Commentary

“At Least Quarterly”

The Mineral Leasing Act expressly requires of BLM that “Lease sales shall be held for each State where eligible lands are available at least quarterly.”  30 U.S.C. 226(b)(1)(A).  In recent years (as I have frequently pointed out), this requirement increasingly has been disregarded by BLM.

Now, the Western Energy Alliance has filed a lawsuit in the U.S. District Court for the District of New Mexico seeking to do something about it.  The complaint in the lawsuit tallies up the violations of the requirement over the past two fiscal years by some of the BLM State Offices – the New Mexico State Office (with jurisdiction over Kansas, Oklahoma, and Texas as well); the Montana State Office (which also has jurisdiction over North and South Dakota); the Wyoming State Office (with jurisdiction also over Nebraska); the Utah and Colorado State Offices; and the Eastern States Office (with jurisdiction over all of the States bordering on or east of the Mississippi River).  Each of these offices has missed anywhere between one (Wyoming) and four (Eastern States) out of a required eight lease sales during the two years.  (Not mentioned in the complaint is the California State Office, where the practice of holding fewer than the required number of lease sales appears to have been initiated.)

The reasons for the missed sales are varied; but the two major ones have been BLM’s desire to put off confrontations with keep-it-in-the-ground protestors (see the item below), and the BLM offices’ unpreparedness to offer parcels in the sales.  The latter of these, in fact, represents the true injury; and the omission of quarterly sales is merely the insult.  The real problem is with the convoluted process (partially self-inflicted) that BLM must follow in clearing lands to be offered in lease sales, where the time between the filing of a leasing nomination and the offering of the lands is frequently measured in years . . . but that’s a discussion for another day.  Meanwhile, the filing of the lawsuit is a big step in the right direction.

The lawsuit unquestionably has a tough row to hoe. It ambitiously asks the court to require BLM to hold quarterly sales, not merely for each BLM State Office, but – where a State Office has multiple States under its jurisdiction – for each of those States in which lands are available.  (I have to quibble with the complaint’s definition of lands that are available, in which it cites 43 CFR 3120.1-1(e) as providing that “lands included in any expression of interest” are thereby available for leasing.  I would instead read that section as saying that lands included in any expression of interest are to be offered for competitive leasing if they are available – which puts the spotlight back on BLM’s process for review of leasing nominations.)  The biggest hurdle, though, may be to persuade the court that the Western Energy Alliance has standing to seek enforcement of the statutory requirement for quarterly lease sales – that this is not just one more case of Congress imposing a requirement on an agency, without providing either consequences for the agency’s failure to comply, or sufficient funding for the agency to be able to do so.

Stay tuned.

— August 2016


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