Prior to conducting any oil and gas related activity on public lands, the individual or oil company must first obtain an oil and gas lease from BLM. Public notice that lands have been proposed for leasing must be posted at least 45 days prior to the sale. (See previous discussion of competitive and non-competitive leasing.)Under BLM regulations, you may file a “protest” to lease parcels included in a sale notice. BLM offices differ in the time they provide for filing a protest, but the time periods provided are sometimes short. The BLM publishes sale notices on a regular, quarterly schedule and you should consult a sale notice as soon as you learn about it to ensure that you do not miss the deadline to protest leases included in a sale. It cannot be overstated how critically important effective public participation is at the lease sale stage. Once a lease sale is final, the developer has a contractual right that allows him entry onto the land surface, subject to lease stipulations. True, site-specific conditions may be added at the APD approval process (see below), but once the lease is sold, the right to say “no” to development becomes extremely difficult – of course, like any contract, BLM could breach and pay damages, but this is very unlikely and not something to count on.
A key distinction at the leasing stage is those leases that proscribe all surface occupancy (no surface occupancy or “NSO” leases) and those that allow some level of surface occupancy (non-NSO leases). In very simple terms, if the lease is non-NSO, the courts have held that the BLM’s right to say “no” to development and surface occupancy is lost, this is a full and irretrievable commitment of federal resources, necessitating a NEPA analysis. Public participation and full consideration of the “no lease” alternative is always required before a lease sale. In many cases, both BLM and the Forest Service will rely on the EIS prepared for the LRMPs for the pre-leasing NEPA EIS compliance. The public and activists should be ready to protest and challenge any lease issued without a new NEPA process, in order to examine the impacts, alternatives and stipulations for each specific lease of public oil and gas that is put up for sale. In many cases, the Forest Management
Plans in place are grossly out of date in terms of resources analyzed (e.g., no analysis of hydraulic fracturing or horizontal drilling) or the RFD (reasonably foreseeable development) scenario, which estimates how much oil and gas development is likely to occur. In some cases, even where there is significant industry interest in drilling in an area, Forest Service continues to rely on LRMPs or Forest Plans which show that little or no drilling will occur. Some Eastern National Forests have written Records of New Information (RONIs) to update their forest plans as it relates to new gas drilling issues but this does not cover their obligations under NEPA and citizens are objecting (SEE Buckeye Forest Council letter).
Additional Information on the NEPA Process: