Standing to Challenge Decisions Approving Federal Units or Suspending Federal Leases

Non-governmental organizations that oppose oil and gas development have in the last few years begun to challenge not only Bureau of Land Management (BLM) decisions authorizing oil and gas drilling operations but also BLM decisions that could have the effect of continuing leases in effect that might otherwise expire. In two recent decisions, the Interior Board of Land Appeals (IBLA) reiterated its position that, in order to seek State Director review of a decision or to appeal a decision to the IBLA, the appellant must demonstrate that the “legally cognizable interests” of it or its members will be adversely affected by the decision under review. Southern Utah Wilderness Alliance, 190 IBLA 152 (2017) (SUWA); Citizens of Huerfano County, 190 IBLA 253 (2017) (Huerfano).

Legally cognizable interests can include cultural, recreational and aesthetic use and enjoyment of the lands. But there must be a causal relationship between the alleged injury to those interests and the BLM decision under review. In addition, the threat of injury must be real and immediate. In SUWA, the appellant challenged a BLM decision suspending leases committed to the Deseret Unit in the Uintah Basin. BLM granted the suspension because its approval of the drilling permit (APD) for the unit obligation well would be delayed for several months while analysis of the proposal under the National Environmental Policy Act (NEPA) was prepared. SUWA asserted that the suspension was improperly granted because the unit operator had allegedly delayed in developing the leases, its application was not supported by sufficient information, and the BLM should have prepared an environmental assessment or environmental impact statement on the suspsension application. The IBLA did not address the substance of SUWA’s allegations because it found that SUWA had failed to demonstrate that its members’ health, recreational, spiritual, educational, aesthetic and other interests would be directly harmed by BLM’s decision to approve the suspension. The Board concluded that SUWA’s interests would be harmed only if oil and gas development occurred (i.e., if the APD was approved). The suspension of the leases did not result in “real and immediate” harm to SUWA’s interests so there was no causal link between the alleged injury and the BLM decision to suspend the lease. Any injury to SUWA which might occur was contingent on a future decision to approve drilling. Therefore, the IBLA upheld the State Director’s decision dismissing SUWA’s State Director review request for lack of standing.

In Huerfano, the appellants sought State Director review of a decision approving a federal exploratory unit. The State Director dismissed the request for lack of standing. As in SUWA, the IBLA upheld the State Director’s decision because the appellants had not shown a causal connection between the alleged injuries to their property values and the decision approving the unit agreement. The appellants had asserted that oil and gas development in the unit area would adversely affect their property values and cause contamination of their water wells. The IBLA noted that such development could occur without approval of the unit agreemenmt (i.e., on a lease by lease basis). Moreover, any alleged impacts to the appellants’ water quality or property values would not be caused by approval of the unit agreement; those alleged injuries could occur, if at all, by approval of oil and gas operations.

The SUWA and Huerfano decisions illustrate that a decision that merely prevents the expiration of a lease (by suspension) or creates the possibility that leases may be extended (by unit drilling) is not the cause of alleged injuries to persons claiming aesthetic, recreational or similar interests in the lands covered by those decisions and therefore opponents of such development will have a difficult time establishing that they have standing to challenge such decisions. These cases do not apply, however, to BLM decisions to issue a lease or to approve an APD, where an appellant is more likely to be able to demonstrate a causal connection between those BLM decisions and alleged injuries to recreational, health and similar interests.