SURFACE USES RELATED TO FEDERAL OIL AND GAS DEVELOPMENT ON PUBLIC LANDS

• Jurisdiction: United States

Oil and Gas Agreements: Surface Use in the 21st Century (May 2017)
CHAPTER 4B
SURFACE USES RELATED TO FEDERAL OIL AND GAS DEVELOPMENT ON PUBLIC LANDS
Kenneth D. Paur
Deputy Regional Attorney
U.S. Department of Agriculture Office of the General Counsel
Lakewood, CO

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KENNETH D. PAUR is the Deputy Regional Attorney for the Mountain Region of the USDA Office of the General Counsel in Denver, Colorado, which provides legal services to all agencies of the USDA in the Interior West. He previously served as the Assistant Regional Attorney in charge of the Ogden, Utah Field Office from 2000-2013, and as an Attorney in the Ogden Office since 1991, where he provided legal services to the Intermountain Region of the U.S. Forest Service. Mr. Paur's areas of practice emphasize real property, mineral, and water law, but he has worked extensively in all areas of public land, natural resources, environmental and administrative law affecting the Forest Service and the National Forest System. Prior to coming to the Office of the General Counsel, he worked as a forester with state agencies in Utah, Colorado, and Virginia, as a private land surveyor, and as a Land Law Examiner and Natural Resources Specialist with the U.S.D.I. Bureau of Land Management. Mr. Paur earned his J.D. from George Mason University School of Law in 1989, where he was awarded the Virginia Environmental Endowment Environmental Law Fellowship. He holds an A.A.S. in Forestry and Land Surveying from Paul Smiths College, and a B.S. in Forest Management from Utah State University. He is admitted to the Virginia State Bar.

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Disclaimer: The views expressed herein are those of the author, and do not necessarily reflect the views of the Department of Agriculture, the Office of the General Counsel, or the Forest Service

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Introduction

Oil and gas leasing and development is generally allowed on the National Forests and Grasslands administered by the Forest Service. However, given the multiple-use mandate for administration of the National Forest System under 16 U.S.C. § 528, the potential impacts of oil and gas development on surface resources are given special consideration. The Forest Service is charged with insuring that National Forest System land is only leased where operations are compatible with administration of surface resources for other multiple-use purposes and, where leasing is allowed, that leases are issued, and operations conducted, under such terms and conditions as the Forest Service deems necessary to protect and conserve national forest resources.

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Statutory and Regulatory Framework

Congress enacted the Federal Onshore Oil and Gas Leasing Reform Act in 1987, P.L. No. 100-203, subtitle B, 101 Stat. 1330, 30 U.S.C. §§ 226(g) -(h), which governs the issuance of oil and gas leases on National Forest System (NFS) land. The Act divides responsibility and authority for the issuance and administration of such leases between the Forest Service and the U.S.D.I. Bureau of Land Management (BLM). Under the Act, NFS land may not be leased by the BLM over the objection of the Forest Service, leases must include terms and conditions required by the Forest Service as conditions of its consent to leasing and, when leases are issued, the Forest Service regulates all surface-disturbing activities on NFS land. See: Wyoming Outdoor Council v. Forest Service, 165 F. 3d 43, 45 (D.C. App. 1999).

Accordingly, the Secretary of Agriculture has promulgated regulations codified at 36 CFR § 228 Subpart E governing oil and gas leasing on NFS land, and use of the surface of NFS land for operations related to oil and gas development. In general, the regulations provide as follows:

1. The Forest...