Oil and Gas Development
Challenges to Agency Decisions and Opportunities for BLM to Standardize Data Collection Gao ID: GAO-05-124 November 30, 2004U.S. consumption of oil and natural gas increasingly outpaces domestic production, a gap that is expected to grow rapidly over the next 20 years. There has been increasing concern about U.S. reliance on foreign energy sources. One option being considered is to increase domestic production of resources on land under the jurisdiction of the Department of the Interior's Bureau of Land Management (BLM), Bureau of Indian Affairs (BIA) and Minerals Management Service (MMS) and the Department of Agriculture's Forest Service. GAO determined (1) the stages when agency decisions about oil and gas development can be challenged by the public, (2) the extent to which BLM gathers and uses public challenge data to manage its oil and gas program, and (3) for fiscal years 1999-2003, the number of MMS offshore development decisions that were challenged.
At the four stages of developing oil and gas resources--planning, exploration, leasing, and operations, BLM, the Forest Service, BIA, and MMS allow for public challenges to agency decisions. However, the agencies have different procedures for processing challenges that occur within the stages. For example, BLM leasing decisions can be challenged to a BLM state director, further appealed to the Interior Board of Land Appeals (IBLA), and litigated in federal court. Forest Service leasing decisions, however, sometimes can be appealed through the Forest Service supervisory chain of command and litigated in federal court. The Forest Service has no separate appeals board within the Department of Agriculture, such as IBLA, to review decisions. In addition, unlike BLM, the Forest Service has specific time frames during which appeals must be decided. BIA procedures offer opportunities for public challenges at the exploration and leasing stages, which are the only stages BIA makes decisions related to oil and gas development. MMS regulations do not provide for appeals at the planning or leasing stages, but do provide for appeals to IBLA during the exploration and operations stages. All MMS decisions could potentially be litigated in federal court. BLM does not systematically gather and use nationwide information on public challenges to manage its oil and gas program. BLM has a system that state offices use to collect data on public challenges during leasing, but the state offices use it inconsistently because they lack clear guidance from headquarters on which data to enter. As a result, the system does not provide consistent information that BLM headquarters can use to assess workload impacts on its state offices and to make staffing and funding resource allocation decisions. Because this system does not track all the public challenge data necessary for managing workload, headquarters and state offices also use multiple, independent data collection systems that are not integrated with one another or BLM's system. BLM is in the process of developing a new system that provides an opportunity to standardize collection of data on public challenges at the leasing stage. However, it has not decided whether the new system will be used to track public challenge information. Between fiscal years 1999 and 2003, MMS was challenged on only one of its 1,631 decisions approving offshore oil and gas development and production and only one of its 1,997 decisions approving offshore oil and gas exploration. Both decisions concerned land on the outer continental shelf off the coast of Alaska and were challenged by Alaskans, a Native American tribe, or an environmental interest group on the basis that the decisions violated the National Environmental Policy Act and other laws. One of the decisions was litigated in federal court and the court decided against the challenges. The other decision was appealed to IBLA but the company discontinued work before a decision was reached.
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Director: Team: Phone:GAO-05-124, Oil and Gas Development: Challenges to Agency Decisions and Opportunities for BLM to Standardize Data Collection
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Report to the Honorable Richard Pombo, Chairman, Committee on
Resources, House of Representatives:
November 2004:
OIL AND GAS DEVELOPMENT:
Challenges to Agency Decisions and Opportunities for BLM to Standardize
Data Collection:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-124]:
GAO Highlights:
Highlights of GAO-05-124, a report to the Chairman, Committee on
Resources, U.S. House of Representatives:
Why GAO Did This Study:
U.S. consumption of oil and natural gas increasingly outpaces domestic
production, a gap that is expected to grow rapidly over the next 20
years. There has been increasing concern about U.S. reliance on foreign
energy sources. One option being considered is to increase domestic
production of resources on land under the jurisdiction of the
Department of the Interior‘s Bureau of Land Management (BLM), Bureau of
Indian Affairs (BIA) and Minerals Management Service (MMS) and the
Department of Agriculture‘s Forest Service.
GAO determined (1) the stages when agency decisions about oil and gas
development can be challenged by the public, (2) the extent to which
BLM gathers and uses public challenge data to manage its oil and gas
program, and (3) for fiscal years 1999-2003, the number of MMS offshore
development decisions that were challenged.
What GAO Found:
At the four stages of developing oil and gas resources”planning,
exploration, leasing, and operations, BLM, the Forest Service, BIA, and
MMS allow for public challenges to agency decisions. However, the
agencies have different procedures for processing challenges that occur
within the stages. For example, BLM leasing decisions can be challenged
to a BLM state director, further appealed to the Interior Board of Land
Appeals (IBLA), and litigated in federal court. Forest Service leasing
decisions, however, sometimes can be appealed through the Forest
Service supervisory chain of command and litigated in federal court.
The Forest Service has no separate appeals board within the Department
of Agriculture, such as IBLA, to review decisions. In addition, unlike
BLM, the Forest Service has specific time frames during which appeals
must be decided. BIA procedures offer opportunities for public
challenges at the exploration and leasing stages, which are the only
stages BIA makes decisions related to oil and gas development. MMS
regulations do not provide for appeals at the planning or leasing
stages, but do provide for appeals to IBLA during the exploration and
operations stages. All MMS decisions could potentially be litigated in
federal court.
BLM does not systematically gather and use nationwide information on
public challenges to manage its oil and gas program. BLM has a system
that state offices use to collect data on public challenges during
leasing, but the state offices use it inconsistently because they lack
clear guidance from headquarters on which data to enter. As a result,
the system does not provide consistent information that BLM
headquarters can use to assess workload impacts on its state offices
and to make staffing and funding resource allocation decisions. Because
this system does not track all the public challenge data necessary for
managing workload, headquarters and state offices also use multiple,
independent data collection systems that are not integrated with one
another or BLM‘s system. BLM is in the process of developing a new
system that provides an opportunity to standardize collection of data
on public challenges at the leasing stage. However, it has not decided
whether the new system will be used to track public challenge
information.
Between fiscal years 1999 and 2003, MMS was challenged on only one of
its 1,631 decisions approving offshore oil and gas development and
production and only one of its 1,997 decisions approving offshore oil
and gas exploration. Both decisions concerned land on the outer
continental shelf off the coast of Alaska and were challenged by
Alaskans, a Native American tribe, or an environmental interest group
on the basis that the decisions violated the National Environmental
Policy Act and other laws. One of the decisions was litigated in
federal court and the court decided against the challenges. The other
decision was appealed to IBLA but the company discontinued work before
a decision was reached.
What GAO Recommends:
GAO recommends actions to improve BLM management of its oil and gas
program by standardizing the collection of public challenge data at the
leasing stage for onshore federal lands.
Interior said that BLM would continue its efforts to standardize public
challenge data collection at the leasing stage. Agriculture said that
the report is a good summary of the complex management of the oil and
gas programs.
www.gao.gov/cgi-bin/getrpt?GAO-05-124.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu K. Mittal at (202)
512-3841 or mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Public Challenges Can Occur During the Four Stages of the Oil and Gas
Development Process although Procedures Differ among Agencies:
BLM Does Not Systematically Gather and Use Public Challenge Information
to Manage Its Oil and Gas Program:
Areas on the Outer Continental Shelf Open to Offshore Oil and Gas
Development Experienced Few Public Challenges:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of the Interior:
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Procedures for Public Challenges to BLM, Forest Service, BIA,
and MMS Decisions during the Four Stages of Oil and Gas Development:
Table 2: The Number of Exploration and Operations Decisions Approved by
MMS Between 1999 and 2003 and the Number That Were Challenged by the
Public:
Figures:
Figure 1: Subsurface Mineral Resources Managed by BLM, and Surface
Managed by BLM, Forest Service, Other Federal Agencies, or Owned by
Private Parties or State Governments:
Figure 2: MMS Administrative Regions and Areas Withdrawn and Not
Withdrawn From Oil and Gas Leasing on the Outer Continental Shelf:
Abbreviations:
BIA: Bureau of Indian Affairs:
BLM: Bureau of Land Management:
FWS: Fish and Wildlife Service:
GAO: Government Accountability Office:
IBIA: Interior Board of Indian Appeals:
IBLA: Interior Board of Land Appeals:
MMS: Minerals Management Service:
NPS: National Park Service:
NEPA: National Environmental Policy Act:
Letter November 30, 2004:
The Honorable Richard Pombo:
Chairman, Committee on Resources:
House of Representatives:
Dear Mr. Chairman:
U.S. energy consumption increasingly outpaces domestic production, and
this demand is increasingly being met by imports of oil and natural
gas. In 1982, domestic consumption of oil was about 15 million barrels
per day: 73 percent (11 million) from domestic production and 27
percent (4 million) from imports. By 2003, domestic consumption of oil
had increased to about 20 million barrels per day, with 45 percent (9
million) from domestic production and 55 percent (11 million) from
imports. Natural gas consumption experienced a similar trend. In 1982,
natural gas consumption was almost 18 trillion cubic feet per year,
which essentially equaled domestic production. By 2003, natural gas
consumption was about 22 trillion cubic feet per year, with 86 percent
(19 trillion) from domestic production and 14 percent (3 trillion) from
imports. The Department of Energy projects that dependence on foreign
oil and gas will continue to grow rapidly over the next 20 years.
With continuing instability in many foreign energy-exporting regions
including the Middle East, there has been increasing concern about U.S.
reliance on foreign energy sources. One way being considered is to
increase domestic production by further developing onshore resources on
land under jurisdiction of the Bureau of Land Management (BLM) and the
Bureau of Indian Affairs (BIA) within the Department of the Interior,
and the Forest Service within the Department of Agriculture, and
offshore resources under the jurisdiction of Interior's Minerals
Management Service (MMS). Among these agencies, BLM has the major
federal role in managing the development of onshore oil and gas
resources. It not only issues leases and permits for oil and gas
development on land it manages directly but also for onshore land under
the jurisdiction of the other federal agencies. BLM also assists BIA,
Indian tribes, and tribal members in managing land owned by Indian
tribes and individual Native Americans for oil and gas development. MMS
is the sole agency responsible for managing offshore oil and gas
development. BLM and Forest Service must also manage their lands for a
variety of other uses such as fish and wildlife, grazing, outdoor
recreation, timber, and watersheds.
Agency procedures for developing oil and gas resources provide
opportunities for the public to challenge agency resource management
decisions. Public challenges can occur in the form of protests,
appeals, and litigation.[Footnote 1] Through protests and appeals,
challengers ask an agency or appeals board to review a decision--
procedures that provide an opportunity for the agency to correct its
own mistakes before it is called into court. In addition, agency
administrative review procedures help promote judicial efficiency by
resolving controversies before they are litigated in the courts, or at
least by developing an extensive factual record on which the court may
base its review.
In this context, you asked us to (1) identify the stages when agency
decisions about oil and gas development can be challenged by the
public, (2) determine the extent to which BLM gathers and uses public
challenge data to manage its onshore oil and gas program, and (3)
determine for fiscal years 1999-2003 the number of offshore oil and gas
development decisions by MMS that were challenged, who challenged them,
and the grounds, time frames, and outcomes of the challenges.
To identify the stages when the public can challenge oil and gas
development decisions, we reviewed and analyzed applicable statutes,
agency regulations, and documentation, and also interviewed BLM, Forest
Service, BIA, and MMS officials.[Footnote 2] To determine the extent to
which BLM gathers and uses data on public challenges to manage its
program, we reviewed and analyzed BLM documents including database
manuals, internal memorandums, and agencywide procedures for gathering
oil and gas activity data. In addition, we interviewed BLM officials in
both headquarters and selected state offices to determine what data on
public challenges are gathered and used. To obtain information on
offshore oil and gas development decisions and challenges, we
interviewed agency officials and analyzed information from MMS
databases that recorded the number of oil and gas decisions and
challenges made in fiscal years 1999 through 2003. We discussed the
results with agency officials in headquarters and regional offices to
corroborate our analysis and to obtain additional information on the
public challenges. We conducted our work in accordance with generally
accepted government auditing standards.
Results in Brief:
BLM, Forest Service, BIA, and MMS procedures allow for public
challenges to agency decisions during the four stages of developing oil
and gas resources--planning, exploration, leasing, and operations.
However, the agencies have different procedures for processing
challenges that occur within the stages. For example, decisions made at
the planning stage on land managed by BLM can first be challenged to
the BLM director at headquarters. Following the challenge, planning
decisions can be litigated in federal court. BLM leasing decisions can
be challenged to the appropriate BLM state office director, appealed to
the Interior Board of Land Appeals (IBLA), and litigated in federal
court. At the Forest Service, planning and leasing decisions sometimes
can be appealed through the supervisory chain of command. For example,
a forest supervisor's decision can be appealed to the regional
supervisor or the regional supervisor's decision can be appealed to the
Forest Service Chief. Following an appeal, planning and leasing
decisions can sometimes be litigated in federal court. Unlike BLM, the
Forest Service does not have a separate appeals board within the
Department of Agriculture, such as IBLA, to review Forest Service
decisions. In addition, the Forest Service has specific time frames for
deciding appeals whereas BLM and IBLA have no specific time frames for
deciding protests or appeals. BIA procedures offer opportunities for
public challenges at the exploration and leasing stages, which are the
only stages BIA makes decisions related to oil and gas development. MMS
regulations do not provide for appeals at the planning or leasing
stages, but do provide for appeals to IBLA during the exploration and
operations stages. All MMS decisions could potentially be litigated in
federal court.
BLM headquarters does not systematically gather and use nationwide
information on public challenges to manage its oil and gas program.
While there is an agencywide system that collects data on public
challenges during one of the four oil and gas development stages--
leasing--there is no clear guidance on which data the state offices are
to enter into the system. Current guidance allows states the latitude
to choose where to begin recording data within the leasing process. As
a result, state offices use this system inconsistently, leading to gaps
in the data. Specifically, some state offices enter data on public
challenges for all land parcels included in a lease sale, whether or
not the parcels receive a bid. Other states offices only enter data on
land parcels that receive a bid at lease sale; excluding those that did
not receive a bid. According to officials at these state offices,
entering data on all land parcels creates extra work because they only
use the agencywide system to track leases, not unsold land parcels.
However, the state offices that do use the system to track public
challenges for unsold parcels believe that the information is useful
for managing workload. Due to this discrepancy, headquarters cannot use
the data in the agencywide system to track all public challenges and
assess the impact on the workload of their state offices. Because the
system does not keep all public challenge data, headquarters and state
offices also use multiple, independent data collection systems for the
various stages of oil and gas development. These systems vary, and
include nonintegrated electronic spreadsheets and paper files.
Headquarters does not have ready access to the state office data and
therefore, the stand-alone systems do not supplement the information
available in the agencywide system. According to BLM officials, to
manage the oil and gas development program, headquarters must
specifically request such data from its state offices, as it recently
did in June 2004. In this instance, the data were received in a couple
of weeks. BLM is in the process of developing an automated agencywide
system to manage the leasing process that will supplement the existing
system. BLM is creating the new system because it recognizes a need to
eliminate duplicative, nonintegrated systems currently used by its
state offices. The development of this new system provides an
opportunity to standardize collection of data on public challenges at
the leasing stage and to eliminate data gaps that currently exist.
However, BLM officials told us that they have not yet decided whether
the new leasing system will include information on public challenges,
in part because state offices are reluctant to abandon their current
methods for gathering public challenge data. We are making
recommendations to the Department of the Interior to include
information on public challenges in the new agencywide automated system
for selling leases and to issue clear guidance on which data on public
challenges should be entered into the system.
According to data provided by MMS officials, between fiscal years 1999
and 2003, the agency was challenged on only one of its 1,631 decisions
approving offshore oil and gas development and production, and only one
of its 1,997 decisions approving offshore oil and gas exploration. Both
of the challenged MMS decisions, described below, concerned access to
mineral resources on the outer continental shelf off the coast of
Alaska.
* MMS's approval of a development and production plan in September 1999
was litigated the next month in federal appeals court. Several Alaskans
and an environmental interest group challenged MMS's decision on
grounds that the plan violated the National Environmental Policy Act
and the Oil Pollution Act. A federal appeals court ruled against the
challenges in September 2001.
* MMS's approval of an exploration plan in February 2002 was appealed
to IBLA by a Native American tribe in Alaska and three tribal members
on the grounds that the plan violated the National Environmental
Policy Act and the Administrative Procedure Act. No decision was
reached on the appeal before the company discontinued work on the plan
in July 2003.
For the period we examined, MMS reported no lawsuits challenging its 5-
year offshore management plan or the land parcels included in its 13
lease sales. MMS also reported that there were no challenges to the
2,850 drilling permits it issued.
In commenting on a draft of this report, the Department of the Interior
reinforced that the new national Lease Sale System being designed will
track public challenge data on oil and gas lease sales. The Department
of Agriculture said that the report is a good summary of the complex
process that BLM and the Forest Service use to jointly manage and make
decisions concerning the oil and gas programs, and appeals related to
agency decisions. Both Interior and Agriculture also provided technical
clarifications to the report. We modified the report as appropriate to
reflect their technical comments.
Background:
The federal government owns onshore mineral resources, including oil
and gas, under about 700 million acres of land. These resources are
located below the surface land--known as the subsurface. While the
federal government owns all or part of the mineral resources in the
subsurface, it does not necessarily own the surface land. Of the 700
million acres of federal mineral resources, the surface and subsurface
ownership on 57 million acres is "split" between private parties or
state governments, which own the surface area, and the federal
government, which owns the subsurface area--referred to as "split
estate" land. The BLM manages the federal mineral resources contained
in the subsurface of about 700 million acres. It also manages 261
million acres of the surface areas of the 700 million acres for such
purposes as grazing, recreation, and timber harvesting. BLM, headed by
the BLM director, manages public lands under its jurisdiction through
12 state offices, headed by state directors, with each state office
having several subsidiary field offices, headed by field office
managers. The balance of the federal surface land is managed by other
federal agencies such as the Forest Service. Figure 1 shows the
subsurface mineral resources managed by BLM, and surface managed by
BLM, Forest Service, other federal agencies, or owned by private
parties or state governments.
Figure 1: Subsurface Mineral Resources Managed by BLM, and Surface
Managed by BLM, Forest Service, Other Federal Agencies, or Owned by
Private Parties or State Governments:
[See PDF for image]
[A] Other federal agencies include the National Park Service (NPS), the
Fish & Wildlife Service (FWS), and the Bureau of Reclamation within the
Department of the Interior, and the Army Corps of Engineers within the
Department of Defense. Almost all NPS land has been withdrawn from
mineral leasing and development. Further, mineral leasing occurs on a
few FWS lands, but most have been withdrawn from leasing or have no
mineral potential.
Note: Not all subsurface mineral resources below federal lands are
federally owned and managed by BLM. According to the Department of the
Interior, mineral resources under an estimated 4 million acres of
federally managed surface lands are retained in private ownership.
Percentages may not add to 100 percent due to rounding.
[End of figure]
The Forest Service and BLM both have roles in managing oil and gas
resources on national forest system land. Although BLM has the major
role in issuing oil and gas leases and permits on national forest
system land, the Forest Service is responsible for determining what
land is available for leasing and under what conditions. Once leases
are issued, the Forest Service regulates all surface-disturbing
activities conducted under the lease. The Forest Service manages its
programs through nine regional offices, 155 national forests, 20
grasslands, and over 600 ranger districts (each forest has several
districts). The Forest Service Chief oversees the agency, whereas
regional foresters oversee regional offices, forest supervisors oversee
national forests, and district rangers oversee district offices.
BLM assists BIA in fulfilling the trust responsibilities of the United
States by assisting Indian tribes and individual Native Americans in
managing about 56 million acres of Indian land for oil and gas
development. Indian land principally consists of lands within Indian
reservations, lands owned by Indian tribes, and Indian
allotments.[Footnote 3] BIA administers its programs through the BIA
director, 12 regional offices, headed by regional directors, and over
80 agency offices, headed by agency superintendents.
MMS manages oil and gas development for offshore mineral resources on
the outer continental shelf through three administrative regions: Gulf
of Mexico, Alaska, and Pacific. The MMS director heads the agency and
regional managers head the regions. District offices support the
regional offices and are headed by district managers. The federal outer
continental shelf is an area extending from 3 to 9 nautical
miles,[Footnote 4] depending on the location, to about 200 nautical
miles off the United States coast. Over 610 million acres of the outer
continental shelf is closed to future oil and gas development due to
legislative and Presidential moratoria. Figure 2 shows MMS
administrative regions and the areas open or closed to oil and gas
development.
Figure 2: MMS Administrative Regions and Areas Withdrawn and Not
Withdrawn From Oil and Gas Leasing on the Outer Continental Shelf:
[See PDF for image]
[A] The Gulf of Mexico region manages development in both the Atlantic
and Gulf of Mexico areas.
[B] Out of the 1.2 billion acres not withdrawn from oil and gas
leasing, almost 170 million acres are currently available for lease
under MMS' 5-year plan.
[C] Congress has renewed the legislative moratoria annually in the
Department of the Interior's annual appropriations act.
[End of figure]
Federal Agency Processes for Managing Oil and Gas Resources:
Several statutes, including the National Environmental Policy Act
(NEPA), and regulations govern oil and gas development on federal and
Indian land. NEPA requires BLM, Forest Service, BIA, and MMS, and all
other federal agencies, to assess and report on the likely
environmental impacts of any land management activities they propose or
approve that significantly affect environmental quality. Specifically,
if a proposed activity, such as oil and gas development, is expected to
significantly impact the environment, the agency is required to prepare
an environmental impact statement. When an agency is not sure whether
an activity will have significant impact on the environment, the agency
prepares an intermediate-level analysis called an environmental
assessment. If an environmental assessment determines that the activity
will significantly affect the environment, the agency then prepares an
environmental impact statement.[Footnote 5] Agencies also identify
certain categories of actions that normally do not significantly impact
the environment, and which are excluded from preparation of an
environmental impact statement or environmental assessment--referred
to as categorical exclusions.
BLM, Forest Service, BIA, and MMS each have similar processes for
managing oil and gas activity on land within their jurisdiction.
Generally, these processes center around four stages--planning,
exploration, leasing and operations.
* During the planning stage, agencies develop land-use plans,
revisions, and amendments, delineating where and under what conditions
oil and gas activities can take place on federal land managed by each
agency.[Footnote 6] To develop land-use plans, agencies use a multistep
process, which generally includes preparation of environmental analyses
under NEPA.
* Once land-use plans allowing oil and gas activities are finalized,
oil and gas development companies may perform exploration activities
such as geophysical exploration.[Footnote 7] Geophysical exploration
activities can occur before or after the leasing stage. Development
companies must obtain approval from BLM for geophysical exploration on
land managed by BLM and from the Forest Service on land managed by the
Forest Service.[Footnote 8] BIA may approve permits and agreements
between Indian tribes or individual Native Americans and oil and gas
development companies for geophysical exploration on Indian land. MMS
must approve exploration activity on the outer continental shelf.
* BLM and MMS have the primary role in the leasing stage of federal oil
and gas resource development. After a land-use plan, revision or
amendment is completed, development companies nominate land they are
interested in leasing. Onshore and offshore leases are competitively
bid on at lease sales held by BLM state offices and MMS regional
offices several times throughout the year, if lands are available. BLM
is required to post a lease sale notice containing land parcels
available for lease at least 45 days before it holds a competitive
lease sale;[Footnote 9] MMS posts a notice at least 30 days before the
offshore lease sale. BLM issues leases for onshore land, and MMS issues
offshore leases. Indian tribes have the option to negotiate oil and gas
leases individually, or to hold competitive lease sales. BIA must
approve oil and gas leases and negotiated agreements affecting Indian
land.
* BLM and MMS have the primary role in managing drilling activity for
federal oil and gas resources and the Forest Service regulates surface
activities on national forest system land. Once BLM and MMS issue oil
and gas leases, development companies must obtain approval for drilling
operations. For onshore activity, development companies submit
development plans and applications for drilling permits to BLM for
approval. On national forest system land, the Forest Service must
approve all surface-disturbing activities--called a surface-use plan--
before BLM approves applications for drilling permits. BLM also
approves applications for drilling permits on Indian land after
consulting with BIA. For offshore development activity, MMS approves
development plans and applications for drilling permits.
Public Challenges Can Occur During the Four Stages of the Oil and Gas
Development Process although Procedures Differ among Agencies:
Decisions by BLM, Forest Service, BIA, and MMS can be challenged during
the four stages of oil and gas development--planning, exploration,
leasing, and operations. However, each agency differs in how challenges
can be made at the various stages. The public may pursue a number of
avenues to challenge agency decisions, depending on the type and nature
of the underlying decision. For example, BLM planning decisions can be
protested to the BLM director prior to challenging the decision in
federal court, while Forest Service planning decisions can be appealed
to the next highest officer prior to any challenge of the decision that
might be brought in federal court. Table 1 summarizes procedures for
public challenges during each stage of oil and gas development.
Table 1: Procedures for Public Challenges to BLM, Forest Service, BIA,
and MMS Decisions during the Four Stages of Oil and Gas Development:
Planning Stage: Agency: BLM;
Decision that Potentially can be Challenged: Approval of land-use
plans, amendments, or revisions;
Type of Challenge and To Whom: Protest to BLM director; land-use plan
may be subject to challenge in federal court;
Time Frames for Administrative Action[A]: Protest within 30 days of
publishing proposed land-use plan;[B] BLM Director must respond
promptly.
Planning Stage: Agency: Forest Service;
Decision that Potentially can be Challenged: Approval of land-use
plans, amendments, or revisions;
Type of Challenge and To Whom: Appeal or objection filed with the
approving officer's supervisor;[C] supervisor must respond to appeals
or objections; land-use plan may be subject to challenge in federal
court;
Time Frames for Administrative Action[A]: Appeal within 90 days of
decision;[D] Forest Service official has 160 days from date decision
was appealed to decide appeal; Objection within 30 days of publication
of final environmental impact statement or notice of proposed
amendment; no time limit on resolving objections.
Planning Stage: Agency: BIA;
Decision that Potentially can be Challenged: BIA does not approve land-
use plans; therefore no challenges can be made at this stage.
Planning Stage: Agency: MMS;
Decision that Potentially can be Challenged: 5-year program decision;
Type of Challenge and To Whom: No administrative appeals process; suits
must be filed in the U.S. Court of Appeals for the District of
Columbia.
Exploration Stage: Agency: BLM;
Decision that Potentially can be Challenged: Approval of geophysical
activities;
Type of Challenge and To Whom: Appeal to IBLA; litigate in federal
court[E];
Time Frames for Administrative Action[A]: Appeal to IBLA within 30
days; if a request to halt or "stay" activities is filed, IBLA has 45
days from the time appeal period expires to grant or deny stay; IBLA is
not required to rule on an appeal within a certain time frame.
Exploration Stage: Agency: Forest Service;
Decision that Potentially can be Challenged: Approval of geophysical
activities;
Type of Challenge and To Whom: Appeal to next highest officer;[F]
litigate in federal court once administrative appeal is decided;
Time Frames for Administrative Action[A]: Appeal within 45 days of
legal notice of decision; Forest Service official has 45 days from
close of appeal period to provide appeal decision; the Forest Service
may implement the decision after 15 days following the appeal
disposition.
Exploration Stage: Agency: BIA;
Decision that Potentially can be Challenged: Approval of permits to
conduct geological and geophysical activities;
Type of Challenge and To Whom: Appeal to regional director; appeal
regional director decision to the Interior Board of Indian Appeals
(IBIA); litigate in federal court[G];
Time Frames for Administrative Action[A]: Appeal must be filed within
30 days of receiving notice of decision; appeal to IBIA within 30 days
of receiving decision;[H] IBIA is not required to rule on an appeal
within a certain time frame.
Exploration Stage: Agency: MMS;
Decision that Potentially can be Challenged: Approval of exploration
plans or permits[I];
Type of Challenge and To Whom: Appeal to IBLA; suits must be filed with
court of appeals for the circuit in which the affected state is
located;
Time Frames for Administrative Action[A]: Appeal to IBLA within 60 days
after receiving final order or decision;[J] if stay requested, IBLA has
45 days from the time appeal period expires to grant or deny stay;[K]
IBLA is not required to rule on appeal within certain time frame.
Leasing Stage: Agency: BLM;
Decision that Potentially can be Challenged: Inclusion of individual
land parcels in a notice of competitive lease sale;
Type of Challenge and To Whom: Protest to state director; appeal to
IBLA; litigate in federal court;
Time Frames for Administrative Action[A]: Protest during 45-day period
for posting notice of competitive lease sale; no time frame for state
director decision on protest;[M] appeal underlying decision to IBLA
within 30 days of state director decision; if stay requested, IBLA has
45 days from the time appeal period expires to grant or deny stay; IBLA
is not required to rule on an appeal within a certain time frame;
Leasing Stage: Agency: BLM;
Decision that Potentially can be Challenged: Lease issuance;
Type of Challenge and To Whom: Appeal to IBLA; litigate in federal
court[L];
Time Frames for Administrative Action[A]: Appeal to IBLA within 30
days; if stay requested, IBLA has 45 days from the time appeal period
expires to grant or deny stay; IBLA is not required to rule on an
appeal within a certain time frame.
Leasing Stage: Agency: Forest Service;
Decision that Potentially can be Challenged: Authorize BLM to offer
specific lands for lease;
Type of Challenge and To Whom: Generally not subject to appeal[N].
Leasing Stage: Agency: BIA;
Decision that Potentially can be Challenged: Approval of lease or
mineral agreement;
Type of Challenge and To Whom: Appeal to regional director; appeal
regional director decision to IBIA; litigated in federal court[O];
Time Frames for Administrative Action[A]: Appeal must be filed within
30 days of receiving notice of decision; appeal to IBIA within 30 days
of receiving decision;[P] IBIA is not required to rule on an appeal
within a certain time frame.
Leasing Stage: Agency: MMS;
Decision that Potentially can be Challenged: Decision to lease OCS
land;
Type of Challenge and To Whom: No administrative appeals; decision may
be litigated in federal court.
Operations Stage: Agency: BLM;
Decision that Potentially can be Challenged: Approval of development
plans or applications for drilling permits;
Type of Challenge and To Whom: Request a state director review; appeal
state director review decision to IBLA; and litigate in federal
court[Q];
Time Frames for Administrative Action[A]: Request state director review
within 20 business days of decision; State Director has 10 days to
respond to a review request; appeal state director decision on review
request to IBLA within 30 days; if stay requested, IBLA has 45 days
from the time appeal period expires to grant or deny stay; IBLA is not
required to rule on an appeal within a certain time frame.
Operations Stage: Agency: Forest Service;
Decision that Potentially can be Challenged: Approval of a surface use
plan[R];
Type of Challenge and To Whom: Appeal to next highest officer;[S]
litigate in federal court once administrative appeal is decided;
Time Frames for Administrative Action[A]: Appeal within 45 days of
legal notice of decision; Forest Service official has 45 days from
close of appeal period to provide appeal decision; the Forest Service
may implement the decision after 15 days following the appeal
disposition.
Operations Stage: Agency: BIA;
Decision that Potentially can be Challenged: BLM approves drilling
permits after consulting with BIA; no BIA decisions can be challenged
at this stage[T].
Operations Stage: Agency: MMS;
Decision that Potentially can be Challenged: Approval of development
and production plan and drilling permits[U];
Type of Challenge and To Whom: Appeal to IBLA; suits must be filed with
court of appeals for the circuit in which the affected state is
located;
Time Frames for Administrative Action[A]: Appeal to IBLA within 60 days
after receiving final order or decision;[V] if stay requested, IBLA has
45 days from the time appeal period expires to grant or deny stay;[W]
IBLA is not required to rule on appeal within a certain time frame.
[A] The duration of cases and the length of any injunctions that may be
issued are dependent on the facts and circumstances of each case.
[B] In the case of a plan amendment documented in a decision associated
with an environmental assessment, the 30-day protest period begins on
the day when notice of the amendment's effective date is published.
[C] There are two sets of regulations that currently may apply to land-
use plans, the "1982 regulations" and the "2000 regulations." The
Forest Service is in the process of revising the 2000 regulations.
Until the Forest Service promulgates new revised planning regulations,
land-use plans may be developed in accordance with either the 1982
regulations or 2000 regulations at the option of the responsible Forest
Service official. The administrative review process applicable to land-
use plans developed under the 1982 regulations is called an "appeals"
process. The administrative review process applicable to land-use plans
developed under the 2000 regulations is called an "objection" process.
[D] For non-significant amendments to land-use plans, the public has 45
days to file an appeal to the next highest officer within the Forest
Service.
[E] BLM decisions approving geophysical activities are in full force
and effective immediately. These decisions may be challenged in court
without going through the administrative appeals process.
[F] Certain geophysical exploration decisions can be categorically
excluded from preparation of an environmental impact statement or
environmental assessment. If so, these decisions are not appealable but
can be challenged in federal court. To appeal, a party must have
submitted substantive comments during the 30-day environmental
assessment comment period and/or the 45-day environmental impact
statement comment period.
[G] The Assistant or a Deputy Assistant Secretary for Indian Affairs
may decide administrative appeals in certain circumstances. If the
Assistant Secretary signs the appeals decision, it is considered final
agency action and may be litigated. If a deputy signs the decision, it
may be appealed to the IBIA.
[H] A notice of appeal to the IBIA is not effective until 20 days after
IBIA receives notice, during which time the Assistant Secretary for
Indian Affairs has authority to assume jurisdiction over the appeal.
[I] MMS procedures do not allow development companies to submit
exploration plans until after they have obtained a lease.
[J] Within the 60-day appeal period, the public can request informal
resolution of the appeal from the next highest MMS official.
[K] MMS decisions are generally effective during the 60-day appeal
period. If an MMS decision is appealed to IBLA, the decision is
effective while the appeal is pending unless IBLA grants a stay.
[L] BLM decisions approving leases generally take effect immediately
and may be challenged immediately in court.
[M] While there is no set time frame for state directors to respond to
protests to the inclusion of a parcel in a lease sale, leases may not
be issued on parcels receiving bids or noncompetitive offers until the
protests have been resolved:
[N] Authorization decisions are appealable if they are documented in a
decision associated with an environmental assessment or environmental
impact statement. If the authorization decision is appealable, it can
be appealed to the next highest officer and the underlying decision can
be litigated in federal court once the appeal is decided. To appeal, a
party must have submitted substantive comments during the 30-day
environmental assessment comment period and/or the 45-day environmental
impact statement comment period. Time frames for administrative action
are the same as the exploration and operations stages. The public may
also challenge BLM leasing decisions through the BLM process.
[O] The Assistant or a Deputy Assistant Secretary for Indian Affairs
may decide administrative appeals in certain circumstances. If the
Assistant Secretary signs the appeals decision, it is considered final
agency action and may be litigated. If a Deputy signs the decision, it
may be appealed to the IBIA.
[P] A notice of appeal to the IBIA is not effective until 20 days after
IBIA receives notice, during which time the Assistant Secretary for
Indian Affairs has authority to assume jurisdiction over the appeal.
[Q] BLM decisions approving drilling permits are in full force and
effective immediately. These decisions may be challenged in court
without going through the administrative appeals process.
[R] Following the Forest Service approval of the surface use plan, BLM
decides whether to approve the complete drilling permit. The public may
also challenge the drilling permit approval decision through the BLM
process.
[S] To appeal, a party must have submitted substantive comments during
the 30-day environmental assessment comment period and/or the 45-day
environmental impact statement comment period.
[T] Although no BIA decisions can be challenged at this stage, the
public can challenge BLM decisions under BLM procedures.
[U] Development and production plans are not required for leases in the
western Gulf of Mexico. Instead, the lessee must submit a Development
and Operations Coordination Document with all the information necessary
to assure conformance with applicable statutes, regulations, and lease
provisions.
[V] Within the 60-day appeal period, the public can request informal
resolution of the appeal from the next highest MMS official.
[W] MMS decisions are effective during the 60-day appeal period. If an
MMS decision is appealed to IBLA, the decision is effective while the
appeal is pending unless IBLA grants a stay.
[End of table]
Bureau of Land Management:
During each of the four stages of oil and gas development, the public
can make one or more of the following types of challenges to BLM
decisions: protests, requests for state director review, appeals, and
litigation. Through protests and requests for state director review,
challengers essentially ask BLM to reconsider a decision.[Footnote 10]
An appeal is a request to the Interior Board of Land Appeals (IBLA)--a
body of administrative judges within the Department of the Interior--to
review a BLM decision.In this report we use the term "litigation" to
mean a challenge to an agency or departmental decision that is brought
in federal court.
At the planning stage, the public can challenge BLM decisions through
protests and litigation. Protests to land-use plans or their amendments
or revisions are submitted to the BLM Director and must be filed within
30 days of the published a proposed land-use plan.[Footnote 11]The BLM
director has no specific deadline to respond to protests; but must
"promptly" provide a written decision with a statement of supportive
reasons. The director's decision cannot be appealed to IBLA, but can be
challenged in federal court. The duration of a court case depends on
the facts and circumstances of each case.
The public can challenge agency decisions to approve geophysical
exploration activities to IBLA and in federal court.[Footnote 12]Once a
BLM field office issues a decision approving geophysical exploration
activities, the public can appeal the decision to IBLA within 30 days
or challenge the decision in federal court.[Footnote 13] Following
approval, a development company can commence geophysical exploration
activities unless the challenger asks IBLA to halt or "stay" the
activities, or asks a federal court to issue an injunction prohibiting
the activity, and IBLA or federal court grants the request. IBLA has 45
days following expiration of the 30-day appeal period to render a
decision on a stay request. IBLA has no deadline to respond to appeals.
IBLA decisions pertaining to geophysical exploration activities can be
litigated in federal court. The duration of court cases and the length
of any injunctions that may be issued depend on the facts and
circumstances of each case.
The public can challenge leasing decisions through protests, appeals to
IBLA, and litigation. Challengers can protest the inclusion of
individual land parcels in a lease sale; such protests must be filed
with the relevant BLM State Director during the 45-day notice period
that precedes the lease sale. In some cases, the state director may not
be able to decide the protest before the lease sale. However, if BLM
receives a protest on any parcel included in the lease sale, the
protest must be resolved before issuing a lease on the affected parcel.
BLM is required to issue leases to the highest bidder within 60 days of
receiving full payment for the lease and the first year's annual rent.
According to agency officials, however, BLM sometimes fails to do so
because it may not have resolved pending protests within the 60-day
time period. The public can appeal BLM's decision to issue a lease to
IBLA within 30 days or challenge the decision in federal
court.[Footnote 14] A leaseholder can seek approval for development
activities unless a challenger appeals the decision to issue the lease
to IBLA and asks IBLA or a federal court to halt or "stay" the
activities. IBLA has 45 days following expiration of the 30-day appeal
period to render a decision on a stay request.
At the operations stage, the public can challenge BLM decisions to
approve oil and gas drilling through requests for state director
review, appeals to IBLA, and litigation. The public may ask the state
director to review a decision to approve oil and gas development
projects or individual drilling permits within 20 business days of the
decision, and the state director must render a decision on the request
within 10 business days. The public can appeal the state director's
decision to IBLA and can challenge the department's decision in federal
court.[Footnote 15]Development companies can begin drilling activity
once a state director approves a drilling permit following review. A
challenger may attempt to halt drilling activity by requesting a stay
from the state director or IBLA, or seek an injunction in federal
court.
Forest Service:
The public can challenge Forest Service decisions either through
appeals or litigation during each stage of oil and gas development.
Through an appeal, the public asks the Forest Service to review a
decision. During the planning stage, the public has either 45 or 90
days to appeal planning decisions approving, amending or revising land
use plans which may identify lands as available for leasing.[Footnote
16] Decisions are appealed to the next highest officer. For instance, a
regional forester's decision to approve a land use plan, amendment, or
revision can be appealed to the Chief.[Footnote 17] A Forest Service
official has 160 days to render a decision on an appeal. Following the
conclusion of the appeals process, land use plan decisions can
sometimes be litigated in federal court. According to Forest Service
officials, BLM normally participates in the process for developing
those plans that include decisions to make areas available for oil and
gas development.
During the exploration and operations stages, the public may generally
challenge Forest Service decisions approving or disapproving of these
actions under the agency's project appeals procedures.[Footnote
18]Specifically, these decisions include those involving (1) approving
geophysical exploration activity on national forest system lands; and
(2) the approval of surface use plans related to proposed drilling
operations on national forest system lands. The Forest Service's
appeals procedures generally apply to decisions for which the agency
prepared an environmental impact statement or environmental assessment
under NEPA.[Footnote 19]
The public can appeal Forest Service decisions, other than planning
decisions, to the next highest officer within 45 days of the decision.
If an appeal is filed, the Forest Service has 45 days from the close of
the appeal period to determine the outcome of the appeal.[Footnote
20]Following the conclusion of the appeal process, the agency decision
can be litigated in federal court. Likewise, decisions that are not
appealable can be litigated in federal court. Challengers can seek an
injunction from federal court to halt activities while litigation is
pending. If no appeal is filed, the Forest Service may implement the
decision 5 business days after the appeal period closes. If an appeal
is filed, implementation may occur 15 days following the appeal's
disposition.
Bureau of Indian Affairs:
The public can challenge certain BIA decisions through appeals and
litigation. Through an appeal, the public asks BIA to review decisions
concerning oil and gas development on Indian land or asks the Interior
Board of Indian Appeals (IBIA) to review a BIA appeal
decision.[Footnote 21]The public can challenge IBIA decisions in
federal court.[Footnote 22]
BIA is not required to prepare land-use plans for Indian land, but can
assist tribes in developing such plans. Because BIA does not approve
land-use plans, there are no challengeable decisions at the planning
stage.
At the exploration stage, however, the public can challenge BIA
decisions to approve permits to conduct geological and geophysical
operations to assess whether oil and gas resources are
present.[Footnote 23] The public must appeal a BIA official's decision
to the regional director--typically the official above the deciding
official--within 30 days of the decision. After a decision is made on
the appeal, the public has 30 days to file a separate appeal with IBIA.
Following the appeal period, the operator can commence exploration
activities unless the challenger requests a stay from IBIA. IBIA has 45
days from the expiration of the appeal period to render a decision on a
stay request. If IBIA denies a stay, the operator can proceed with
planned activities. IBIA decisions may be litigated in federal court.
The duration of court cases and the length of any injunctions that may
be issued are dependent on the facts and circumstances of each case.
Likewise, at the leasing stage, the public can challenge BIA decisions
to approve leasing agreements and mineral agreements between Indian
tribes and Indian landowners and oil and gas development companies. The
appeal and litigation process is the same as for the exploration stage.
At the operations stage, BLM has agreed to approve drilling permits for
BIA. Consequently, there are no BIA decisions for the public to
challenge at this stage. However, the public can challenge BLM permit
decisions through the BLM process.
Mineral Management Service:
The public can challenge MMS oil and gas development decisions through
requests for informal reviews within MMS, appeals to IBLA, and in
federal court. Through informal review requests, the public asks the
next highest officer to review a decision made by the official at the
field office. Through an appeal, the public can ask IBLA to overturn an
MMS decision.
At the planning and leasing stages, MMS decisions involving its 5-year
plan and lease sales are not subject to informal reviews or appeals to
IBLA, but can be litigated in federal court.
During the exploration and operations stages, the public can challenge
exploration plans and permits, development and production plans, and
applications for oil and gas drilling through informal reviews within
MMS, appeals to IBLA, and in federal court. The public can appeal
exploration or operations decisions to IBLA within 60 days. Within that
period, the public may ask for informal resolution with the issuing
officer's next highest supervisor. During the 60-day appeal period, the
development company can commence exploration or operation activities
unless the challenger requests a stay from IBLA and IBLA grants the
request. IBLA has 45 days from the expiration of the appeal period to
render a decision on a stay request. IBLA has no time frame to decide
appeals. Decisions of IBLA pertaining to exploration plans and permits,
development and production plans, and applications for oil and gas
drilling can be litigated in federal court.
BLM Does Not Systematically Gather and Use Public Challenge Information
to Manage Its Oil and Gas Program:
BLM headquarters does not systematically gather and use nationwide
information on public challenges to manage its oil and gas program.
While there is an agencywide system that state offices use to collect
data on public challenges during leasing, it is not used to collect
public challenge data during the planning, exploration, or operations
stages. However, the system is used inconsistently because BLM has not
issued clear guidance on which data the state offices are required to
enter into the system. Because the agencywide system does not track all
the public challenge data necessary for managing workload, headquarters
and state offices also use multiple, independent data collection
systems for the various stages of oil and gas development. These
systems include paper files and electronic spreadsheets that are not
integrated with one another or the agencywide system. BLM is in the
process of developing a new national Lease Sale System that provides an
opportunity to standardize collection of data on public challenges at
the leasing stage. However, BLM has not decided whether the new system
will track public challenge information.
Agencywide System Gathers Limited Public Challenge Data and Is Used
Inconsistently:
BLM's nationwide system, Legacy Re-host 2000 (LR2000), has a component
that state offices use to track limited public challenge information
during the leasing stage but not during any of the other oil and gas
development stages.[Footnote 24] State offices use the system
inconsistently because BLM guidance on the use of the system to track
oil and gas leasing data is unclear, leading to data gaps.[Footnote
25]According to BLM guidance, state offices have the option to begin
recording data for a given parcel at any of three different points
during the leasing stage: (1) prior to the posting of the competitive
lease sale notice, (2) the day prior to the lease sale, or (3) after
the lease sale. If state offices choose to start recording data at the
third point--after the lease sale--the system will not capture public
challenges on unsold parcels. For example, because the Wyoming State
office begins recording data after the lease sale, the system does not
capture public challenge data for unsold parcels, in that state office.
Wyoming State office officials believe that recording information into
the agencywide system prior to the lease sale creates added work and
did not see any merit in tracking public challenges on parcels that are
not leased. However, officials from a state office that tracks
challenges for unsold parcels noted that doing so provides useful
information for managing workload. Because the states are not
consistent in entering data into the system, the data cannot be used by
headquarters to track public challenges and to assess impacts on the
workload of its state offices. According to officials at some state
offices, the volume of public challenges at the leasing stage has
increased over the past few years. However, BLM cannot readily provide
nationwide data on the number of public challenges made. In addition,
it cannot assess the extent to which such challenges affect the
workload of its state offices, which is important to understanding what
additional staffing and funding resources may be needed to process
public challenges.
BLM Uses Various Nonintegrated Systems to Gather Public Challenge Data:
BLM headquarters, field offices, and state offices use multiple,
independent data collection systems to collect additional information
that they need to track public challenge information at the various
stages of oil and gas development. For example, during the planning
stage, BLM headquarters tracks pending protests to land-use plans in a
stand-alone spreadsheet and in case files. According to a BLM official,
BLM headquarters tracks protest information so it can manage its
workload in responding to protests. Once a challenge is resolved,
information is deleted from the spreadsheet and the data are maintained
only in case files and cannot be readily analyzed in aggregate. As a
result, BLM cannot readily determine how many protests occurred year-
to-year, who the protesters were, what the outcomes were, and the time
frames for resolving the protests.
Similarly, during the exploration stage, BLM field offices maintain
case files on public challenges to geophysical exploration permits.
According to a BLM official, the number of geophysical exploration
permits issued is so low that it is unnecessary to aggregate
information on public challenges to the permits. However, BLM did not
have the data readily available for us to verify this condition.
BLM state offices have developed their own systems for gathering public
challenge data during the leasing and operations stages. During the
leasing stage, BLM state offices use spreadsheets and paper files as
well as LR2000 to track public challenges. The spreadsheets are not
integrated with LR2000 or one another. BLM state offices use the
information mostly to manage workload associated with protests,
appeals, and litigation. Other uses include responding to information
requests from protesters and potential leaseholders concerning the
status of protests.
During the operations stage, stand-alone spreadsheets and paper files
are the primary methods state offices use to collect public challenge
information.[Footnote 26] As in the leasing stage, this information is
gathered to manage workload associated with responding to public
challenges. It is also used to respond to information requests from
challengers concerning the status of their challenges and from permit-
holders on whether they can begin operations such as road construction
and drilling.
BLM Headquarters Does Not Have Ready Access to Public Challenge Data
Gathered by State Offices:
BLM headquarters does not have ready access to the public challenge
data gathered by state offices in stand-alone electronic spreadsheets
or paper files. As a result, similar to the planning stage, BLM
headquarters cannot readily determine from year-to-year how many public
challenges occurred, including protests; appeals and litigation; who
the challengers were; what the outcomes were; whether the challenges
affected split estate land; and the time frames for resolving the
challenges.[Footnote 27]To obtain such information, headquarters must
make individual, resource-intensive data calls to state offices. In one
instance in June 2004, BLM headquarters requested information from
state offices on their backlogs of protest decisions and the affected
acreage at the leasing stage. According to the BLM official, the state
offices responded in a couple of weeks, and the data indicated that
some state offices had a backlog in issuing protest decisions.
BLM Is Developing an Agencywide System That Could be Used to
Standardize Public Challenge Data at the Leasing Stage:
BLM is developing a system called the national Lease Sale System that
is being designed to automate its leasing process and standardize data
entered into LR2000. The Lease Sale System will replace five separate
state office systems. This system is being developed because BLM
recognizes that "there is a high degree of variability" in the extent
to which the five systems can assist BLM state offices in managing the
leasing process. In addition, according to BLM justification
documentation for the Lease Sale System "all of the processes and
support systems currently in place involve multiple data entry along
with intricate data manipulations and data handoffs that open the
processes to errors and inefficiencies." According to BLM headquarters
officials, the Lease Sale System, along with LR2000, could be used to
gather public challenge data at the leasing stage, and BLM officials
are in the process of determining whether to include public challenge
data in the Lease Sale System. According to BLM officials, some state
offices are reluctant to abandon their current leasing systems and
methods of gathering public challenge data, and a consensus has not yet
been reached concerning what information should be included in Lease
Sale System, including public challenge data.
Areas on the Outer Continental Shelf Open to Offshore Oil and Gas
Development Experienced Few Public Challenges:
According to data provided by MMS officials, during fiscal years 1999
through 2003, MMS was challenged on only one of its 1,631 decisions
approving offshore oil and gas development and production and only one
of its 1,997 decisions approving oil and gas exploration. Both of the
challenged MMS decisions concerned access to mineral resources on the
outer continental shelf off the coast of Alaska.
* In September of 1999, MMS' Alaska regional office approved a
development company's plan to develop and produce oil off the northern
coast of Alaska. Several Alaskans and an environmental interest group
challenged the plan by filing a lawsuit in federal appeals court. MMS'
decision to approve the plan was challenged on the grounds that MMS did
not comply with the requirements of NEPA and the Oil Pollution Act. In
September 2001, the court ruled against the challengers.
* In February 2002, MMS' Alaska regional office approved an operator's
plan to conduct exploration activities off the coast of Alaska. A
Native American tribe in Alaska and three tribal members challenged the
regional office's decision to the IBLA in May 2002 on the grounds that
MMS did not comply with the requirements of NEPA and the Administrative
Procedure Act. IBLA denied the challengers' requests for a stay and the
operator commenced exploration activities while IBLA considered the
appeal. Prior to IBLA's appeal decision, the operator halted activities
and, in July 2003, relinquished the lease.
For the period we examined, MMS reported no lawsuits challenging its 5-
year offshore management plan or the land parcels included in its 13
lease sales.[Footnote 28] MMS also reported that there were no
challenges to the 2,850 drilling permits it issued.
Table 2 shows the number of exploration and operations decisions
approved by MMS between 1999 and 2003 and the number that were
challenged by the public.
Table 2: The Number of Exploration and Operations Decisions Approved by
MMS Between 1999 and 2003 and the Number That Were Challenged by the
Public:
Explorations Plans and Revisions Approved;
Gulf of Mexico: 1,995;
Pacific: 0;
Alaska: 2;
Total: 1,997.
* Public Appeals to IBLA;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 1;
Total: 1.
* Federal Lawsuits Filed by Public;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 0;
Total: 0.
Development and Production Plans and Revisions Approved[A];
Gulf of Mexico: 1,628;
Pacific: 2;
Alaska: 1;
Total: 1,631.
* Public Appeals to IBLA;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 0;
Total: 0.
* Federal Lawsuits Filed by Public;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 1;
Total: 1.
Applications for Drilling Permits and Revisions Approved;
Gulf of Mexico: 2,800;
Pacific: 44;
Alaska: 6;
Total: 2,850.
* Public Appeals to IBLA;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 0;
Total: 0.
* Federal Lawsuits Filed by Public;
Gulf of Mexico: 0;
Pacific: 0;
Alaska: 0;
Total: 0.
Source: MMS.
[A] Development and production plans are not required for leases in the
western Gulf of Mexico. Instead, the lessee must submit a Development
and Operations Coordination Document with all the information necessary
to assure conformance with applicable statutes, regulations, and lease
provisions.
Conclusions:
Existing laws, regulations, and agency procedures allow multiple
opportunities for the public to challenge decisions made by BLM, Forest
Service, BIA, and MMS during the four stages of the oil and gas
development process. While BLM is the primary agency approving oil and
gas activity on federal land, it cannot readily provide nationwide data
on the number of public challenges made. Consequently, it cannot assess
the extent to which such challenges affect the workload of its state
offices, which is important to understanding what additional staffing
and funding resources may be needed to process public challenges.
Although each state office gathers its own data on public challenges to
manage workload, the data are not kept in a standardized format, and is
not easily accessible. As a result, BLM headquarters must rely on
resource intensive data calls to determine whether its state offices
are experiencing backlogs of protested decisions. The new agencywide
system that BLM is developing will provide an opportunity for the
agency to maintain public challenge data in a standardized format at
least for the leasing stage and provide it with more reliable data from
which to make resource allocation decisions, but the agency has not yet
determined whether it will include public challenge data in the system.
We believe that including public challenge data into the new system
should, at a minimum allow BLM headquarters easier access to public
challenge data and provide information that will help it better manage
workload impacts on its state offices from public challenges.
Recommendations for Executive Action:
To standardize the collection of public challenge data at the leasing
stage for onshore federal lands, we recommend the Secretary of the
Interior direct BLM to take the following two actions:
* Include public challenge data in the new agencywide automated system
for selling leases.
* Issue clear guidance on how public challenge data should be entered
into the new system.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretaries of the Interior
and Agriculture for review and comment. In commenting on our
recommendation for BLM to include public challenge data in its new
agencywide system for lease sales, Interior wanted to ensure that the
recommendation only applied to the leasing stage and not other stages
of oil and gas development, such as land use planning, geophysical
exploration, drilling, and reclamation. It further said the new
national Lease Sale System will be designed to track public challenge
data on oil and gas lease sales, and the BLM is developing a timeline
for developing and deploying the new system. Our recommendation is
directed to collecting data at the leasing stage and is not intended
for other stages of oil and gas development. Interior did not comment
on our second recommendation that BLM issue clear guidance on entering
public challenge data into the new system.
The Department of Agriculture stated that the report is complete and
accurate and provides a good summary of the complex process that BLM
and the Forest Service use to jointly manage and make decisions
concerning the oil and gas programs, and appeals related to agency
decisions.
Both the Interior and Agriculture provided us with technical comments
and editorial suggestions. We have made corrections to the report to
reflect these comments, as appropriate.
As arranged with your office, unless you publicly announce the contents
earlier, we plan no further distribution of this report until 30 days
after the date of this letter. At that time, we will send copies of
this report to other interested congressional committees. We will also
send copies of this report to the Secretaries of Agriculture and the
Interior, the Chief of the Forest Service, the director of BLM, the
director of BIA, and the director of MMS. We will make copies available
to others upon request. In addition, the report will be available at no
charge on the GAO Web site at [Hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at (202) 512-3841. Key contributors to this report are listed in
appendix III.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
This appendix presents the scope and methodology we used to gather
information on the stages when agency decisions about oil and gas
development can be challenged by the public and the extent to which the
Bureau of Land Management gathers and uses public challenge data to
manage its onshore oil and gas program. It also addresses the number of
Minerals Management Service offshore oil and gas development decisions
that were challenged, who challenged them, and the grounds, time
frames, and outcomes of the challenges for fiscal years 1999-2003.
To describe the stages when oil and gas development decisions can be
challenged by the public, we analyzed pertinent laws, rules, and
regulations and interviewed agency officials pertaining to oil and gas
development processes under the jurisdiction of the Bureau of Land
Management (BLM), Bureau of Indian Affairs (BIA), and Minerals
Management Service (MMS) in the Department of the Interior and Forest
Service in the Department of Agriculture. This included a review of
statutes including the Federal Land Policy Management Act, Minerals
Leasing Act, National Forest Management Act, Omnibus Indian Mineral
Leasing Act, Allotted Mineral Leasing Act, Submerged Lands Act, Outer
Continental Shelf Lands Act, National Environmental Policy Act, and
associated amendments and regulations. From our analysis of these
documents, we determined the administrative procedures the agencies use
to manage oil and gas development on federal lands. We also identified
the primary stages when the public can challenge oil and gas
development decisions--planning, exploration, leasing, and operations
and the types of challenges that can occur (e.g. protests, appeals, and
litigation) during each of these stages. We interviewed BLM, BIA, MMS,
and Forest Service officials in their respective headquarters,
regional, and field offices and in the Department of the Interior's
Solicitor's Office to discuss the application of the laws and
regulations and to enhance our understanding of them.
To determine the extent to which BLM gathers and uses data on public
challenges to manage its onshore oil and gas program, we identified
through discussions with BLM headquarters and state office officials
the various management information systems and databases the agency
maintains for managing the oil and gas program. We collected and
analyzed pertinent manuals, handbooks, memorandums, spreadsheets, and
procedures to ascertain the extent that BLM gathers and records public
challenge data on the oil and gas program. We interviewed BLM
headquarters officials to determine what, if any, public challenge data
they gathered on a national level for managing the oil and gas program.
We also interviewed officials from BLM's state offices in California,
Colorado, Eastern States, New Mexico, Utah, and Wyoming to determine
how public challenge data is gathered and used at the state office
level and to ascertain how these offices used the agencywide systems
for recording such data. We visited the Eastern States office, which
has jurisdiction over the 31 states east of the Mississippi River, and
the Colorado, New Mexico, Utah, and Wyoming state offices, which,
according to BLM headquarters officials, are state offices with a
higher volume of oil and gas development activity.
To determine for fiscal years 1999 through 2003 the number of offshore
oil and gas development decisions by the MMS that were challenged, who
challenged them, and the grounds, time frames, and outcomes of the
challenges, we performed the following steps. We interviewed MMS
headquarters officials to determine the number of planning decisions
and lease sales held during fiscal years 1999 through 2003. We also
analyzed information in MMS' Technical Information Management System
(TIMS) to identify the number of exploration and operations plans and
revisions to plans the MMS approved from fiscal years 1999 through
2003. We reviewed the procedures governing data entry into TIMS to test
the reliability of the data provided. To determine the number of public
challenges to MMS' decisions, we interviewed officials at MMS
headquarters and its three regional offices: Gulf of Mexico, Pacific
and the Alaska regional offices. Officials from the Alaska regional
office indicated that they had two public challenges during this time
period. Neither headquarters nor the other regions reported any other
public challenges. We collected and reviewed the case files for the two
challenged decisions to identify who challenged the decisions, the
basis for the challenge, when the challenges occurred, and their
outcomes. We also analyzed records at the Interior Board of Land
Appeals and legal briefs provided by MMS Alaska region on these two
challenges.
We conducted our work from November 2003 to October 2004 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Comments from the Department of the Interior:
U.S. Department of Homeland Security:
Washington, DC 20528:
December 8, 2004:
Mr. William T. Woods:
Director, Acquisition and Sourcing Management:
U.S. Government Accountability Office:
Washington, DC 20548:
Re: Draft Report GAO-05-136, Homeland Security: Further Action Needed
to Promote Successful Use of Special DHS Acquisition Authority (GAO Job
Code 120324):
Dear Mr. Woods:
Thank you for the opportunity to review and comment on the subject
draft report. The Department of Homeland Security (DHS) appreciates the
work done in this draft report to recognize DHS's use of its other
transactions authority to acquire cutting-edge technologies in support
of its mission. The Department generally agrees with the facts and
conclusions expressed in the report and reads the conclusions as fair
and balanced. However, we do have some technical comments for your
consideration which are enclosed with this letter.
With respect to the draft report's three recommendations, while DHS
recognizes the validity of the first two recommendations and is, in
fact, already working to address those recommendations, there is a
general concern with the final recommendation. This recommendation
states DHS should "capture knowledge obtained during the acquisition
process for use in planning, and implementing future projects that
could use other transactions."
DHS agrees that it is useful to retain historical information regarding
solicitations and awards and does keep a great deal of information
regarding response to industry day announcements, solicitations, and
awardees and their status. It is unclear, however, exactly what types
of information GAO is recommending that the agency retain and in what
manner and to what end that information is to be used. The value of
"lessons learned" in acquisition planning, execution and program
management is definitely appreciated within DHS and, while no formal
system for assembling this information is in place within the
organization, this information is being monitored. However, much of the
detailed information including number of proposers, white papers,
attendees at industry days and so forth is of marginal long-term value
but the administrative aspects of collecting, maintaining and
monitoring the information over time could be significant. DHS's
Science and Technology (S&T) Directorate and Homeland Security Advanced
Research Projects Agency's (HSARPA's) focus cuts across so many
technology areas:
www.dhs.gov:
and each solicitation is unique in its requirements and interests. What
happened with a somewhat similarly focused solicitation a year or two
ago will likely have little relevance on a solicitation issued today.
In light of this, DHS requests that GAO refine this recommendation to
be more specific regarding the type of information it would envision
being retained by the agency and consider carefully the agency's
concern regarding the relevance of the information to its future
actions and the high cost of maintaining the information.
We thank you again for the opportunity to provide comments on this
draft report and look forward to working with you on future homeland
security issues.
Sincerely,
Signed by:
Anna F. Dixon:
Director,
Departmental GAO/OIG Liaison Office of the Chief Financial Officer:
[End of section]
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Anu K. Mittal, (202) 512-3841
Roy Judy, (202) 512-3482:
Staff Acknowledgments:
In addition to those named above, Laura Helm, R. Denton Herring,
Richard Johnson, Cynthia Norris, Matthew Reinhart, Patrick Sigl, and
Walter Vance made key contributions to this report.
(360406):
FOOTNOTES
[1] A protest is an objection to a proposed decision, while an appeal
is filed after the decision is made. In this report we use the term
"litigation" to mean a challenge to an agency or departmental decision
that is brought in federal court. All litigation is subject to certain
threshold defenses that may prevent the suit from being decided in
court. A person must have standing to bring the suit, the case must be
ripe for decision, the case must not have been made moot by external
events, and the person must generally have exhausted administrative
remedies. Discussion of these complex doctrines is beyond the scope of
this report, but when we state that a particular decision may be
litigated, that does not mean that a member of the public is entitled
to or will necessarily receive a decision on the merits.
[2] In this report, we use the word public to refer to third-party
challengers to oil and gas decisions. Thus, the term excludes lessees,
operators, and states. The procedures we describe in this report apply
to operators and lessees as well.
[3] Indian allotments are parcels of land created out of Indian
reservations and held in trust by the federal government for the
benefit of individual Indians.
[4] A nautical mile is about 6,080 feet, or about 1.15 miles.
[5] If the environmental assessment determines that the activity will
not significantly affect the environment, the agency prepares a
document called a "Finding of No Significant Impact."
[6] Land-use plans developed by BLM are called Resource Management
Plans while those developed by the Forest Service are called Land and
Resource Management Plans. MMS develops a 5-year program plan to
determine which areas of the outer continental shelf will be developed
for oil and gas. BIA generally does not develop land-use plans for
tribal land but may assist Indian tribes in developing plans to manage
their resources.
[7] Geophysical exploration means activity relating to the search for
evidence of oil and gas which requires the physical presence upon the
lands and which may result in damage to the lands. It includes seismic
exploration, construction of roads and trails and cross-country transit
of vehicles over such lands.
[8] Development companies must file a Notice of Intent to Conduct Oil
and Gas Geophysical Exploration Operations (NOI) and have it approved
by BLM for exploration activity on land managed by BLM. According to
Forest Service officials, development companies must file a NOI for
approval to the Forest Service for geophysical exploration activity on
national forest system land.
[9] Land parcels offered at a lease sale that do not receive a bid are
available for leasing through a noncompetitive process for a 2-year
period following the first business day after the lease sale.
[10] The IBLA is part of the Department of the Interior's Office of
Hearings and Appeals (OHA). IBLA reviews and adjudicates appeals
concerning Interior's land management and mineral resources decisions.
IBLA is authorized to review decisions of certain departmental
agencies, including BLM and MMS, and departmental administrative law
judges. IBLA has the authority to provide a final decision for the
Department of the Interior. The Secretary of Interior retains the
authority to decide any matter at any stage of departmental review
after holding any hearing required by law. A party to a case who is
adversely affected by a BLM decision generally has a right to appeal to
IBLA.
[11] In BLM, land-use plans are called Resource Management Plans and
are accompanied by an environmental impact statement or environmental
assessment. In the case of an amendment to the land-use plan completed
with an environmental assessment, the 30-day protest period begins on
the day when the notice of the amendment's effective date is published.
[12] A company cannot conduct geophysical exploration activities
without first having BLM approve a Notice of Intent to Conduct
Geophysical Exploration Operations.
[13] A person must typically exhaust administrative remedies--appeal a
challenged decision to IBLA and wait for the appeal to be resolved--
before challenging the decision in federal court. However, BLM
geophysical exploration, leasing, and operations decisions generally
take effect immediately and can therefore be challenged in court
without going through the administrative appeals process.
[14] BLM decisions approving leases generally take effect immediately
and may be challenged immediately in court.
[15] BLM decisions approving drilling permits generally take effect
immediately and may be challenged immediately in court.
[16] In the Forest Service, land-use plans are called Land and Resource
Management Plans and are accompanied by an environmental impact
statement or environmental assessment. There are two sets of
regulations that currently may apply to land-use plans, the "1982
regulations" and the "2000 regulations." The Forest Service is in the
process of revising the 2000 regulations. Until the Forest Service
promulgates new revised planning regulations, land-use plans may be
developed in accordance with either the 1982 regulations or 2000
regulations at the option of the responsible Forest Service official
(usually a Forest Supervisor). The administrative review process
applicable to land-use plans developed under the 1982 regulations is
called an "appeals" process. The administrative review process
applicable to land-use plans developed under the 2000 regulations is
called an "objection" process. Under the appeal process, the public has
90 days to appeal land-use plan approvals, significant amendments, or
revisions. The public has 45 days to appeal non-significant amendments
to land-use plans. Under the objection process, the public may object
to a proposed amendment or revision to a land-use plan within 30 days
of publication of (1) the final environmental impact statement for
revisions and significant amendments, or (2) notice of proposed
amendment for non-significant amendments. There is no time limit on
resolving objections and all objections must be resolved prior to
approval of the amendment or revision.
[17] The next highest officer above the official deciding the appeal
has discretion to review the appeal decision. For example, if a forest
supervisor's decision is appealed to the regional forester, the Forest
Service Chief can review the regional forester's decision.
[18] At the leasing stage, Forest Service decisions authorizing BLM to
include parcels within a national forest in a lease sale are generally
not appealable. However, if the Forest Service documents the decision
to authorize BLM to include land parcels in a lease sale with a
decision associated with an environmental impact statement or
environmental assessment, the decisions are generally appealable. The
Forest Service authorizes BLM to include the parcel in a notice of
competitive lease sale under a three-step procedure. First, the Forest
Service verifies that oil and gas leasing on a specific land parcel has
been adequately addressed in a NEPA analysis and is consistent with the
appropriate land use plan. Next, the Forest Service ensures that the
appropriate conditions of the surface occupancy have been properly
included as stipulations on the parcel. Finally, the Forest Service
determines whether operations and development could be allowed
somewhere on each proposed land parcel, except where all surface
occupancy is prohibited by stipulations.
[19] Certain decisions are "categorically excluded" from analysis under
NEPA if the category of decisions does not individually or cumulatively
have a significant effect on the human environment, and have been found
to have no such effect by the relevant federal agency. Such decisions
cannot be appealed, but can be litigated in federal court. Decisions
approving short-term geophysical activity may be categorically excluded
from preparation of an environmental impact statement or environmental
assessment and cannot be appealed.
[20] If the Forest Service officer does not render a decision on an
appeal within 45 days, the original decision stands and a challenger
can seek review in federal court.
[21] IBIA is one of three standing appeal boards of the Office of
Hearings and Appeals within the Department of the Interior. IBIA is
separate from Interior's various program bureaus, including BIA, whose
decisions it reviews.
[22] The Assistant Secretary or a Deputy Assistant Secretary for Indian
Affairs may decide administrative appeals in certain circumstances. The
Assistant Secretary has 20 days to exercise his authority to assume
jurisdiction in the appeal and either (1) issue a decision in the
appeal or (2) assign responsibility for issuing a decision to a Deputy
to the Assistant Secretary. Decisions made by the Assistant Secretary
are effective immediately unless the Assistant Secretary provides
otherwise. If a Deputy signs the decision, it may be appealed to IBIA.
[23] BIA may only approve such permits with the consent of the Indian
oil and gas owner.
[24] This component, called Case Recordation, has the capability to
track some public challenge information during the exploration and
operations stages, but BLM does not use the system for these purposes,
in part because, according to BLM, there are few geophysical
exploration permits issued and operations activities are tracked in
another system.
[25] Current guidance on the use of LR2000 during oil and gas leasing
can be found in the Oil and Gas Adjudication Handbook: Competitive
Leases (BLM Manual Handbook H-3120-1).
[26] While BLM state offices use an agency wide system called the
Automated Fluids Minerals Support System to track information on
drilling permits during the operations stage, the system does not have
the capability to track public challenges such as requests for state
director reviews, IBLA appeals, or litigation of decisions regarding
drilling permits.
[27] Split estate lands are those lands where the surface owner does
not own the subsurface minerals. BLM sometimes issues leases to develop
federally owned oil and gas deposits underlying land owned by a private
party. Such development creates the potential for conflict between the
surface owner and the oil and gas developer. However, BLM cannot
readily determine the extent of public challenges to development
activities occurring on split estate lands.
[28] The 13 lease sales offered 42,994 tracts covering 230,493,810
acres for lease sale. Of the tracts offered for sale, 3,541 tracts
covering almost 18,659,610 acres were leased.
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