CHAPTER 4 SURFACE USES RELATED TO OIL AND GAS DEVELOPMENT ON THE NATIONAL FORESTS
| Jurisdiction | United States |
(Feb 2008)
SURFACE USES RELATED TO OIL AND GAS DEVELOPMENT ON THE NATIONAL FORESTS
Assistant Regional Attorney
U.S. Department of Agriculture
Office of the General Counsel
Ogden, Utah
National Forest System Lands
The Creative Act of 1891 authorized the President to "set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations." 16 U.S.C. § 471 (repealed by P.L. 94-579 (Oct. 21, 1976). By reserving land for national forests under this statutory authority, that land is set apart from the public domain. See: United States v. New Mexico, 438 U.S. 696, 699 (1978). "The inclusion of the tract in the forest reserve withdrew it from the operation of the Public Land Laws," Cameron v. United States, 252 U.S. 450, 455 (1920). In 1897, the purposes for which the national forests were reserved were more specifically defined, and the Secretary of Agriculture was empowered to make rules to regulate the use and occupancy of the national forests in order to protect the land for the purposes reserved, namely to protect the timber and watersheds. 16 U.S.C. §§ 475, 551.
The effect, indeed the purpose, of a reservation of public lands is to prevent the appropriation of non-Federal interests in those lands. In the history of the administration of the public lands, it has been common practice for the Executive to withdraw or reserve lands that Congress has made available for acquisition by citizens, even without express statutory authorization from Congress. United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915). "In the sense that these lands may have been intended for public use, they were reserved for a public purpose...But when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain, nothing was more natural than to retain what the government already owned." Id. at pp. 470-71.
This right of the President to make reservations-and thus withdraw land from
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private acquisition-was expressly recognized in Grisar v. McDowell, 6 Wall 364, 381 (1867) where it was said that `from an early period in the history of the government it has been the practice for the President to order from time to time, as the exigencies of the public service required, parcels of land belonging to the United States, to be reserved from sale and set apart for public uses.
Id. at p. 471. Similarly, under its Property Clause authority, "Congress not only has a legislative power over the public domain, but it also exercises the powers of the Proprietor therein. Congress `may deal with such lands precisely as an ordinary individual may deal with farming property. It may sell or withhold them from sale.'" Id. at p. 474, citing Camfield v. United States, 167 U.S. 518, 524 (1897); Light v. United States, 220 U.S. 536 (1911). "Congress establishes a forest reserve for what it decides to be national and public purposes," and is not obligated to set aside its lands for settlement. Id. (Reservation for national forest purposes removes the implied license to allow livestock grazing.) "Like any other owner it may provide when, how, and to whom its land can be sold." Id.
Lands of the United States that are reserved for national forest purposes cannot be occupied and used without its permission as the reservation acts to remove those lands from disposal and acquisition under the public land laws. Utah Power & Light v. United States, 243 U.S. 388, 402, 410 (1917). By law, lands reserved for national forest purposes could only be used in compliance with the rules of the Secretary of Agriculture. United States v. Grimaud, 220 U.S. 506 (1911), citing 16 U.S.C. § 551. The authority of the Secretary to make rules pertains specifically to the occupancy and use of National Forest System lands. See also: Bell v. Apache Maid Cattle Co. et al., 94 F.2d 847 (9th Cir. 1938); Omaechevarria v. State of Idaho, 246 U.S. 343 (1918). An order even temporarily withdrawing lands for national forest purposes under the Creative Act of 1891 withdraws lands from all disposal. Chicago. Milwaukee & St. Paul Railway Co. of Idaho v. U.S., 244 U.S. 351, 353 (1916).
That reservation of Federal land for National Forest purposes acted as a complete withdrawal from entry and appropriation under the public land laws is recognized by the legislative history of the laws governing creation and administration of the National Forest System that were enacted after the 1891 Creative Act. In 1897, the National Forest Organic Act was enacted, 16 U.S.C. §§ 473-475 , 477 -482 , 551, which made two significant changes to the administration of the National Forests. First, the Organic Act provided that mineral lands within the National Forests would be open to entry and location of mining claims under the Mining Laws. 16 U.S.C. § 482. This provision was necessary because under the Creative Act public lands were reserved from all forms of entry and appropriation under the public land laws, including entry under the Mining Laws. Accordingly, the presumption has been that National Forest System lands are not available for mineral development, absent an express statutory provision for such development by Congress.
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The Mineral Leasing Act
The Mineral Leasing Act was enacted in 1920, and provided for the leasing of several mineral materials, including oil and gas, on National Forest System lands. 30 U.S.C. § 181. The Mineral Leasing Act, MLA, was amended in 1987 to expand the authority of the Secretary of Agriculture to regulate oil and gas leasing on the national forests. Specifically, the Secretary of the Interior was prohibited from issuing leases on National Forest System lands over the objection of the Secretary of Agriculture. 30 U.S.C. § 226(h). Further, the amendment provided that the Secretary of Agriculture shall regulate all surface-disturbing activities conducted pursuant to any lease. 30 U.S.C. § 226(g).
The MLA also addresses issuance of rights-of-way for oil and gas pipelines across Federal lands. 30 U.S.C. § 185(a). Where a right-of-way will be on lands under the jurisdiction of one Federal agency, the agency head is authorized to issued the right-of-way. 30 U.S.C. § 185(c)(1). Where the right-of-way will cross land administered by more than one Federal agency, the Secretary of the Interior is authorized to grant the right-of-way after consulting the respective agencies. 30 U.S.C. § 185(c)(2). A right-of-way may not be issued if the Secretary of the Interior or agency head with jurisdiction over reserved Federal lands determines it will not be consistent with the purposes of the reservation. 30 U.S.C. § 185(b)(1). In the delegation of authority to issue pipeline rights-of-way to the BLM, the Secretary of the Interior has required that BLM obtain the concurrence of the Federal land managing agency to issue a right-of-way on lands that are not under the Secretary's jurisdiction. 43 CFR § 2882.3(i) .
Regulations of the Secretary of Agriculture
On-Lease Surface Uses
Regulations governing the use of the surface of National Forest System lands for activities associated with oil and gas leasing are codified at 36 CFR § 228 Subpart E. Under the regulations, the Forest Service goes through several steps to determine which lands under its administration will be available for leasing, whether or not to object to the issuance of specific lease proposed by the BLM, and approve of a surface use plan of operations for activities to be conducted for exploration and development on-lease.
Under 36 CFR § 228.102(d), the Forest Service makes an area or Forest-wide leasing decision that determines which lands on a National Forest are administratively available for leasing. Often this decision is made in conjunction with the development or revision of a Land and Resource Management Plan for a National Forest. 36 CFR § 228.102(c). The availability determination may also condition availability of land for oil and gas leasing on the inclusion of specified lease stipulations to protect surface resources. 36 CFR § 228.102(c)(ii). The Forest Service also prepares an environmental analysis under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., for its availability determination. 36 CFR § 228.102(c).
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When specific lands are proposed for leasing, the leasing availability determination is reviewed, and the Forest Service may authorize the BLM to issue a lease subject to: verifying that oil and gas leasing has been adequately addressed in the NEPA document for the availability determination and that leasing is consistent with the Forest plan; ensuring that any conditions of surface occupancy are identified in lease stipulations; and determining that surface operations and development are feasible under the stipulations. 36 CFR § 228.102(e). If these conditions are met, the Forest Service will issue a consent to lease to the BLM documenting that it has no objections to issuance of the lease.
Once a lease has been issued, the lessee must submit a proposed surface use plan of operations (SUPO) to the Forest Service for approval, and no permit to drill may be issued by the BLM until the SUPO has been approved by the Forest Service. 36 CFR § 228.106. The SUPO must describe proposed surface uses and demonstrate how requirements for environmental protection will be met. 36 CFR § 228.108. Bonding and indemnification may be required as a condition of approving the SUPO. 36 CFR §§ 228.109, 228.110. The regulations also provide for enforcement of compliance with the approved SUPO. 36 CFR §§ 228.112.
Off-Lease Operations
Under 36 CFR § 228.100(c), an...
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