Interior Department Ignores the Rule and Rulings of Law

In a recent Insight, Department of the Interior Solicitor Daniel Jorjani’s summarized what he deemed as several regulatory and policy successes of the Trump administration.

Jorjani noted various court victories and the economic and community benefits from decisions about managing public lands. Unfortunately, neither is true.

It’s not clear how Jorjani calculated the DOI’s ratio of wins and losses in court, but a tracker maintained by the nonpartisan Institute for Policy Integrity shows that, in actuality, more than 80% of Interior’s actions have not been upheld. By relying on decisions like Pac. Coast Fed. Of Fishermen’s Assocs. v. Ross, a decision from the U.S. District Court for the Northern District of California in March to transfer the case to another court and not a decision on the merits, Jorjani reveals the effort needed to find a positive spin.

While Jorjani lauds the administration’s attempt to help industry, the inability to deliver legally defensible regulatory changes has created uncertainty that has the opposite effect. The uncertainty is compounded by the administration essentially ignoring these court losses (or just stating they will appeal) without making the required changes in its actions.

In August, a federal court overturned Jorjani’s Solicitor’s Opinion involving application of the Migratory Bird Treaty Act. Jorjani’s opinion sought to erase decades of bipartisan precedent to narrow the MBTA’s protections to activities that purposefully kill birds. See Nat. Res. Def. Council v. U.S. Dep’t of the Interior

The U.S. District Court for the Southern District of New York could not have been more straightforward on the problem with Jorjani’s opinion, holding that it “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA”. Nonetheless, Interior is moving forward with regulatory revisions and projects that rely on the invalidated interpretation, such as the enormous Converse County oil and gas project in Wyoming.

Uncertainty With Oil and Gas Leases

Similar attempts to ignore the unambiguous requirements of federal laws have plagued Interior’s oil and gas leasing program, despite the administration’s commitment to elevate this use above all others on public lands.

As a federal court in Idaho stated when enjoining the Bureau of Land Management’s new oil and gas leasing guidance, “the public involvement requirements of [the Federal Land Policy and Management Act] FLPMA and [the National Environmental Policy Act] NEPA cannot be set aside in the name of expediting oil and gas lease sales. The benefits of public involvement and the mechanism by which public involvement is obtained are not ‘unnecessary impediments and burdens.’” See Western Watersheds Project v. Zinke

Not surprisingly, this injunction was made permanent in a decision Feb. 27, vacating lease sales in Wyoming, Nevada, and Utah. The administration has not issued new national guidance.

Since the above rulings, additional leasing guidance and actions have been invalidated. In Montana Wildlife Federation v. Bernhardt, a federal judge in Montana in May rejected BLM’s interpretation of its commitment to prioritize leasing outside of the habitat for the greater sage–grouse, invalidating guidance and vacating lease sales in Montana and Wyoming.

The Idaho and Montana cases addressed an initial set of leases, totaling more than 500,000 acres, but will review (and likely vacate) additional sales. Nevertheless, the BLM continues to lease in sage-grouse habitat without new national guidance.

Jorjani’s claims of other benefits from Interior actions are similarly questionable. He states the DOI “permitted dozens of coal mines and solar projects,” but the department has not supported renewable energy development on public lands. While there is no formal accounting, BLM’s planning decisions for this administration include just four new solar projects; and BLM’s own record of new rights-of-way for solar projects shows five, although one is for a parking lot.

The Interior Department has compounded its overwhelming court losses by ignoring restrictions these rulings have imposed. And to what end? There is little certainty for the oil and gas industry as leases that have been sold are invalidated and future sales remain subject to challenges that are more likely than ever to succeed. Yet Interior continues to hold lease sales, claiming them necessary, despite the industry’s historic downturn, which is predicted to continue.

BLM Leader Lacked Authority

Meanwhile many of the actions taken by the BLM are now in question as a court has found the leadership of William Perry Pendley to be in violation of law, and required that decisions he oversaw be set aside. Bullock v. Bureau of Land Mgnt. (D. Mont. Sept. 25, 2020, and Oct. 16, 2020).

This Interior Department continues to ignore the law and court rulings, as well as the reality of our economy and the best uses of public lands and waters, at its peril. Instead of penning a description of its record that is overwhelmingly at odds with the evidence, Jorjani should be taking heed and advising the DOI to follow the law and the duty it owes to the public as steward of our public lands.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Nada Wolff Culver is the vice president of Public Lands and senior policy counsel at the National Audubon Society where she leads Audubon’s public lands program and its efforts to defend and innovate implementation of bedrock wildlife conservation laws, as well as their implementation through on-the-ground decisions. Prior to joining Audubon, she was the senior counsel and senior director of agency policy and planning at The Wilderness Society.