutes and regulations. Nothing in this subpart shall be construed to relieve an operator from complying with applicable Federal and State laws or regulations, including, but not limited to: (1) Federal and State air quality standards, including the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.); (2) Federal and State water quality standards, including the requirements of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.); (3) Federal and State standards for the use or generation of solid wastes, toxic substances and hazardous substances, including the requirements of the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq., and its implementing regulations, 40 CFR chapter I, subchapter J, and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., and its implementing regulations, 40 CFR chapter I, subchaper I; (4) The Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and its implementing regulations, 50 CFR chapter IV; (5) The Archeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part 296; (6) The Mineral Leasing Act of 1920, 30 U.S.C. 1981 et seq., the Mineral Leasing Act of Acquired Lands of 1947, 30 U.S.C. 351 et seq., the Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1701 et seq., and their implementing regulations, 43 CFR chapter II, group 3100; and (7) Applicable Onshore Oil and Gas Orders and Notices to Lessees and Operators (NTL’s) issued by the United States Department of the Interior, Bureau of Land Management pursuant to 43 CFR chapter II, part 3160, subpart 3164 that operators must also comply with laws other agencies administer. These include many major environmental statutes like the Clean Water Act, Clean Air Act, the Endangered Species Act, as well as cultural protection and oil and gas leasing laws. While removing this section does not change whether operators must still comply, it signals the Forest Service’s intent to help operators who may be noncompliant with other agency statutes.

1. 228.112 Notice of Noncompliance

Under existing regulations, noncompliant operators shall receive a notice of noncompliance.2136 C.F.R. § 228.113(a)  This proposal requires noncompliance notices allow for cure (85 Fed. Reg. at 54326). It also removes the penalty for continued noncompliance (up to 6 months imprisonment or $500 fine, 36 CFR 261.1(b)).

2. Extensions of Deadlines for Noncompliance

Under existing regulations, noncompliant operators may not receive compliance deadline extensions unless the Forest Manager determines that conditions beyond the operator’s control prevented timely compliance.2236 C.F.R. § 228.112(a)(2)  Now, operators receive these extensions upon written request. This proposal also affords noncompliant operators a new avenue to appeal an extension denial, allowing operators to further delay compliance.23See (36 C.F.R. § 214.4(b)(1). The appeal process for Forest Service decisions already exists. What is new is allowing operators to use this process to appeal deadline extensions for noncompliance

3. Suspension of operations

Current rules already require the Forest officer to suspend noncompliant operations, or portions thereof, likely to result in irreparable resource damage. The suspension continues until the operator comes in to compliance.2436 C.F.R. § 228.113(b)(2)  This proposal now allows operators to resume before fully coming in to compliance as long as the Forest officer decides the damage is “no longer likely” (85 Fed. Reg. at 54326).

4. Material noncompliance

Under current regulations, if an operator does not comply by the deadline, the Forest officer must weigh and decide the severity of noncompliance. If it is material, the Forest officer must refer the matter to a compliance officer.2536 C.F.R. § 228.13(b)  None of this is discretionary.

Under this proposal, the materiality determination and compliance referral are largely discretionary. In fact, the Forest Service now lists referral to a compliance officer third behind (also discretionary) referring to BLM or to the Forest Service’s general (part 261)- rather than material- violations department.

The Forest Service already has an established and fair material noncompliance review process at 36 C.F.R. § 228.114. This proposal unfairly tips the material noncompliance review scale toward violators. The only place where this proposal directs material noncompliance violations to a compliance officer is after the irreparable damage has occurred, and only then to insure against and reimburse costs (85 Fed Reg. 54326).

Under this proposal, a compliance officer now just reiterates the same considerations already weighed during the initial noncompliance decision- whether the matters remain pending in front of BLM, another agency, or a judge. And the compliance officer then factors in the “seriousness” of the violation’s effects. And to compound the risks, violations only become material where the effects are irreparable (85 Fed. Reg. 54327). Thus, this proposal builds a Forest Service compliance and inspection program based largely on tautology and unaccountability.


We are disappointed that the Forest Service has limited opportunities for engagement in this process, including by limiting comment periods and failing to prepare an EIS. The Proposed Rule does not reflect the Forest Service’s responsibility to protect our national forests and grasslands and to thoroughly evaluate and manage any proposed oil and gas operations. We once again urge the Forest Service to abandon this irresponsible direction and this Proposed Rule.


Nada Culver,
Vice President | Public Lands and Senior Policy Counsel
National Audubon Society
Cell: 303-807-6918
Office: 720-780-8727 x 2004
Daly Edmunds,
Director of Policy and Outreach Audubon Rockies
Natalie Pien, Chair 350 LoudounJonathan Hayes,
Vice President | Executive Director Audubon Southwest
Anna Joy Lehmicke, President Aiken Audubon SocietyDeborah Jensen,
Vice President | Executive Director Audubon Washington
Kate Wofford, Executive Director Alliance for the Shenandoah ValleyOscar Simpson, Public Lands Chair Backcountry Horsemen of New Mexico, Northwest Chapter
Jeff Martin, Director, Communications and Public Affairs
American Anthropological Association
Dr. Jackie Canterbury, President Bighorn Audubon Society
Brendan Mysliwiec,
Director of Federal Policy and Legislation Appalachian Trail Conservancy
Bruce Ackerman, President Black Canyon Audubon Society
Peg Rooney, President
Arkansas Valley Audubon Society
Chris Howard, President
Blue Mountain Audubon Society
Brent Newman, Senior Policy Director Audubon LouisianaEmil Yappert, President
Boulder County Audubon Society
Jill Mastrototaro, Policy Director Audubon MississippiHilary Shughart, President Bridgerland Audubon Society
Andrew Hutson, Executive Director Audubon North CarolinaLinda Castro, Assistant Policy Director California Wilderness Coalition
Michael Saul,
Senior Attorney, Public Lands Program Center for Biological Diversity
Michael J. Painter, Coordinator Californians for Western Wilderness
Denise Stranko,
Federal Legislative and Policy Manager Chesapeake Bay Foundation
Bruce Gordon, President EcoFlight
Terry Harper, President
Cheyenne-High Plains Audubon Society
Thomas Wheeler, Executive Director Environmental Protection Information Center
Jacquelyn Bonomo, President and CEO Citizens for Pennsylvania's FutureJoAnn Hackos, Conservation Chair Evergreen Audubon
Joy Loving, Steering Committee Member Climate Action Alliance of the ValleyAdam Carlesco, Staff Attorney Food & Water Watch
Phil Francis, Chair
Coalition to Protect America’s National Parks
Will Harlan, Executive Director Forest Keeper
Suzanne O'Neill, Executive Director Colorado Wildlife FederationJohn Shenot, President
Fort Collins Audubon Society
Luke Schafer, West Slope Director Conservation ColoradoJim Miller, President Friends of the Bitterroot
Peter Nelson,
Director, Federal Lands Program Defenders of Wildlife
Nicole Ghio,
Senior Fossil Fuels Program Manager Friends of the Earth
Ellie Ezekiel, Environmental Advocate Delaware Nature SocietyPeter Metcalf, Executive Director Glacier-Two Medicine Alliance
Pauline P. Reetz, Conservation Chairman Denver AudubonAmber Reimondo, Energy Program Director Grand Canyon Trust
Mike Evans, Conservation Chair Desert Rivers Audubon SocietyCary Atwood, President
Grand Valley Audubon Society
Michael S. Freeman, Staff Attorney EarthjusticeLeslie Robinson, Chair
Grand Valley Citizens Alliance
Aaron Mintzes, Senior Policy Counsel EarthworksShelley Silbert, Executive Director Great Old Broads for Wilderness
Patrice Mutchnick, Director Heart of the GilaHeather Dove, President Great Salt Lake Audubon
Matt Reed, Public Lands Director High Country Conservation AdvocatesSiva Sundaresan, Director of Conservation Greater Yellowstone Coalition
John Robison, Public Lands Director Idaho Conservation LeagueRussell Kuhlman, Executive Director Nevada Wildlife Federation
Gene Bullock, President Kitsap Audubon SocietyDouglas Bechtel, President New Hampshire Audubon
Kimberly Baker, Executive Director Klamath Forest AllianceThomas Jervis, Ph.D., President New Mexico Audubon Council
Lisa Cox, President Laramie Audubon SocietyOscar Simpson, State Chair New Mexico Sportsmen
Alex Taurel, Conservation Program Director League of Conservation VotersMark Allison, Executive Director New Mexico Wild
Jeff Kuyper, Executive Director Los Padres ForestWatchRobert Kaye, Chairperson
North Cascades Audubon Society
Elaine Stachera Simon, President Mesilla Valley Audubon SocietyKay Hawklee, President
Northern Arizona Audubon Society
Amy Robinson, Conservation Director Montana Wilderness AssociationSusann Beug, Oil and Gas Taskforce Northern Plains Resource Council
Alec Underwood,
Federal Conservation Campaigns Director Montana Wildlife Federation
Robyn Cascade, Leader
Northern San Juan Chapter (Great Old Broads for Wilderness)
Bob Gale,
Ecologist and Public Lands Director MountainTrue
Michael Stocker, Director Ocean Conservation Research
Ani Kame'enui,
Deputy Vice President, Government Affairs National Parks Conservation Association
Allen Gibbs, Vice President Pilchuck Audubon Society
Samuel Eisenberg, Staff Attorney Natural Resources Defense CouncilEmmalee Aman, Policy Director Potomac Conservancy
Andrea Orabona, President Red Desert Audubon SocietyTom Sobal, Director Quiet Use Coalition
Mary Hotvedt, Chair
Rio Grande Chapter (Sierra Club)
Bob Musil, President | CEO Rachel Carson Council
Oscar Simpson, Public Lands Chair Rio Grande IndivisibleDan Streiffert, Conservation Chair Rainier Audubon Society
Dan Crawford, Chair
Roanoke Group of the Virginia Chapter (Sierra Club)
Kristin Davis, Senior Attorney Southern Environmental Law Center
Delia Malone, Vice-Chair Roaring Fork AudubonAlan McCoy, President Spokane Audubon Society
Alison Gallensky, GIS Director Rocky Mountain WildCaitlin West, Vice President
Sun Devil Audubon Student Chapter
Chris Nixon, President Sacajawea Audubon SocietyGloria Flora, Executive Director Sustainable Obtainable Solutions
Jimbo Buickerood,
Program Manager, Lands and Forest Protection Program
San Juan Citizens Alliance
Sharon Fisher, President The Clinch Coalition
Christine Canaly, Director
San Luis Valley Ecosystem Council
Tiziana Bottino, Founder
The Greater Prince William Climate Action Network
Thomas Jervis, Ph.D., President Sangre de Cristo Audubon SocietyMike Petersen, Executive Director The Lands Council
Karen Tuddenham, Executive Director Sheep Mountain AllianceJoshua Hicks,
Assistant Director Forest Policy and Planning
The Wilderness Society
Dan Ritzman,
Director Lands, Water, Wildlife Campaign Sierra Club
Georgie Corkery, Council President Utah Audubon Council
Don Rivenes, Conservation Chair Sierra Foothills Audubon SocietyPat Calvert, Policy and Campaigns Manager Virginia Conservation Network
Dr. Barbara Heath, President Society for Historical ArchaeologyFaith Harris, Interim Co-Director Virginia Interfaith Power & Light
Robin Broder, Deputy Director Waterkeepers ChesapeakeMark Miller, Executive Director Virginia Wilderness Committee
Jean Zirnhelt, President Weminuche Audubon SocietyLynn Carroll,
Conservation Committee Co-Chair Wasatch Audubon Society
Emily Hornback, Executive Director Western Colorado AllianceKate Hudson,
Western U.S. Advocacy Coordinator Waterkeeper Alliance, Inc.
Susan Jane Brown, Wildlands Program Director and Staff Attorney
Western Environmental Law Center
Kelly Fuller,
Energy and Mining Campaign Director Western Watersheds Project
Barbara Vasquez, Chair Oil/Gas Team Western Organization of Resource CouncilsTom Jernigan, Vice-President | Treasurer Liz Jernigan, Secretary
White Mountain Audubon Society
Scott Braden, Interim Executive Director Western Slope Conservation CenterThomas Hollender, President
White Mountain Conservation League
Jayson O'Neill, Director Western Values ProjectJudi Brawer, Wild Places Program Director WildEarth Guardians
John Rader, Conservation Advocate Wyoming Outdoor CouncilPeter Hart, Staff Attorney Wilderness Workshop
Yellowstone to Uintas ConnectionNancy Meister, President Yuma Audubon Society


  1. Scoping comments on Advanced Notice of Proposed Rulemaking, October 15,
  2. Excerpts from FOIA response, 5 pages.