CHAPTER 4 FEDERAL LAND USE PLANNING AND MANAGEMENT—ITS EFFECT ON OIL AND GAS OPERATIONS
| Jurisdiction | United States |
(Nov 1980)
FEDERAL LAND USE PLANNING AND MANAGEMENT—ITS EFFECT ON OIL AND GAS OPERATIONS
Patrick J. Garver
Parsons, Behle & Latimer
Salt Lake City, Utah
Traditionally, federal land and mineral management agencies have had limited land use planning mandates. The U. S. Park Service and the U. S. Fish and Wildlife Service have had single purpose mandates for managing park and refuge lands; the Forest Service and the Bureau of Land Management (BLM) have had limited statutory direction to manage their lands for multiple uses. The U. S. Geological Survey (USGS) has been charged with managing development of much of the nation's mineral resources, but such management has shown little, if any, consideration for other management constraints on multiple use lands.
The traditional roles of these federal agencies have been changing over the last thirty years. At first, the changes were relatively slow. For example, in 1947 the Secretary of Interior issued an order providing for special protection of the Bridger Teton National Forest because of the outstanding environmental values in the Jackson Hole area. FR 5859 (August 30, 1947). At that time the general management authority of the agencies was thought so minimal that a special order of the Secretary of Interior was considered necessary. In the 1960s, changes in the planning authority of the federal land managers came rapidly. In 1960, the Multiple-Use, Sustained-Yield Act established for the Forest Service its first planning authority. Four years later the Classification and Multiple Use Act of 1964 gave a measure of planning direction to the BLM. The National Environmental Policy Act of 1969 provided even greater impetus for land use planning.
With each of these new planning directives came limitations on oil and gas development. To the present time the constraints imposed upon such development by the BLM and the Forest Service have been reflected principally in surface use stipulations included in oil and gas leases and, on occasion, in BLM or Forest Service suggestions for limitations in USGS drilling permits.
This limited surface manager involvement in oil and gas operations is at an end. In the last five years Congress has drastically altered the powers, obligations, and underlying land management assumptions for both the Forest Service and the BLM. Oil and gas lessees and operators will be facing an increasingly broad range of surface and operating restrictions based upon the land management mandates of the Forest Service and the BLM. The time and money these additional regulatory requirements will cost
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potential oil and gas developers can be substantially reduced by recognition of the land use constraints upon the BLM and the Forest Service and by an early and orderly coordination between potential development and agency land use plans.
Since the passage of the Forest and Rangeland Renewable Resources Planning Act (RPA), 16 USCA §§ 1600-1676 , (Supp. 1979), National Forest Management Act of 1976 (NFMA), 16 U.S.C.A. §§ 1601 -1614 (Supp. 1979), and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.A. §§ 1701 -1782 (Supp. 1979), the Forest Service and the BLM have promulgated final regulations requiring comprehensive land use planning. This paper will describe and compare the respective land use planning systems and explain how each impacts oil and gas leasing, exploration and development. The National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 (Supp. 1979), will also be examined briefly as it relates to the two agencies' planning efforts. To a lesser extent other federal land use programs affecting oil and gas development, e.g., withdrawal review, cost reimbursement, designation of rights-of-way corridors, public participation programs and designation of areas of critical environmental concern will also be surveyed.
I. LAND USE PLANNING RELATED TO NATIONAL FOREST SYSTEM LANDS.
Of the federal land management agencies the Forest Service has the longest and most complete historical mandate for land use planning and management. The federal government has taken the position that the Organic Administration Act of 1897 provided the Forest Service the fundamental authority to manage all national forest lands. 30 Stat. 34. With some limitations the courts have upheld the government's position. United States v. New Mexico, 438 U.S. 696 (1978).
The Forest Service planning documents which are of principal interest to oil and gas developers are those that were prepared by the Forest Service subsequent to the enactment of the Multiple-Use, Sustained-Yield Act of 1960, 16 U.S.C.A. §§ 528 -531 (Supp. 1979). They were prepared for individual units of each national forest and became known as "unit plans". Following the enactment of NEPA the Forest Service expanded the environmental scope of the unit plans by combining those plans with environmental impact statements (EIS) on the management of the public lands. Forest Service Manual (FSM) § 1952.22 From that time forward the public comment processes for unit plans and for EISs were consolidated. The documents were also consolidated. The consolidated plan and EIS generally provided the Forest Service a solid administrative record for establishing surface use limitations in oil and gas leases issued on national forest lands. In virtually all instances the specific issue of oil and gas development was not addressed in the consolidated plans/EISs. Instead, the Forest Service continued
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its historic discomfort with regulation of mineral development by separating the analysis of mineral development from the ongoing land use planning process.
A. The RPA Planning System.
In 1974 Congress enacted the RPA. This Act established the first long range planning system in the federal government. Two years later NFMA amended section 6 of the RPA, establishing the current forest planning system. FLPMA, enacted one day before NFMA, also altered the Forest Service's land management powers in some regards. The forest management system required by these acts is still being implemented. The Forest Service is required by law to have a complete set of land use plans, including a national resource plan, regional plans, and forest plans, in effect by 1985. Each level of plans must include environmental analysis, resource inventories, resource allocations, and other resource decisions. The RPA regulations contemplate a dynamic system in which information and decisions at each planning level are used to refine and improve future work done at the other levels. A schematic of the RPA planning system is set forth in Figure 1 at page 4-3A
The national resource plan, called the Renewable Resource Program, must set forth a 40 year program for management of Forest Service lands. The program must be revised every five years beginning in the first half of 1980. It must contain an inventory of Forest Service lands and their resources. The factual base for this national plan is a renewable resource assessment. The assessment like national forest system inventories, is limited to renewable resources rather mineral resources.
Section 6 of the RPA dissolves the traditional Forest Service independence from minerals evaluation. Section 6 does not direct the Forest Service to do minerals planning and the Forest Service continues to lack the authority to directly control minerals. However, Section 6 does direct the Forest Service to plan and manage for every possible national forest use that could be inconsistent with minerals development, including coordination of outdoor recreation, range, timber, watershed, wildlife and fish and wilderness. To this end the new RPA regulations require
Consideration of the relative values of all renewable resouces, including the relationship of minerals to these renewable resources. 36 C.F.R. § 219.1(b)(2) (1980).
The Forest Service is further directed to provide methods to identify special conditions or situations involving hazards to these various resources, consider their relationship to alternate activities and to identify the suitability of lands for resource
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NATIONAL RESOURCE PLAN
1. Contains national resource inventory
2. Implements national planning and management goals with necessary tradeoffs
| goals apportioned among regions | management decisions and constraints communicated to regions | national goal adjustments-- budget preparation input-- cash and product flow analysis sent to Washington |
REGIONAL RESOURCE PLANS
1. Contains regional resource inventory
2. Allocates regional goal responsibilities to forests
| goals, staff, and resources apportioned among forests, regional staff assigned management priorities | state and local governments and private foresters informed of Forest Service decisions affecting them | inventory and goal corrections, staffing and funding requests transmitted to regions |
FOREST PLANS
1. Contains detailed resource inventory
2. Implements: legal mandates regional and national plans
3. Provides coordination with other government entities
4. Contains provisions for in-course corrections
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management. Each of these directives envision consideration of mineral resources.
Forest Service management for each of the uses enumerated in the RPA regulations creates significant potential for expanded interference with oil and gas development. The statute specifically requires that resource plans and permits, contracts, and other instruments for the use or occupancy of national forest system lands "conform" to the land use plans. Existing agreements must be revised by the Forest Service as quickly as, and to the maximum extent possible, to conform to the new plans. Any future plans, permits or contracts must be revised as land use plans are revised in the future. 36 C.F.R. § 219.11(d) (1980).
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