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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Public Land and Resources Committee Report

Michael Brian O'Hora Jr. and Stanley N Harris


  • The Public Land and Resources Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of public land and resources, including BLM land use decisions, roads, the Quiet Title Act, and more.
Public Land and Resources Committee Report
Thomas Roche via Getty Images

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The year 2023 saw numerous administrative and judicial actions and opinions affecting public lands and resources, including: judicial review of presidential proclamations expanding national monuments under the Antiquities Act; Bureau of Land Management (BLM) land use decisions under the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA); decisions regarding R.S. 2477 roads; and decisions regarding the Quiet Title Act.

I. Judicial Review of Presidential Proclamations Expanding National Monuments Under the Antiquities Act.

Under the Antiquities Act of 1906, the “President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” situated on federal public land to be national monuments. The President may reserve parcels of land as part of the national monuments, and in so doing “[t]he limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Numerous national monuments have been declared since the passage of the Antiquities Act, some of which have encompassed large parcels of public land. For example, the Grand Staircase-Escalante National Monument in Utah, covering approximately 1.7 million acres, was declared by President Bill Clinton in 1996. Likewise, the Bears Ears National Monument, also located in Utah, covering approximately 1.35 million acres, was declared by President Obama just before he left office in 2016. President Trump reduced the size of both monuments in 2017, and in October 2021 President Biden issued proclamations enlarging Grand Staircase to 1.87 million acres and Bears Ears to 1.36 million acres.

In Garfield County, Utah v. Biden, a federal district court considered complaints brought by individual plaintiffs and state plaintiffs (collectively “plaintiffs”) to the Bears Ears and Grand Staircase proclamations. The plaintiffs challenged the proclamations on several grounds, all of which the federal district court rejected.

First, the court considered whether there had been a waiver of sovereign immunity to bring the suits against the President. The court noted that “[w]ithout a statutory waiver by Congress, judicial review of a president’s actions is only permitted for constitutional challenges and ultra vires challenges,” and that “[w]ithout either of those bases, ‘[judicial] review is not available when the statute in question commits the decision to the discretion of the President.’” The court held that because the claims against the President challenged the President’s exercise of discretion to designate national monuments under the Antiquities Act, “they are statutory claims, and judicial review is unavailable.”

Plaintiffs, however, argued that Section 702 of the Administrative Procedure Act (APA) – which provides for judicial review to a person suffering legal wrong because of agency action – waived the government’s sovereign immunity in the case. The court ruled that the provision applied when the action complained of was taken by subordinate officials and entities who are subject to the court’s equitable jurisdiction, but that the instant suit identified the President as the sole official connected to the Proclamations. Because “the APA does not expressly allow review of the President’s action,” the President’s actions were not reviewable under the APA, and the court rejected plaintiffs’ argument.

The court also rejected the plaintiffs’ argument that the President’s action fell within the ultra vires exception to sovereign immunity. The plaintiffs’ amended complaint did “not contain allegations that the President lacked the authority to designate federal land” such as the Bears Ears and Grand Staircase monuments.

Likewise, the court ruled the memoranda issued by the Bureau of Land Management (BLM) implementing the proclamations were not final agency actions reviewable under the APA because the memoranda did not meet the three requirements for final agency action: (1) they did not have a direct and immediate impact on plaintiffs (because they did not compel any action by plaintiffs); (2) the memoranda were not a consummation of the BLM’s decision making process (because “[n]othing in the Memoranda suggest that they are anything more than informative dicta and internal agency discretion”); and (3) the memoranda did not generate legal consequences (because they only quoted from the proclamations, but did “not create anything new that was not already created by the Proclamations”).

As a consequence, the Garfield County court held that “[i]n spite of the sincere and deeply held view of the Plaintiffs, there is no relief for them in this action,” and that “President Biden’s judgment in drafting and issuing the Proclamations as he sees fit is not an action reviewable by a district court.” Plaintiffs’ claims were therefore dismissed with prejudice.

A different result was reached by the D.C. Circuit Court of Appeals in American Forest Resource Council v. United States. In American Forest, counties, trade associations, and timber companies (collectively “plaintiffs”) brought several lawsuits against the federal government over a presidential proclamation enlarging the Cascade-Siskiyou National Monument in southwestern Oregon. When the monument was originally created in 2000, its proclamation stated that “[t]he commercial harvest of timber or other vegetative material is prohibited . . . .” In 2017, an additional proclamation was issued, which included approximately 40,000 acres of land that had been set aside under a different federal statute (the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act, or “O&C Act”) which specifically mandated timber production on O&C lands.

The government contended that “even if non-statutory review of an ultra vires challenge to presidential action is available in some cases, review should be denied here because the Antiquities Act vests the President with broad discretion and the O&C Act puts no discernible limit on that discretion.” The D.C. Circuit ruled, however, that in the present case the claim was that the presidential action independently violated another statute (the O&C Act) and that “[e]ven when the Congress gives substantial discretion to the President by statute, we presume it intends that the President heed the directives contained in other statutes.” Further, the court noted that “we have consistently reviewed claims challenging national monument designation like the one challenged here.” Because the plaintiffs argued that the proclamation was ultra vires because it was inconsistent with another statute, the court held that the plaintiffs’ claims were reviewable.

Turning to the merits of the case, the American Forest court first considered the government’s argument that because the O&C Act is directed at the Secretary of the Interior, it does not limit the President’s authority to reserve land under the Antiquities Act. In rejecting this argument, the appeals court held that “[b]ecause the President relied solely on the Antiquities Act to expand the Monument, he was constrained by the Congress’s other enactments in exercising that delegated power.”

Next, the appeals court considered the government’s second argument, that the monument’s expansion is permissible because it was compatible with the O&C Act, and that the Antiquities Act and the O&C Act can be harmonized. In agreeing with this argument, the appeals court ruled that, although the principal objective of the O&C Act is permanent forest production in conformity with the principle of sustained yield, the O&C Act had provided the Secretary with three layers of discretion in reaching this objective: “first, discretion to decide how land should be classified, which includes discretion to classify land as timberland or not, second, discretion to decide how to balance the Act’s multiple objectives, and third, discretion to decide how to carry out the mandate that the land classified as timberland be managed ‘for permanent forest production.’” As a result, the appeals court ruled that “the Antiquities Act and the O&C Act are indeed compatible.”

The same issues considered in American Forest were addressed by the Ninth Circuit Court of Appeals in Murphy Company v. Biden, in which plaintiff timber companies also claimed that the presidential proclamation expanding the Cascade-Siskiyou National Monument violated the O&C Act. Similar to American Forest, the Murphy court first considered whether the ultra vires exception to sovereign immunity applied, and held that the plaintiff’s “particularized allegations that the O&C Act restricts the President’s designation powers under the Antiquities Act satisfies the jurisdictional standard set forth here and elsewhere.” Likewise, on the merits, the Murphy court concluded that “the O&C Act’s plain text envisions economic, recreational, and environmental uses for the O &C Lands beyond logging and grants the Department significant discretion in how to achieve statutory compliance,” and, therefore, “the Proclamation is fully consistent with the O&C Act, which governs a much larger swath of timberlands in Oregon and gives the Secretary discretion in administering those lands within the Act’s directives.”

II. BLM Land Use Decisions Under FLPMA and NEPA.

BLM’s management responsibility is governed by, among other statutes, Federal Land Policy and Management Act (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 thoroughly evaluate the potential environmental impacts of any major federal action significantly affecting the quality of the human environment. In assessing the environmental impacts of a proposed major federal action, federal agencies prepare an “environmental assessment” (EA), or a more thorough “environmental impact statement” (EIS) when significant environmental impacts are found. The year 2023 saw opinions concerning BLM’s decisionmaking process under FLPMA and NEPA, some of which are addressed here.

In Dine Citizens Against Ruining Our Environment v. Haaland, environmental groups challenged BLM’s EAs and an EA addendum that analyzed the environmental impact of numerous applications for permits to drill (APDs) for oil and gas in the New Mexico. Among other issues, the Tenth Circuit Court of Appeals considered as a matter of first impression whether BLM had unlawfully predetermined the outcome of the EA addendum. In particular, the plaintiffs argued that BLM violated NEPA “because BLM approved the APDs prior to preparing the EA Addendum and did not vacate, suspend, or withdraw those approvals while gathering additional information about the environmental impact of the actions.”

In considering the issue, the court noted that “NEPA does not require agency officials to be ‘subjectively impartial’ while preparing the environmental analysis,” and that “a petitioner must show ‘that the agency has irreversibly and irretrievably committed itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis.” The court then ruled that “BLM did not engage in unlawful predetermination by conducting the supplementary analysis in the EA Addendum without first vacating the underlying APD approval” because, in that case, it was not irreversibly and irretrievably committed to a plan of action producing a certain outcome. The court further held that “[t]he fact that BLM ultimately affirmed its original decision does not make the decision unlawfully predetermined where BLM maintained the option to reopen and vacate the APDs throughout the supplemental process.”

In Western Watersheds Project v. Interior Board of Land Appeals, the Tenth Circuit Court of Appeals considered a conservation group’s challenge to expired grazing permits that had been automatically renewed to a permit holder. The statute at issue provided that the terms and conditions of an expired grazing permit shall be continued under a new permit “until the date on which the Secretary concerned completes any environmental analysis and documentation for the permit or lease required under” NEPA. Among other things, the court ruled that “[t]his court cannot override the Secretary’s statutorily given discretion to determine when a new NEPA analysis occurs,” and thus “this court cannot remedy the alleged harm by requiring a new NEPA analysis.” As a result, because the expired permits no longer existed at the start of the litigation and no evidence suggested any ongoing impact that the court could address through a favorable decision, “no relief could be granted with respect to those permits that could redress the harm that has allegedly been cause by the agency,” and the plaintiff therefore lacked standing to bring the lawsuit.

III. 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 High Lonesome Ranch, LLC v. Board of County Commissioners for County of Garfield. In High Lonesome, a ranch owner brought suit in state court against a county that had concluded that two roads within the county and crossing the ranch were subject to public rights-of-way. The county counter-claimed, asserting, among other things, that the roads were public under R.S. 2477. Because the roads accessed BLM land, BLM was joined as a necessary party, and the case was removed to federal court. The district court ruled that public use had established R.S. 2477 right-of-way for most portions of the disputed roads, and the ranch appealed.

On appeal, the Tenth Circuit Court of Appeals first determined that, under the federal Quiet Title Act (QTA), the court had jurisdiction over the matter. Turning to R.S. 2477, the court held that “[t]o establish an R.S. 2477 right-of-way, a party must show (1) a right-of-way over the public domain and (2) the public’s acceptance of it by use.” In interpreting R.S. 2477, the court ruled that

[T]he district court had correctly noted that ‘federal law governs the interpretation of R.S. 2477, but that in determining what is required for acceptance of a right of way under the statute, federal law “borrows” from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent.’

However, the court also noted that “‘to the extent state law is borrowed in the course of interpreting R.S. 2477, it must be in service of federal policy or functions[ ] and cannot derogate from the evident purposes of the federal statute.’”

In considering the R.S. 2477 standard for acceptance of a right-of-way by use, the district court in High Lonesome relied on a state court decision which declared that acceptance of a right-of-way “results from use by those for whom it was necessary or convenient… even if the use be by only one.” The court, however, noted that one of its own later decisions rejected a lenient standard of use, and had instead held that “Congress’s intent under R.S. 2477 in establishing a public thoroughfare required an acceptance standard under which ‘[t]he intensity of public use remains a pertinent component.’” Because Congress had stated that R.S. 2477 was ‘for the construction of highways,” the court of appeals held that the district court’s acceptance standard requiring only that the use be “as often as the public finds convenient or necessary” was too lenient and had departed from Congress’s intent. The court, therefore, reversed and remanded to the district court on the issue of acceptance of an R.S. 2477 right-of-way.

IV. The Quiet Title Act.

The United States is generally immune from suit absent a waiver of sovereign immunity. The federal 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 2023, the United States Supreme Court considered whether the QTA’s 12-year SOL is jurisdictional. In Wilkins v. United States, owners of property living alongside a road over which the federal government held an easement brought suit against the United States under the QTA over the scope of the easement. The property owners argued that the 12-year SOL is a non-jurisdictional claims-processing rule. The government argued that, under prior Supreme Court precedent, the QTA’s 12-year SOL is jurisdictional; “the district court and court of appeals agreed, and the action was dismissed for lack of jurisdiction.”

The Supreme Court reversed. In so doing, the Court first re-emphasized “the distinction between limits on ‘the classes of cases a court may entertain (subject matter jurisdiction)’ and ‘nonjurisdictional claim-processing rules, which seek to promote the orderly progress of litigation that the parties take certain steps at certain specified times.’” The Court then noted that “[t]o police this jurisdictional line, this Court will ‘treat a procedural requirement as jurisdictional only if Congress “clearly states” that it is.’”

From this, the Court ruled that the text of the 12-year SOL speaks only to a claim’s timeliness, and thus that the provision only says that after a certain time, a claim is barred. The Court further noted that a separate QTA provision provides the jurisdictional grant for the Act, and that “nothing conditions the jurisdictional grant on the limitations perio[d], or otherwise links those separate provisions.” Further, the Court distinguished prior opinions upon which the government and the lower courts had relied in ruling the 12-year SOL is jurisdictional. The Court, therefore, held that the 12-year SOL is a non-jurisdictional claims-processing rule, and reversed and remanded the appeals court’s judgment. Three justices dissented from the opinion, reasoning that the QTA’s SOL “functions as a condition on a waiver of sovereign immunity, and is therefore jurisdictional.”

The practical effect of the Supreme Court’s holding in Wilkins was seen in other QTA cases decided in 2023. For example, in In re: United States of America v. 6.03 Acres of Land in the County of Santa Barbara, the Ninth Circuit Court of Appeals considered an appeal by a landowner from a district court’s dismissal of the landowner’s claim of easement rights over a road on federal land. The district court had ruled that the claim was time-barred, and that the landowner had failed to allege a property interest in the road.

On appeal, the court noted that, under its own precedent that had interpreted the QTA’s SOL to be a jurisdictional requirement, “we may have been obligated to resolve the parties’ dispute regarding the applicability of the QTA’s statute of limitations before considering the merits.” Acknowledging, however, that Wilson had overruled the court’s precedent on the issue, and “[w]ith our jurisdiction no longer in question,” the court held that it could affirm on any ground supported in the record.

The court then considered whether the landowner had a property interest in the access road at issue. The landowner had asserted that its predecessor in interest had an easement over the road as owners of property abutting the road. However, the landowner did not allege that, at the time of condemnation by the government, the access road existed as a “public street,” which was a status required under state law to establish the landowner’s property interest in the road. As a result, the court affirmed the dismissal of the lawsuit.

The QTA was also at issue in the High Lonesome case. In particular, the case had been removed to federal court because the county “sought an R.S. 2477 right-of-way over BLM land, which can be accomplished only under the QTA . . . .” The court held that there are two requirements for federal jurisdiction under the QTA: “(1) the United States must ‘claim[ ] an interest’ in the property, and (2) the property’s title must be ‘disputed.’” Although the ranch did not argue that BLM claimed an interest in the property, the ranch did contend that the property’s title was not disputed because BLM had changed its position regarding the county’s crossclaims, in turn opposing them, supporting them, or taking no position on them. The court, however, ruled that BLM’s opposition at the outset of the suit qualified as an action that actually conflicted with the county’s title, and that the QTA’s jurisdictional requirements were therefore met. The court also ruled that there was no statute of limitations problem in the case because “the limitations period doesn’t begin until the United States ‘provide[s] a county or state with sufficient notice of the United States’ claim of a right to exclude the public,” and “[t]hat never happened here.”

The report attempts to cover significant developments in federal agency action and published judicial decisions. State legislation, agency action, and judicial developments are beyond the scope of this report.  The statements made herein represent solely the view of the authors.