Onshore Oil & Gas Order \# 1

An Overview of the Application For Permit To Drill Process

Appeals

\>\> T. Spisak:

Let\'s continue on. Next Tim Abbing is back to talk to us about appeals.
Order 1 implements the change for appeals for surface use plans on
Forest Service lands. Let\'s roll that footage.

\>\> T. Abbing:

Section 13 of onshore order #1 discusses the appeal procedures. The goal
of presentation is to inform you of an important change made in this
section of the order that injects a little administrative common sense
into the appeals process by fixing an aspect of BLM and Forest Service
regulations that had potential to unnecessarily draw out the appeals
process. What the change doesn\'t do is impact anyone\'s right to appeal
if they feel their adversely affected by a decision related to approving
operations on National Forest system lands. First I\'m going to give you
some historical background on appeals on National Forest system lands to
set stage for why order 1 needed to clarify the appeals situation. The
1987 leasing reform act gave the Forest Service authority to regulate
surface disturbing activities on National Forest system lands. So when
the Forest Service used this authority and approved operations, such as
the surface use plan of operations, that decision became appealable to
the Forest Service. Final approval of the APD still remained with the
BLM. But BLM\'s approved APD incorporated the Surface Use Plan of
Operations approved by the Forest Service. Therefore, this created a
dual appeal process. One could appeal an aspect of the surface use to
the Forest Service and then appeal that same aspect of surface use to
the BLM, which utilized their two‑step process involving their State
Director review in house and then the interior board of land appeals
route. I don\'t know how frequently this dual appeal happened, but it
did happen. And when it did happen, it wasn\'t about adversely affected
parties getting an opportunity to get a fair review of their concerns.
It was about misusing the opportunities to unnecessarily extend the time
it took to conclude the appeals process. Now, although this was less
likely to happen, but a foreseeable possibility, an operator could take
a look at a condition of approval regarding surface use that adversely
affected them and say, Forest Service, you approved the surface use plan
of operation. I\'m appealing your decision to include this condition
under the Forest Service regulations at 36 CFR 251. Assuming a negative
decision from the Forest Service appeal, the operator could then pit the
agencies against each other and ask the BLM State Director to review the
matter. And assuming the State Director wouldn\'t back them up, they
could be real ornery and appeal to the interior board of land appeals.
Now, again, we\'re talking about overkill of the administrative review
appeal process. Now BLM currently has a regulation in its 43CFR
regulations that said appeals of denial of a surface use plan of
operation shall be submitted to the secretary of agriculture, and that
reg language doesn\'t really take care of the problem. It leaves the
door open for appeals to BLM on the approval of a surface use plan of
operation. And there\'s likely going to be a lot more of those appeals,
kinds of appeals, than there are going to be in denial of a surface use
plan of operation. But I can\'t complain too much about the BLM\'s regs
not dealing with the problem. At least they tried. The Forest Service
oil and gas regulations don\'t say anything on the matter. But the wise
BLM and Forest Service personnel that put together the new onshore order
number 1 have finally dealt with the threat. The revised order
incorporated language into the regulation that makes it clear that
approval of the Surface Use Plan of Operations on National Forest system
lands are only appealable to the Forest Service and that the act of BLM
incorporating that Forest Service approval into the overall APD is an
administrative action not subject to protest or appeal within the
Department of Interior. The beauty of this language is it fixes the
regulatory flaw for both agencies. People to understand that onshore
order son also a Forest Service regulation as well as BLM\'s regulation.
So now what we have is straightforward process where entities that are
adversely affected by a decision have their appeals heard by the agency
where it is most properly decided upon. So here\'s where we stand with
the revised onshore order. Appeals of decisions on the surface use plan
of operations on National Forest system lands can only be made to the
Forest Service. If someone feels they\'re adversely affected by the
Forest Service\'s decision made as a result of the NEPA analysis, they
appeal to the Forest Service. And if an operator feels adversely
affected by a condition of approval that the Forest Service attached to
the application for permit to drill, they appeal to the Forest Service.
Adversely affected parties of BLM\'s decision on a drilling plan on
National Forest system lands may ask for a review through the state
director review process and then depending on the outcome they may
appeal to the interior board every land appeals. Now, the new onshore
order didn\'t make any changes to appeal opportunities on non‑Forest
Service lands. On these lands, BLM\'s decisions, both surface and
subsurface, can undergo state director review. Once the state director
has issued a decision, depending on the outcome, that decision may be
appealed to the interior board of land appeals. Onshore order also
mentions that the operator may appeal decisions of the Bureau of Indian
Affairs under their regulations. In closing, section 13 of the current
onshore order number 1 isn\'t a very long section, but it makes it clear
that the Forest Service decisions on oil and gas surface use plans of
operation can only be appealed to the Forest Service. The new language
in the order fixes a long‑standing flaw that had the potential to
unnecessarily delay resolving legitimate appeal issues. While at the
same time preserving the appeal rights of any adversely affected party.
That, my friends, does put a little common sense into our regulations.

\>\> T. Spisak:

Tim, thanks for that presentation.