Recent Developments

 

BLM Leasing System Reform

On January 31, 2018, BLM issued Instruction Memorandum 2018-034, adopting measures directed at several important goals: “to simplify and streamline the leasing process to alleviate unnecessary impediments and burdens, to expedite the offering of lands for lease, and to ensure quarterly oil and gas lease sales are consistently held.”

Most significant are some long-overdue changes in the way that leasing nominations are processed.  When the current competitive leasing system was first adopted in 1987, BLM’s re-offering of lands for leasing, upon the expiration of a prior lease, was a routine matter: to verify that the lands were in fact available; obtain the consent of the surface management agency (if any); and identify any stipulations that the surface management agency and/or BLM found to be warranted — all of which could sometimes be achieved in a matter of weeks, and rarely more than a few months.  But in the years since then, the process has grown increasingly protracted, as BLM policy changes, imposing additional requirements, have conspired with worsening shortages of BLM staff to carry out those requirements.  The result is that delays between the filing of an expression of interest (i.e., a leasing nomination) and BLM’s offering of the lands for leasing are now commonly measured in years.

If the reforms adopted by the new IM can be put into effect, all of this should change.  With quarterly lease sales being held by BLM, the IM directs that the deadline for filing a nomination for lands to be included in any given sale is to be six months prior to the lease sale month” (emphasis added) — which in turn means that (all else being equal) “the timeframe for parcel review [by BLM] for a specific lease sale is to be no longer than 6 months.”  (The IM recognizes, though, that “there will be exceptions due to unforeseen circumstances, including delays associated with [surface management agency] consent.”)  To accomplish this, the IM anticipates that “staff resources may be shifted at times from other program areas to meet this high priority program area need” — although that may be no small feat, since other vital program areas, from approving lease assignments to reviewing drilling permit applications, are already short-staffed as well.

(BLM’s recent move to a new centralized system for filing nominations — the National Fluids Lease Sale System — may itself improve the process somewhat.  EOI’s may now be filed electronically on a nationwide website, at https://nflss.blm.gov. Once an EOI is filed through the website, it should automatically be routed to the appropriate BLM State Office.)

Under the IM, the steps to be taken in BLM’s parcel review, within the six months after filing of an EOI, include (1) gathering and assessing existing environmental-analysis, endangered-species, and historical-preservation information; (2) determining whether leasing of the lands would conform to the applicable resource management plan; (3) conducting a site visit — but only if necessary after considering other sources of information; (4) communicating with potentially-affected parties; and (5) providing for public participation in the environmental-review process.

Among changes being made to the land use planning process, prior to commencing parcel review, is the elimination of master leasing plans — an additional layer of environmental review that was introduced in 2013.  The IM also affirms (consistently with Board of Land Appeals precedent) that “BLM will not routinely defer leasing when waiting for an RMP amendment or revision to be signed.”  Changes that should expedite the leasing process are made after the parcel-review stage as well: returning to the statutory requirement for the posting of a lease sale notice 45 days prior to the sale (rather than the 90 days that was directed in 2010); limiting the protest period, after posting of the sale notice, to 10 days; and if possible, resolving any protests and issuing leases within 60 days from when payment is made by the successful bidder for a lease.

The IM takes immediate effect; and it instructs the BLM state offices to “review all lands that are identified in EOIs that were submitted before the EOI cutoff date for a particular quarterly lease sale and [to] offer all parcels determined to be eligible and available within the state office’s jurisdiction.”  Ideally, then, the first lease sale that is held six months after issuance of the IM — i.e., September 2018 — should include the lands in all of the EOI’s that, at that point, have been pending for more than six months.

 


For notable recent court opinions, decisions by the Interior Board of Land Appeals, federal regulations, and BLM lease sale information, click the following links:

Court Opinions

Interior Board of Land Appeals

Regulations

BLM Lease Sales