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Late Wednesday Secretary of the Interior Zinke signed Secretarial Order 3353 establishing a Sage-Grouse Review Team to review the Obama Administration’s 2015 amendments to federal land use management plans.  To avoid listing the greater sage-grouse under the Endangered Species Act, those plan amendments had proposed that over 10 million acres of “sagebrush focal areas” on public lands in six western states be withdrawn from mineral location and entry under the General Mining Law for up to 20 years.  The new Sage-Grouse Review Team’s work will include recommending changes to the amended plans that “give appropriate weight to the value of energy and other development on public lands within BLM’s overall multiple-use mission.”  Comprised of representatives from various Department of the Interior agencies and working with the U.S. Forest Service and state agencies, the Sage-Grouse Review Team is to provide a written report on or before August 6, 2017.
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Continue Reading With Mining Law Segregation on 10 Million Acres to Expire in Three Months, Interior Forms Sage-Grouse Review Team

UPDATE: Quickly following on the heels of the Wyoming federal district court’s order striking down the Bureau of Land Management’s (BLM) hydraulic fracturing rules, the state governments of North Dakota, Wyoming, Colorado, and Utah have now moved to dismiss the pending Tenth Circuit appeal of the district court’s preliminary injunction order.  Those state government indicated in their brief that they had unsuccessfully attempted to reach out to counsel for the BLM and the environmental groups who filed that appeal, but expected those parties will oppose the dismissal motion.

Separately, the BLM and the intervening environmental groups each filed notices seeking to directly appeal the district court’s June 21 order and judgment striking the BLM’s rules to the Tenth Circuit.  While it remains unclear exactly how this matter will now proceed on appeal, it seems likely that the Tenth Circuit will combine or consolidate all of these appeal issues in one way or another.

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As we’ve previously reported, a Wyoming federal court issued a preliminary injunction order last year that temporarily halted the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands.  Since that time, the case has split into two proceedings: the Wyoming court moved forward with conducting a full legal analysis of the BLM’s final rule, while several environmental groups who had intervened in the lawsuit appealed the preliminary injunction order to the Tenth Circuit Court of Appeals.  This week we received some clarity on one of those proceedings, while the other remains pending.

District Court Strikes Down BLM Final Rule

On June 21, the Wyoming court struck down the BLM’s final rule, finding the agency lacked the legal authority to promulgate those regulations.

In his order, Judge Scott Skavdahl premised his opinion on whether Congress delegated requisite authority to the BLM to regulate hydraulic fracturing on public lands, and “not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States.”  Ultimately, Judge Skavdahl held, a federal agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.”…

Continue Reading Wyoming Court Strikes Down BLM Hydraulic Fracturing Rule; Existing Appeal Remains Pending (For Now)

The Bureau of Land Management (“BLM”) recently filed a Motion for Summary Judgment in a lawsuit brought by a coalition of environmental activists who have challenged the BLM’s Resource Management Plan (“RMP”) for public lands and minerals in California managed by the Bakersfield Field Office.  The activists asked a California federal judge to strike down the BLM’s RMP, claiming that the BLM never considered the effect of “unconventional drilling methods,” such as hydraulic fracturing on the land.

The BLM responded by pointing out that hydraulic fracturing is not a new, unproven technology and has been routinely used in California for over 50 years. It is estimated that only 25% of new wells in the Bakersfield planning area are expected to undergo hydraulic fracturing.  Furthermore, the BLM noted that 98% of new wells on federal mineral lands in the planning area are projected to be drilled on existing leases that have been producing for over 30 years and not on pristine, undisturbed lands.

The activists claimed that the BLM failed to take a “hard look” at the environmental impacts associated with fracking as required by the National Environmental Policy Act (“NEPA”). However, any claim that the BLM did not comply with NEPA in developing the RMP is particularly weak under these facts.  The BLM developed a comprehensive, 1,000-page environmental impact statement (“EIS”).  Additionally, before issuing a final decision, BLM commissioned an independent review of well stimulation technologies in California to ensure that its EIS accurately reflected the potential impacts of fracking.  And finally, the independent review concluded that overall, the direct environmental impacts of well stimulation practice are relatively limited in California.
Continue Reading BLM Fights Back Against Activists’ Criticisms of CA Resource Management Plan

Two lawsuits were filed within days of each other in Oklahoma, claiming that energy companies engaged in hydraulic fracturing and underground disposal of produced water are causing earthquakes throughout the state. These lawsuits probably come as no surprise to the industry after the Sierra Club recently threatened to sue four oil companies for contributing to increased earthquakes in Oklahoma and southern Kansas.

A pair of Oklahoma residents, in a class-action lawsuit, have accused four energy companies of causing “a dramatic increase” in earthquakes throughout the state during the last five years. The lawsuit names Sandridge Exploration and Production, Chesapeake Operating, Devon Energy Production Company, and New Dominion as the defendants.

The plaintiffs claim that hydraulic fracturing and underground disposal of produced water are causing earthquakes across the state by increasing the pore pressure within faults making the fault more prone to slip.

The lawsuit alleges that the companies are liable to the plaintiffs and the class for nuisance, trespass, negligence, and engaging in an ultra-hazardous activity. The plaintiffs are seeking not only compensatory damages, but also punitive damages and attorneys’ fees.…
Continue Reading Two Frackquake Lawsuits Filed in Oklahoma

Following a Wyoming federal court’s order temporarily halting the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands, Sierra Club and several other environmental groups requested the court enter final judgment and delay proceedings while they pursue an appeal through the Tenth Circuit Court of Appeals.  (Our complete coverage of this…

On October 8, the National Wildlife Federation (“NWF”) fulfilled its promise to sue the U.S. Department of Transportation (“DOT”). The lawsuit alleges that for 20 years the DOT has allowed pipelines to operate illegally by failing to issue regulations under section 311(j) of the Clean Water Act (“CWA”), which requires pipeline operators to submit plans…

Late yesterday, Judge Scott Skavdahl of the federal district court in Wyoming issued a much-anticipated order granting a series of preliminary injunction motions filed in litigation challenging the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands.  (Our full coverage of the litigation is available here.)  In a detailed 54-page…

In June, a Wyoming federal district court temporarily delayed implementation of the Bureau of Land Management’s (“BLM”) new final rule regulating hydraulic fracturing on federal public lands, while it granted the BLM an extension to lodge its administrative record and permitted the parties more time to file citations to that record in support of their…

On July 28, 2015, the National Wildlife Federation (“NWF”) filed an intent to sue notice against the Department of Transportation (“DOT”), arguing the DOT has not properly approved pipeline projects for more than 20 years.

The legal action carries nationwide implications: Every U.S. oil pipeline that intersects a navigable water may soon be subject to additional regulations.

Specifically, NWF contends that DOT has failed to issue regulations under section 311(j) of the Clean Water Act (“CWA”), requiring an owner or operator of a pipeline to prepare and submit a facility response plan (“FRP”) detailing response actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States.
Continue Reading Pipeline Operators Take Heed – Threatened Enviro Lawsuit May Lead to Greater Regulatory Requirements

Following a court hearing and order temporarily delaying the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal public lands, the BLM submitted its response brief opposing the Ute Indian Tribe’s preliminary injunction motion on July 1.  Among the BLM’s arguments, it asserted four primary points:

  • First, the BLM contends that the

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On the heels of yesterday’s day-long hearing on several preliminary injunction motions in litigation challenging the Bureau of Land Management’s (“BLM”) new final rule regulating hydraulic fracturing on federal public lands, the Wyoming district court has temporarily ordered a delay of the rule’s implementation for at least several weeks. (See our prior coverage of the…

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Here Stoel Rives shares insight and analysis about key mineral law developments. Drawing on a very active natural resources practice, we aim to keep readers informed about the legal aspects of news that impacts exploration and development of all things mineral.