Green Groups Plot Challenges to Land Plans Following Court Ruling

Oct. 20, 2020, 7:51 PM

A plan opening broad swaths of western Colorado to oil and gas development is among at least 14—and possibly several dozen—Bureau of Land Management plans and decisions that environmental groups say they expect to challenge in the wake of a recent Montana federal court decision.

Legal analysts and oil and gas industry groups, however, say it’s unclear how vulnerable other land bureau plans actually are to legal challenge outside of Montana.

The U.S. District Court for the District of Montana decidedOct. 16 that William Perry Pendley, the agency’s former acting director, unlawfully approved resource management plans for the Lewistown, Missoula, and Miles City areas, even if a lower-level official under Pendley signed off on them. Only the agency’s director can make those calls, the court said.

“The judge was pretty clear that other decisions are likely illegal as well and held the door open for people to make those cases,” said Tracy Stone Manning, associate vice president for public lands for the National Wildlife Federation. “We are certainly now digging in and looking.”

U.S. District Court Judge Brian Morris previously removed Pendley as the bureau’s acting director, saying Interior Secretary David Bernhardt illegally delegated the duties of the land bureau director to Pendley—a violation of the Federal Vacancies Reform Act. Pendley remains in place as a deputy land bureau director.

Morris invited environmental groups, including WildEarth Guardians and three other groups that filed a brief in the case, to file lawsuits in other federal courts to challenge decisions the bureau made under Pendley that they think were illegal.

Land bureau spokesman Derrick Henry said Tuesday that Morris’ order is “erroneous” and the Interior Department “is reviewing all legal options to fight this outrageous decision.”

Oil Plans Questioned

Chief among the plans groups expect to challenge is the land bureau’s Uncompahgre Resource Management Plan for western Colorado, which was approved in April and opens more than 870,000 acres of federal land and minerals to oil and gas leasing, Manning said.

WildEarth Guardians and other groups filed suit against the plan in federal court in Colorado in September, alleging it violated the National Environmental Policy Act. Now, the group says the plan qualifies as unlawful under Morris’ order.

Among the land bureau’s decisions that WildEarth Guardians lists for possible challenge include plans for 4.8 million acres of federally-owned oil and gas in Texas, Oklahoma and Kansas; Colorado’s Brown’s Canyon National Monument; public land on California’s Central Coast and Bakersfield region; and a 317,000-acre region near Haines, Alaska.

Those decisions were made based on Pendley’s “unlawful reign” as land bureau director, said WildEarth Guardians spokeswoman Sarah McMillan.

A coalition of about 60 environmental groups wrote Bernhardt on Oct. 6 saying Morris’ order ousting Pendley also leaves vulnerable 30 total land bureau decisions, including greater sage-grouse conservation plans throughout the West, in addition to management plans for Bears Ears and Grand Staircase-Escalante national monuments, among many other land bureau decisions.

Vulnerability Unclear

To determine the vulnerability of other land bureau plans outside of Montana, “One would have to comb the decision-making record in each instance to see where Pendley’s fingerprints are,” said John Leshy, a real property law professor at the University of California-Hastings and former Interior Department solicitor under President Bill Clinton.

But Morris was clear that nearly any of Pendley’s decisions during his 424-day tenure as acting land bureau director are likely vulnerable, Leshy said.

The Interior Department, however, suggested in an Oct. 6 court filing that Pendley played no role in most of the land bureau’s decisions during his tenure.

“The enviros will probably be alleging that he made every BLM decision and daring DOI to prove them wrong,” said Thomas Jensen, a partner at Perkins Coie LLP in Washington.

Other courts are likely to see Morris’ ruling at odds with legal precedent and unconvincing, said Kathleen Sgamma, president of the Western Energy Alliance, a trade group representing oil and gas companies operating on federal land.

Environmental groups are challenging land bureau plans “that weren’t even signed by Mr. Pendley, making their use of the ruling extremely shaky,” Sgamma said.

But those groups counter that Morris’ ruling is sound because Pendley was in charge of the land bureau when numerous land use and energy-related decisions were made.

“When Mr. Pendley influenced the BLM’s actions by wearing his virtual captain’s hat and expecting the rest of the staff to follow his commands, the decisions that were made are subject to question as to their validity, in addition to their wisdom, of course,” said Nada Culver, senior counsel for the National Audubon Society.

The case is: Bullock v. Bureau of Land Mgmt, D. Mont., 4:20-cv-00062-BMM, 10/16/20.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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