ELECTRONIC TRANSMISSION – NO HARD COPY TO FOLLOW
Submitted via: https://eplanning.blm.gov/eplanning-ui/project/2036978/595/8021245/comment
June 4, 2025
Bureau of Land Management
Montana/Dakotas State Office
Branch of Fluid Minerals
Attention: Hattie Payne
5001 Southgate Drive
Billings, MT 59101
Subject: Comments on Draft Environmental Assessment and Finding of No Significant Impact for the BLM Montana-Dakotas 2025 Fourth Quarter (October) Oil and Gas Lease Sale (DOI-BLM-MT-0000- 2025-0003-EA)
To whom it may concern:
I am writing on behalf of the Coalition to Protect America’s National Parks (Coalition), which represents over 4,100 current, former, and retired employees and volunteers of the National Park Service. Collectively, our membership represents over 50,000 years of national park management and stewardship experience. Our members include former National Park Service directors, deputy directors, regional directors, and park superintendents, as well as a variety of program specialists and field staff. Recognized as the Voices of Experience, the Coalition educates, speaks, and acts for the preservation and protection of the National Park System, and mission-related programs of the National Park Service (NPS).
We appreciate the opportunity to submit these comments on the Draft Environmental Assessment (Draft EA) and Draft Finding of No Significant Impact (Draft FONSI) concerning the Bureau of Land Management (BLM) Montana–Dakotas State Office (MTDKs) proposed Fourth Quarter (Q4) 2025 Competitive Oil and Gas Lease Sale. All nominated parcels are located in McKenzie County, North Dakota. As the BLM prepares for this lease sale and evaluates which parcels to offer for lease, the agency must continue to abide by its obligations under the law and existing policy, including the Fluid Mineral Leases and Leasing Process Rule (Leasing Rule),1https://www.federalregister.gov/documents/2024/04/23/2024-08138/fluid-mineral-leases-and-leasing-process which implements program reforms and provisions in the Inflation Reduction Act. In carrying out this lease sale, the BLM must comply with all applicable federal, state, and local laws and regulations.
I. Introduction
The BLM MTDKs has issued a Draft Environmental Assessment (Draft EA) and Draft Finding of No Significant Impact (Draft FONSI) documenting a review of seven parcels (3,001.31 acres) nominated for auction in its Quarter 4 2025 Competitive Oil and Gas Lease Sale (the Proposed Action). In our scoping comments22 https://protectnps.org/2025/04/01/coalition-comments-on-parcels-under-consideration-for-inclusion-in-the-blm-montana- dakotas-2025-fourth-quarter-oil-and-gas-lease-sale/ about this Proposed Action, we emphasized the need for the BLM to consider deferring on leasing at least 3 parcels from this sale. The parcels we recommended for deferral are ND-2025-10-6882, ND-2025-10-6884, and ND-2025-10-0782, all of which border or are in close proximity to the Theodore Roosevelt Wilderness Area (TR Wilderness or Wilderness Area) located in the North Unit of Theodore Roosevelt National Park (TRNP). We provided documented evidence for why oil and gas developmentis not compatible with the protection of the special recreational, historical, wilderness, and wildlife habitat resources and valuesthat TRNP has to offer. In addition, we identified specific conservation and multiple use conflicts and potential environmental impacts associated with the proposed lease parcels that the BLM is obligated to analyze under applicable law.
In reviewing the Draft EA and Draft FONSI for this sale, it is evident that the BLM has not seriously considered deferring the three parcels identified above. And while the Draft EA mentions potential impacts of the Proposed Action on certain resources at TRNP, the discussion of such impacts falls far short of providing a meaningful analysis of the breadth of potential impacts to resources andvalues within the TR Wilderness. Such impacts are a particular concern because the park’s 2014 Foundation Document3https://www.nps.gov/thro/learn/management/upload/Theodore-Roosevelt-National-Park-Foundation-Document-2014.pdf at p.9. identifies the Wilderness Area as a Fundamental Resource and Value of TRNP:
The Theodore Roosevelt Wilderness and Wilderness Qualities Throughout the Park. Protecting wilderness values is central to the purpose of the park and is a reflection of the conservation ethic advocated by Roosevelt. Opportunities forsolitude and adventure—exemplified by wilderness—drew Theodore Roosevelt to the North Dakota Badlands in the 1880s. Subsequently, the Theodore Roosevelt Wilderness was designated in 1978 and spans 29,920 acres of the park’s North Unit and SouthUnit. In addition to the designated wilderness, the park’s remote setting, natural soundscape, and rugged topography create a sense of solitude for visitors throughout the park’s three units. (Emphasis added)
As we communicated in our scoping comments, NPS concerns about the proliferation of oil and gas development near TRNP and theNPS management emphasis on protecting the park’s landscape setting and wilderness character are well established. The same Foundation Document identifies oil and gas development surrounding the park as TRNP’s “most significant parkwide issue4Id. at p. 14.” and states that:
Energy development outside the park threatens the wilderness character of the Theodore Roosevelt Wilderness as well as the quiet and chance for solitude in other areas of the park such as the Elkhorn Ranch. These threats impact the whole park but may be seen as especially damaging to designated wilderness because the National Park Service is legally required to manage for the preservation of wilderness character. The designated wilderness is relatively small and extends right to the boundary of the park in many places, which makes it especially susceptible to energy development impacts (energy development could be located a very short distance from, and within view of designated wilderness). The character of the natural landscape (generally open, with few trees) also makes it susceptible to these impacts.5https://www.nps.gov/thro/learn/management/upload/Theodore-Roosevelt-National-Park-Foundation-Document- 2014.pdf at p. 27. (Emphasis added)
Despite these concerns, the BLM has offered for leasing three parcels immediately adjacent to the boundary of the TR Wilderness, which lies entirely within TRNP. Specifically, the Draft EA (p. 12) indicates that the three nearest nominated lease parcels are located 0.0 miles (parcel ND2025-10-6884), 0.51 miles (parcel ND-2025-10-0782), and 0.75 miles (parcel ND-2025-10-6882) from the park’s Wilderness Area boundary.
To add to our concern, Table 2-1 of the Draft EA (p. 8) indicates that the BLM “considered but did not analyze” potential impacts to wilderness. By not analyzing potential impacts to the wilderness character of the TR Wilderness in the Draft EA, the BLM has failed to meet its obligations under the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). In addition, the BLM has neglected to consider a reasonable modified leasing alternative that would defer leasing at least some of the proposed parcels, most notably those parcels located immediately adjacent to or within in close proximity to the Wilderness Area boundary in the North Unit of TRNP. For these reasons, we believe that the BLM must defer the following parcels until such time that the bureau has properly and fully assessed the potential impacts of leasing the lands for oil and gas development:
- ND-2025-09-6882
- ND-2025-09-6884
- ND-2025-09-0782
II. The BLM has ample authority to defer lease parcels proposed for this sale.
The BLM is not mandated to lease any particular parcel 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. 30 U.S.C. §226(a) (emphasis added). If DOI chooses to lease lands, sales are held only “where eligible lands are available.” Id. § 226(b)(1)(A) (emphasis 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.6See 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); Mont. Wildlife Fed’n v. Haaland, 127 F.4th 1, 44–45 (9th Cir. 2025) (“We note that there is no doubt that the government has the authority affirmatively to determine which parcels shall be offered for oil and gas leasing, as opposed to passively responding to expressions of interest.”); 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.”); 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.”).
Where conflicts with other uses exist, as it does in this case, the BLM must analyze the deferral of lease parcels. The MLA does not contravene the resource conservation requirements of the Federal Land Policy and Management Act (FLPMA) 43 U.S.C. Ch. 35. Lands merely being designated as “open” for leasing under a particular BLM Resource Management Plan (RMP) does not mean the BLM is required to lease them. Under FLPMA, the BLM must manage public lands according to “multiple use” and “sustained yield” and “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resources, and archeological values.” 43 U.S.C. §§ 1701(a)(7) & (8), 1712(c)(1), 1732(a). Multiple use obligates the agency to make the “most judicious use” of public lands and their resources to “best meet the present and future needs of the American people.” Id. § 1702(c). This requires taking “into account the long-term needs of future generations,” ensuring “harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment.” Id. Sustained yield mandates “achiev[ing] and maint[aining] in perpetuity . . . a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” Id. § 1702(h) (emphasis added). The BLM must “take any action necessary to prevent unnecessary and undue degradation of the lands.” Id. § 1732(b). “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…… ” New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 710 (10th Cir. 2009) (emphasis added).
The BLM is therefore not obligated to lease any specific parcel of public land for oil and gas development. The agency retains the authority to defer any or all lease sale parcels, even after bidding has concluded.7See 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”); Wyoming v. U.S. Dep’t of the Interior, No. 22-CV-247-SWS, 2024 U.S. Dist. LEXIS 235015, at *43 (D. Wyo. Dec. 31, 2024) (“When considering statutory language, the use of the word ‘may’ creates a presumption of discretion under normal rules of statutory interpretation, in contrast with the mandatory ‘shall.’” (cleaned up)); W. Energy All. v. Salazar, No. 10-cv-0226, 2011 U.S. Dist. LEXIS 98380, at *9–23 (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.”). Moreover, where conflicts with other uses exist, as is does in this case, the bureau must affirmatively evaluate deferral of parcels in its alternatives analysis under the National Environmental Policy Act (NEPA). 43 U.S.C. Chapter 55.
III. The BLM must analyze the conservation and multiple use conflicts and environmental impacts associated with the proposed lease parcels, along with evaluating the deferral of parcels based on such conflicts, including through use of leasing preference criteria.
The BLM must evaluate the environmental impacts of this proposed lease sale under NEPA. See e.g., 42 U.S.C. §§ 4331–4347. NEPA fosters informed decision making by federal agencies and promotes informed public participation in government decisions. See Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983). To meet those goals, NEPA requires that the BLM “consider every significant aspect of the environmental impact of a proposed action” and inform the public of those impacts. Id. (internal citation omitted); accord Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,435 U.S. 519, 553 (1978).8See Kleppe v. Sierra Club, 427 U.S. 390, 410, 413 (1976); City of Rochester v. U.S. Postal Serv., 541 F.2d 967, 973–74 (2d Cir. 1976); Concerned About Trident v. Rumsfeld, 555 F.2d 817, 825 (D.C. Cir 1976); City of Davis v. Coleman, 521 F.2d 661, 666-677 (9th Cir. 1975); Brooks v. Coleman, 518 F.2d 17, 18 (9th Cir. 1975); Natural Resources Defense Council v. Callaway, 524 F.2d 79, 89 (2d Cir. 1975); Envtl. Def. Fund, Inc. v. Corps of Eng’rs of U.S. Army, 492 F.2d 1123, 1135 (5th Cir. 1974); Swain v. Brinegar, 517 F.2d 766 (7th Cir. 1975); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1322 (8th Cir. 1974); Natural Resources Defense Council v. Morton, 458 F.2d 827, 834–36 (D.C. Cir. 1972); Hanly v. Kleindienst, 471 F.2d 823, 830-31 (2d Cir. 1972); Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971). The BLM must take a “hard look” at the environmental effects before making any leasing decisions, ensuring “that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50(1989). Environmental “[e]ffects are reasonably foreseeable if they are sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.”Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1371 (D.C. Cir. 2017) (internal quotation omitted).
In considering environmental effects, the BLM must also address whether to defer lease parcels based on conservation or other use conflicts, including by applying the leasing preference criteria to scoping parcels. See 43 C.F.R. § 3120.32. Doing so clearly and consistently is important. A helpful example of clear application of the criteria is in the Environmental Assessment for the Wyoming Quarter Four 2023 Lease Sale. See Bureau of Land Mgmt., Environmental Assessment, DOI-BLM-WY-0000-2023-0004- EA, 2023 Fourth Quarter Competitive Lease Sale, at 18–21 & Table 2.3 (Nov. 2023). There, the BLM included an explanation of each criterion being used, followed by a table designating the preference (low or high). See id. Each parcel that received a “low” designation was deferred, with a brief parenthetical explanation in the chart as to why it was being deferred. See id. We urge the BLM to follow a similar, consistent approach for this lease sale.
In this case, the BLM’s own analysis indicates that the three parcels in question do, in fact, have a “ Low preference for leasing ”under applicable BLM policies. See Appendix J Leasing Preference Rating 9https://eplanning.blm.gov/public_projects/2036978/200643299/20134154/251034134/Appendix%20J%20Leasing%20Preference%2043%20CFR%203120.32.pdf which we summarize here:
- ND-2025-10-6882 (48.16 acres): Is rated “Low” preference on the following four criteria: Proximity to Habitat;Other Important Uses or Resources; Dev. Potential; and High Preference for Leasing; resulting in an overall “Low Preference for leasing” rating.
- North Dakota ND-2025-10-6884 (579.2 acres): Is rated “Low” preference on the following four criteria: Proximity to Habitat; Other Important Uses or Resources; Approx. Dev. Potential; and High Preference for Leasing; resulting in an overall “Low Preference for leasing” rating.
- North Dakota ND-2025-10-0782 (305.55 acres): Is rated “Low” preference on the following four criteria: Proximity to Habitat; Other Important Uses or Resources; Approx. Dev. Potential; and High Preference for Leasing; resulting in an overall “Low Preference for leasing” rating.
Based on their “Low preference for leasing” ratings, the BLM clearly should defer leasing these three parcels; however, the DraftEA does not even consider such a deferral nor explain why the BLM has not considered a deferral alternative. As a result, the BLM should defer leasing the above three parcels pending further analysis. If the BLM does move forward with leasing any parcels that received “Low preference for leasing” designations, then the bureau must explain the specific reasons for doing so.
Determining and applying leasing preference also requires the BLM to evaluate its legal obligation “to take any action requiredto prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). The BLM has defined “unnecessary or undue degradation” as:
…harm to resources or values that is not necessary to accomplish a use’s stated goals or is excessive or disproportionate to the proposed action or an existing disturbance. Unnecessary or undue degradation includes two distinct elements: “Unnecessary degradation” means harm to land resources or values that is not needed to accomplish a use’s stated goals. For example, approving a proposed access road causing damage to critical habitat for a plant listed as endangered under the Endangered Species Act that could be located without any such impacts and still provide the needed access may result in unnecessary degradation. “Undue degradation” means harm to land resources or values that is excessive or disproportionate to the proposed action or an existing disturbance. For example, approving a proposed access road causing damage to the only remaining critical habitat for a plant listed as endangered under the Endangered Species Act, even if there is not another location for the road, may result in undue degradation. The statutory obligation to prevent “unnecessary or undue degradation” applies when either unnecessary degradation or undue degradation, and not necessarily both, is implicated.
In addition to the above general concerns about the Proposed Action, we have the following specific concerns about the Draft EA.
a. The BLM must analyze the impacts, including cumulative effects, of leasing low preference parcels immediately adjacent to the TR Wilderness in the North Unit of TRNP.
As described in the Introduction section above, the park’s Foundation Document repeatedly identifies “oil development on private, state, and federal lands around the park” as a significant threat to park resources and values. Specific impacts of concern identified in the Document include the following:
And, as described in the Draft EA (p. 11), “According to federal, state, and oil industry records, approximately 25,800 active wells in North Dakota currently contribute to this issue.”
Despite the clarity of these concerns, including the need to protect wilderness character, the Draft EA essentially minimizes the potential adverse impacts of allowing more oil and gas development in close proximity to TRNP. For example, when discussingpotential impacts to visual resources on p. 12 of the Draft EA, it is stated that BLM-managed lands surrounding the park already have“a high degree of oil and gas development… [t]herefore, any future potential development of the parcels would be visually consistent with the surrounding landscape, which is already highly modified in character.”(Emphasis added) The quoted language seems to be saying that the landscape surrounding TRNP is already so highly modified by drilling operations that allowing additional drilling along the park’s wilderness boundary would be of little consequence.
However, based on our collective experience as former national park managers, we respectfully disagree with the BLM’s assessment. The current level of oil and gas development surrounding TRNP is already causing noticeable adverse impacts to park resources and values, especially wilderness character. As stated previously, “[e]nergy development outside the park threatens the wilderness character of theTheodore Roosevelt Wildernessas well as the quiet and chance for solitude in other areas of the park such as the Elkhorn Ranch. These threats impact the whole park but may be seen as especially damaging todesignated wilderness because the National Park Service is legally required to manage for the preservation of wilderness character. 13https://www.nps.gov/thro/learn/management/upload/Theodore-Roosevelt-National-Park-Foundation-Document- 2014.pdf at p. 27. (Emphasis added)
By allowing additional new drilling activity in close proximity to the TR Wilderness boundary, the BLM will inevitably and incrementally cause an increase in the severity and cumulative effects of the existing adverse impacts and further degrade the park’s wilderness character. In our view, a proper cumulative effects analysis would identify and consider the long-term impacts on wilderness character caused by incremental and ongoing increases in drilling activity; however, the Draft EA does not include such an analysis.
Given the sensitive and unique resources and values present within TRNP, it is imperative that the BLM disclose and analyze the impacts of the proposed leasing and development on adjacent park lands, including preparing a meaningful cumulative effects analysis of how drilling on the proposed parcels would add to the degradation of wilderness character and other impacts from existing development as noted above. Where conflicts with other uses exist, the bureau must also affirmatively evaluate deferral of parcels in its alternatives analysis under NEPA. The BLM cannot merely “respond to industry expressions of interest… in leasing specific land parcels,” but rather it must undertake “independent agency determinations of which parcels to offer for oil and gas leases.” Wilderness Soc’y v. U.S. Dep’t of the Interior, No. 22-cv-1871 (CRC), 2024 U.S. Dist. LEXIS 51011, at *69 (D.D.C. Mar. 22, 2024).
However, instead of preparing a meaningful analysis of potential impacts if parcels ND-2025-10- 6882, – 6884 and -0782 were to bedeveloped for oil and gas extraction, the BLM has simplistically applied basic stipulations, such as minimal setback distances from the park boundary, in order to “mitigate impacts” and “protect featurescritical to the visitor experience such as viewsheds, soundscapes, night skies, and air quality of National Park Service Units.” Without conducting site-specific analyses of these lands, the BLM has no basis for concluding that such stipulations would be adequate to mitigate all significant impacts to TRNP.
b. Under NEPA, the BLM must evaluate a range of reasonable alternatives for this lease sale.
The Draft EA considers only two alternatives: the no action alternative and the full-leasing alternative. Failure to analyze a reasonable, modified leasing alternative, which considers deferral of one or more parcels based on the discussion above and based on the recommendations we previously provided in scoping comments is a violation of NEPA. For years, the BLM hasincluded such a modified leasing, or deferral, alternative in its lease sale NEPA analyses. It must do so for this lease sale.
The range of alternatives is the heart of a NEPA document because “[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.” New Mexico ex rel. Richardson, 565 F.3d at 683, 708. NEPA analysis must cover a reasonable range of alternatives so that an agency can make an informed choice from the spectrum of reasonable options. An environmental review offering a choice only between leasing every parcel nominated or leasing nothing at all under the no-action alternative fails to present a reasonable range of alternatives. A middle-ground alternative should consider deferring leasing of at least some parcels. In this case, considering a deferral alternative is particularly important when considering impacts to protected resources and values including wilderness character at TRNP.
Based on the specific circumstances of this proposed lease sale, it would be entirely appropriate for the BLM to evaluate analternative that would defer leasing the three parcels in closest proximity to TRNP’s Wilderness Area. As discussed above, deferring parcels that present such significant conflicts on such sensitive lands—and certainly parcels that the BLM itself identifies as havinglow preference for leasing based on multiple conflicts with other resources and uses—is precisely what the Leasing Rule contemplates.
Evaluating such an alternative is also necessary to fulfill the “absolute duty” of the Secretary of the Interior, and therefore theDepartment and its bureaus such as the BLM, to protect national park resources and values from foreseeable adverse impacts that in this case would be caused by BLM-managed activities on public lands adjacent to TRNP. As described in NPS Management Policies 2006, under the 1978 Redwood amendment to the NPS General Authorities Act of 1970, Congress has declared that “the Secretary has an absolute duty, which is not to be compromised…to take whatever actions and seek whatever relief as will safeguard the units of the national park system.”14NPS 2006 Management Policies, Section 1.4.2, https://www.nps.gov/orgs/1548/upload/ManagementPolicies2006.pdf.[/mfn (Emphasis added)
It is also described in NPS Management Policies that “Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant.”14Id. at Section 1.4.3. It follows, therefore, that it has been a longstanding opinion of the DOI Office of the Solicitor that “the Secretary of the Interior has thelegal authority to reject the applications for mineral exploration if the record supports a finding thatmineral development activities that might eventually follow exploration could be detrimental to theresources or values of a [national] park unit.”15See DOI Solicitor Opinion # M-36993,# which is commonly referred to as “the Doe Run opinion.”[/mfn (Emphasis added)
Finally, as we raised in our scoping comments and earlier in this letter, considering an alternative that would defer on leasing these parcels would be consistent with the North Dakota Field Office’s March 2018 lease sale decision to defer a parcel adjacent to the North Unit of TRNP due, in part, to concerns about impacts to TRNP resources and values, especially impacts to wilderness character. We call your attention to DOI-BLM-MT-C030-2017-0133-EA15https://eplanning.blm.gov/public_projects/nepa/87486/121809/148670/NDFO_March_2018_Lease_Sale_EA.pdf, which analyzed potential environmental consequences of leasing just one nominated lease parcel (120 acres) abutting the northern Wilderness Area boundary in the North Unit of TRNP for a proposed March 2018 lease sale. References to TRNP in that EA included the following sections:
- Section 3.1 of the EA included an objective to “Ensure that the high visual qualities of the National Park Service Unitsare considered in cooperation with the NPS when a specified mineral lease or developmental action is proposed that potentially affects existing visual qualities.”
- Under Section 3.17 Special Designations, section 3.17.1 identified TRNP as a specially designated area in the projectarea and describes the nexus of the park to the proposed lease
- Section 4.3.11 Visual Resources, disclosed that “the proposed action may be within line-of-sight from points withinTheodore Roosevelt National Development may cause potential impacts to the National Park and visitors. Impacts could include reduction or alteration of current viewsheds and dark night skies.”
Based, in part, on such information, the BLM decided:
to defer the one nominated lease parcel for the North Dakota March 2018 Lease Sale, and to withdraw from analysis the associated EA (Environmental Assessment). Due to time needed to thoroughly consider the comments on the EA (before the required posting dates for the lease sale process), and time needed for any potential additional analysis required to respond to comments, this parcel is being deferred.16https://eplanning.blm.gov/public_projects/nepa/87486/127800/155500/Withdrawn.pdf
Given the similarity in circumstances between the March 2018 Lease Sale and the current Proposed Action – each involved proposed leasing of parcel(s) adjacent to the TR Wilderness boundary – one would reasonably expect the BLM to at least consider deferring the previously mentioned three parcels in the Q4 2025 sale. While the BLM deferred on leasing one 120-acre parcel along the TR Wilderness boundary during the March 2018 lease sale, the BLM is now proposing to lease three parcels totaling 932.91 acres along the park’s Wilderness Area boundary, which equates to nearly 8X more acreage and potentially greater adverse impacts than the 2018 proposal. If oil and gas development were to be allowed on parcels in such close proximity or adjacent to the TR Wilderness this time, the stark contrast in the outcomes between the 2018 and 2025 decisions would seem to be arbitrary and capricious.
c. Given that parcels ND-2025-10-6882 (0.75 mile), -6884 (0.0 mile), and -0782 (0.51 mile) are immediately adjacent to the TR Wilderness in the North Unit of TRNP, we are particularly concerned that the Draft EA does not adequately analyze potential impacts to wilderness character.
We appreciate that Chapter 1 of the Draft EA discusses concerns about protecting Visual Resources at TRNP and Chapter 3 evaluates potential impacts to the park’s Air Quality and Cultural Resources. However, these analyses clearly were not conducted in the context of potential impacts to wilderness character. Given the information we provided in our scoping comments, we are disappointed that the Draft EA barely mentions the TR Wilderness Area and fails to provide a meaningful analysis of potential impacts to the Area’s wilderness character. “Wilderness character” is described in BLM Manual 634017https://www.blm.gov/sites/blm.gov/files/uploads/mediacenter_blmpolicymanual6340.pdf at pp. 1-5 and 1-6., which states, in part:
As set forth in Section 2(c) (“Definition of Wilderness”) of the Wilderness Act, wilderness character is composed of four mandatory qualities and a fifth, optional, quality. These are:
i. Untrammeled. The Wilderness Act states that wilderness is “an area where the earth and its community of life are untrammeled by man.” Here, used metaphorically, “untrammeled” refers to wilderness as essentially unhindered and free from modern human control or manipulation. This quality is impaired by human activities or actions that control or manipulate the components or processes of ecological systems inside wilderness.
ii. Natural. The Wilderness Act states that wilderness is “protected and managed so as to preserve its natural conditions.” In short, wilderness ecological systems should be as free as possible from the effects of modern civilization. This quality may be affected by intended or unintended effects of human activities on the ecological systems inside the wilderness.
iii. Undeveloped. The Wilderness Act states that wilderness is an area “of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation,” “where man himself is a visitor who does not remain,” and “with the imprint of man’s work substantially unnoticeable.” Wilderness has minimal evidence of modern human occupation or modification.
iv. Solitude or Primitive and Unconfined Recreation. Wilderness provides opportunities for people to experience: natural sights and sounds; remote, isolated, unfrequented, or secluded places; and freedom, risk, and the physical and emotional challenges of self-discovery and self-reliance. This quality is impaired by settings that reduce these opportunities, such as visitor encounters, signs of modern civilization, recreation facilities, and management restrictions on visitor behavior.
v. Unique, Supplemental, or Other Features. The Wilderness Act states that wilderness areas “may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.” These values are identified in a number of ways: in the area’s designating legislation, through its legislative history, by the original wilderness inventory, in a wilderness management plan, or at some other time after designation.
The relationship between the components of wilderness character is important: though the qualities listed above are generally thought of separately, it is these qualities working in concert that actually define the whole of wilderness character. (Emphasis added)
With regard mineral leasing adjacent to a wilderness area, BLM Manual 6340 also states, in part:
Prior to the approval of a permit to drill, the portion of the boundary of the Wilderness adjacent to the lease must have an official survey. NEPA analysis for a lease of public lands outside the boundary of a wilderness should address impacts to adjacent wilderness values; mitigation measures should be considered to the extent reasonable and feasible.18Id. at p. 1-35.
As described in our scoping comments, concerns about the potential impacts of oil and gas development near TRNP and its Wilderness Area are well documented. For example, the previously mentioned Foundation Document states that “[p]rotecting wilderness values is central to the purpose of the park and is a reflection of the conservation ethic advocated by Roosevelt… In addition to the designated wilderness, the park’s remote setting, natural soundscape, and rugged topography create a sense of solitude for visitors throughout the park’s three units.”19https://www.nps.gov/thro/learn/management/upload/Theodore-Roosevelt-National-Park-Foundation-Document-2014.pdf at pp.8-9.
Despite the significant level of protection conveyed by Congress to the federally designated TR Wilderness, the BLM has not analyzed potential impacts to wilderness character from leasing three parcels immediately adjacent to the Wilderness Area boundary. As stated in Table 2.1 of the Draft EA, the BLM “considered but did not analyze” potential impacts to wilderness. This lack of analysis of impacts to wilderness character inevitably applies to:
- Parcel ND-2025-10-6882 (48.16 acres located 0.75 from TRNP wilderness boundary)
- Parcel ND-2025-10-6884 (579.2 acres located 0.0 miles from TRNP wilderness boundary)
- Parcel ND-2025-10-0782 (303.55 acres located 0.51 miles from TRNP wilderness boundary)
Foreseeable potential impacts to wilderness character include air emissions, increased noise, night sky degradation, and drilling operations intruding upon the viewshed; yet the Draft EA provides no specific analysis of the potential impacts to wilderness character.
Lastly, we note that in a limited number of cases, past wilderness legislation has included a specific provision that “adjacent multiple use lands are not to be managed to provide buffer zones around wilderness areas” (e.g., the Wyoming Wilderness Act of 1984). However, there was no such provision in the National Parks and Recreation Act of 197820https://foresthistory.org/wp-content/uploads/2017/01/public-law-95-625.pdf (PL 95-625, Section 401), which designated the TR Wilderness. As a result, the BLM must properly disclose and analyze potential impacts of leasing these parcels adjacent to the NPS-managed wilderness area. And similar to BLM’s 2018 decision to defer leasing a parcel adjacent to the park wilderness boundary, it would be reasonable and prudent for the BLM to similarly defer on leasing parcels in close proximity to the Wilderness Area for the Q4 (October) 2025 lease sale.
d. The Draft EA improperly attempts to “defer” conducting a more detailed, site-specific analysis to the permitting stage.
As stated in the Draft EA at p. 24: “Drilling of wells on a lease would not be permitted until the lessee or operator secures approval of a drilling permit and a surface use plan as specified in 43 CFR § 3162. This requires additional environmental reviews, by the BLM, at the time of application.” Also see Draft EA at p. 34: “The Proposed Action does not authorize or guarantee the number of production wells in this analysis, and any potential effects on air quality from the sale of lease parcels would occur when an issued lease is developed and not at the leasing stage. If leased, drilling of wells on a lease would not be permitted until the BLM approves an Application for Permit to drill (APD). Any APD received would be subject to site specific NEPA review.” (Emphasis added)
Despite the BLM’s plan to defer site specific impact analysis until the permitting stage, federal courts have repeatedly rejected agency claims that analysis at the lease sale stage would be speculative. See, e.g., Northern Plains Res. Council, Inc. v. Surface Transportation Board, 668 F.3d 1067, 1078–79 (9th Cir. 2011) (“Because speculation is implicit in NEPA, we must reject any attempt by agencies to shirk their responsibilities under NEPA labeling any and all discussion of future environmental effects as crystal ball inquiry.” (quotations and alternations omitted)). The BLM “cannot escape” proper analysis at the leasing stage “by claiming that a more precise analysis is not feasible and promising a more probing review of the site-specific effects at the APD stage.” Wilderness Soc’y, No. 22-cv-1871 (CRC), 2024 U.S. Dist. LEXIS 51011, at *61 (quotation marks omitted). Because leasing is an irreversible and irretrievable commitment of resources, the BLM may not defer detailed analysis until the permitting stage.
We also note that BLM’s “APD posting and processing” regulation at 43 CFR §3171.1321https://www.ecfr.gov/current/title-43/subtitle-B/chapter-II/subchapter-C/part-3170/subpart-3171/section-3171.12 does not provide for public comment if/when additional NEPA review is conducted. As stated in sub-section (a)(1) of the regulation: “The BLM will post information about the APD or Notice of Staking for Federal oil and gas leases to the internet and in an area of the BLM Field Office having jurisdiction that is readily accessible to the public… The posting is for informational purposes only and is not an appealable decision. The purpose of the posting is to give any interested party notification that a Federal approval of mineral operations has been requested.” (Emphasis added) In essence, the Draft EA’s (p. 34) promise that “any APD received would be subject to site specific NEPA review” provides little assurance that any additional NEPA review would be subject to the same level of public involvement that has occurred with the Draft EA.
Without full consideration of the impacts of leasing and development of these parcels adjacent to TRNP on the park’s resources and values, including impacts to wilderness character, the BLM cannot make an informed decision on whether to defer the aforementioned parcels or not. Until a full analysis is complete, the BLM must defer parcels ND-2025-10-6882, -6884, and -0782 from oil and gas leasing.
IV. Because the Draft FONSI is based on a fundamentally flawed Draft EA, the Draft FONSI is defective as well.
Throughout this letter we have described concerns about the adequacy of the BLM analysis of potential impacts to wilderness character in TRNP and the Draft EA’s failure to consider an alternative to defer leasing three parcels immediately adjacent to the park’s Wilderness Area boundary. For example, as described above, the Draft EA “considered but did not analyze” potential impacts to wilderness (see Table 2.1), despite the fact that parcels ND-2025-10-6882,-6884, and -0782 are located in close proximity to the TR Wilderness boundary. And, as described in Appendix J, the three parcels were determined to have a “low preference for leasing” due to “low” ratings on multiple criteria, yet the BLM has not considered deferring on leasing them as provided for under BLM policy.
In contrast, under similar circumstances in 2018 (involving proposed leasing of a parcel abutting the same Wilderness Area in TRNP), the BLM did, in fact, defer on leasing the offending parcel “due to time needed to thoroughly consider the comments on the EA (before the required posting dates for the lease sale process), and time needed for any potential additional analysis required to respond to comments.”22https://eplanning.blm.gov/public_projects/nepa/87486/127800/155500/Withdrawn.pdf Last but not least, the Draft EA and Draft FONSI provide no explanation for the BLM’s failure to defer or even consider deferring the three parcel(s) along the TR Wilderness boundary in 2025.
Similar to the deferral rationale that the BLM applied to the North Dakota March 2018 Lease Sale23Id., the BLM should now defer on leasing parcels ND-2025-10-6882,-6884, and -0782 “due to time needed to thoroughly consider the comments on the EA (before the required posting dates for the lease sale process), and time needed for any potential additional analysis required to respond to comments, this parcel is being deferred.”
V. Closing Comment
In our comments above, we have described a variety of concerns about BLM’s proposed leasing of parcels ND-2025-10-6882, -6884, and -0782, which are located in close proximity to the TRNP Wilderness Area boundary. If the BLM decides to proceed with leasing these parcels despite these concerns, we ask that the BLM explain in the final EA and FONSI why it has decided to do so despite each of the parcels in question having a “low preference for leasing” rating; despite the obvious lack of analysis of potential impacts to wilderness character in the Draft EA; and despite similarities to the March 2018 lease sale that resulted in the prudent decision to defer leasing a parcel located along the TR Wilderness boundary. The similarities between the 2018 and 2025 proposed lease sales are readily apparent. However, if drilling operations were to be allowed on parcels in close proximity or adjacent to the TR Wilderness this time, the stark contrast in the outcomes between the 2018 and 2025 decisions would seem to be arbitrary and capricious.
In closing, we appreciate the opportunity to comment on this important issue.
Sincerely,
Philip A. Francis, Jr.
Chair of the Executive Council
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436, Washington, DC 20013
Phone: (202) 819-8622
cc: Jon Raby, Acting Director, Bureau of Land Management