# Presentation: 226377

## Sec. XIII. Appeal Procedures

- Eliminating Dual Appeal Opportunities

**Notes:**
Section 13 of Onshore Order #1 discusses the appeal procedures associated with approvals of operations on Federal oil and gas leases.

The goal of this presentation is inform you of an important clarification that was made in this section of the Order.  What this change does is inject a little administrative common sense into the appeals process by FIRST; fixing a flaw in BLM and FS regulations that had potential to unnecessarily draw out the appeals process; and SECOND; it did so without impacting anyone’s right to appeal if they feel they are adversely affected by a decision relating to approving operations on National Forest System Lands.

## NEPA analyses for the Surface Use Plan of Operations could be:
Appealed to the Forest Service (36 CFR 215);
Subject to BLM State Director Review;
Appealed to the Interior Board of Land Appeals (IBLA) 
   ( 43 CFR part 4).

- NEPA analyses for the Surface Use Plan of Operations could be:
- Appealed to the Forest Service (36 CFR 215);
- Subject to BLM State Director Review;
- Appealed to the Interior Board of Land Appeals (IBLA)
-    ( 43 CFR part 4).

**Notes:**
(Bring up first bullet on Operational Appeals on NFS Lands (Pre-Order 1))

First I’ll give you some historical background on appeals on NFS lands to set the stage for why Order 1 needed to clarify the situation.

The 1987 Leasing Reform Act gave the Forest Service authority to regulate surface disturbing activities on NFS land.  So along with that authority,  when the FS approved operations, such as the Surface Use Plan of Operations, that decision became appealable to the Forest Service.  Final approval of the APD remained with the BLM.  But BLM’s approved APD incorporated the SUPO approved by the Forest Service.  Therefore this created a dual appeal process.  One could appeal an aspect of surface use to the Forest Service and then appeal that same aspect of surface use to the BLM...which was actually a two-step process involving the in-house State Director Review and then the Interior Board of Land Appeals.

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 appeal process.

## Operational Appeals on NFS Lands (Pre-Order 1)

- Conditions of Approval could be
- Appealed by the operator to the FS (36 CFR 251);
- Subject to BLM State Director Review;
- Appealed to the IBLA  (43 CFR part 4).

**Notes:**
Now although this was less likely to happen, but I don’t have any information to say how often it did, an operator could take a look at a condition of approval regarding surface use that adversely affected them and say: “ FS you approved the SUPO, I’m appealing your decision to include this condition under FS regulations 36 CFR 251.”

Assuming a negative decision from the FS, 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 IBLA.

Again, we are talking about overkill of the administrative review/appeal process.

## Sec. XIII states:
“Incorporation of a FS approved Surface Use Plan of Operations into an approved APD or a Master Development Plan is not subject to protest to the BLM or appeal to the Interior Board of Land Appeals.” 

- Sec. XIII states:
*“**Incorporation of a FS approved Surface Use Plan of Operations into an approved APD or a Master Development Plan is not subject to protest to the BLM or appeal to the Interior Board of Land Appeals.”*

**Notes:**
Now BLM currently has a regulation in its 43 CFR (3162.3-1) 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. 

I can’t complain too much about BLM’s regs not dealing with the problem...at least they tried...the FS oil and gas regs don’t say anything.

(Clarification Made in Order #1 Slide)

But the wise BLM and FS personnel that put together the new Onshore Order #1 have finally dealt with the dual appeal threat.

The revised Onshore Order incorporated into language regulation that make it clear that approval of the surface use plan of operations on NFS lands are only appealable to the Forest Service and that the act of BLM incorporating that FS approval into the overall APD is an administrative action not subject to protest or appeal within the Dept. of Interior.

The beauty of this language is that it fixes the regulatory flaw for both agencies.  People need to understand that Order 1 is also a Forest Service regulation as well as BLM’s regulation.

## Appeals of FS decisions relative to surface disturbance on NFS lands can only be appealed to the FS.

BLM decisions related to the drilling plan may go through BLM State Director Review and then appealed to the Interior Board of Land Appeals. 

- Appeals of FS decisions relative to surface disturbance on NFS lands can only be appealed to the FS.
- BLM decisions related to the drilling plan may go through BLM State Director Review and then appealed to the Interior Board of Land Appeals.

**Notes:**
So what we now have is a straight-forward process where entities that are adversely affected by a decision have their appeals heard by the by the agency where it is most properly decided upon.

So here’s where we stand with the revised Onshore Order, (Bring up first bullet on Current Appeal Opportunities on NFS Lands Slide)

Appeals of decesions on the Surface Use Plan of Operations on NFS lands can only be made to the Forest Service.  So if someone feels adversely affected by the FS’ decision made as a result of the NEPA analysis they appeal to the FS.  If an operator feels adversely affected by Conditions of Approval that the FS is attaching to the APD, they appeal to the FS.

(Bring up second bullet of Current Appeal Opportunities on NFS Lands)
Adversely affected parties of BLM’s decision on a Drilling Plan on NFS lands can be reviewed through the State Director Review process and then depending on the outcome, it may be appealed to the Interior Board of Land Appeals.  

## Appeal Opportunities on Non-FS Lands 

- BLM decisions are subject to State Director Review (43 CFR §3165).
- Decisions from State Director Review can be appealed to IBLA (43 CFR §4).
- Operator may appeal BIA decisions (25 CFR §2).

**Notes:**
(Bring up Appeal Opportunities on Non-FS Lands)

The new Onshore Order 1 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 IBLA.

And the Order mentions that the operator may appeal decisions of the Bureau of Indian Affairs under BIA’s regulations.

## Conclusion 

- Onshore Order 1 makes it clear that Forest Service decisions on Surface Use Plans of Operation can only be appealed to the Forest Service.

**Notes:**
(Bring up conclusion slide)

Section 13 in the current Onshore Order #1 isn’t a very long section, but it made it clear that 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.

And that my friends, really does put a little common sense into our regulations.