WHO IS IN CHARGE? ROLE OF THE BUREAU OF LAND MANAGEMENT

• Jurisdiction: United States

REGULATION AND DEVELOPMENT OF COALBED METHANE
(Nov 2002)
CHAPTER 10D
WHO IS IN CHARGE? ROLE OF THE BUREAU OF LAND MANAGEMENT
Fred E. Ferguson, Associate Solicitor
Division of Mineral Resources, United States Department of the Interior
Washington, D.C.

A. Introduction

1. The Bureau of Land Management (BIM):

• Plans, as landowner, for the many potential uses of BLM managed lands;

• Leases, as manager of the federal mineral estate, not only its minerals but also the mineral interests of other consenting federal agencies;

• Oversees, as regulator, operations on federal mineral leases as well as those of federally recognized Indian tribes and Indian owners of alloted minerals;

• Complies with other laws applicable to its operations, including the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA I.

2. Sources

a. Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq. (FLI 'MA)

b. Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq. (MLA). See especial y 30 U.S.C. 226

c. Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et seq.

d. Regulations at 43 CFR Part 1600 on Planning

e. Regulations at 43 CFR Part 2880 on Rights-of-Way

f. Regulations at 43 CFR Part 3100 on Oil and Gas Leasing. See especially: 43 CFR Part 3120 on Competitive Leasing; 43 CFR § 3162.3 concerning Conduct of Operations, including Applications for Permits to Drill and Surface Use Hans of Operation

g. Onshore Order No. 1 on Approval of Operations, 48 Fed. Reg. 48916 and 48 Fed. Reg. 56226 (1983)

h. Onshore Order No. 7 on Disposal of Produced Water, 58 Fed. Reg. 47354 (1993)

[Page 10D-2]

B. Planning

1. FLPMA requires that BLM engage in comprehensive land use planning prior to making any BLM managed lands available for mineral leasing. The Forest Service has comparable planning obligations under the National Forest Management Act.

2. FLPMA prescribes the procedural requirements associated with planning, including opportunities for public participation and coordination with state and local governments.

3. Virtually all BLM lands have been the subject of land use planning either through Resource Management Plans (RMPs) prepared under FLPMA or Management Framework Analyses prepared under predecessor statutes. Many of these plans are a decade or more old and BLM is in the process of updating them.

4. There are numerous administrative and judicial proceedings in which opponents of coalbed methane allege that the development of coalbed methane is not a use that conforms to plans adopted before widespread CBM development. Federal oil and gas leases, which were addressed in the plans, authorize lessees to produce natural gas from any formation, whether coal, sandstone or limestone. The Interior Board of Land Appeals (IBLA) held in Wyoming Outdoor Council ¹ that "Production of Federal CBM is obtained pursuant to Federal oil and gas leases, an activity consistent with the RMP."

5. The closer call is whether the NEPA analysis that informed the planning decisions is adequate to support leasing in areas in which coalbed methane is likely to be produced, i.e. whether the environmental consequences of producing coalbed methane are significantly different than the impacts examined in the NEPA for the earlier RMPs.

C. Leasing

1. BLM issues oil and gas leases pursuant to section 17 of the MLA² for lands that have never left the public domain and pursuant to section 3 of the Mineral Leasing Act for Acquired Lands³ for lands acquired by federal agencies.

2. The Federal Oil and Gas Leasing Reform Act of 1987 (FOOGLRA) amended the MLA to require that tracts be offered for competitive bid before becoming available on a noncompetitive basis.⁴

[Page 10D-3]

3. BLM may not lease minerals beneath public domain lands reserved for National Forest System purposes over the objection of the Forest Service.⁵ Acquired lands minerals may only be leased with the consent of the surface management agency and subject to the conditions it stipulates.⁶

4. FLPMA envisions multiple-use management of the public lands.⁷ After lands are leased for one mineral (such as oil and gas), they may be subsequently leased for extraction of another mineral (such as coal). BLM lease forms provide that the later lessee is only authorized to conduct activities that do not interfere with the operations of the first lessee.

5. BLM approval is required before a lease may be assigned or a sublease of operating rights created.⁸

6. A federal oil and gas lease authorizes the development of all hydrocarbon gases, including methane from coal seams.⁹

7. It is rare for BLM to conduct NEPA analysis or ESA consultation in con lection with issuing individual leases. BLM ordinarily conducts such analysis or consultation at the planning stage, subject to supplementation if...