COALITION TO PROTECT AMERICA’S NATIONAL PARKS
NATURAL RESOURCES DEFENSE COUNCIL
ROCKY MOUNTAIN WILD
THE WILDERNESS SOCIETY
September 2, 2025
U.S. Department of the Interior, Director (630)
Bureau of Land Management
1849 C St. NW, Room 5646
Washington, D.C. 20240
Attention: 1004-AF42
Re: Comments on “Revision to Regulations Regarding Competitive Leases; Expression of Interest Process” (BLM-2025-0139; A2407-014-004-065516; #O2412-014-004-047181.1)
To Whom It May Concern:
Please accept these comments from the undersigned organizations on the final rule (FR), “Revision to Regulations Regarding Competitive Leases; Expression of Interest Process,” issued by the Bureau of Land Management (BLM) on August 1, 2025.
The FR does not qualify for a “good cause” exception.
The use of an FR in this context contravenes the Administrative Procedure Act (APA), ignores long-established procedures on notice and comment rulemaking, and undermines the role of public participation. As described below, the rescission is based on a faulty premise and will have serious unintended consequences. Moreover, BLM’s reliance on the APA’s “good cause” exception misunderstands the relevant standard, which is not whether the rescinded rule is determined to be unnecessary, but rather whether notice and comment is determined to be unnecessary.1See Mack Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012); Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L. REV. 1, 12 (1995); Ronald M. Levin, More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting, 51 ADMIN. L. REV. 757, 763-64 (1999); Mark Squillace, Best Practices for Agency Use of the Good Cause Exemption for Rulemaking, 15 (report to the Admin. Conf. of the U.S.) (Dec. 4, 2024), https://www.acus.gov/sites/default/files/documents/Best%20Practices%20for%20Agency%20Use
When the good cause exception applies because the notice and comment procedure is determined to be “unnecessary,” federal agencies may issue an FR. The Administrative Conference of the United States has clarified that “direct final rulemaking is a technique for expediting the issuance of noncontroversial rules.”2Admin. Conf. of the U.S., Recommendation S5-4, Procedures for Noncontroversial and Expedited Rulemaking, https://www.acus.gov/document/procedures-noncontroversial-and-expedited- rulemaking (last visited July 31, 2025). In other words, an FR is only appropriate when it involves “a minor rule in which the public is not particularly interested.”3Texaco, Inc. v. FPC, 412 F.2d 740, 743 n.6 (3d Cir. 1969); see also South Carolina ex re. Patrick v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). Another court, speaking more generally about the good cause exemption, has noted that this exemption should be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992). BLM’s FR fails this test because it involves changes to and interpretations of long-standing substantive limitations on federally authorized oil and gas leasing, an environmentally impactful activity in which the public and industry have substantial interests.4See, e.g., Center for Western Priorities, Analysis: Public comments overwhelmingly support BLM oil and gas rule (Sept. 26, 2023) (noting that BLM received over 260,000 comments on BLM’s 2023 proposed oil and gas leasing rule), https://westernpriorities.org/2023/09/analysis-public-comments-overwhelmingly-support- blm-oil-and-gas-rule/. For similar reasons, BLM cannot (and does not appear to) rely on notice and comment being impracticable or contrary to the public interest under the good cause exception. To the contrary, public comment is entirely practical, necessary, and in the public interest. Under these circumstances, the APA guarantees the public an opportunity to comment. Upon receipt of these significant adverse comments, BLM must withdraw the FR before the effective date.5See Office of the Federal Register, A Guide to the Rulemaking Process, 9, https://uploads.federalregister.gov/uploads/2013/09/The-Rulemaking-Process.pdf; Squillace, supra note 1, at 29 (“If the agency receives significant adverse comments, it has two options. It can either withdraw the rule or publish a regular proposed rule that is open for public comment. In either case, the agency should promptly publish notice of its decision in the Federal Register so that the public knows whether the rule has gone into effect.”).
The FR incorrectly characterizes the legal basis for collecting expression of interest fees.
The FR incorrectly asserts that “BLM no longer has any authority to collect such a[n expression of interest] fee after the enactment of the [One Big Beautiful Bill] OBBB.” That assertion is incorrect and contradicted by years of findings and determinations from the Government Accountability Office (GAO) and BLM.
First, the reconciliation act (Act) repealed the requirement to charge an EOI fee, but it did not forbid BLM from charging such a fee. As explained in a 2021 GAO report, “BLM derives authority to assess fees from Title V of the Independent Offices Appropriation Act of 1952 as amended, 31 U.S.C. § 9701, and from section 304 of the Federal Land Policy and Management Act [FLPMA] of 1976, as amended, 43 U.S.C. § 1734.”6GAO, BLM Should Update Its Guidance and Review Its Fees 7 n.11 (Nov. 2021), https://www.gao.gov/assets/gao-22-103968.pdf. Thus, the fact that Congress, in the Act, repealed the Inflation Reduction Act’s mandate to collect EOI fees did nothing to disturb BLM’s long-standing fee-collection authority. Further, as shown by GAO’s report, the need for an EOI fee is “acute:”
These challenges are particularly acute when BLM’s investments in processing nominations do not lead to issued leases. This was highlighted in BLM’s Nevada state office in 2014, when 28 million acres were nominated. BLM’s Nevada state officials said that it took the state and field office staff over 5 years to review and process the 28 million nominated acres, most of which ultimately did not result in a lease. More broadly, as discussed earlier, the large majority of the 87 million acres nominated from 2009 through 2019 did not result in a lease. In accordance with its guidance, BLM reviews all nominations submitted and processes those that are eligible. As such, BLM incurs costs for processing all nominated acres, but does not recover all of these costs through its application fees, which are only charged when a lease is issued.
Second, for nearly 30 years, BLM has recognized its authority to collect EOI fees. In 2005, BLM stated that
the costs for processing an oil and gas or geothermal competitive lease sale parcel do not include the steps required to prepare an individual sale parcel prior to preparing the sale notice, because we assumed those costs were not recoverable. However, the Solicitor’s December 5, 1996 Opinion on cost recovery concluded that we can recover costs for those steps, so in future rules we will propose fees that attempt to capture these costs and other costs not captured here so that fees will accurately reflect our reasonable costs.7Oil and Gas Leasing; Geothermal Resources Leasing; Coal Management; Management of Solid Minerals Other Than Coal; Mineral Materials Disposal; and Mining Claims Under the General Mining Laws, 70 Fed. Reg. 41,532, 41,540 (July 19, 2005).
Similarly, in comments on the 2021 GAO report, BLM declared that it planned “to initiate new regulations and revise existing rules. Charging a fee for an expression of interest is being considered in the proposed rule. ” Thus, BLM clearly had the authority to collect EOI fees prior to the Inflation Reduction Act, and the Act’s passage did nothing to alter that authority.8This ongoing authority means that BLM must comply with the National Environmental Policy Act prior to removing the EOI fee from its regulations. Specifically, BLM must evaluate a reasonable range of alternatives, including, but not limited, retaining or increasing the current EOI fee (given the documented waste-saving benefits of such fees – see 2021 GAO Report at 24-29), consistent with its authority under FLPMA and Title V of the Independent Offices Appropriation Act of 1952.
BLM must prepare a NEPA analysis evaluating the reasonably foreseeable environmental impacts from eliminating the EOI fee and analyzing the reasonable alternative of continuing to charge such a fee.
BLM may not use a categorical exclusion for this significant rule change. The stated intent of Congress in eliminating the mandatory EOI fee through the Act was to promote additional oil and gas development on public lands (and thus increase federal mineral revenue). Indeed, the Congressional Budget Office (CBO) estimated the increased revenue that would result from these changes.
As a result, the categorical exclusion at 43 C.F.R. 46.210(i) does not apply. The effects of eliminating the EOI fee are not “too broad, speculative, or conjectural to lend themselves to meaningful analysis” – the CBO itself has done such an analysis for its revenue impacts.
BLM must do the same for its environmental impacts. Moreover, the elimination of the EOI fee is unlikely to “later be subject to the NEPA process” in a way that would allow BLM to meaningfully and fully consider that impact.
Further, a NEPA analysis for this rule should consider the reasonable alternative of maintaining an EOI fee under BLM’s long-standing legal authority. Such an alternative is within BLM’s legal authority and adopting it would be entirely reasonable for the reasons stated above.
For all the reasons above, BLM must withdraw this FR.
Respectfully,
Ben Tettlebaum (on behalf of the below-listed parties)
Director & Senior Staff Attorney
The Wilderness Society
1801 Pennsylvania Ave NW
2nd Floor
Washington, D.C. 20006
be************@*ws.org
(720) 647-9568
Phil Francis Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE Unit 77436
Washington, DC 20013
(202) 819-8622
Aimee Delach
Director of Energy & Biodiversity
Defenders of Wildlife
1130 17th Street NW
Washington, DC 20036
ad*****@*******rs.org
(202) 682-9400
Josh Axelrod
Senior Policy Advocate
Natural Resources Defense Council
1152 15th St, NW, Suite 300
Washington, D.C. 20005
ja******@**dc.org
(202) 289-2379
Alison Gallensky
Conservation Geographer, Leadership Team
Rocky Mountain Wild
Denver, Colorado
al****@***************ld.org
(303) 546-0214 x 9