Lawmakers say BLM inhibiting oil and gas development to protect view from Native American sites

State lawmakers say a new interpretation of federal rules is inhibiting oil and gas development near Native American sites on private land. At issue is section 106 of the National Historic Preservation Act, which seeks to avoid, minimize or mitigate “adverse effects” to historic sites. That includes Native American sites, of which there are numerous small and large across Wyoming. Lawmakers say the BLM suddenly started including viewshed as a potential adverse impact early this year. “The concern is that nothing has actually changed,” said Sen. Brian Boner, R-Douglas, who’s heard from a number of his constituents about the issue. “The federal statute hasn’t changed. The only thing that seems to have changed is the BLM’s interpretation of the current rules and regulations. There’s no public comment. They just showed up with the landowners one day and said ‘This is how it’s going to be.’” The viewshed addition comes as a surprise to lawmakers in Wyoming, who said that the election of President Donald Trump and the majority lead in Congress would mean conservative values like private property would see greater protection from federal agencies — not less. “Frankly that’s the scariest part, for both me and my constituents,” Boner said. “You think you win an election, and then it gets so much worse for property rights and oil and gas development in eastern Wyoming.” A spokeswoman for the BLM could not be reached by press time. A legislative committee that deals with federal natural resources meets Wednesday in Casper, where it will hear an update on how oil and gas operators are dealing with the new way of approaching Native American sites. Boner said he and some of his constituents met with the BLM last month, but agency representatives didn’t change their stance...more

This is a great example of how federal ownership of resources diminishes the rights of individuals in the use of their private property.

The only reason there is a need for a federal permit is because the mineral estate is owned by the feds, even though the surface estate is owned by a private party. This is the so-called "split-estate." And the law says the mineral estate is dominant over the surface estate. So what does that mean? It means the mineral owner (or its lessee) can use as much of the surface estate — free of charge — as is reasonably needed to explore for and develop the reserved minerals within the land.  In the oil and gas context, this means constructing well drilling sites, access roads, pipelines, power lines and other improvements.  The rights of the surface owner are damaged or lessened by the federal ownership of the mineral estate.

But let's say the owners of the mineral estate and surface estate reach an agreement that will result in income to the surface owner. However, if a permit is not issued because someone's viewshed is disturbed, the surface owner won't receive that income.

In both instances, the surface owner is SOL, thanks to the feds.