After the Mineral Leasing Act was amended in 1987 by FOOGLRA, primary authority of leasing all public lands (BLM lands, as well as lands managed by the Forest Service, the US Fish and Wildlife Service, and the Army Corps of Engineers) was vested with BLM. However, the MLA amendments provide that the Forest Service(FS) regulate all surface-disturbing activities on the National Forests – including those from oil and gas operations. In addition, the MLA provides that BLM cannot issue any lease in the National Forests over the objection of the Forest Service. The Forest Service also has the right to impose conditions or stipulations on any leases in order to protect the other, primary uses of national forest lands, such as providing for outdoor recreation, watershed protection, and fish and wildlife. In 1990, the Forest Service amended its leasing regulations to comply with the new law, and a brief overview of the Forest Service oil and gas leasing system is provided here.
Essentially, the Forest Service developed regulations that break down its responsibilities under the MLA into a two-stage process. The first stage involves the identification and mapping of areas that may be made available for BLM leasing; this is generally done during the development or revision of land and resource management plans (LRMPs). The second stage is when specific lands are actually being considered for leasing – at that time, the Forest Service shall review the underlying leasing decision and consent to BLM to sell the lease parcels. The second stage requires three separate findings by the Forest Service prior to authorizing BLM to lease the site-specific area: (1) a verification that the leasing decision has been adequately studied in a NEPA document and is consistent with the LRMP for the particular National Forest; (2) an assurance that the proposed leases contain the proper stipulations related to surface occupancy to ensure that any development on the parcel would protect the resource values and objectives that the Forest Service lays out in the Land and Resources Management Plan ; and (3) a determination that operations and development could be allowed somewhere on each lease without compromising those values and objectives (except where leases are offered with a stipulation which allows “no surface occupancy”).
After completing the first stage, the Forest Service has a determination that certain lands are “available” for leasing. The Forest Service then turns the leasing process over to BLM. This determination of availability for leasing may be used by the Forest Service for many years. In stage 2, the BLM identifies FS lease parcels that it intends to sell at the next competitive bidding process. At that point BLM contacts the Forest Service for final approval, whereby the Forest Service conducts its tripartite stage 2 analysis. (However, evidence indicates that the Forest Service often gives pro forma approval to leasing without any site specific analysis of the impacts that leasing might have and without genuinely investigating whether the three criteria are met.) Upon approval from the Forest Service after completing this analysis, the lease parcels are made part of the competitive lease sale, conducted by BLM.