ONSHORE OIL AND GAS ORDER NUMBER 1

My previous post on this issue is here.

You can view the Federal Register notice with the proposed changes here.

Go here to view the comments of the Wyoming Landowners Association.

If you would like the complete set of comments from the New Mexico Cattle Growers Association hit the email me button to your left (flankcinch@hotmail.com) and I will send you their comments as a word doc. Please put Oil & Gas Comments in the subject line.

This proposal violates all four of the 4C's philosophy of Secretary Norton. I don't know who the deep thinkers are in the White House-Vice-President-Interior-BLM offices who made the stupid political decision to take on the private landowners and BLM permittees in the West. If their intent was to split the resource users and their base of support in the West, they will certainly accomplish that if they implement this proposal. And ain't it wonderful to see a Republican White House preempt 12 state laws that were designed to protect their citizens' property rights.

Below is an email from Caren Cowan of the New Mexico Cattle Growers Association and a proposed comment letter prepared by that organization.

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Sent: Thursday, October 20, 2005 5:56 PM
Subject: comments to BLM on revised Onshore Order #1 / please submit YOUR COMMENTS


Folks

Comments are due on the BLM's proposed revision to Onshore Order #1 on MONDAY, OCTOBER 25, 2005. NMCGA has, with the help of Anne Kathryn Ziehe and Laurie Goodman, prepared an extensive set of comments, which are attached.

Additionally, we have paired down the comments for individuals who want to submt comments too. These comments are attached (the GEN file) and pasted below.

It is VERY IMPORTANT that we get lots of comments in on this issue. It appears that the revisions in the rule will negate the intent of the "New Mexico Language" Senator Domenici put in the recently passed and signed Energy Bill.

The comments contain the address for mailing or emailing comments. If you email, be sure you put the Attn: AD59 in the subject line.

Also attached is the original Federal Register notice on the Order in case you care to read it and other comments. There was a comment extension which appeared in the Federal Register on August 26. I have not included it because all it did was extend the comment deadline.

If you have questions or need more information, please let me know.

Caren

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October 21, 2005

Director (630)

Bureau of Land Management

Eastern States Office

7450 Boston Blvd comments_washington@blm.gov

Springfield VA 22153 SUBJECT LINE: Attn AD59



RE: JOINT PROPOSED RULE / Onshore Oil & Gas Operations; Federal & Indian Oil & Gas Leases; Onshore Oil & Gas Order Number 1, Approval of Operations /

Federal Register Vol. 70, No. 143 / 27JUL, 2005, pages 43349 – 43364 /

Department of Agriculture Forest Service 36 CFR Part 228 RIN 0596-AC20 / Department of the Interior Bureau of Land Management 43 CFR Part 3160 [WO-610-411H12-24 1A] RIN 1004-AD59

Notice of extension of public comment / Federal Register Vol 70, No. 165 / 26AUG, 2005 page 50262


Dear Director:

Thank you for the opportunity to comment on the above captioned rule-making. I certainly understand the importance of a reliable energy supply for our nation. I also understand that oil and gas operators have a legitimate interest in mineral development. However surface values and property rights must at the same time be protected. Surface owners have an important personal and monetary interest in their land and water equal to the mineral interest. “Reasonable use” by a mineral owner must not provide the right to destroy, interfere with, or damage the landowner’s rights to the surface and its’ attendant water. It is unreasonable and unfair to expect landowners to bear the economic and environmental costs of energy production in this country.

Current law allows a “taking” of landowner rights. Exploration for development, production and transmission of mineral and energy resources can result in damage, lost value and loss of use of other real property and surface resources. Concern for protecting land values, surface resources, property rights and water quality requires that NMCGA submit the following comments to the joint proposed rule to revise existing Oil & Gas Order Number 1 (Order). The proposed changes in general do not promote fundamental fairness to the surface estate, nor do they reflect the understanding of the issue that Congress expressed in the recently passed Energy Bill or that Secretary of the Interior Gale Norton has expressed in meetings with landowners. The issue has become so important that some nine (9) states have enacted their own legislation to address the problems, with several other states contemplating similar action.

The Bureau of Land Management (BLM) states that this proposed rule is necessary to reflect changes in the 1983 Order pursuant to the 1987 Federal Onshore Oil & Gas Leasing Reform Act, legal opinions, court cases since the Order was first issued, and other policy and procedural changes, including a 1988 staff memo from the Associate Solicitor of Energy and Resources entitled “Legal Responsibilities of BLM for Oil and Gas Leasing operations on Split Estate Lands.” The actual effect of the proposed rulemaking appears to be a federal effort to elevate the legal standing of the existing 1983 Order; to re-enforce the federal government’s dominance over the procedure to access federal minerals under private lands; and to limit negotiated damages to said private lands to the limitations set forth in the 1916 Stock Raising Homestead Act and other relevant Homesteading provisions, rather than the broader provisions being included in state statutes (including the 1979 North Dakota Act, the 1981 Montana Act and the 2005 Wyoming Surface Owner Accommodation Act). This is in violation of several Executive Orders, as explained below, and of this Administration’s overall commitment to state’s rights, federalism, private property rights, and the empowerment of the private individual.

Comments on text of proposed Order (Appendix pages 43356-43364)

II Definitions

The definition of “Split Estate” should include lands where the surface is leased from the federal government. If the BLM is notifying a surface owner of operator activities, why – in fairness – can they not also inform a surface lessee? The Executive Order of August 26, 2004, instructs federal agencies to take “appropriate account of and respect the interests of persons with ownership or other legally recognized interests in land and other natural resources” in their implementation of laws relating to natural resources.

III. B.

Early notification for a planning conference as soon as the operator has identified a potential area of development is only voluntary – why? Such early notification should be mandatory. Notification should be the rule, with the exception being a situation where an owner cannot be located. In addition to simple fairness, as the order itself states, this could help all parties in identifying unusual conditions of the land, time-sensitive issues and potential areas of conflict.

III. C. 1.

Requires an agency give at least 30 days public notice before approval of an APD in an area of the BLM field office readily accessible to the public – why not also inform the surface owner and any federal lessees of the surface directly? This seems only fair and not an undue burden on BLM. Open government surely includes the right to easily discover federal actions that directly affect the individual’s interest in land.

III.C. 2(b)

BLM will coordinate with private surface owners within 10 days of APD package to schedule a date for onsite inspections – “as soon as practicable based on schedules and weather conditions.” The Federal Register’s notice “Discussion of Major changes” interprets this flexibility in scheduling of onsite inspection as allowing BLM to take into account “the availability of … the surface owner if split estate is involved” and that the BLM, rather than the operator, is now “responsible for inviting surface owners to participate in onsite inspections.”

These changes only shift the invitation requirements to the BLM. As discussed further in comments to Section III. F and VI. (below) this invitation to observe, without any sort of real involvement in the process, does not satisfy the needs of a potentially damaged surface owner.

III. C. 2(c)

While it is now clear that NO final decisions will be made until the regulatory requirements of the ESA, NHPA and NEPA have been satisfied, it should not violate the opinion of the 1988 memo (which prompted this change) to consider and adopt landowner suggestions and concerns to the extent they do not violate the above statutory requirements.

III.E

“Best management practices (BMPs) are voluntary unless they have been analyzed as mitigation measure in the NEPA process.” Why are BMPs only required when part of mitigation in the NEPA process? This seems illogical and promotes less than desirable management practices within agency regulations!

III. E. 1(a)

Surveying staking and Inventories “may be done without advance approval from the Surface Managing Entity” but entry should not occur on private lands without the “operator first making an effort to obtain approval from the surface owner.” What kind of effort? It doesn’t seem burdensome to require a substantial effort to inform a landowner – and have a procedure to allow entry after considering the conflict (which BLM could mediate) or where an owner cannot legitimately be located.

III. E. 3(a)(1)

“The operator should consider using best management practices in improving or maintaining existing roads.” In (b), the operator may consider using BMPs in designing road construction. As mentioned above, why is the BLM codifying in its regulations anything less than the best of management practices for operators utilizing either federal or private surface?

III. E. 3(j)

An operator may amend his plan for surface reclamation at the time of abandonment – yet no notice must be given to a surface owner then or at ANY stage of the reclamation process. What burden is it on the operator to fairly notify and at least attempt discussing reclamation needs?

III. E. 5(a)

The agency may consider “unique environmental issues to require additional bond.” The agency should allow and consider surface user input; the agency may find it very helpful to consider environmental concerns of those who actually work on or own the land in question.

III. E. 5(b)

“BLM may reduce the bond in the amount requested by the appropriate Surface Managing Entity.” – but why not have the ability to increase as well, if legitimate reasons are provided to do so?

III. F.

Before filing an APD, the operator “may file a notice of staking with BLM” who will then inform surface owner. Again, why is simple notice to those directly affected by operations only voluntary?

“BLM will invite the surface owner to participate in the onsite inspection. “ Within 7 days, all parties will “jointly develop a list of resource concerns that the operator must address in the APD. Surface owner concerns will be considered to the extent practical within the law.” Such a hedge in standard language unfortunately appears to reflect the agency true position regarding surface owner participation in the process.

IV.

While not being required, the operator is “urged to contact” the Surface Managing Entity before entering the land for operations. Since when are basic requirements for notification a hindrance? It should be mandated. This type of provision, in addition to the others, shows a basic lack of consideration by the agency to a landowner.

IV. c.

In order to protect watershed, an operator “must take measures to minimize or prevent erosion and sediment production.” The agency should be much more specific and careful herein to protect precious water values – a concern all over the western United States, and one that has been severely damaged by careless oil and gas operations.

VI. Operating on Lands with Private/State Surface and Federal or Indian Oil and Gas

-The BLM must comply with the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the Endangered Species Act (ESA) and related fed statutes – but still could consider and incorporate, as necessary, reasonable land owner concerns.

-Operator must make a “good faith effort” to notify the private surface owner before entry and obtain an access agreement form the surface owners. Such effort should be clear and mandated.

-If no agreement is reached, an operator must submit an “adequate” bond to “pay for loss or damages, such as loss of or damage to agriculture, other tangible improvements, or structures, as required by the specific statutory authority under which the surface was patented or the terms of the lease.” Min = $1000
---This appears to continue reducing the amounts of bonding requirements to ridiculously low levels. As now, the practice unheard of in order areas of business will continue – an operator determining his own low bond. If BLM really wants to make this process fairer, they should come up with reasonable guidelines for bonding requirements.
---BLM should provide guidelines for the surface values and bonding amounts, rather than relying on vague, unspecified, ancient patent statutes.

-Surface owner has right to appeal the sufficiency of the bond.
---This provision has not, nor continues to have any real teeth. If it is the BLM’s responsibility to otherwise regulate and control operator actions, why can they not require reasonable bonds up front?

-BLM will invite the surface owner to the onsite inspection to “assure that their concerns are considered. Surface owner concerns will be considered to the extent that they are consistent with Federal land management policy.” This only mandates the surface owner be included in the onsite inspection – but not in the remainder of the approval and production process. The final comment that concerns of surface owners are only considered if consistent with Federal land management policy is vague and disheartening – particularly considering the tone and direction of this proposed rule.

Thank you for this opportunity to comment on your proposed changes to the Order. I also extend my support to the more detailed comments submitted by the New Mexico Cattle Growers’ Association (NMCGA).

While the proposed changes are inappropriate, I remain ready and willing to work with the BLM on changes to the Order that will be recognize state statutes and the problems that led to their creation. Private property rights can be protected while streamline permitting decisions and working toward a reliable energy supply.

Sincerely,


Cc: New Mexico Congressional Delegation

Governor Bill Richardson

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