Coalition Joins Comments on the Wyoming BLM 2024 Fourth Quarter Competitive Oil & Gas Lease Sale

THE WILDERNESS SOCIETY
THE COALITION TO PROTECT AMERICA’S NATIONAL PARKS *
POWDER RIVER BASIN RESOURCE COUNCIL *
ROCKY MOUNTAIN WILD *
WYOMING OUTDOOR COUNCIL

May 10, 2024

SUBMITTED VIA E-PLANNING

Andrew Archuleta
State Director
Wyoming Bureau of Land Management
5353 Yellowstone Road
Cheyenne, WY 82009

Project Contacts:
Erik Norelius
en******@bl*.gov
(307) 775-6284

Allen Stegeman
as*******@bl*.gov
(307) 775-6259

Lindsay Abercrombie
la**********@bl*.gov
(307) 332-8429

Re: Scoping Comments on Parcels for the Wyoming Bureau of Land Management 2024 Fourth Quarter Competitive Oil & Gas Lease Sale (DOI-BLM-WY-0000-2024-0004-EA).

Dear State Director Archuleta:

Thank you for the opportunity to submit these scoping comments on parcels under consideration for the Bureau of Land Management’s (BLM’s) Wyoming 2024 Fourth Quarter Oil and Gas Lease Sale. Our organizations and members are deeply invested in sound stewardship of public lands and committed to ensuring that public land management prioritizes the health and resilience of ecosystems, equitably benefits the public, addresses environmental justice, protects biodiversity, and mitigates the impacts of climate change.

We are grateful for both the recently released final Fluid Mineral Leases and Leasing Process Rule (Leasing Rule) and the earlier release of several Instruction Memoranda (IMs) implementing program reforms and provisions in the Inflation Reduction Act (IRA).¹See Inflation Reduction Act of 2022, H.R. 5376, 117th Cong. §§ 50262–50263 (2022). We appreciate the BLM’s attention to properly applying the Leasing Rule’s provisions and the IMs for this lease sale.

I. The BLM holds substantial discretion over public land management and the onshore leasing program with ample authority to defer leases proposed for this sale.

The BLM has substantial discretion over whether to lease agency managed lands for oil and gas development and production. Under the Mineral Leasing Act (MLA), lands “known or believed to contain oil or gas deposits may be leased” by the Interior Department.²30 U.S.C. § 226(a) (emphasis added). If DOI chooses to lease lands, sales are held only “where eligible lands are available.”³Id. § 226(b)(1)(A) (emphases added). For nearly a century, the U.S. Supreme Court and federal circuit courts have consistently recognized this “broad” and “considerable” discretion over the federal onshore leasing program.⁴Udall v. Tallman, 380 U.S. 1, 4 (1965) (“The Mineral Leasing Act [MLA] of 1920 . . . left the Secretary discretion to refuse to issue any lease at all on a given tract.”); United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (ruling that the Interior Secretary possesses “general powers over the public lands as guardian of the people,” which include the authority to deny oil and gas lease applications); W. Energy Alliance v. Salazar, 709 F.3d 1040, 1044 (10th Cir. 2013) (“The MLA, as amended by the Reform Act of 1987, continues to vest the Secretary with considerable discretion to determine which lands will be leased.”); New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 710 (10th Cir. 2009) (“It is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses. . . . Development is a possible use, which BLM must weigh against other possible uses including conservation to protect environmental values. . . .”); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988) (“[T]he Mineral Leasing Act gives the Interior Secretary discretion to determine which lands are to be leased under the statute. . . . Thus refusing to issue the . . . leases . . . would constitute a legitimate exercise of the discretion granted to the Interior Secretary under that statute.”); McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) (“It is clear that the Secretary has broad discretion in this area. While the statute gives the Secretary the authority to lease government lands under oil and gas leases, this power is discretionary rather than mandatory.”); Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1975) (“The permissive word ‘may’ in Section 226(a) allows the Secretary to lease such lands, but does not require him to do so. Although Section 226(c) requires the Secretary to issue the lease to the first qualified applicant if the land is leased, the Secretary has discretion to refuse to issue any lease at all on a given tract.”). The BLM recently affirmed this plain reading of the MLA in the final Leasing Rule, clearly stating that “[a]ll lands eligible and available for leasing may be offered for competitive auction.”⁵89 Fed. Reg. 30,916, 30,985 (Apr. 23, 2024).

Thus, the BLM is not obligated to lease any specific parcel of public land for oil and gas development. The agency retains the authority to defer all lease sale parcels, even after bidding has concluded.⁶See McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) (holding that the “fact that land has been offered for lease does not bind the Secretary to actually lease the land, nor is the Secretary bound to lease the land when a qualified applicant has been selected”); see also Justheim Petroleum v. Dep’t of Interior, 769 F.2d 668, 671 (10th Cir. 1985) (language in 30 U.S.C. § 226 mandating that “lands to be leased … shall be leased to the highest responsible qualified bidder” did not require issuing a lease, but only required awarding lease to that bidder “if [the Secretary] is going to lease at all”); Western Energy All. v. Salazar, No. 10–cv–0226, 2011 WL 3737520, *3–6 (D. Wyo. June 29, 2011) (holding that BLM is not required to issue leases after offering them at auction; it only needs to make a decision within 60 days on whether to issue the leases); 89 Fed. Reg. at 30,945 (“[T]he Secretary retains the discretion to decide, even after lands have been determined to be eligible and available, what lands will ultimately be offered for lease.”). The permanent injunction on the leasing “Stop” issued by the District Court for the Western District of Louisiana does not alter this vast discretion. The scope of the injunction does not cover “Lease Sales cancelled or postponed after March 24, 2021, and as to any lease sales involving non-plaintiff states,” which precludes Wyoming, New Mexico, Colorado, and Nevada, among others. See Louisiana v. Biden, No. 2:21-CV- 00778, 2022 U.S. Dist. LEXIS 148570, at *42 (W.D. La. Aug. 18, 2022). Further, the order enjoins the Administration only from implementing “a Stop . . . as set forth in Section 208 of Executive Order 14008.” Id. The injunction thus poses no obstacle to Interior deferring parcels or completely canceling a lease sale for other reasons.

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• 1
  See Inflation Reduction Act of 2022, H.R. 5376, 117th Cong. §§ 50262–50263 (2022).
• 2
  30 U.S.C. § 226(a) (emphasis added).
• 3
  Id. § 226(b)(1)(A) (emphases added).
• 4
  Udall v. Tallman, 380 U.S. 1, 4 (1965) (“The Mineral Leasing Act [MLA] of 1920 . . . left the Secretary discretion to refuse to issue any lease at all on a given tract.”); United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (ruling that the Interior Secretary possesses “general powers over the public lands as guardian of the people,” which include the authority to deny oil and gas lease applications); W. Energy Alliance v. Salazar, 709 F.3d 1040, 1044 (10th Cir. 2013) (“The MLA, as amended by the Reform Act of 1987, continues to vest the Secretary with considerable discretion to determine which lands will be leased.”); New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 710 (10th Cir. 2009) (“It is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses. . . . Development is a possible use, which BLM must weigh against other possible uses including conservation to protect environmental values. . . .”); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988) (“[T]he Mineral Leasing Act gives the Interior Secretary discretion to determine which lands are to be leased under the statute. . . . Thus refusing to issue the . . . leases . . . would constitute a legitimate exercise of the discretion granted to the Interior Secretary under that statute.”); McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) (“It is clear that the Secretary has broad discretion in this area. While the statute gives the Secretary the authority to lease government lands under oil and gas leases, this power is discretionary rather than mandatory.”); Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1975) (“The permissive word ‘may’ in Section 226(a) allows the Secretary to lease such lands, but does not require him to do so. Although Section 226(c) requires the Secretary to issue the lease to the first qualified applicant if the land is leased, the Secretary has discretion to refuse to issue any lease at all on a given tract.”).
• 5
  89 Fed. Reg. 30,916, 30,985 (Apr. 23, 2024).
• 6
  See McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) (holding that the “fact that land has been offered for lease does not bind the Secretary to actually lease the land, nor is the Secretary bound to lease the land when a qualified applicant has been selected”); see also Justheim Petroleum v. Dep’t of Interior, 769 F.2d 668, 671 (10th Cir. 1985) (language in 30 U.S.C. § 226 mandating that “lands to be leased … shall be leased to the highest responsible qualified bidder” did not require issuing a lease, but only required awarding lease to that bidder “if [the Secretary] is going to lease at all”); Western Energy All. v. Salazar, No. 10–cv–0226, 2011 WL 3737520, *3–6 (D. Wyo. June 29, 2011) (holding that BLM is not required to issue leases after offering them at auction; it only needs to make a decision within 60 days on whether to issue the leases); 89 Fed. Reg. at 30,945 (“[T]he Secretary retains the discretion to decide, even after lands have been determined to be eligible and available, what lands will ultimately be offered for lease.”). The permanent injunction on the leasing “Stop” issued by the District Court for the Western District of Louisiana does not alter this vast discretion. The scope of the injunction does not cover “Lease Sales cancelled or postponed after March 24, 2021, and as to any lease sales involving non-plaintiff states,” which precludes Wyoming, New Mexico, Colorado, and Nevada, among others. See Louisiana v. Biden, No. 2:21-CV- 00778, 2022 U.S. Dist. LEXIS 148570, at *42 (W.D. La. Aug. 18, 2022). Further, the order enjoins the Administration only from implementing “a Stop . . . as set forth in Section 208 of Executive Order 14008.” Id. The injunction thus poses no obstacle to Interior deferring parcels or completely canceling a lease sale for other reasons.