Public Land and Resources Committee Report

The year 2022 saw numerous administrative and judicial actions and opinions affecting public lands and resources, including Bureau of Land Management (BLM) proposed rules affecting rights-of-way on public lands; BLM proposed rules regarding waste of oil or gas developed on public lands; BLM land use decision under the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA); decisions regarding R.S. 2477 roads; decisions regarding the Tucker Act; decisions regarding the Quiet Title Act; and decisions regarding the Wild Free-Roaming Horses and Burros Act.

I. BLM Proposed Rule Regarding Grants of Rights-of-Way Across Federal Public Lands.

BLM is a federal agency within the Department of the Interior. “BLM manages more than 245 million acres of public land located primarily in twelve Western states, including Alaska, and administers 700 million acres of sub-surface mineral estate throughout the nation.” BLM’s management responsibility is governed by, among other statutes, FLPMA, which provides for the general management of federal public lands, and the Mineral Leasing Act (MLA), which governs mineral development on federal public lands.

BLM has the authority to issue and regulate rights-of-way (ROWs) across land within its jurisdiction under FLPMA and the MLA. Current FLPMA regulations (promulgated in 2005 and revised in 2016) are found at 43 C.F.R. Part 2800. Current MLA regulations are located at 30 C.F.R.. Part 2880.

On November 7, 2022, BLM published a proposed rule entitled “Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way” (ROW Rule). The ROW Rule proposes three main revisions to the FLPMA and MLA ROWs rules:

• The ROW Rule would more than double the fees currently charged by BLM to process a ROW application and to monitor a ROW grant over its lifetime (which fees BLM would now refer to with the consolidated term of “cost recovery fees”).
• The ROW Rule would create a new subpart 2860 specifically for “Communications Uses,” with rules that BLM states would “mak[e] it easier for industry to collocate in and on existing communications facilities or build out new communications infrastructure on public lands.”
• The ROW Rule would codify many of the provisions of a 2018 amendment to FLPMA addressing fire prevention, vegetation management, facility inspection, and operations and maintenance plans.

BLM Proposed Rule Regarding Waste of Oil or Gas Developed on Public Lands.

BLM conducts onshore oil and gas leasing pursuant to several federal statutes, including FLPMA and the MLA. Among other things, the MLA requires lessees to “use all reasonable precautions to prevent waste of oil or gas developed in the land.” To this end, in 1979 BLM issued its Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases: Royalty or Compensation for Oil and Gas Lost (NTL-4A). NTL-4A governed the issue until 2016, when the BLM issued a final rule to replace NTL-4A with regulations addressing venting, flaring, and leaks of gas (2016 Rule) as a means, among other things, of reducing the emission of methane as a greenhouse gas. In 2018, BLM replaced the 2016 Rule and issued new rules governing the matter (2018 Rule).

Both rules were challenged in federal court. A California federal district court vacated the 2018 Rule on the grounds that it would not meet the BLM’s statutory mandate to prevent waste. By contrast, a Wyoming federal district court vacated the 2016 Rule on the grounds, among other things, that MLA’s “delegation of authority does not allow and was not intended to authorize the enactment of rules justified primarily upon the ancillary benefit of a reduction in air pollution.” As a result, NTL-4A currently continues to govern venting and flaring from BLM-managed oil and gas leaks.

On November 30, 2022, BLM published a proposed rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation” (Waste Prevention Rule”). The Waste Prevention Rule states that it “seeks to improve upon NTL-4a in a variety of significant ways while eschewing certain elements of the 2016 Rule that were the focus of” the Wyoming court’s unfavorable ruling.

Among other things, the Waste Prevention Rule states that it will:

• “[E]stablish the general rule that ‘operators must use all reasonable precautions to prevent the waste of oil or gas developed from the lease.’”
•  “[R]equire operators to submit a waste minimization plan with all applications for permits to drill oil wells.”
• Clarify that oil or gas that is “unavoidably lost” in connection with oil and gas operations is not wasted and therefore not subject to royalty.
• “[I]nclude a number of specific affirmative obligations that operators must take to avoid wasting oil or gas.”

BLM Land Use Decisions Under FLPMA and NEPA.

BLM’s management responsibility is governed by, among other statutes, FLPMA, which provides for the general management of federal public lands. Under FLPMA, many competing uses may be put to the land, “including recreation, range, timber, minerals, watershed, fish and wildlife, and uses serving scenic, scientific, and historical values” which provides for the management of “federal public lands under the principles of multiple use and sustained yield.”

In fulfilling its FLPMA mandate, BLM is required to “develop, maintain, and, when appropriate, revise land use plans” to control its management of public lands. All BLM decisions must in turn be made in accordance with the National Environmental Policy Act (NEPA), which requires federal agencies to make a thorough evaluation of potential environmental impact before they may take a “major federal action[] significantly affecting the quality of the human environment.” The regulations governing the NEPA process were substantially revised in 2020. In determining whether environmental impacts exist for a proposed major federal action, government agencies use an “environmental assessment” (EA), or a more thorough “environmental impact statement” when significant environmental impacts are found (EIS). The year 2022 saw opinions addressing BLM’s decision-making process under FLPMA and NEPA.

For example, in Oregon Natural Desert Ass’n v. Bushue, wildlife protection groups challenged BLM’s authorization of livestock grazing as violating the requirements of FLPMA and NEPA. At issue was BLM’s process of closures through fencing of grazing pastures, which closures were intended to help with the recovery of greater sage grouse habitat. The closures had not yet occurred at the time of the lawsuit. BLM contended that under FLPMA it was required to send two-year notices to livestock permittees, and that under NEPA it was required to conduct analyses of the environmental impact of the fencing before the fencing was installed. The plaintiffs moved for a temporary restraining order (TRO) to enjoin BLM from allowing grazing on the pastures.

As part of its TRO suit, plaintiffs were required to show that BLM’s action, if not enjoined, would cause then “irreparable harm.” To this end, plaintiffs argued irreparable harm was shown in that there would be an immediate loss of use and enjoyment of the land because, “absent a temporary restraining order, they will suffer likely irreparable harm due to an inability to view and enjoy undisturbed sagebrush grassland.” The federal district court rejected this argument, noting that the pastures at issue had been grazed on a rotating basis since 1934, and that plaintiffs therefore would not be able immediately to view the pastures in an undisturbed, ungrazed state. The court also held that the balance of the equities regarding irreparable harm did not tip sharply in favor the plaintiffs because of the harm an injunction would cause to the existing owners of grazing leases, and that the public interest weighed in favor of the BLM because its proposed approach would prevent grazing on alternative unrested public lands and would sustain rural communities in the area. The plaintiffs’ motion for TRO was therefore denied.

Protection of the sage-grouse was also at issue in Board of County Commr’s of the County of San Miguel v. BLM. In 2013, BLM had issued a final EIS (FEIS) allowing over 2 million acres of land in southwest Colorado to be available for oil and gas leasing. In 2014, the United States Fish and Wildlife Service (FWS) “listed the Gunnison sage-grouse as threatened and designated critical habitat for the species” under the Endangered Species Act. In 2017, BLM issued ten oil and gas leases located on or near that habitat. In so doing, BLM issued a determination of NEPA adequacy (DNA) concluding that the 2013 FEIS fully covered the sale of the leases and constituted BLM’s compliance with NEPA. The plaintiffs filed suit, claiming that BLM violated NEPA because it “should have prepared another NEPA document before the lease sale,” rather than simply issuing the DNA.

The federal district court agreed with the plaintiffs. In particular, the court held that “[o]nce the BLM identified the exact parcels to be offered at the March 2017 lease sale, new information was available that made it possible for the BLM to foresee and consider additional impacts that were not evaluated in the programmatic-level [resource management plan] and Final EIS.” Thus, “[b]efore issuing the leases, the BLM should have conducted additional environmental analysis pursuant to NEPA to investigate the previously unexamined impacts associated with the lease parcels’ size, locations, configurations, and timing.” The court ordered additional briefing to determine the appropriate remedy based on its findings.

R.S. 2477 Roads.

Federal Revised Statute 2477, commonly referred to as “R.S. 2477,” was passed in 1866, and provided for public access across unreserved public domain by granting rights-of-way for the construction of highways. R.S. 2477 presented a free right-of-way which takes effect as soon as it is accepted by a state. Although repealed in 1976 by the passage of FLPMA, any valid, existing R.S. 2477 rights-of-way are preserved. R.S. 2477 was considered in several opinions issued in 2022.

For example, in Kane Co., Utah v. United States, and as part of long-running litigation between a state and the United States regarding several claimed R.S. 2477 roads, a federal district court considered the fifth attempt by several environmental organizations’ (SUWA) to intervene in the action as a matter of right. In particular, the court considered whether SUWA could intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure.

Rules 24(a) states that for a movant to intervene as of right, the movant “must (1) ‘claim[] an interest relating to the property or transaction that is the subject of the action;’ and (2) be ‘so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless (3) existing parties adequately represent that interest.’” Regarding the first prong, the court concluded that, through a series of prior opinions, the Tenth Circuit Court of Appeals “has now reached a de facto rule for R.S. 2477 cases whereunder SUWA will always satisfy the ‘interest’ prong for intervention as of right because SUWA has a ‘decades long history of advocating for the protection of these federal public lands.’”

Regarding the second prong, SUWA argued that the U.S. could not adequately represent its interest in the matter because the government is obligated to consider a broad spectrum of views that might conflict with the interests of the would-be intervenor. The court, however, disagreed, ruling that “[a]s this court has held already on multiple prior occasions in this case, SUWA’s objective and interests in this litigation are the same as the United States” because “[b]oth seek to defeat Plaintiffs’ claims to title, and if title is found in favor of Plaintiffs for any road, both seek for that right-of-way to be as narrow as possible.” Thus, the court held, “[a]lthough the two may have diverging views about how to oppose Plaintiffs’ claims, any interests SUWA may have are still adequately represented by the United States.” The court therefore denied SUWA’s motion to intervene as of right.

In Southern Utah Wilderness Alliance v. United States Dept. of the Interior, SUWA disputed a county’s claim of the existence of an R.S. 2477 road. In that case, a county sought to chip-seal a segment of a scenic road located on federal land in Utah. The county requested BLM’s approval for the project, which the agency gave. SUWA sued under the Administrative Procedures Act (APA), claiming that BLM acted arbitrarily and capriciously in determining that the county held an R.S. 2477 right-of-way over the road, for two reasons: “(1) that BLM purported to apply the terms of an expired BLM policy – Internal Memorandum (‘IM’) 2008-175 – in making this R.S. 2477 determination; and (2) that BLM’s findings didn’t satisfy the IM’s terms.”

The Tenth Circuit Court of Appeals disagreed. In particular, the appeals court held that, in reaching the informal decision that the county holds an R.S. 2477 right-of-way over the road segment at issue, BLM had rationally relied on an earlier Tenth Circuit opinion that held the county had maintained the road since the early 1940s. In so doing, the court also noted that BLM had issued a two-page comment responding to SUWA’s position, an internal BLM memo on the issue, NEPA documents on the issue, and that, “[t]ellingly, as with its response to SUWA’s comment, BLM makes no mention of IM 2008-175 in the internal memo . . . [n]or does it do so in assessing the R.S. 2477 issue in its environmental assessment or FONSI.” Thus, the court held, “BLM’s determination was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [] law.’” The district court’s dismissal of SUWA’s claims were therefore affirmed.

Statute of limitations under the Quiet Title Act.

The United States is generally immune from suit absent a waiver of sovereign immunity. The federal Quiet Title Act (QTA) establishes a limited waiver of sovereign immunity, providing that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.” The QTA provides the exclusive means by which claimants can challenge the United States’ title to real property.

The QTA’s statute of limitations (SOL) is twelve years. The SOL begins to run against any plaintiff other than a state “on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” With regard to states, however, a QTA action “shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands.” The statute defines “notice” as either “public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands,” or “the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious.”

In North Dakota v. United States, the state of North Dakota brought a QTA action against the United States, seeking to quiet title under R.S. 2477 to rights-of-way and roads within national grasslands located in the state. The U.S. moved to dismiss all of the claims on the grounds that the QTA’s SOL had run against the state, barring the lawsuit. In particular, the U.S. argued that the several federal actions, all more than twelve years previous, had put the state on notice of the U.S.’s claim to the lands at issue. These actions included several travel plans and public notices in the 1970s and 1980s restricting motor vehicle usage within certain areas of the grasslands. The government had also erected signs, distributed maps, and planned patrols to implement these plans. The Eighth Circuit Court of Appeals held that because of these actions “the statute of limitations as to North Dakota’s quiet title action began to accrue more than twelve years before it brought this suit, and its claims is time-barred.”

Tucker Act Statute of Limitations for Takings Actions.

Under the Tucker Act, the Court of Federal Claims has jurisdiction over “any claim against the United States founded either upon the Constitution . . . or for liquidated or unliquidated damages not sounding in tort.” The Tucker Act only waives sovereign immunity and does not create substantive rights; thus, a plaintiff must identify a separate source of law creating a right to money damages. The U.S. Constitution’s Fifth Amendment Takings Clause, which prohibits the government from taking “private property . . . for public use, without just compensation,” is a money-mandating provision that grants the Claims Court jurisdiction under the Tucker Act. A claim for just compensation under the Tucker Act must be filed within six years of the accrual of the takings claim. Generally, “a takings claim accrues when ‘all events which fix the government’s alleged liability occurred and the plaintiff was or should have been aware of their existence.’”

In Graves v. United States, plaintiff landowners owned property laying completely within the boundaries of the Rio Grande National Forest in Colorado. The property was historically accessed by way of a forest road and its offshoot, over which offshoot plaintiffs claimed to have signed a permanent easement with the Forest Service (the “2012 FLPMA Easement”). Plaintiffs claimed that in 2012 the Forest Service pressed them into waiving the permanent easement by signing a revocable special use permit. Plaintiffs alleged that in 2016 a Forest Service official told them that the Forest Service had seized the road and that it was now a forest system road. In 2021, Plaintiffs filed a Tucker Act suit against the United States for unlawful taking and just compensation.

The U.S. moved to dismiss for lack of jurisdiction, arguing that the 6-year statute of limitation under the Tucker Act had run, thus barring plaintiffs’ claims. Plaintiffs argued that their takings claims accrued in 2016 when they were first told that the Forest Service was claiming ownership of the road at issue. The court disagreed, holding that though plaintiffs “may not have understood prior to the 2016, under an objective standard, they should have known of any potential takings claim when they signed the 2012 FLPMA Easement.” Thus, “if the Plaintiffs did have a takings claim, it accrued with the 2012 FLPMA Easement, regardless of their subjective understanding at that time.” Plaintiffs’ claim was therefore time-barred, and the court dismissed their complaint.

Wild Horses and the Wild Free-Roaming Horses and Burros Act (“Wild Horses Act”).

The Wild Free-Roaming Horses and Burros Act (Wild Horses Act or Act) protects and manages unbranded and unclaimed horses and their descendants found on federal public lands that were identified in 1971 as having been used by a wild herd. BLM, which administers the Act, is obligated to maintain a current inventory of such animals, and to define appropriate management population levels of such animals.

In carrying out its duties under the Act, BLM administers herd management areas and determines an appropriate management level for wild horse and burro populations in conjunction with the agency’s broader land use plan for each area. By statute, where BLM determines that an overpopulation exists and that action is necessary to remove excess animals, BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.”

In Friends of Animals v. Culver, an animal rights group challenged BLM’s decision to remove several wild horses and burros (also known as a “gather” or a “roundup”) from a herd management area located on the California-Nevada border. In its decision, BLM had approved the “phased” removal of excess animals from the area over a ten-year period. The plaintiff argued that such a phased approach was contrary to the language of the Act, which states that excess animals be “immediately” removed.

BLM responded that the term “’immediately remove’ excess [] animals” must take into account the practical realities of the removal process and that, under the circumstances of the case, waiting ten years to remove excess horses is, therefore, “immediately” removing those animals. The U.S. District Court for the District of Columbia disagreed and held that “ten years in this instance simply cannot mean, as a matter of the plain language of the [Act], ‘immediately,’” and that the decision for a 10-year phased removal exceeded the BLM’s discretion under the Act. As for BLM’s practicality argument, the court also ruled that “[a]lthough a statutory deadline may be impracticable, or even impossible, an agency’s failure to comply with a statutory deadline is unlawful.” The Court, therefore, remanded the decision back to the BLM for reconsideration.