Nos , UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Transcription

1 Appellate Case: Document: Date Filed: 08/12/2016 Page: 1 Nos , UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT STATE OF WYOMING, et al., Petitioner-Appellees, v. SALLY JEWELL, Secretary, United States Department of the Interior, et al., Respondent-Appellants, SIERRA CLUB, et al., Intervenor-Respondent-Appellants. On Appeal from the United States District Court for the District of Wyoming Civil Action No. 2:15-CV SWS The Honorable Scott W. Skavdahl INTERVENOR-RESPONDENT-APPELLANTS OPENING BRIEF Michael S. Freeman Joel Minor Earthjustice th Street, Suite 1600 Denver, CO (303) (phone) (303) (fax) mfreeman@earthjustice.org jminor@earthjustice.org Attorneys for Respondent-Intervenor- Appellants Sierra Club, et. al. Nathan Matthews Sierra Club 2101 Webster Street, Suite 1300 Oakland, CA (415) (phone) (510) (fax) nathan.matthews@sierraclub.org Attorney for Respondent-Intervenor- Appellant Sierra Club August 12, 2016 ORAL ARGUMENT REQUESTED

2 Appellate Case: Document: Date Filed: 08/12/2016 Page: 2 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, the Respondent- Intervenor-Appellants Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, The Wilderness Society, and Southern Utah Wilderness Alliance have no parent companies, subsidiaries, or affiliates that have issued shares to the public.

3 Appellate Case: Document: Date Filed: 08/12/2016 Page: 3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii GLOSSARY... xiii STATEMENT OF RELATED CASES... xvi JURISDICTIONAL STATEMENT... 1 ISSUE PRESENTED... 1 STATEMENT OF THE CASE... 1 I. STATUTORY AND REGULATORY BACKGROUND... 1 II. FACTUAL BACKGROUND... 4 III. PROCEDURAL HISTORY ARGUMENT SUMMARY STANDARD OF REVIEW ARGUMENT I. THE DISTRICT COURT ERRED IN RULING UNDER CHEVRON STEP 1 THAT THE MINERAL LEASING ACT DOES NOT GIVE BLM AUTHORITY TO ISSUE THE RULE A. The Plain Language Of The MLA Gives BLM Authority To Manage All Aspects Of Oil and Gas Development On Public Lands B. The District Court Misinterpreted The MLA The Absence Of An Express Reference To Hydraulic Fracturing In The Statute Is Irrelevant The MLA Gives BLM Authority To Prevent Environmental i

4 Appellate Case: Document: Date Filed: 08/12/2016 Page: 4 Harm From Oil And Gas Development C. Congress Effectively Ratified BLM s Long-Held View Of Its Authority Under The MLA The Activities Addressed In The Rule Have Been Regulated By The Interior Department For Many Decades Congress Has Effectively Ratified The Interior Department s Interpretation BLM Has Not Disavowed Its Authority Over Hydraulic Fracturing II. THE DISTRICT COURT ERRED IN RULING UNDER CHEVRON STEP 1 THAT FLPMA DOES NOT GIVE BLM AUTHORITY TO ISSUE THE RULE A. The Rule Is A Valid Exercise Of FLPMA s Multiple-Use Mandate B. FLPMA Is More Than Just A Land Use Planning Statute III. NEITHER SDWA NOR THE 2005 ENERGY POLICY ACT LIMIT BLM S AUTHORITY OVER HYDRAULIC FRACTURING ON FEDERAL LANDS A. The Safe Drinking Water Act Preserves BLM s Authority Under The MLA B. The 2005 Act Does Not Alter BLM s Authority Under The MLA Or FLPMA C. SDWA Does Not Conflict With The MLA And FLPMA IV. ALTERNATIVELY, THE RULE SHOULD BE UPHELD UNDER CHEVRON STEP 2 AS A REASONABLE INTERPRETATON OF THE MLA AND FLPMA CONCLUSION ii

5 Appellate Case: Document: Date Filed: 08/12/2016 Page: 5 TABLE OF AUTHORITIES Cases iii Page(s) Arch Mineral Corp. v. Lujan, 911 F.2d 408 (10th Cir. 1990) Barlow & Haun, Inc. v. United States, 118 Fed. Cl. 597 (2014) Barnhart v. Walton, 535 U.S. 212 (2002)...passim Berman v. Parker, 348 U.S. 26 (1954) Boesche v. Udall, 373 U.S. 472 (1963)... 17, 18 California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987) Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)...passim City of Arlington, Tex. v. Fed. Commc ns Comm n, 133 S. Ct (2013)... 15, 54 Commodity Futures Trading Comm n v. Schor, 478 U.S. 833 (1986)... 29, 35, 49, 50 Copper Valley Mach. Works, Inc. v. Andrus, 653 F.2d 595 (D.C. Cir. 1981)... 19, 28 Ctr. for Biological Diversity v. BLM, 937 F. Supp. 2d 1140 (N.D. Cal. 2013)... 37, 39 Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) Defs. of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980)... 52

6 Appellate Case: Document: Date Filed: 08/12/2016 Page: 6 Devon Energy Corp. v. Kempthorne, 551 F.3d 1030 (D.C. Cir. 2008) Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965) Enron Oil & Gas Co. v. Lujan, 978 F.2d 212 (5th Cir. 1992) Exxon Corp. v. Lujan, 970 F.2d 757 (10th Cir. 1992) Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)... 29, 34 35, 36 Forbes v. United States, 125 F.2d 404 (9th Cir. 1942)... 21, 27 Gade v. Nat l Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992) Geosearch, Inc. v. Watt, 721 F.2d 694 (10th Cir. 1983) Getty Oil Co. v. Clark, 614 F. Supp. 904 (D. Wyo. 1985) Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)... 22, 28 Hackwell v. United States, 491 F.3d 1229 (10th Cir. 2007) Hannifin v. Morton, 444 F.2d 200 (10th Cir. 1971)... 20, 21, 52 Helicopter Ass n Int l, Inc. v. Fed. Aviation Admin., 722 F.3d 430 (D.C. Cir. 2013)... 20, 43 High Country Citizens All. v. Clarke, 454 F.3d 1177 (10th Cir. 2006) iv

7 Appellate Case: Document: Date Filed: 08/12/2016 Page: 7 Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) Hoyl v. Babbitt, 129 F.3d 1377 (10th Cir. 1997) Humboldt Cty. v. United States, 684 F.2d 1276 (9th Cir. 1982) Indep. Petroleum Ass n of Am. v. DeWitt, 279 F.3d 1036 (D.C. Cir. 2002) Kelo v. City of New London, 545 U.S. 469 (2005) Kleppe v. New Mexico, 426 U.S. 529 (1976) Kobach v. U.S. Election Assistance Comm n, 772 F.3d 1183 (10th Cir. 2014) Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467 (11th Cir. 1997) Manning v. United States, 146 F.3d 808 (10th Cir. 1998) Maracich v. Spears, 133 S. Ct (2013) Massachusetts v. EPA, 549 U.S. 497 (2007)... 20, 22, 39, 51 Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011) Midwest Crane & Rigging, Inc. v. Fed. Motor Carrier Safety Admin, 603 F.3d 837 (10th Cir. 2010) Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30 (D.D.C. 2003)... 44, 55 v

8 Appellate Case: Document: Date Filed: 08/12/2016 Page: 8 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) Morton v. Mancari, 417 U.S. 535 (1974) Nat l Cable & Telecomms. Ass n v. Brand X Internet Servs., 545 U.S. 967 (2005) Nat. Res. Def. Council, Inc. v. Berklund, 458 F. Supp. 925 (D.D.C. 1978)... 26, 27 Nebraska v. EPA, 331 F.3d 995 (D.C. Cir. 2003) Negonsott v. Samuels, 933 F.2d 818 (10th Cir. 1991) Nev. Power Co. v. Watt, 711 F.2d 913 (10th Cir. 1983) N.M. ex rel. Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009)... 3, 41 Pub. Lands Council v. Babbitt, 529 U.S. 728 (2000) Rodriguez v. United States, 480 U.S. 522 (1987) S. Utah Wilderness All. v. Dabney, 222 F.3d 819 (10th Cir. 2000) San Juan Citizens All. v. Stiles, 654 F.3d 1038 (10th Cir. 2011) Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015) Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) vi

9 Appellate Case: Document: Date Filed: 08/12/2016 Page: 9 Smiley v. Citibank (S.D.) N.A., 517 U.S. 735 (1996) South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) Topaz Beryllium Co. v. United States, 649 F.2d 775 (10th Cir. 1981) Udall v. Tallman, 380 U.S. 1 (1965) United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012) United States v. Mead, 533 U.S. 218 (2001) United States v. Ohio Oil Co., 163 F.2d 633 (10th Cir. 1947)... 18, 52 United States v. Porter, 745 F.3d 1035 (10th Cir. 2014) United States v. Rutherford, 442 U.S. 544 (1979) Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998) Utah v. U.S. Dep t of Interior, 535 F.3d 1184 (10th Cir. 2008) Utah Envtl. Cong. v. Russell, 518 F.3d 817 (10th Cir. 2008) Utah Shared Access All. v. Carpenter, 463 F.3d 1125 (10th Cir. 2006) Ute Mountain Ute Tribe v. Rodriguez, 660 F.3d 1177 (10th Cir. 2011) vii

10 Appellate Case: Document: Date Filed: 08/12/2016 Page: 10 Util. Air Regulatory Grp. v. EPA, 134 S. Ct (2014) Ventura Cty. v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979)... 19, 27, 52 W. Energy All. v. Salazar, 709 F.3d 1040 (10th Cir. 2013) WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) WildEarth Guardians v. Nat l Park Serv., 703 F.3d 1178 (10th Cir. 2013)... 38, 51 WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015) Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127 (10th Cir. 2011) Wyoming v. U.S. Dep t of Agric., 661 F.3d 1209 (10th Cir. 2011)... 14, 40 Young v. Cmty. Nutrition Inst., 476 U.S. 974 (1986) Statutes 16 U.S.C U.S.C U.S.C U.S.C passim 30 U.S.C passim 30 U.S.C U.S.C , U.S.C , 38, 33 viii

11 Appellate Case: Document: Date Filed: 08/12/2016 Page: U.S.C. 229a... 26, U.S.C U.S.C. 300f U.S.C. 300h... 47, U.S.C. 300h-1 to h U.S.C , 3, U.S.C , 40, 41, U.S.C U.S.C U.S.C passim 43 U.S.C , U.S.C , 40, 43 Act of August 8, 1946, Pub. L. No , 60 Stat Act of July 29, 1954, Pub. L. No , 68 Stat Act of May 12, 1970, Pub. L. No , 84 Stat Act of November 16, 1981, Pub. L. No , 95 Stat Act of October 15, 1962, Pub. L. No , 76 Stat Act of October 30, 1978, Pub. L. No , 92 Stat Energy Policy Act of 2005, Pub. L. No , 119 Stat , 34, 49, 50 Energy Policy Act of 1992, Pub. L. No , 106 Stat Federal Oil and Gas Royalty Management Act of 1983, Pub. L. No , 96 Stat Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub. L. No , 101 Stat (1987)... 32, 33, 34 ix

12 Appellate Case: Document: Date Filed: 08/12/2016 Page: 12 Mineral Leasing Act for Acquired Lands, Pub. L. No , 61 Stat. 913 (1947) Mineral Leasing Act Revision of 1960, Pub. L. No , 74 Stat Regulations Operating Regulations to Govern the Production of Oil and Gas, 1920 I.D. Lexis 47 (June 4, 1920)... 4, C.F.R (1938) C.F.R (1938)... 15, C.F.R. pt. 221 (1942) C.F.R (1982)... 5, C.F.R (1982) C.F.R. pt. 61 subpart B C.F.R C.F.R C.F.R. pt (1998) C.F.R to 5-2 (2014) , 7, C.F.R (1983) C.F.R (1988) C.F.R (2014) C.F.R , 8, 9 43 C.F.R , C.F.R C.F.R x

13 Appellate Case: Document: Date Filed: 08/12/2016 Page: C.F.R C.F.R C.F.R Federal Register 1 Fed. Reg (Nov. 20, 1936)... 30, 31 7 Fed. Reg (June 2, 1942)... 30, Fed. Reg. 47,758 (Oct. 27, 1982)...passim 48 Fed. Reg. 36,582 (Aug. 12, 1983)... 2, Fed. Reg. 17,340 (May 16, 1988) Fed. Reg. 46,798 (Nov. 18, 1988)... 23, 28, Fed. Reg. 47,354 (Sept. 8, 1993)...passim 63 Fed. Reg. 52,946 (Oct. 1, 1998) Fed. Reg. 17,866 (Apr. 11, 2002) Fed. Reg. 10,308 (Mar. 7, 2007) Fed. Reg. 27,691 (May 11, 2012) Fed. Reg. 16,128 (Mar. 26, 2015)...passim Legislative History 122 Cong. Rec. 4, (1976) Development of Oil and Gas on the Public Domain: Hearing on S Before the S. Comm. on Pub. Lands & Surveys, Subcomm. On S. 1236, 79th Cong. 164, (Aug. 27, 1945) H.R. Rep. No (1918) H.R. Rep. No (1919) (Conf. Rep.) H.R. Rep. No (1919) xi

14 Appellate Case: Document: Date Filed: 08/12/2016 Page: 14 H.R. Rep. No (1974), 1974 U.S.C.C.A.N , 48 H.R. Rep. No Pt. 1 (1987) H.R. Rep. No (1987) (Conf. Rep.) Other Authorities BLM Hollister Field Office, Environmental Assessment, Oil & Gas Competitive Lease Sale (Sept. 14, 2011), minerals.par file.dat/ca ea-finalv5.pdf... 37, 38 James A. Holtkamp, Access and Permitting for Oil and Gas Exploration, Drilling and Development, 12A Rocky Mountain Min. L. Found. 3 (1980) xii

15 Appellate Case: Document: Date Filed: 08/12/2016 Page: 15 GLOSSARY APA: Administrative Procedure Act, 5 U.S.C BLM: Bureau of Land Management. Respondent-Appellants in this case. Citizen Groups: Respondent-Intervenor-Appellants Sierra Club, et al. EA: Environmental Assessment a concise public document prepared by an agency under the National Environmental Policy Act (NEPA) to determine whether a full environmental impact statement must be developed to analyze an agency proposal. 40 C.F.R EPA: the Environmental Protection Agency. Flowback (or fracturing flowback): when a well is hydraulically fractured, the portion of the fracturing fluids that returns to the surface. Besides the original fluid used for fracturing, flowback can contain produced water (see definition of produced water, infra pp. xiv xv) as well as metals, hydrocarbons and naturally occurring radioactive materials that were in the fractured formation. Appellants App. (App.) 599. FLPMA: Federal Land Policy and Management Act, 43 U.S.C One of the statutes BLM relies on for its authority to promulgate the Rule. FOOGLRA: Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub. L. No , , 101 Stat (1987). Frack Hit: An accident that can occur when fracturing fluids communicate, or intersect, with the wellbore of a different well, potentially causing a blowout or surface spill. Horizontal drilling: a wellbore with an L shape that is drilled vertically to a point and then redirected to run substantially horizontally within the formation targeted for production of oil or gas. On horizontal wells, the hydraulic fracturing (and the production of oil and gas) occurs on the horizontal (or lateral ) portion of the wellbore. xiii

16 Appellate Case: Document: Date Filed: 08/12/2016 Page: 16 App.348 (American Petroleum Institute standards). Hydraulic fracturing (or fracking): a technique used to stimulate production of oil and gas when the hydrocarbons are trapped within small pore spaces in the rock (such as shale) or in other formations with low permeability. After a well has been drilled, a mixture of water, sand, and chemicals is injected through the well into the oil- or gas-bearing rock formation under high pressure. The process is designed to create cracks (fractures) in the formation out to a desired distance and allow the oil or gas to flow through the fractures into the wellbore. See 80 Fed. Reg. 16,128, 16,217 (Mar. 26, 2015). 1 Interior Department: the United States Department of the Interior. Industry Petitioners: Petitioner-Appellees Western Energy Alliance and Independent Petroleum Association of America. MLA: Mineral Leasing Act, 30 U.S.C One of the statutes BLM relies on for its authority to promulgate the Rule. NEPA: National Environmental Policy Act, 42 U.S.C Produced water: water contained in a hydrocarbon-producing formation that is produced from the well as a byproduct along with the oil or gas. Produced water 1 See also GSA Critical Issue: Hydraulic Fracturing, The Geological Society of America, (last visited Aug. 10, 2016). xiv

17 Appellate Case: Document: Date Filed: 08/12/2016 Page: 17 may contain high levels of salinity, as well as metals, naturally-occurring radioactive materials, and other hydrocarbons. App ; App.599. Rule: the BLM regulation challenged in this case, adopted at 80 Fed. Reg. 16,128 (Mar. 26, 2015) (43 C.F.R. Subparts 3160, 3162). SDWA: Safe Drinking Water Act, 42 U.S.C. 300f 300j-26. States: Petitioner-Appellees Wyoming, Colorado, North Dakota and Utah. The 2005 Act: Energy Policy Act of 2005, Pub. L. No , 119 Stat. 594 (2005). UIC: Underground injection control. A Safe Drinking Water Act program intended to prevent underground injection of fluids from endangering underground sources of drinking water. 42 U.S.C. 300h. UUD: Unnecessary or undue degradation. See 43 U.S.C. 1732(b). Wellbore: The hole in the ground that forms the well. A wellbore is generally encased by materials such as steel and cement. Well casing: steel pipe that is cemented inside the wellbore to separate the subsurface formations from material inside the wellbore. There may be multiple layers of casing at different locations in the wellbore. Well completion: the last stage of well construction, which involves making the well ready for production. Hydraulic fracturing and other techniques to stimulate production of oil or gas are performed at the completion stage. xv

18 Appellate Case: Document: Date Filed: 08/12/2016 Page: 18 STATEMENT OF RELATED CASES This case is a consolidation of two appeals. Case no is an appeal by Respondent-Intervenor-Appellants Sierra Club, et al. (the Citizen Groups). Case no is an appeal by Respondent-Appellants Sally Jewell, et al. (collectively, BLM). The cases were consolidated by this Court s Order on July 6, Appellants previously appealed a preliminary injunction issued by the district court in this case. Case nos and were consolidated appeals brought by the Citizen Groups and BLM, respectively. On July 13, 2016, this Court dismissed the preliminary injunction appeals with instructions to vacate the district court s preliminary injunction. The mandate was issued the same day xvi

19 Appellate Case: Document: Date Filed: 08/12/2016 Page: 19 JURISDICTIONAL STATEMENT The district court had federal question jurisdiction, 28 U.S.C. 1331, because this case challenges a Bureau of Land Management (BLM) regulation (the Rule) under federal law. This Court has jurisdiction under 28 U.S.C The Citizen Groups seek review of a final district court Order and Judgment setting aside the Rule. See Appellants App. (App.) (the Order); App (Judgment). The Order was issued on June 21, 2016 and the Judgment was issued on June 22, The Citizen Groups timely filed their notice of appeal on June 27, ISSUE PRESENTED Does BLM have legal authority to update its regulations covering oil and gas development on federal lands to address modern hydraulic fracturing practices? STATEMENT OF THE CASE I. STATUTORY AND REGULATORY BACKGROUND BLM and its parent agency, the United States Department of the Interior (the Interior Department), have comprehensively regulated all aspects of oil and gas development on federal lands for nearly a century under the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA). The MLA, adopted in 1920, charges the Interior Department with managing the leasing and development of federally-owned minerals in order to protect the 1

20 Appellate Case: Document: Date Filed: 08/12/2016 Page: 20 public interest. 2 The statute requires that leases ensure oil and gas companies exercise... reasonable diligence, skill, and care in their operations. 30 U.S.C The statute also directs the Interior Department to include lease provisions necessary... for the protection of the interests of the United States... and for the safeguarding of the public welfare. Id. In addition, the MLA gives the Interior Department broad power to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of [the statute]. Id In addition to the MLA, BLM s management of public lands is governed by FLPMA. FLPMA imposes a broad mandate that BLM must oversee all activities on public lands, including oil and gas development, using multiple use and sustained yield principles that balance resource development with protection of water, wildlife, and other resources. 43 U.S.C. 1701(a)(7), 1701(a)(8), 1702(c), 1732(a). Congress directed that in striking that balance, the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values. Id. 1701(a)(8). 2 Since 1983, the Interior Department has delegated management of oil and gas development to BLM. 48 Fed. Reg. 36,582, 36, (Aug. 12, 1983). This brief uses Interior Department and BLM interchangeably in discussing the agency s legal authority. 2

21 Appellate Case: Document: Date Filed: 08/12/2016 Page: 21 Like the MLA, FLPMA grants broad rulemaking authority. FLPMA requires the Interior Department to promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands. Id. 1740; see also id. 1701(a)(5), 1732(b), 1733(a) (additional rulemaking requirements); infra pp Under FLPMA and the MLA, BLM uses a three-stage framework for managing oil and gas development on public lands. BLM first develops land-use plans that determine what areas will be open to [oil and gas] development and the conditions placed on such development. N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 689 n.1 (10th Cir. 2009) (New Mexico) (citing 43 U.S.C. 1712(e)). Second, the agency then issues leases for developing specific sites. Id. Third, after leases are issued, BLM reviews and approves drilling permits at those sites. Id. The Interior Department also has promulgated regulations that apply in this management framework, and those rules address all aspects of oil and gas leasing and development on public lands. For most of a century, its regulations have required agency approval before companies can drill oil and gas wells, imposed construction requirements for those wells, and set standards for disposal of drilling wastes. Those regulations also have addressed numerous other aspects of oil and gas development, including protection of groundwater and subsurface injection of fluids to improve oil and gas production. Infra pp ; see, e.g., 43 C.F.R. 3

22 Appellate Case: Document: Date Filed: 08/12/2016 Page: to.5-2 (2014); 43 C.F.R (1983); 30 C.F.R (1938); Operating Regulations to Govern the Production of Oil and Gas, 1920 I.D. Lexis 47 at *1 *4, 1 8 (June 4, 1920). II. FACTUAL BACKGROUND The Interior Department last revised its oil and gas regulations in the 1980s. 80 Fed. Reg. 16,128, 16,131 (Mar. 26, 2015). Since the 1980s, however, oil and gas development has changed substantially due to the growth of hydraulic fracturing. Hydraulic fracturing is a technique in which water, chemicals, and sand are injected through an oil and gas well into geologic formations under high pressures to fracture the rock and thereby release oil and gas. Id. at 16, While such techniques have existed for decades, their intensity, scale and complexity have increased dramatically in recent years. Id. at 16,128; see also App.422 (Environmental Protection Agency (EPA) testimony). In particular, companies today have combined hydraulic fracturing with advanced horizontal drilling technologies to construct wellbores that are nearly three miles long and where fracturing uses millions of gallons of water per well. App.422; see also supra pp. xiii xiv (glossary). In addition to dramatically larger operations, hydraulic fracturing has become much more common, driving a rapid expansion of oil and gas development across the country. 80 Fed. Reg. at 16,131. Today, 90% of wells completed on federal lands are hydraulically fractured. Id. 4

23 Appellate Case: Document: Date Filed: 08/12/2016 Page: 23 Since 1982, Interior Department regulations have included some very limited requirements for hydraulic fracturing on public lands. 47 Fed. Reg. 47,758, 47,770 (Oct. 27, 1982) (adopting 30 C.F.R (1982)); infra pp But by the early 2010s, those rules were thirty years out of date and proving inadequate to address the new environmental risks posed by the modern hydraulic fracturing boom. See 80 Fed. Reg. at 16,131 (explaining that BLM regulations were established in 1982 and last revised in 1988, long before the latest hydraulic fracturing technologies were developed or became widely used ). Numerous experts, 3 federal agencies, 4 Congress and individual legislators, 5 Indian tribes, 6 and the public 7 called for BLM to update and strengthen its outdated regulations. For example, EPA explained that the chemicals, huge volumes of water, and high injection pressures used raise serious concerns regarding exposure of hydraulic 3 App , , (conservation groups); App.940 (American Water Works Association); App.1183 (American Public Health Association). 4 See, e.g., App (Secretary of Energy Advisory Committee calling on government to update its regulations to prevent and reduce hydraulic fracturing s environmental impacts). 5 App.515, (2012 Congressional report noting that BLM s decades-old regulations did not reflect current technologies or growth in their use, and that 30% of oil and gas wells on federal land were hydraulically fractured in or near an underground source of drinking water); see also App.635 (congressional letter). 6 App (Saginaw Chippewa Tribe); App (Fort Peck Tribes); App (Standing Rock Sioux Tribe); App (Eastern Shoshone Tribe); see also, e.g., App (testimony from North Dakota hearing); App.477, 481 (Jan. 12, 2012 tribal consultation in Billings Montana). 7 App.686 (over one million members of the public); App.537 (New York Times editorial). 5

24 Appellate Case: Document: Date Filed: 08/12/2016 Page: 24 fracturing fluids to drinking water resources. App.422. These concerns were well-documented: the record is replete with examples of groundwater contamination and other accidents resulting from inadequately-constructed wells, 8 leaks from pits storing hydraulic fracturing wastes, 9 and related activities See, e.g., App (groundwater contamination examples linked to faulty well casing and cementing); App (examples in Pennsylvania, Wyoming, Colorado, West Virginia, Ohio and Texas); App , , ; see also App (Halliburton Energy Services a hydraulic fracturing service company citing expert survey identifying casing failure and cementing failure as a key risk). Several studies estimate well cementing failure rates ranging from 1% to 7%. See, e.g., App ; App.861; App.1130; see also App See, e.g., App.1194, , 1211 (collecting examples of spills and contamination from pits used for flowback and produced water); App.949 (Colorado resident fell ill after drinking water contaminated by chemicals leaching from a pit); App.369 (New Mexico official stating [o]perators have not been maintaining proper control of their waste and some of those... wastes have gotten into surface and ground water ); App (examples of pit accidents); App.523, 528 (numerous safety violations related to improper pit construction); App (Eastern Shoshone Tribe commenting that pits contributed to groundwater contamination on their reservation); App (many birds killed in oil and gas pits); see also App.695 (Halliburton citing expert survey identifying flowback fluid storage as a priority environmental issue). 10 App (describing causes of groundwater contamination in Pavillion, Wyoming); App.495 (same); App

25 Appellate Case: Document: Date Filed: 08/12/2016 Page: 25 BLM agreed that updated regulations were needed. 11 On March 26, 2015, BLM issued the regulation challenged in this case (the Rule) to update its standards. 80 Fed. Reg. at 16,128. The Rule includes four main elements: updated well construction and testing requirements for hydraulicallyfractured wells; requiring the use of tanks instead of pits for storing fracturing flowback waste; advance BLM review and approval of hydraulic fracturing operations; and disclosure of the chemicals used for fracturing. Id. at 16, All four of these elements involve activities that BLM has regulated for decades. First, the Rule updates BLM s three-decade-old well construction and testing standards. Compare 43 C.F.R (e) (g), (i)(9) (2015) with 43 C.F.R to.5-2 (1988). Because faulty well construction is a major source of groundwater contamination, BLM s Rule imposes common-sense requirements based on industry best practices, such as conducting mechanical integrity tests. See App.835 (explaining that Rule adopts industry standard best 11 See 80 Fed. Reg. at 16,128 (concluding that the increased complexity [of modern hydraulically-fractured wells] requires additional regulatory effort and oversight ); see also id. at 16,188 (noting that modern fracturing operations apply increased pressures and volumes of fluid within the subsurface ); App.806 (BLM determining that information collected under its prior regulations was inadequate for oversight of more complex modern operations). 7

26 Appellate Case: Document: Date Filed: 08/12/2016 Page: 26 practices); App (industry trade association document describing best practices); see also supra n.8 (describing risks posed by inadequately constructed wells). Second, the Rule updates BLM s waste management requirements to limit the use of pits for storage of fracturing flowback waste. Compare 43 C.F.R (h) with 58 Fed. Reg. 47,354, 47, (Sept. 8, 1993) (Onshore Order No. 7) and 47 Fed. Reg. at 47,770 (adopting 30 C.F.R (b) (1982)) (existing waste management regulations); see also supra p. xiii (glossary). BLM explained that the storage of flowback, or recovered fluid in pits, poses a risk of impacts to air, water and wildlife. 80 Fed. Reg. at 16,162; see also supra n.9 (describing risks posed by pits). By contrast, requiring above-ground tanks largely eliminates the risk of flowback fluids damaging the environment because tanks are less prone to leaks and spills and they are more readily identifiable when they do occur. App.768. Third, the Rule requires advance BLM review and approval of hydraulic fracturing operations. 43 C.F.R (c) (d). BLM s prior regulations, in effect since 1982, only required prior approval for nonroutine fracturing jobs, or where additional surface disturbance is involved. Id (a), (b) (2014); 47 Fed. Reg. at 47,770 (adopting earlier codification). The Rule now makes BLM approval mandatory for all hydraulic fracturing operations. 43 C.F.R

27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 27 3(c) (d). This advance review is structured so the agency can ensure that no pathways would allow gas or fluids to escape the underground zone being fractured and contaminate aquifers or cause other accidents. See 80 Fed. Reg. at 16,147, 16, Fourth, the Rule requires disclosure of the chemicals used in hydraulic fracturing, 43 C.F.R (i), which simply adds to the categories of relevant information BLM already requires companies to provide about their operations. See, e.g., 58 Fed. Reg. at 47,365 (disclosure requirements for spills); 53 Fed. Reg. 17,340, 17,361 (May 16, 1988) (operations report requirements); 47 Fed. Reg. at 47,770, 47, (well report and disclosure requirements). Many of the chemicals used in hydraulic fracturing can be hazardous. See, e.g., App ; App ; App As a result, chemical disclosure assists BLM in addressing contamination incidents. 77 Fed. Reg. 27,691, 27, (May 11, 2012). It also allows firefighters, paramedics, and medical professionals to train for (and safely address) accidents at oil and gas sites, and incentivizes oil and gas companies to use safer chemicals. App One such accident is a frack hit (or well communication ) in which fracturing fluids from one well intersect with another wellbore underground, causing well blowouts. See 80 Fed. Reg. at 16,153, 16,181 82, 16,194; App.678; App ; App ; App.933; see also supra p. xiii (glossary). 9

28 Appellate Case: Document: Date Filed: 08/12/2016 Page: 28 III. PROCEDURAL HISTORY Petitioner-Appellees Western Energy Alliance and Independent Petroleum Association of America (Industry Petitioners) immediately filed suit to challenge the Rule. See Order at 5 6. Industry Petitioners were soon joined by Petitioner- Appellees Wyoming, Colorado, North Dakota and Utah (the States), and Intervenor-Petitioner-Appellee Ute Indian Tribe. Id. The Citizen Groups also intervened. Id. at 6. On September 30, 2015, the district court entered a nationwide preliminary injunction against the Rule, concluding that the States were likely to succeed on the merits of their theory that BLM lacked legal authority to promulgate the Rule, and the Industry Petitioners were likely to succeed on their claim that the Rule should be aside as arbitrary and capricious under the Administrative Procedure Act (APA). See App Both the Citizen Groups and BLM filed interlocutory appeals of the preliminary injunction order. See Notice of Appeal Filed, 10th Cir. Case No , Doc. No (Dec. 15, 2015); Notice of Appeal Filed, 10th Cir. Case No , Doc. No (Nov. 27, 2015). While the preliminary injunction appeals were pending, the final administrative record was lodged in the district court, and merits briefing 13 Notably, Industry Petitioners did not question BLM s legal authority to promulgate the Rule in their Motion for a Preliminary Injunction. App That theory was asserted only by the States. 10

29 Appellate Case: Document: Date Filed: 08/12/2016 Page: 29 proceeded in that court. On June 21, 2016, the district court entered a final order setting aside the Rule because BLM lacks legal authority to regulate hydraulic fracturing on public lands. Order at 2, 27. Despite BLM s long history of regulation, the court held that the MLA and FLPMA did not authorize the Rule because those statutes say[] nothing about hydraulic fracturing. Id. at 25; see also id. at 17 ( [N]othing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing[.] ). In reaching this conclusion, the district court also placed great emphasis on the Energy Policy Act of 2005 (the 2005 Act). Order at The 2005 Act amended the Safe Drinking Water Act (SDWA) to limit EPA regulation of hydraulic fracturing under that statute, but did not mention BLM s authority under the MLA or FLPMA. Infra pp Nevertheless, the court ruled that it would def[y] common sense for Congress to limit EPA regulation of hydraulic fracturing under SDWA while allowing BLM to continue managing that activity when it occurs on federal lands. Order at The court held that the unambiguously expressed intent of Congress was to preclude any federal agency from addressing hydraulic fracturing under any statute. Id. at 25. In contrast to its preliminary injunction order, the district court chose not to rule on the Industry Petitioners APA arguments, or several other claims advanced by Petitioners. Id. at

30 Appellate Case: Document: Date Filed: 08/12/2016 Page: 30 Both the Citizen Groups and BLM timely appealed the final judgment. App On July 13, 2016, this Court dismissed the preliminary injunction appeals as moot and ordered the district court to vacate the preliminary injunction. Order at 3 4, Wyoming v. Sierra Club, Nos & (10th Cir. July 13, 2016), 2016 WL , at *1. However, because the district court set aside the Rule in its final Order, BLM s outdated 1980s regulations remain in effect today. ARGUMENT SUMMARY In setting aside the Rule, the district court took BLM to task for allegedly making an end-run around its governing statutes and stretch[ing] the outer limits of its delegated statutory authority beyond what Congress authorized. Order at (quotations omitted); see also id. at 2. But in reality it was the district court not BLM that ignored the will of Congress. The district court s opinion rested on two flawed rationales. First, it incorrectly concluded that neither the MLA nor FLPMA provided BLM with authority to address hydraulic fracturing in its regulations. Yet in the MLA and FLPMA, Congress delegated broad authority to manage all aspects of mineral development on public lands. Nothing in those statutes carves out particular technologies such as hydraulic fracturing from BLM s authority. The district 12

31 Appellate Case: Document: Date Filed: 08/12/2016 Page: 31 court s ruling misreads the plain language and purpose of these statutes, as well as decades of case law. Moreover, the Interior Department for decades has interpreted the MLA, and later FLPMA, as providing authority to adopt regulations covering all aspects of oil and gas development on public lands, including hydraulic fracturing and similar practices that enhance production. Congress effectively ratified BLM s authority over those practices by repeatedly amending the MLA without revoking the agency s authority. The district court s conclusion that Congress withheld authority for BLM to issue the Rule disregards that long history of regulation. In fact, the district court s rationale would invalidate not only the Rule, but also many of BLM s existing regulations. The district court also erred in holding that SDWA, and the 2005 Act s amendment of that statute, limited BLM s authority under the MLA and FLPMA. SDWA is an entirely different statute administered by the EPA, not BLM, and BLM did not rely on SDWA for its authority to promulgate the Rule. Nothing in SDWA or the 2005 Act even mentions BLM s MLA and FLPMA authority to manage hydraulic fracturing. To the contrary, the legislative history of both SDWA and the 2005 Act shows that Congress did not intend those statutes to alter BLM s authority on public lands. 13

32 Appellate Case: Document: Date Filed: 08/12/2016 Page: 32 STANDARD OF REVIEW This Court reviews the district court decision de novo because it involves questions of statutory interpretation, United States v. Porter, 745 F.3d 1035, 1040 (10th Cir. 2014), and whether the agency acted within the scope of its authority. Wyoming v. U.S. Dep t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011) (Wyoming v. USDA). Further, the Tenth Circuit reviews district court decisions under the APA de novo. Kobach v. U.S. Election Assistance Comm n, 772 F.3d 1183, 1189 (10th Cir. 2014). The court take[s] an independent review of the agency's action and [is] not bound by the district court s factual findings or legal conclusions. Utah Envtl. Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008) (quotation omitted). ARGUMENT BLM issued the Rule pursuant to its authority under the MLA, FLPMA, and several other federal laws. 80 Fed. Reg. at 16,217. The agency s interpretation of those statutes is reviewed under the two-step test from Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1056 & n.15 (10th Cir. 2015); see also WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677, 683 (10th Cir. 2015) (explaining that the court appl[ies] the test established by Chevron... when asking whether an agency has acted within its authority ) (citations omitted)). 14

33 Appellate Case: Document: Date Filed: 08/12/2016 Page: 33 Under Chevron step 1, the court must determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. City of Arlington, Tex. v. Fed. Commc ns Comm n, 133 S. Ct. 1863, 1868 (2013) (quoting Chevron, 467 U.S. at ). To make this determination, courts employ[] traditional tools of statutory construction, including examination of the statute s text, structure, purpose, history, and relationship to other statutes. Hackwell v. United States, 491 F.3d 1229, 1233 (10th Cir. 2007) (quotations and citations omitted). A regulation will be set aside under Chevron step 1 only if the statute unambiguously forbids the Agency s interpretation[.] Barnhart v. Walton, 535 U.S. 212, 218 (2002); see also Nat l Cable & Telecomms. Ass n v. Brand X Internet Servs., 545 U.S. 967, (2005) (test under Chevron step 1 is whether agency interpretation is unambiguously foreclose[d] ). If the statute is silent or ambiguous with respect to the specific issue, courts proceed to Chevron step 2 and uphold the agency s interpretation if it is based on a permissible construction of the statute. Chevron, 467 U.S. at 843. Courts may not substitute [their] own construction of a statutory provision for a reasonable interpretation by the agency. Id. at 844. To determine if an agency s interpretation is reasonable, courts consider the text, the structure, and the underlying purpose of the statute. Midwest Crane & Rigging, Inc. v. Fed. Motor 15

34 Appellate Case: Document: Date Filed: 08/12/2016 Page: 34 Carrier Safety Admin, 603 F.3d 837, 840 (10th Cir. 2010) (quotations omitted). Courts accord particular deference to any agency interpretation of longstanding duration. Barnhart, 535 U.S. at 220 (quotations omitted). The district court set aside the Rule under Chevron step 1, holding that Congress had directly spoken to the issue and precluded BLM from addressing hydraulic fracturing in its regulations. See Order at 23. This ruling was error because Congress has not unambiguously forbid[den] BLM from adopting the Rule. Barnhart, 535 U.S. at 218. To the contrary, in enacting the MLA and FLPMA, Congress spoke to the issue here by giving the Interior Department broad proprietary authority to manage all aspects of oil and gas development on public lands. That broad delegation does not exclude particular technologies, such as hydraulic fracturing. See App , (raising arguments below). I. THE DISTRICT COURT ERRED IN RULING UNDER CHEVRON STEP 1 THAT THE MINERAL LEASING ACT DOES NOT GIVE BLM AUTHORITY TO ISSUE THE RULE. A. The Plain Language Of The MLA Gives BLM Authority To Manage All Aspects Of Oil and Gas Development On Public Lands. The MLA authorizes the Interior Department to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of [the MLA]. 30 U.S.C More than fifty years ago, the Supreme Court held that this language authorizes the Interior Department 16

35 Appellate Case: Document: Date Filed: 08/12/2016 Page: 35 to impose exacting restrictions and continuing supervision over oil and gas development on public lands, and to issue rules and regulations governing in minute detail all facets of the working of the land. Boesche v. Udall, 373 U.S. 472, (1963) (citing 30 U.S.C. 189). Other courts have similarly recognized that the MLA gives the agency broad management authority over such development. See, e.g., Indep. Petroleum Ass n of Am. v. DeWitt, 279 F.3d 1036, 1039 (D.C. Cir. 2002) (recognizing that BLM has sweeping authority under the MLA); W. Energy All. v. Salazar, 709 F.3d 1040, 1042 (10th Cir. 2013); see also Ute Mountain Ute Tribe v. Rodriguez, 660 F.3d 1177, (10th Cir. 2011) ( The federal statutory and regulatory scheme governing oil and gas operations on Indian land covers virtually every aspect of such operations[.] ). The purpose of the MLA, referenced in Section 189, is to assert federal authority over the leasing and development of publicly-owned minerals in order to protect the public interest. The MLA replaced pre-1920 law (which treated oil and gas deposits as placer mining claims) with a leasing system that substantially expanded federal control. Boesche, 373 U.S. at ; see also Udall v. Tallman, 380 U.S. 1, (1965). Under the MLA, the federal government retains ownership of the leased lands and exercises continuing supervision over oil and gas development. Boesche, 373 U.S. at The Supreme Court has described the dominant theme of 1920 Congressional debates over the MLA as 17

36 Appellate Case: Document: Date Filed: 08/12/2016 Page: 36 [c]onservation through control. Id. at (citing H.R. Rep. No , at 19 (1919) (Congress sought to reserv[e] to the Government the right to supervise, control, and regulate the development of natural resources (internal alterations omitted))); see also Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1033 (D.C. Cir. 2008) (explaining that the MLA was intended to promote wise development of... natural resources... that belong to the public (quotation omitted)). In essence, the MLA directs the Interior Department to administer oil and gas development on public lands in a proprietary capacity on behalf of the public. United States v. Ohio Oil Co., 163 F.2d 633, (10th Cir. 1947). This purpose is reflected in 30 U.S.C. 187, which requires that all leases include provisions as [the Interior Department] deem[s] necessary... for the protection of the interests of the United States... and for the safeguarding of the public welfare. 30 U.S.C Section 187 also requires the Interior Department to ensure that companies exercise... reasonable diligence, skill, and care in the operation of activities on federal leases. Id.; see also H.R. Rep. No , at (1919) (noting that the MLA gives Interior the right to prescribe rules and regulations against wasteful practices ). Nothing in Sections 187 and 189 defines particular oil and gas technologies that the Interior Department may or may not manage. Instead, the MLA grants 18

37 Appellate Case: Document: Date Filed: 08/12/2016 Page: 37 the Secretary [of Interior] broad powers and authority commensurate with the broad responsibilities imposed upon his office. Getty Oil Co. v. Clark, 614 F. Supp. 904, 916 (D. Wyo. 1985). In light of this broad statutory language, courts have consistently recognized BLM s authority to regulate numerous aspects of oil and gas development. These include the issues addressed in the Rule, such as well construction, waste management, and requiring permits for drilling and other operations. See, e.g., San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1044 (10th Cir. 2011) (noting that BLM regulates drilling approvals and methods of containing and disposing of waste ); Copper Valley Mach. Works, Inc. v. Andrus, 653 F.2d 595, 605 n.10 (D.C. Cir. 1981) (describing BLM s regulations on well casing, injections, and stimulation); Ventura Cty. v. Gulf Oil Corp., 601 F.2d 1080, 1083 (9th Cir. 1979), aff'd, 445 U.S. 947 (1980) (explaining that the MLA provides for extensive regulation of oil exploration and drilling ); Barlow & Haun, Inc. v. United States, 118 Fed. Cl. 597, (2014) (describing BLM s requirements for well construction and testing, drilling approvals and minimization of surface and subsurface impacts). Nothing in Sections 187 or 189 excludes particular oil and gas technologies from BLM management. Instead, the plain language of the MLA (and case law applying it) show that Congress intended the Interior Department to exercise broad proprietary authority over all aspects of oil and gas development on federal lands. 19

38 Appellate Case: Document: Date Filed: 08/12/2016 Page: 38 B. The District Court Misinterpreted The MLA. 1. The Absence Of An Express Reference To Hydraulic Fracturing In The Statute Is Irrelevant. The district court nevertheless set aside the Rule because the MLA says nothing about hydraulic fracturing. Order at 25; see also id. at 10 11, 24. This was the wrong question for the court to ask. The MLA does not attempt to catalogue which technologies BLM may or may not regulate. Instead, the plain language of the statute directs BLM to manage development of publicly-owned oil and gas resources in a manner that serves the public interest. This sweeping assignment to BLM does not carve out certain technologies from federal oversight. See Massachusetts v. EPA, 549 U.S. 497, (2007) (ruling that sweeping definition of air pollutant in Clean Air Act forecloses EPA s reading that agency lacked authority to regulate particular pollutants causing climate change); Helicopter Ass n Int l, Inc. v. Fed. Aviation Admin., 722 F.3d 430, (D.C. Cir. 2013) (upholding aviation regulation where challenger pointed to no express limitations on agency s broad statutory authority to protect individuals and property on the ground ); see also Hannifin v. Morton, 444 F.2d 200, 202 (10th Cir. 1971) (the MLA should be broadly construed in order for the [Interior Department] to properly carry out [its] proprietary function on behalf of the government and its citizens ). 20

39 Appellate Case: Document: Date Filed: 08/12/2016 Page: 39 Consistent with the statute s text and purpose, courts have repeatedly upheld the Interior Department s authority to regulate many activities not explicitly referenced in the MLA. See, e.g., Geosearch, Inc. v. Watt, 721 F.2d 694, (10th Cir. 1983) (upholding regulations issued pursuant to 30 U.S.C. 189 that went beyond the literal words of the statute ); Forbes v. United States, 125 F.2d 404, (9th Cir. 1942) (rejecting argument that MLA did not authorize Interior Department to require plugging of wells); see also Enron Oil & Gas Co. v. Lujan, 978 F.2d 212, 214 (5th Cir. 1992) (recognizing Interior s authority under 189 to adopt regulations governing royalty collection); Arch Mineral Corp. v. Lujan, 911 F.2d 408, 415 (10th Cir. 1990) (rejecting challenge to BLM s authority under 189 to administratively collect unpaid royalties and rents); Hannifin, 444 F.2d at 202 (upholding rental fee despite the absence of any express statutory authorization for it). The district court s demand for specific statutory language addressing hydraulic fracturing also conflicts with the purpose of the MLA. Congress has not tried to keep abreast of every technological development in the oil and gas industry with a particular statutory prescription. Instead, the MLA directs BLM to manage oil and gas to protect the public welfare and national interest, and to require the exercise of reasonable diligence, skill and care by oil and gas companies. 30 U.S.C. 187, 189. For the Interior Department to comply with those mandates, it 21

40 Appellate Case: Document: Date Filed: 08/12/2016 Page: 40 must have the flexibility to update its regulations as oil and gas technology changes. 14 The Supreme Court recognized a similar point in rejecting an argument that EPA lacks authority to regulate particular climate pollutants under the Clean Air Act: While the Congresses that drafted [the Clean Air Act] might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of [the statute] reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. Massachusetts, 549 U.S. at 532. The same is true here. The district court turned the MLA on its head by misinterpreting its broadly-worded delegation of authority as a decision by Congress to preclude[] BLM from addressing hydraulic fracturing. See Order at 9. Further, the district court s interpretation would lead to an absurd result. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) ( [I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available. ). If BLM s 14 The legislative history of the MLA reflects Congress understanding that changes in the technology and science of oil and gas development were inevitable: Geologists have in the past and will in the future call to their aid science and scientific methods to determine where oil deposits are found.... Naught but the rotary drill of the industrious and ambitious oil man can in the last analysis answer definitively where the oil deposits are, what they are, and other indispensable information about them. H.R. Rep. No , at 12 (1918). 22

41 Appellate Case: Document: Date Filed: 08/12/2016 Page: 41 authority only extends to activities specifically addressed in the text of the MLA, then hydraulic fracturing would not be the only casualty: the agency could not regulate numerous other aspects of oil and gas development that it has been managing for decades. For example, BLM s existing regulations address construction standards for conventional (non-hydraulically fractured) wells, plugging of abandoned wells, the management of drilling wastes, and many administrative tasks. 15 None of these are expressly discussed in the text of the MLA, but they are necessary for the agency to manage oil and gas development effectively. The district court s MLA interpretation would lead to an absurd result by upending decades of BLM regulations and preventing the agency from implementing MLA s purpose of controlling oil and gas development on federal lands. 2. The MLA Gives BLM Authority To Prevent Environmental Harm From Oil And Gas Development. The district court acknowledged that the MLA authorizes the Interior Department to adopt regulations and do any and all things necessary to carry out and accomplish the purposes of the statute. Order at 10 (quoting 30 U.S.C. 189) 15 See, e.g., 43 C.F.R (b) (environmental regulations addressing protection of subsurface resources ); 72 Fed. Reg. 10,308, 10,331 (Mar. 7, 2007) (approval of drilling operations); 58 Fed. Reg. at 47, (waste management); 53 Fed. Reg. 46,798, 46, (Nov. 18, 1988) (drilling standards). The district court acknowledged some of these regulations, but did not attempt to reconcile them with its decision. See Order at

42 Appellate Case: Document: Date Filed: 08/12/2016 Page: 42 (emphasis omitted). But the court ruled that the agency s authority under Sections 187 and 189 does not encompass measures that protect the environment. Id. at 14. This stunted reading of the MLA conflicts with its plain language and ignores case law from the Tenth Circuit and other courts. First, the court effectively wrote out of the Act the Section 187 requirements for safeguarding of the public welfare, protecting the interests of the United States and ensuring reasonable diligence, skill and care. 30 U.S.C The court noted that these directives were found in a longer list that also included a variety of specific issues such as worker safety and welfare, prevention of waste, mineral prices, and other matters. It held that Section 187 only addresses those specifically-listed issues, rather than granting BLM authority to protect the environment. Order at 14. This holding violates the basic principle of statutory construction that each word should be given meaning. Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88, 100 (1992) (court has duty to give effect, if possible, to every clause and word of a statute ) (quotations omitted). If Section 187 only covers worker safety and other listed matters, the broader references to public welfare, the interests of the United States, and ensuring reasonable diligence in operations would be surplus language. 24

43 Appellate Case: Document: Date Filed: 08/12/2016 Page: 43 If given effect, the language of Section 187 plainly authorizes BLM to adopt the Rule. For example, the Rule s updated requirements advance the MLA s purpose of ensuring that companies use reasonable diligence, skill and care in their operations. 30 U.S.C They require best industry practices for well construction and testing, as well as management of hydraulic fracturing wastes. The Rule also requires prior approval of fracturing operations to ensure they are done in a safe manner. See 80 Fed. Reg. at 16,129 30; supra pp The Rule also furthers the goals of protecting public welfare and the interests of the United States. 30 U.S.C The MLA s public welfare 16 Another MLA provision, 30 U.S.C. 226(g), provides clear authority for the Rule s provisions regarding waste pits and chemical disclosure. Section 226(g) directs BLM to regulate all surface-disturbing activities [and take] other actions as required in the interest of conservation of surface resources. 30 U.S.C. 226(g). Limiting the use of waste pits addresses such surface impacts. See, e.g., App.680 (referring to pits as above ground swimming pools ). Moreover, chemical disclosure assists emergency responders addressing accidents and surface spills of hydraulic fracturing fluids. See, e.g., App.377. Section 226(g), however, does not represent the only source of MLA authority to protect public lands. Section 226(g) was added to the MLA in 1987 to expand the scope of BLM regulation, rather than limit it. Before 1987, BLM s practice was to defer consideration of surface impacts until after a lease was issued and specific drilling operations were proposed on the lease. See H.R. Rep. No Pt. 1, at 10 (1987); see also supra p. 3 (describing three-stage process of oil and gas approvals on federal land). Congress intended Section 226(g) to improve planning and ensure that environmental protection for surface resources was not deferred until after the government had limited its options by issuing leases. H.R. Rep. No Pt. 1, at 8 (1987); see also H.R. Rep. No , at 779 (1987) (Conf. Rep.) (Senate acceding to House s proposed language). Section 226(g) did not strip away BLM s well-established authority under other MLA provisions. Infra pp

44 Appellate Case: Document: Date Filed: 08/12/2016 Page: 44 purpose gives BLM broad authority to set lease terms to prevent environmental harm. Nat. Res. Def. Council, Inc. v. Berklund, 458 F. Supp. 925, 936 n.17 (D.D.C. 1978), aff d, 609 F.2d 553 (D.C. Cir. 1979); see also, e.g., Kelo v. City of New London, 545 U.S. 469, 481 (2005) (the concept of the public welfare is broad and inclusive, and can include aesthetic values as well as the health and cleanliness of an area (quoting Berman v. Parker, 348 U.S. 26, 33 (1954))); Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1139 (10th Cir. 2011) (Gorsuch, J., concurring) (noting that environmental impacts from mining are analogous to public welfare harms as understood in 1921). Other MLA provisions confirm that its purposes include protection of groundwater and subsurface resources. See Maracich v. Spears, 133 S. Ct. 2191, 2203 (2013) (courts must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law ) (quotations omitted). For example, 30 U.S.C. 229a(a) authorizes the Interior Department to purchase oil and gas well casing when a company strikes water that is usable for agricultural, domestic, or other purposes. 30 U.S.C. 229a(a). In addition, the MLA requires BLM to condition leases on operators taking all reasonable precautions to prevent waste of oil or gas... or the entrance of water through wells drilled... to... oilbearing strata. Id

45 Appellate Case: Document: Date Filed: 08/12/2016 Page: 45 The Rule s well construction standards and requirement for approval of fracturing operations serve the purposes of Sections 225 and 229a. The Rule aims to protect groundwater and prevent the comingling of petroleum and groundwater, consistent with those MLA provisions. Moreover, the Rule will prevent the waste of oil or natural gas that escapes because of poor well construction or frack hits. Supra p. 9. Tellingly, the district court failed to cite any caselaw supporting its view of the MLA. See Order at 14. Many cases have recognized that the MLA authorizes the Interior Department to protect groundwater and surface resources as part of managing oil and gas development on public lands. See, e.g., Ventura Cty., 601 F.2d at 1084 (noting that Section 189 authorized extensive regulations addressing environmental protection and governing... both sub-surface and surface operations ); Duesing v. Udall, 350 F.2d 748, (D.C. Cir. 1965) (rejecting argument that Interior Department could not decline to lease areas in order to protect them from environmental degradation as a tail wags dog construction of the MLA); Forbes, 125 F.2d at (citing Sections 189 and 225 in rejecting argument that MLA did not authorize Interior Department to require plugging of wells); Berklund, 458 F. Supp. at 936 n.17 (citing Section 187). 27

46 Appellate Case: Document: Date Filed: 08/12/2016 Page: 46 Courts also have held that BLM s authority under MLA provisions addressing conservation of natural resources, 30 U.S.C. 209, 226(m), extends to preventing environmental harm from mineral development. Hoyl v. Babbitt, 129 F.3d 1377, 1380 (10th Cir. 1997) (construing phrase to not only encompass conserving mineral deposits, but also to prevent environmental harm ); Copper Valley, 653 F.2d at & n.7 (same). The district court did not reconcile its interpretation with any of this case law. Finally, the district court s view of the MLA s scope would yield an absurd result by invalidating the agency s existing regulations. Griffin, 458 U.S. at 575. Many current BLM regulations address well construction standards, management of drilling wastes, and other activities in order to protect groundwater and other natural resources. See, e.g., 43 C.F.R (environmental regulations addressing protection of both surface and subsurface resources); 58 Fed. Reg. at 47,354 (waste management standards which BLM deemed needed to protect surface and subsurface resources from contamination ); 53 Fed. Reg. at 46,808 (well construction standards requiring protection of groundwater). If BLM lacks authority to require that oil and gas development occurs in a manner that protects the environment, it calls into doubt the legality of these regulations. This Court should reject such an absurd outcome. 28

47 Appellate Case: Document: Date Filed: 08/12/2016 Page: 47 In short, the district court s MLA interpretation ignores the plain language of the statute and well-established case law. Its decision to set aside the Rule under Chevron step 1 must be reversed because nothing in the text of the MLA, its legislative history, or case law unambiguously forbids BLM s view of its authority. Barnhart, 535 U.S. at 218. C. Congress Effectively Ratified BLM s Long-Held View Of Its Authority Under The MLA. In applying Chevron step 1, courts can consider Congressional intent against the backdrop of an agency s prior interpretation of the law in question. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000). Congress is presumed to be aware of how an agency is interpreting the law. Commodity Futures Trading Comm n v. Schor, 478 U.S. 833, 846 (1986). Where the agency has taken a consistent and repeated position regarding its authority, and Congress has repeatedly passed relevant legislation without overturning that interpretation, it effectively ratifie[s] the agency s view of the statute. Brown & Williamson, 529 U.S. at 144 (after Food and Drug Administration had repeatedly stated that it lacked authority to regulate tobacco, Congress effectively ratified that interpretation by passing other tobacco legislation without giving the agency jurisdiction). That is what happened here: for most of a century Interior Department regulations have addressed the same types of activities covered by the Rule, 29

48 Appellate Case: Document: Date Filed: 08/12/2016 Page: 48 including hydraulic fracturing and similar techniques. And over that timespan, Congress has effectively ratified those regulations by repeatedly amending the MLA without revoking the agency s authority. 1. The Activities Addressed In The Rule Have Been Regulated By The Interior Department For Many Decades. By the 1930s, Interior Department regulations addressed the same types of activities covered by the Rule: well construction and testing, disposal of salt water and useless liquid products of wells, approval of post-drilling activities on a well, and information-submission requirements. 7 Fed. Reg. 4132, (June 2, 1942) (adopting 30 C.F.R , , (1942)); see also 1 Fed. Reg. 1996, (Nov. 20, 1936). BLM s comprehensive regulation of oil and gas operations has continued up to the present, with its current regulations addressing well completion, drilling, casing, and cementing techniques, as well as produced water disposal. See, e.g., 43 C.F.R to.5-2 (2014); 58 Fed. Reg. at 47, (Onshore Order No. 7); 53 Fed. Reg. at 46, (Onshore Order No. 2). The Interior Department also has consistently addressed protection of groundwater and the subsurface in its regulations. The first regulations adopted under the MLA in 1920 required Interior Department staff to inspect and supervise [oil and gas] operations with a view to preventing waste of oil and gas, [and] damage to formations or deposits containing oil, gas, or water I.D. 30

49 Appellate Case: Document: Date Filed: 08/12/2016 Page: 49 Lexis 47, at *1 *2 ( 1). The 1920 regulations further authorized Interior Department staff to require the correction... of any condition existing subsequent to the completion of a well which is causing or is likely to cause damage to any formation bearing oil, gas, or water. Id. at *3 ( 5). Later versions of the regulations were similar. For example, the 1938 regulations forbade lessees to pollute streams or damage the surface or pollute the underground water of the leased or adjoining land. 30 C.F.R (1938). For 80 years, Interior Department regulations also have addressed activities similar to hydraulic fracturing. For example, the 1936 regulations specifically regulated efforts to stimulate production by... water injection, as well as shoot[ing] a well Fed. Reg. at 1998 (requiring Interior Department approval for shooting and water injection, as well as many other activities); see also 30 C.F.R (1938) (same); 7 Fed. Reg. at 4135 (same in 1942). And since 1982, the Interior Department has specifically interpreted its regulatory authority to encompass hydraulic fracturing. That year, it promulgated the predecessor to the Rule: a regulation requiring companies to get agency approval prior to commencing operations to... perform nonroutine fracturing jobs, and to submit reports on those operations. 47 Fed. Reg. at 47,770 (adopting 30 C.F.R (1982)). Prior approval was not required for routine 17 Shooting a well was a form of fracturing in which explosives were used in the well to stimulate gas production. App

50 Appellate Case: Document: Date Filed: 08/12/2016 Page: 50 hydraulic fracturing jobs [u]nless additional surface disturbance is involved, so long as the operations conform to the standard of prudent operating practice. Id Congress Has Effectively Ratified The Interior Department s Interpretation. Congress has had ample opportunity to limit BLM s authority under the MLA. Following its original enactment in 1920, Congress has amended the MLA nearly 50 times. Since the agency began regulating underground injections and well shooting in the 1930s and 1940s, Congress has modified the law dozens of times. 19 For example, Congress amended 30 U.S.C. 187 several times without limiting its directives for safeguarding the public welfare and ensuring operators exercise reasonable diligence, skill, and care. See, e.g., Act of October 30, 1978, Pub. L. No , 5, 92 Stat. 2073, 2074 (eliminating gender restrictions on labor-related provisions of Section 187); Act of August 8, 1946, Pub. L. No In practice, companies generally treated all hydraulic fracturing operations as routine and did not seek prior BLM approval. App Some of the amendments relating to oil and gas development include the 2005 Act, Pub. L. No , 119 Stat. 594; Energy Policy Act of 1992, Pub. L. No , 106 Stat. 2776; FOOGLRA, Pub. L. No , Stat (Dec. 23, 1987); Federal Oil and Gas Royalty Management Act of 1983, Pub. L. No , 96 Stat. 2447; Act of November 16, 1981, Pub. L. No , 95 Stat. 1070; Act of May 12, 1970, Pub. L. No , 84 Stat. 206; Act of October 15, 1962, Pub. L. No , 76 Stat. 943; Mineral Leasing Act Revision of 1960, Pub. L. No , 74 Stat. 781; Act of July 29, 1954, Pub. L. No , 68 Stat. 583; Mineral Leasing Act for Acquired Lands, Pub. L. No , 61 Stat. 913 (1947); Act of August 8, 1946, Pub. L. No , 60 Stat

51 Appellate Case: Document: Date Filed: 08/12/2016 Page: , 7 8, 60 Stat. 950, (amending Section 187 s terms for assigning and subleasing); see also Federal Onshore Oil and Gas Leasing Reform Act of 1987 (FOOGLRA), Pub. L. No , 5103, 101 Stat (1987) (further modifying terms for assigning and subleasing). When passing these amendments, Congress was well aware of the Interior Department s extensive regulations. 20 But none of the amendments to the MLA limited BLM s ability to manage injections or protect groundwater when regulating oil and gas. Since BLM s adoption of its 1982 regulation specifically addressing hydraulic fracturing, Congress has amended the MLA several times. For example, in 1987 Congress enacted 30 U.S.C. 226(g), which modified BLM s environmental protection duties. FOOGLRA, 5102(d)(1), 101 Stat. at to Section 226(g) directs the agency to regulate all surface-disturbing activities [and take] other actions as required in the interest of conservation of surface resources. Also in 1987, Congress expanded the MLA s environmental protection requirements by adding reclamation requirements for drilling sites and 20 See, e.g., Development of Oil and Gas on the Public Domain: Hearing on S Before the S. Comm. on Pub. Lands & Surveys, Subcomm. on S.1236, 79th Cong. 164, (Aug. 27, 1945) (statement of Ben H. Parker, Vice President, Frontier Refining Co., Denver, Colo.) (describing numerous regulatory requirements, including agency approval for well casing tasks, and requirement to keep oil, gas, and water... confined to their respective horizons during well construction). 33

52 Appellate Case: Document: Date Filed: 08/12/2016 Page: 52 granting the U.S. Forest Service veto authority over which National Forest lands would be leased. FOOGLRA, 5102(d)(1), 101 Stat. at to By 1987, the Interior Department regulations covered hydraulic fracturing, and its rules had addressed groundwater protection and well injections for decades. See supra pp But Congress imposed no limits on the agency s authority to continue doing so under Sections 187 and 189, even as it significantly amended other aspects of the MLA s environmental protection requirements. Most telling is the 2005 Act, where Congress specifically focused on federal regulation of hydraulic fracturing and limited the authority of a different agency (EPA) to regulate hydraulic fracturing under a different statute (SDWA). See supra p. 11. In addition to amending SDWA, the 2005 Act also made seven amendments to the MLA, 119 Stat. at 711, 714, 725, 726, , 734, , and cross-referenced the Interior Department s MLA responsibilities eleven times, 119 Stat. at 663, 668, , 697, 699, 721, 727, 728, 734, 748, 925. But none of those changes limited BLM s authority over hydraulic fracturing or underground injections on public lands, as the 2005 Act did for EPA and SDWA. Congress clearly focused in 2005 on federal regulation of hydraulic fracturing, and chose to leave BLM s MLA authority intact. These numerous amendments make clear that Congress has effectively ratified BLM s view of its MLA authority. Brown & Williamson, 529 U.S. at 34

53 Appellate Case: Document: Date Filed: 08/12/2016 Page: It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency s interpretation is persuasive evidence that the interpretation is the one intended by Congress. Schor, 478 U.S. at 846 (quotations omitted); United States v. Rutherford, 442 U.S. 544, & n.10 (1979); see also High Country Citizens All. v. Clarke, 454 F.3d 1177, (10th Cir. 2006) ( Silence as to one area, however, coupled with a myriad of revisions within the same statutory scheme begins to look like acquiescence. ). The repeated amendments to the MLA affirm that BLM has correctly interpreted its authority. Congress has directly spoken to the issue here, Chevron, 467 U.S. at , and has not carved out hydraulic fracturing from BLM s broad MLA authority. 3. BLM Has Not Disavowed Its Authority Over Hydraulic Fracturing. Much of the district court s decision depends on disregarding this history. The district court asserted that the Interior Department has never before regulated hydraulic fracturing and claimed BLM has previously taken the position... that it lacked the authority or jurisdiction to regulate hydraulic fracturing. Order at 15. Working from this premise, the court relied extensively on cases that rejected agencies efforts to expand their authority based on new interpretations of long- 35

54 Appellate Case: Document: Date Filed: 08/12/2016 Page: 54 standing statutes. See id. at 2, 7 9, 15, 22 23, (citing Util. Air Regulatory Grp. v. EPA, 134 S. Ct (2014); Brown & Williamson, 529 U.S. at 120). The district court s premise was simply wrong. As explained above, BLM has explicitly asserted authority to regulate fracturing since at least The court acknowledged BLM s 1982 hydraulic fracturing regulation but dismissed it as not regulat[ing] the fracturing process itself. Order at This is not a fair characterization of the regulation. The regulation (a) requires submittal of a report on the fracturing operation after it is completed; (b) mandates prior approval of nonroutine fracturing operations and those involving additional surface disturbance; and (c) requires prudent operating practice on fracturing operations. 43 C.F.R (a) (b) (1988); see also 47 Fed. Reg. at 47,770. While not detailed or extensive, these terms unambiguously asserted BLM s authority over hydraulic fracturing operations on public lands. If the district court were correct that BLM lacks authority to regulate hydraulic fracturing, the 1982 regulation would be just as invalid as the Rule. The limited scope of the 1982 regulation does not change BLM s legal position the fact that the regulation exists at all shows that for more than 30 years, BLM has asserted authority over hydraulic fracturing. The district court also erred in asserting that BLM has previously disavowed its authority to regulate hydraulic fracturing on public lands. The court cited no 36

55 Appellate Case: Document: Date Filed: 08/12/2016 Page: 55 agency regulations, guidance, or handbooks supporting its view. Instead, the court latched onto a passing reference in a 2013 district court case. See Order at 15 (citing Ctr. for Biological Diversity v. BLM, 937 F. Supp. 2d 1140, 1156 (N.D. Cal. 2013) (Center)). The court s reliance on Center was misplaced. Center involved a National Environmental Policy Act (NEPA) challenge to an oil and gas lease sale. 937 F. Supp. 2d at It briefly quotes BLM as defending its failure to evaluate fracturing-related environmental impacts because they are not under the authority or within the jurisdiction of the BLM. Id. at 1156 (quoting BLM argument). The quoted passage, however, did not come from any formal BLM policy statement. It came from a 2011 environmental assessment (EA) prepared by BLM s Hollister, California field office for the oil and gas lease sale. That EA included a single sentence in its section responding to public comments, stating: Many comments raised concerns about potential effects of climate change and hydraulic fracturing, but these issues are outside the scope of this EA because they are not under the authority or within the jurisdiction of the BLM. 21 This sentence did not represent the position of BLM. When the Hollister field office issued the EA for the September 2011 lease sale, BLM s national 21 BLM Hollister Field Office, Environmental Assessment, Oil & Gas Competitive Lease Sale 118 (Sept. 14, 2011) (Hollister EA), blm/ca/pdf/pa/energy/minerals.par file.dat/ca ea- FINALv5.pdf. 37

56 Appellate Case: Document: Date Filed: 08/12/2016 Page: 56 headquarters was already developing the Rule challenged in this case. By September 2011, BLM had developed draft regulatory text for strengthening the requirements for hydraulic fracturing performed on BLM-managed lands. App.423 (Sept. 15, 2011 BLM memo). As part of that effort, the agency conducted a series of national public forums to get input from different stakeholders. Id. Far from disavowing its authority over hydraulic fracturing, BLM had undertaken a major national rulemaking to update its regulations on the technology. A passing reference offered by a regional office in response to comments cannot be interpreted as an expression of BLM s national position on this important legal issue. 22 See WildEarth Guardians v. Nat l Park Serv., 703 F.3d 1178, 1186, 1192 (10th Cir. 2013) (WildEarth Guardians v. NPS) (agency staff opinions were not a formal position adopted by the agency and informal statements by lower-level staff will not preclude the agency from reaching a contrary decision ); accord WildEarth Guardians v. Jewell, 738 F.3d 298, 312 (D.C. Cir. 2013). 22 Moreover, the EA s ambiguous sentence offers no explanation of its reasoning or intended scope. See United States v. Mead, 533 U.S. 218, 235 (2001) (informal agency interpretations get deference only based on their power to persuade ). Any interpretation of the EA as disavowing BLM s legal authority is undercut by other parts of the document, which include a four-page discussion of hydraulic fracturing. Hollister EA at That discussion suggests BLM may have been relying on the State of California to address groundwater issues from fracturing pursuant to an inter-agency agreement. Id. at

57 Appellate Case: Document: Date Filed: 08/12/2016 Page: 57 The district court s reference to Center was especially misplaced because that case flatly rejected the argument that BLM was not required to address hydraulic fracturing. Center ruled that: [I]t is unclear exactly how the issue of the environmental impact of fracking could lie outside BLM s jurisdiction when NEPA plainly assigns all studying of environmental impacts of its own decision to BLM. Put another way, if not within BLM s jurisdiction, then whose? 937 F. Supp. 2d at Center actually contradicts the view that BLM lacks authority to regulate hydraulic fracturing on federal lands. BLM has not reversed its legal position. Instead, the Rule reflects BLM s long-standing view of its authority, which Congress has ratified. The district court erred in rejecting that interpretation. See Chevron, 467 U.S. at 843; Barnhart, 535 U.S. at ; see also Massachusetts, 549 U.S. at 531 (rejecting argument that Congress foreclosed EPA authority where there was no backdrop of [past EPA] disclaimers of regulatory authority ). II. THE DISTRICT COURT ERRED IN RULING UNDER CHEVRON STEP 1 THAT FLPMA DOES NOT GIVE BLM AUTHORITY TO ISSUE THE RULE. In addition to the MLA, FLPMA also gives BLM authority to issue the Rule. The district court erred in ruling under Chevron step 1 that FLPMA precludes BLM from addressing hydraulic fracturing in its regulations. Order at 17; Barnhart, 535 U.S. at 218; see also App (raising argument below). 39

58 Appellate Case: Document: Date Filed: 08/12/2016 Page: 58 A. The Rule Is A Valid Exercise Of FLPMA s Multiple-Use Mandate. FLPMA imposes a broad mandate for BLM to oversee oil and gas development (and all other activities) on public lands using multiple use and sustained yield principles that balance mineral development with protection of water, wildlife, and other resources. 43 U.S.C. 1701(a)(7), 1701(a)(8), 1702(c), 1732(a). The Rule implements FLPMA s multiple-use mandate. See Wyoming v. USDA, 661 F.3d at (affirming U.S. Forest Service s Roadless Rule as exercise of similar multiple-use management statute). First, several provisions of FLPMA give BLM rulemaking authority. FLPMA requires the agency to promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands. 43 U.S.C. 1740; see also id. 1701(a)(5) (in administering public land statutes the Secretary [shall] be required to establish comprehensive rules and regulations ); id. 1732(b) ( In managing the public lands, the Secretary shall... regulate, through... published rules... the use, occupancy, and development of the public lands[.] ); id. 1733(a) ( The Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands[.] ). Second, there is no dispute that BLM s multiple-use mandate encompasses protecting the environment. Multiple use is defined as the management of the 40

59 Appellate Case: Document: Date Filed: 08/12/2016 Page: 59 public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people... and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output. Id. 1702(c). Under the multiple use requirement, BLM must strike a balance that avoids permanent impairment of the productivity of the land and the quality of the environment, weighing the relative values of the resources. Utah v. U.S. Dep t of Interior, 535 F.3d 1184, 1187 (10th Cir. 2008) (quoting 43 U.S.C. 1702(c)). It is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses. New Mexico, 565 F.3d at 710; see also Utah Shared Access All. v. Carpenter, 463 F.3d 1125, 1129 (10th Cir. 2006) (discussing BLM s duty to protect the environment under FLPMA). 23 Third, Congress contemplated that mineral development would be among the competing uses BLM must manage under FLPMA. See, e.g., 43 U.S.C (addressing conveyances of mineral interests). Indeed, Congress explicitly instructed BLM to balance both environmental protection and mineral development as part of its multiple use mandate. See id. 1702(c) (listing both minerals and watershed[s] among the combination of balanced and diverse 23 FLPMA s legislative history provides further evidence that the statute s purpose is protection of natural resources. See, e.g., 122 Cong. Rec. 4, (1976) (statement of Senator Jackson). 41

60 Appellate Case: Document: Date Filed: 08/12/2016 Page: 60 resource uses encompassed by the multiple use mandate). The plain language of FLPMA authorizes BLM to issue regulations balancing oil and gas development with protection of public lands and other resources. The district court, however, incorrectly concluded that nothing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing or underground injections of any kind. Order at 17. This demand for language specifically addressing a particular technology was the wrong question to ask. Like the MLA, FLPMA does not attempt to catalogue every technology or activity the agency can address in managing public lands. Instead, FLPMA directs BLM to administer oil and gas development (and other activities) under a broad multipleuse framework, and gives the agency authority to promulgate regulations carrying out that responsibility. Interior Department regulations address numerous topics that are not specified in FLPMA itself, such as ensuring that radios and televisions do not disturb other visitors in campgrounds, 43 C.F.R (a), and commercial filmmaking on public lands, id Oil and gas development is no different. As this Court has observed: Congress could not foresee and did not attempt to foresee all of the information that might be needed to efficiently administer... FLPMA... and other public land laws. These reasons were among those Congress had for 42

61 Appellate Case: Document: Date Filed: 08/12/2016 Page: 61 delegating broad authority to the [agency] in 43 U.S.C Topaz Beryllium Co. v. United States, 649 F.2d 775, 778 (10th Cir. 1981) (quotation omitted). The Tenth Circuit has described BLM s FLPMA authority over public lands as comprehensive, Nev. Power Co. v. Watt, 711 F.2d 913, 917 n.2 (10th Cir. 1983), broad, Topaz Beryllium Co., 649 F.2d at 777, and expansive, Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988) overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir. 1992). Contrary to the district court s view, nothing in the language or purpose of FLPMA suggests that Congress intended to exempt particular oil and gas technologies like hydraulic fracturing from BLM s multiple-use oversight. See Helicopter Ass n, 722 F.3d at B. FLPMA Is More Than Just A Land Use Planning Statute. The district court also dismissed FLPMA as just a land use planning statute. Order at 17. According to the court, FLPMA only empowered BLM to protect the environment through land use plans not by regulation. See id. at This interpretation ignores the plain language of the statute. As noted above, several provisions of FLPMA direct BLM to issue regulations. Supra pp Courts also have recognized that FLPMA gives BLM authority to promulgate rules ensuring that activities it authorizes protect public resources. See, e.g., Pub. Lands Council v. Babbitt, 529 U.S. 728, 738, 43

62 Appellate Case: Document: Date Filed: 08/12/2016 Page: (2000) (grazing regulation); Utah v. Babbitt, 137 F.3d 1193, 1210 n.26 (10th Cir. 1998) (wilderness inventory regulations); Humboldt Cty. v. United States, 684 F.2d 1276, 1283 (9th Cir. 1982) (vehicle closure). The district court failed to reconcile its holding with FLPMA s rulemaking provisions and applicable case law. The Rule also is supported by FLPMA s provision requiring that BLM by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation (UUD) of public lands. 43 U.S.C. 1732(b). The UUD mandate extends to both subsurface and surface activities. See Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 42 (D.D.C. 2003) (FLPMA requires disapproval of mining operation that would unduly harm or degrade the public land ). As its plain language indicates, the UUD provision authorizes BLM to promulgate protective regulations. 24 See Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, (9th Cir. 2013) (challenge to hard rock mining regulations as not satisfying requirements of UUD mandate); Manning v. United States, 146 F.3d 808, 814 (10th Cir. 1998) (referencing UUD mandate as part of Interior Department mining regulations); 43 C.F.R (regulation defining UUD in 24 The district court concluded that BLM s UUD mandate extends only to specific projects, not generally-applicable regulations. Order at 18. This is directly contrary to the language of the statute, which states that [i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands. 43 U.S.C. 1732(b) (emphasis added). 44

63 Appellate Case: Document: Date Filed: 08/12/2016 Page: 63 the hard-rock mining context as, among other things, noncompliance with 43 C.F.R , which addresses ground and surface water protection). If FLPMA were nothing more than a land use planning statute, these rulemaking and UUD provisions would be unnecessary. The district court s interpretation violates the principle of statutory interpretation that statutes should be construed so that their provisions are harmonious with each other. Negonsott v. Samuels, 933 F.2d 818, 819 (10th Cir. 1991). Moreover, the case on which the district court relied, California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987), does not support its ruling. Granite Rock addressed whether a California state environmental regulation was preempted by FLPMA and the National Forest Management Act. 480 U.S. at As part of its preemption analysis, the Court recognized that a distinction exists between environmental regulation and land use planning statutes, although it noted that the two categories can overlap. Id. at 588. The court held that California s reasonable state environmental regulation is not pre-empted by federal statutes that addressed land use planning. Id. at 589. If this case concerned whether the Rule preempts a state regulation addressing hydraulic fracturing, Granite Rock might be relevant. But Granite Rock has nothing to do with the issue here, which involves the federal government s authority under FLPMA. Granite Rock does not suggest that the federal 45

64 Appellate Case: Document: Date Filed: 08/12/2016 Page: 64 government lacks authority to adopt regulations protecting ecological, environmental, and water resource values in its administration of public lands. The district court erred in ruling under Chevron step 1 that FLPMA unambiguously forbids BLM from issuing the Rule. III. NEITHER SDWA NOR THE 2005 ENERGY POLICY ACT LIMIT BLM S AUTHORITY OVER HYDRAULIC FRACTURING ON FEDERAL LANDS. In concluding under Chevron step 1 that Congress unambiguously expressed [its] intent to preclude BLM from regulating hydraulic fracturing on public lands, the district court placed great emphasis on the 2005 Energy Policy Act s amendment of SDWA. Order at (quotation omitted). This holding was error. The 2005 Act addressed the authority of EPA under SDWA, rather than BLM s authority under FLPMA or the MLA. Nevertheless, the district court interpreted SDWA and its 2005 amendment as barring any federal agencies from regulating hydraulic fracturing under any statutes. Id. at 22. The court believed this result was common sense. Id. at 25 26; see also id. at 22. But it disregards the plain language of the 2005 Act, the legislative history of SDWA, and fundamental differences between SDWA, the MLA, and FLPMA. See App (raising argument below). 46

65 Appellate Case: Document: Date Filed: 08/12/2016 Page: 65 A. The Safe Drinking Water Act Preserves BLM s Authority Under The MLA. In 1974, Congress enacted SDWA, which established the underground injection control (UIC) program to regulate subsurface injection of fluids in order to protect aquifers that may serve as drinking water sources. 42 U.S.C. 300h. SDWA is a broadly applicable environmental law that addresses injection activities on all lands both private and public by many industries. See id. SDWA is administered by EPA, rather than by BLM. Id. 300f(7) (defining Administrator ), 300h, 300h-1 to -8. When it enacted SDWA, Congress was aware that energy companies were using underground injection techniques to increase oil and gas production and to dispose of drilling wastes such as produced water. H.R. Rep. No , at 29 (1974), 1974 U.S.C.C.A.N. 6454, At that time, the Interior Department had been regulating such activities on federal lands for more than thirty years. Supra pp Congress, however, did not limit the Interior Department s authority to continue doing so, or to manage other activities on federal lands. Instead, SDWA s legislative history expressly states that Congress intended to preserve the Interior Department s efforts... to prevent groundwater contamination under the Mineral Leasing Act, and that SDWA was not intended to repeal or limit any authority the [Interior Department] may have under any 47

66 Appellate Case: Document: Date Filed: 08/12/2016 Page: 66 other legislation. H.R. Rep. No , at 32, 1974 U.S.C.C.A.N. at Accordingly, after SDWA s passage, Interior Department regulations continued to address groundwater protection, well injections, and hydraulic fracturing on federal lands. See supra pp The district court ignored this legislative history. See Order at B. The 2005 Act Does Not Alter BLM s Authority Under The MLA Or FLPMA. When amending SDWA in the 2005 Act, Congress gave no indication that it intended to depart from its 1974 decision to maintain BLM s authority over federal lands. Instead, the 2005 Act served to overturn a particular Eleventh Circuit decision that did not involve BLM. For two decades after SDWA s enactment, EPA took the position that hydraulic fracturing was not subject to the requirements of the UIC program because it did not fall within the definition of underground injection. Order at 20. In 1997, however, the Eleventh Circuit rejected EPA s interpretation, holding that hydraulic fracturing met the plain language definition of underground injection and thus was subject to SDWA s UIC requirements. Legal Envtl. 25 The 1974 legislative history refers to the MLA authority of the U.S. Geological Survey (USGS) because at that time USGS was the Interior Department agency that administered oil and gas on public lands. That authority was transferred to BLM in Fed. Reg. at 36, (transferring authority from Minerals Management Service to BLM); 47 Fed. Reg. at 47,759 (transferring authority from USGS to Minerals Management Service). 48

67 Appellate Case: Document: Date Filed: 08/12/2016 Page: 67 Assistance Found., Inc. v. EPA, 118 F.3d 1467, , 1478 (11th Cir. 1997) (LEAF). LEAF involved hydraulic fracturing on private lands, and the court never discussed the federal government s authority on public lands. In Section 322 of the 2005 Act, Congress amended SDWA to overturn the LEAF decision and exempt most hydraulic fracturing from SDWA s UIC program. The 2005 Act redefined underground injection to exclude[]... the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities. 119 Stat. at 694 (codified at 42 U.S.C. 300h(d)(1)(B)(ii)). This change, however, did not amend any statutes other than SDWA. Congress silence on the MLA and FLPMA while amending SDWA was not accidental. As discussed above, Congress is deemed to have been aware of SDWA s legislative history and BLM s existing regulations addressing hydraulic fracturing on public lands. Schor, 478 U.S. at 846; United States v. Games-Perez, 667 F.3d 1136, 1141 n.2 (10th Cir. 2012) (Congress assumed to act with knowledge of existing law). Congress decision not to revise the MLA or FLPMA in a manner similar to the SDWA amendment demonstrates that the 2005 Act was not intended to limit BLM s existing authority. See supra pp This is especially clear because the 2005 Act made no fewer than seven amendments to other sections of the MLA, see 119 Stat. at 711, 714, 725, 726, 49

68 Appellate Case: Document: Date Filed: 08/12/2016 Page: , 734, , and cross-referenced the Interior Department s MLA responsibilities eleven times, 119 Stat. at 663, 668, , 697, 699, 721, 727, 728, 734, 748, 925; supra p. 34. But none of those amendments and references limited BLM s authority over hydraulic fracturing or underground injections on public lands. 26 It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress. Schor, 478 U.S. at 846 (quotations omitted); accord Young v. Cmty. Nutrition Inst., 476 U.S. 974, 983 (1986) (same). Despite this background and the plain statutory language, the district court concluded that what it viewed as the more specific law the 2005 Act controls over what it considers the more general laws MLA and FLPMA. Order at (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)). But the statutory construction principle that the specific controls over the general only applies where two laws actually conflict. Where the statutes can be reconciled, courts must interpret them in a way that gives effect to both. Morton v. Mancari, 26 The legislative history of the 2005 Act also shows no such intent. Nor does it suggest Congress wanted to depart from its 1974 decision that SDWA does not affect the Interior Department s authority on public lands. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351 (1998) (courts assume that Congress is aware of existing law when it passes legislation (quotations omitted)). 50

69 Appellate Case: Document: Date Filed: 08/12/2016 Page: U.S. 535, (1974); WildEarth Guardians v. NPS, 703 F.3d at An implied repeal of a statute is found only when the earlier and later statutes are irreconcilable, and the intention of Congress to repeal must be clear and manifest. Morton, 417 U.S. at (quotations omitted); accord Rodriguez v. United States, 480 U.S. 522, 524 (1987). Reconciling the 2005 Act with the MLA and FLPMA requires nothing more than interpreting the statutes according to their plain language: the 2005 Act limited EPA s regulation of hydraulic fracturing under SDWA, but it did not alter BLM s authority on federal lands under the MLA and FLPMA. C. SDWA Does Not Conflict With The MLA And FLPMA. Ultimately, the district court s conclusion rests on the idea that BLM regulation of hydraulic fracturing on federal land creates a conflict with regulation of UIC wells by EPA. See Order at 22. The court viewed as common sense that Congress would not have limited EPA s role under SDWA while leaving BLM s MLA and FLPMA authority intact. Order at This premise is false because the two agencies have much different roles under their respective statutes. BLM s MLA and FLPMA authority on public lands is wholly independent of EPA s obligations under SDWA. See Massachusetts, 549 U.S. at 532. The activities regulated may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency. Id. 51

70 Appellate Case: Document: Date Filed: 08/12/2016 Page: 70 (rejecting argument that EPA could not regulate motor vehicle carbon dioxide emissions because of Department of Transportation authority to set mileage standards). This is because EPA s role under SDWA is much different than BLM s role under the MLA and FLPMA. SDWA was adopted under the Commerce Clause, see Nebraska v. EPA, 331 F.3d 995, (D.C. Cir. 2003), and regulates private activities. In contrast, the MLA and FLPMA are exercises of Congress Property Clause authority. See Defs. of Wildlife v. Andrus, 627 F.2d 1238, 1248 (D.C. Cir. 1980); Ventura Cty., 601 F.2d at 1083 (MLA). In those two statutes, Congress delegated to the Interior Department its Property Clause power as proprietor... over the public domain. See Kleppe v. New Mexico, 426 U.S. 529, 540 (1976); Ohio Oil Co., 163 F.2d at As such, the MLA and FLPMA make BLM the proprietor of public lands to ensure that development of federal minerals serves the public interest. See Hannifin, 444 F.2d at 202 (MLA should be broadly interpreted to support Interior s proprietary role). Respecting BLM s proprietary management authority on public property does not represent an end-run around Congress s amendment of SDWA. Order at 25. It simply recognizes the different functions of public lands law and environmental regulatory statutes. Environmental regulatory statutes and public lands laws often overlap in this manner without any conflict. For example, FLPMA directs BLM to manage public 52

71 Appellate Case: Document: Date Filed: 08/12/2016 Page: 71 lands for protection of water and wildlife, even though those resources are also regulated by other environmental statutes. Compare 43 U.S.C. 1702(c), 1732 (FLPMA) with 33 U.S.C (Clean Water Act) and 16 U.S.C (Endangered Species Act). Similar regulations exist for air pollution. Compare, e.g., 40 C.F.R. pt. 61 subpart B (EPA Clean Air Act regulations governing air pollution from underground mines) with 43 C.F.R (b)(3) (BLM regulation requiring solid mineral lessees to avoid air pollution). And while grazing and agricultural operations are exempted from Clean Water Act permitting, 40 C.F.R (e), BLM still regulates such activities on public lands under FLPMA. See, e.g., 43 C.F.R (grazing standards for watershed and water quality protection). The same is true for hydraulic fracturing. In fact, even prior to promulgation of the Rule, oil and gas companies were required to both: (a) comply with existing BLM regulations for drilling, underground injections, and hydraulic fracturing operations, supra pp , and (b) obtain SDWA UIC permits for disposal of their fracturing wastes. See James A. Holtkamp, Access and Permitting for Oil and Gas Exploration, Drilling and Development, 12A Rocky Mountain Min. L. Found. 3 at II(B)(2) & (E)(4) (1980) (available on Westlaw at 12A RMMLF- INST 3). There is no inconsistency between environmental regulation under SDWA, and MLA and FLPMA management authority over public lands. 53

72 Appellate Case: Document: Date Filed: 08/12/2016 Page: 72 The district court erred by substituting its view of common sense for the plain language of the statutes, Congress intent with SDWA, and the much different purposes served by the MLA and FLPMA. IV. ALTERNATIVELY, THE RULE SHOULD BE UPHELD UNDER CHEVRON STEP 2 AS A REASONABLE INTERPRETATON OF THE MLA AND FLPMA. The Rule should be upheld under Chevron step 1 because with the MLA and FLPMA, Congress spoke directly to the issue of BLM s regulatory authority for oil and gas development on public lands. Supra pp ; see City of Arlington, 133 S. Ct. at 1868 ( If the intent of Congress is clear, that is the end of the matter. ). But if this Court goes to Chevron step 2, the Rule also must be upheld. See S. Utah Wilderness All. v. Dabney, 222 F.3d 819, 827 (10th Cir. 2000) (explaining that when a court cannot resolve the issue before [it] under step one of Chevron; instead [it] must reach step two ). At that step, courts defer to the agency s interpretation so long as it is reasonable. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 58 (2011); see also App , (raising arguments below). The Rule reflects a reasonable interpretation of the MLA and FLPMA. The MLA delegates broad management authority to the Interior Department, directing it to protect the public interest, safeguard public welfare, and to ensure that companies exercise reasonable diligence, skill and care in their operations

73 Appellate Case: Document: Date Filed: 08/12/2016 Page: 73 U.S.C. 187; see supra pp The MLA also authorizes BLM to promulgate regulations and do any and all things necessary to carry out the purposes of the statute. 30 U.S.C. 189; see supra pp That broad statutory language does not exclude particular technologies, such as hydraulic fracturing, from federal regulation. Supra pp Moreover, decades of agency regulations and case law recognize the agency s expansive authority over the same activities addressed in the Rule including hydraulic fracturing. Supra pp Given that statutory language and history, it was entirely reasonable for BLM to interpret the MLA as giving it authority to adopt the Rule. Exxon Corp. v. Lujan, 970 F.2d 757, (10th Cir. 1992) (deferring to Interior Department s interpretation of the scope of FLPMA and the MLA under Chevron step 2); see also Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238, (2004) (deferring to agency interpretation under Chevron step 2 where Congress authorized regulations that are necessary or proper to effectuate the purposes of the Truth in Lending Act). Similarly, the plain language of FLPMA s multiple use mandate, and its rulemaking and UUD provisions, authorize the Rule. Supra pp BLM reasonably interpreted FLPMA as giving it power to do more than just land-use planning. See Exxon, 970 F.2d at ; Mineral Policy Ctr., 292 F. Supp. 2d at 45 (deferring to BLM s interpretation of FLPMA s UUD mandate in its hard rock mining regulations under Chevron step 2). 55

74 Appellate Case: Document: Date Filed: 08/12/2016 Page: 74 Moreover, the Rule reflects a long-standing agency interpretation that is due particular deference. Barnhart, 535 U.S. at 220. Agency interpretations that are of long standing come before [courts] with a certain credential of reasonableness, since it is rare that error would long persist. Smiley v. Citibank (S.D.) N.A., 517 U.S. 735, 740 (1996). As discussed above, the Interior Department has relied on the MLA for nearly a century to address well construction, waste management, agency approvals and information requirements. For 80 years, those regulations have addressed activities similar to hydraulic fracturing, such as well shooting and underground water injections to enhance oil and gas production. And since 1982, BLM regulations have included limited provisions that specifically address hydraulic fracturing. Supra pp Moreover, BLM has relied on FLPMA for nearly 20 years as authority for oil and gas regulations. See 63 Fed. Reg. 52,946, 52,952 (Oct. 1, 1998) (citing FLPMA as authority for regulations codified at 43 C.F.R. pt (1998)); 67 Fed. Reg. 17,866, 17,894 (Apr. 11, 2002) (same). All of these historical regulations confirm that BLM s exercise of authority with the 2015 Rule is entitled to strong deference as a long-standing agency interpretation. Barnhart, 535 U.S. at The Rule should be affirmed under Chevron step 2. 56

75 Appellate Case: Document: Date Filed: 08/12/2016 Page: 75 CONCLUSION For the reasons stated above, the district court s order setting aside the Rule should be REVERSED. STATEMENT REGARDING ORAL ARGUMENT The Citizen Groups believe that because of the importance of the issues presented, oral argument would assist the Court in resolving this appeal. DATED: August 12, 2016 s/michael S. Freeman Michael S. Freeman Joel Minor Earthjustice th Street, Suite 1600 Denver, CO (303) (phone) (303) (fax) mfreeman@earthjustice.org jminor@earthjustice.org Attorneys for Respondent-Intervenor- Appellants Sierra Club, et al. s/nathan Matthews Nathan Matthews Sierra Club 2101 Webster Street, Suite 1300 Oakland, CA (415) (phone) (510) (fax) nathan.matthews@sierraclub.org Attorney for Respondent-Intervenor- Appellant Sierra Club 57

76 Appellate Case: Document: Date Filed: 08/12/2016 Page: 76 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: [X] this brief contains 13,390 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [X] this brief has been prepared in a proportionally spaced typeface using Word 2010 in 14 point font size and Times New Roman, or [ ] this brief has been prepared in a monospaced typeface using with characters per inch and. Date: August 12, 2016 s/michael S. Freeman Michael S. Freeman Attorney for Intervenor-Respondents-Appellants Sierra Club, et, al. Earthjustice th Street, Suite 1600 Denver, CO (303) (303) (fax) mfreeman@earthjustice.org

77 Appellate Case: Document: Date Filed: 08/12/2016 Page: 77 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Kaspersky Endpoint Security 10, Version (mr2), dated August 11, 2016, and according to the program are free of viruses. s/michael S. Freeman

78 Appellate Case: Document: Date Filed: 08/12/2016 Page: 78 CERTIFICATE OF SERVICE I hereby certify that on August 12, 2016 I electronically filed the foregoing INTERVENOR-RESPONDENT-APPELLANTS OPENING BRIEF using the court s CM/ECF system which will send notification of such filing to the following: Nicholas A. DiMascio - nicholas.dimascio@usdoj.gov Frederick Richard Yarger fred.yarger@state.co.us Mark Simeon Barron mbarron@bakerlaw.com L. Poe Leggette pheggette@bakerlaw.com Alexander K. Obrecht aobrecht@bakerlaw.com Paul Martin Seby sebyp@gtlaw.com Rebecca Sher - rsher@ndnlaw.com Jeffrey S. Rasmussen jrasmussen@ndnlaw.com Stanford Purser - spurser@utah.gov Tyler R. Green - tylergreen@utah.gov Steven Adler - stevealder@utah.gov Melissa Reynolds - mreynolds@utah.gov Michael J. McGrady - mike.mcgrady@wyo.gov Erik Petersen - erik.petersen@wyo.gov Jeremy Patterson - jpatterson@ndnlaw.com Jeremy A. Gross jeremy.gross@wyo.gov Andrew J. Kuhlmann andrew.kuhlmann@wyo.gov David Aiken Carson david.a.carson@usdoj.gov William E. Gerard william.gerard@usdoj.gov Rebecca Jaffe rebecca.jaffe@usdoj.gov Jody H. Schwarz jody.schwarz@usdoj.gov Nicholas Vassallo nick.vassallo@usdoj.gov Hope Hogan hhogan@nd.gov Matthew A. Sagsveen masagsve@ng.gov Wayne Kevin Stenehjem ndag@nd.gov Robert John Walker rwalker@hickeyevans.com Scott P. Klosterman sklosterman@wpdn.net Daniel Barry Frank frank@tribcsp.com Sean David Reyes seanreyes@utah.gov John Robinson, Jr. john@jrobinsonesq.com Jonathan S. Franklin Jonathan.Franklin@nortonrosefulbright.com Jaimie N. Cavanaugh jcavanaugh@mountainstateslegal.com Steven J. Lechner lechner@mountainstateslegal.com

79 Appellate Case: Document: Date Filed: 08/12/2016 Page: 79 Jonathan J. Franklin s/ Michael Freeman

80 Appellate Case: Document: Date Filed: 08/12/2016 Page: 80 ADDENDUM

81 Appellate Case: Document: Date Filed: 08/12/2016 Page: 81 ADDENDUM INDEX DESCRIPTION District Court s Order on Petitions for Review of Final Agency Action (June 21, 2016) PAGE NO U.S.C U.S.C U.S.C U.S.C U.S.C. 229a U.S.C. 300f U.S.C. 300h U.S.C U.S.C U.S.C U.S.C U.S.C Development of Oil and Gas on the Public Domain: Hearing on S Before the S. Comm. on Pub. Lands & Surveys, Subcomm. on S.1236, 79th Cong. (Aug. 27, 1945) (excerpt) Cong. Rec. 4, (1976) Final Rule, Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 80 Fed. Reg. 16,128, 16, (Mar. 26, 2015) (the Rule) (excerpt) In order to reduce duplicative materials, several documents which are included in the Addendum to Respondent-Appellants Sally Jewell, et al. s Opening Brief have been omitted from this Addendum.

82 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 1 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 82 IN THE UNITED STATES DISTRICT COURT STATE OF WYOMING, STATE OF COLORADO, FOR THE DISTRICT OF WYOMING... ":S.-p!3J;?ict court CiS I!-.;o i Or ;V TsJnlHG 20!5J'J!i2l STErnAr;i!,pis, CLERK Petitioners, STATE OF NORTH DAKOTA, STATE OF UTAH, and UTE INDIAN TRIBE, Intervenor-Petitioners, vs. UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as Secretary ofthe Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; and NEIL KORNZE, in his official capacity as Director of the Bureau ofland Management, Case No. 2:I5-CV-043-SWS (Lead Case) ORDER ON PETITIONS FOR REVIEW OF FINAL AGENCY ACTION Respondents, SIERRA CLUB, EARTHWORKS, WESTERN RESOURCE ADVOCATES, CONSERVATION COLOARDO EDUCATION FUND, THE WILDERNESS SOCIETY, and SOUTHERN UTAH WILDERNESS ALLIANCE, Intervenor-Respondents. INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, and WESTERN ENERGY ALLIANCE, Petitioners, vs. Case No. 2:15-CV-041-SWS SALLY JEWELL, in her official capacity as Secretary ofthe United States Department ofthe Interior; and BUREAU OF LAND MANAGEMENT, Respondents. Addendum 001

83 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 2 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 83 This matter comes before the Court on the Petitionsfor Review offinal Agency Action filed separately in each of these consolidated actions, challenging the Bureau of Land Management's issuance ofregulations applying to hydraulic fracturing on federal and Indian lands. The Court, having considered the briefs and materials submitted in support of the petitions and the oppositions thereto, including the Administrative Record, and being otherwise fully advised, FINDS that the Bureau ofland Management lacked Congressional authority to promulgate the regulations. Our Constitutional form of government is built upon three separate but equal branches of government: the legislative branch (Congress) which makes the laws; the executive branch (President) which enforces the laws; and the judicial branch (Courts) which interpret the laws. In this case, the threshold issue before this Court is a Constitutional one ^has Congress (the legislative branch) delegated its legal authority to the Department ofinterior to regulate hydraulic fracturing. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States. "Regardless of how serious the problem an administrative agency seeks to address;... it may not exercise its authority 'in a manner that is inconsistent with administrative structure that Congress enacted into law.'" FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). The Constitutional role of this Court is to interpret the applicable statutory enactments and determine whether Congress has delegated to the Department ofinterior legal authority to regulate hydraulic fracturing. It has not. Addendum 002

84 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 3 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 84 Background On March 26, 2015, the Bureau of Land Management ("BLM") issued the final version ofits regulations applying to hydraulic fracturing on federal and Indian lands. 80 Fed. Reg. 16,128-16,222 (Mar. 26, 2015) ('Tracking Rule"). The Tracking Rule's focus is on three aspects of oil and gas development - wellbore construction, chemical disclosures, and water management (id. at 16,128 & 16,129) - each ofwhich is subject to comprehensive regulations under existing federal and/or state law. The rule was scheduled to take effect on June 24, Following a hearing on the Petitioners' preliminary injunction motions, this Court postponed the effective date of the Tracking Rule pending the BLM's lodging ofthe Administrative Record ("A.R.") and the Court's ruling on the preliminary injunction motions. (See ECT No. 97.)* Ultimately the Court granted the motions, preliminarily enjoining the BLM from enforcing the Tracking Rule. (ECT No. 130.) The Court now fully considers the merits ofthe Petitioners' challenges. Tor the better part ofthe last decade, oil and natural gas production from domestic wells has increased steadily. Most of this increased production has come through the application of the well stimulation technique known as hydraulic fracturing (or "fracking") - the procedure by which oil and gas producers inject water, sand, and certain chemicals into tight-rock formations (typically shale) to create fissures in the rock and allow oil and gas to escape for collection in a well.^ See 80 Ted. Reg. at 16,131 (estimating that ninety percent of new wells drilled on federal lands in 2013 were ^Unless otherwise noted, all filings referenced herein are from the docket incase No. 15-CV-043, which has been designated the Lead Case in these consolidated cases. {See ECF No. 44.) ^The water and sand together typically make up 98 to 99 percent ofthe materials pumped into a well during a fracturing operation. 80 Fed. Reg. at 16,131. Addendum 003

85 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 4 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 85 stimulated using hydraulic fracturing techniques). Hydraulic fracturing has been used to stimulate wells in the United States for at least 60 years - traditionally in conventional limestone and sandstone reservoirs and meaningful attempts to use the technique to extract hydrocarbons from shale date back to at least the 1970s. See U.S. Dep't OF Energy, How is Shale Gas Produced?^ "More recently, hydraulic fracturing has been coupled with relatively new horizontal drilling technology in larger-scale operations that have allowed greatly increased access to shale oil and gas resources across the country, sometimes in areas that have not previously or recently experienced significant oil and gas development." 80 Fed. Reg. 16,128. Purportedly in response to "public concern about whether fracturing can lead to or cause the contamination ofunderground water sources," and "increased calls for stronger regulation and safety protocols," the BLM undertook rulemaking to implement "additional regulatory effort and oversight" ofthis practice, /i/. at 16,128 & 16,131. In May of2012, the BLM issued proposed rules "to regulate hydraulic fracturing on public land and Indian land." 77 Fed. Reg. 27,691 (May 11, 2012). The stated focus ofthe rules was to: (i) provide disclosure to the public of chemicals used in hydraulic fracturing; (ii) strengthen regulations related to well-bore integrity; and (iii) address issues related to water produced during oil and gas operations. Id. The BLM reports it received approximately 177,000 public comments on the initial proposed rules "from individuals. Federal and state governments and agencies, interest groups, and industry representatives." 80 Fed. Reg. at 16,131. Available at Addendum 004

86 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 5 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 86 Just over a year later, the BLM issued revised proposed rules, representing that the agency has "used the comments on [the May 11, 2012 draft proposed rules] to make improvements" to the agency's proposal. 78 Fed. Reg. 31,636 (May 24, 2013). Key changes included an expanded set of cement evaluation tools to help ensure protection and isolation of usable water zones and a revised process for how operators could report information about chemicals they claim to be protected as trade secrets. Id. at 31,636 & 31,637. The BLM also expressed its intent to "work with States and tribes to establish formal agreements that will leverage the strengths of partnerships, and reduce duplication of efforts for agencies and operators, particularly in implementing the revised proposed rule as consistently as possible with State or tribal regulations." Id. at 31,637. The BLM reportedly received over 1.35 million comments on the supplemental proposed rule. 80 Fed. Reg. at 16,131. The BLM ultimately published its final rule regulating hydraulic fi^acturing on federal and Indian lands on March 26, The BLM determined the Tracking Rule fulfills the goals of the initial proposed rules: "[t]o ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic firacturing fluids." Id. at 16,128. The Industry Petitioners (Independent Petroleum Association of America and Western Energy Alliance) and the States of Wyoming and Colorado filed separate Petitionsfor Review offinal Agency Action on March 20th and 26th, 2015, respectively. Addendum 005

87 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 6 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 87 seeking judicial review of the Fracking Rule pursuant to the Administrative Procedure Act ("A?A"), 5 U.S.C. 701 et seq. The States ofnorth Dakota and Utah, and the Ute Indian Tribe ofthe Uintah and Ouray Reservation, later intervened in the States' action as Petitioners and various environmental groups intervened as Respondents, and the Court granted the parties' motion to consolidate the two separate actions. Petitioners contend the Fracking Rule should be set aside because it is arbitrary, not in accordance with law, and in excess of the BLM's statutory jurisdiction and authority. See 5 U.S.C. 706(2)(A) & (C). The Ute Indian Tribe additionally contends the Fracking Rule is contrary to the Federal trust obligation to Indian tribes. Standard ofreview The APA's scope ofreview provisions relevant here are: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall * * * (2) hold unlawful and set aside agency action, findings, and conclusions found to be~ (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; * * * (C) in excess of statutory jurisdiction, authority, or limitations, or short ofstatutory right; * * * In making the foregoing determinations, the court shall review the whole record or those parts ofit cited by a party, and due account shall be taken of the rule ofprejudicial error. 5 U.S.C Addendum 006

88 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 7 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 88 Judicial review ofagency action is governed by the standards set forth in 706 of the APA, requiring the reviewing court to engage in a "substantial inquiry." Olenhouse V. Commodity Credit Corp., 42 F.3d 1560, (10th Cir. 1994) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)). While an agency's decision is entitled to a "presumption of regularity," the presumption does not shield the agency from a "thorough, probing, in-depth review." Id. at "[T]he essential function of judicial review is a determination of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion." Id. "Determination of whether the agency acted within the scope of its authority requires a delineation of the scope of the agency's authority and discretion, and consideration of whether on the facts, the agency's action can reasonably be said to be within that range." Id. Discussion "It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). "Regardless of how serious the problem an administrative agency seeks to address, [] it may not exercise its authority 'in a manner that is inconsistent with the administrative structure that Congress enacted into law.'" Brown & Williamson Tobacco Corp., 529 U.S. at 125. Accordingly, an "essential function" of a court's review under the APA is to determine "whether an agency acted Addendum 007

89 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 8 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 89 within the scope of its authority." WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d 677, 683 (10th Cir. 2015). Where a case involves an administrative agency's assertion ofauthority to regulate a particular activity pursuant to a statute that it administers, the court's analysis is governed by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.., 467 U.S. 837 (1984). See Brown & Williamson, 529 U.S. at 132. Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue. IfCongress has done so, the inquiry is at an end; the court must give effect to the unambiguously expressed intent of Congress. But if Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible. Such deference is justified because the responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views ofthe public interest are not Judicial ones, and because of the agency's greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated[.] Id. (internal quotation marks and citations omitted). In other words, "[a] precondition to deference under Chevron is a congressional delegation of administrative authority." Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990). "Although agency determinations within the scope ofdelegated authority are entitled to deference, it is fundamental 'that an agency may not bootstrap itselfinto an area in which it has no jurisdiction.'" Id. (quoting Federal Maritime Comm 'n v. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973)). This Court must first determine, then, whether Congress has directly addressed the issue ofblm's authority to regulate hydraulic fracturing. The Supreme Court has provided the following guidance for determining whether Congress has directly addressed the question at issue: 8 Addendum 008

90 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 9 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 90 In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itselfto examining a particular statutory provision in isolation. The meaning or ambiguity of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994) ("Ambiguity is a creature not ofdefinitional possibilities but of statutory context"). It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989). A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S. Ct. 1061, 131 L. Ed. 2d 1 (1995), and "fit, if possible, all parts into a harmonious whole," FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389, 79 S. Ct. 818, 3 L. Ed. 2d 893 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States V. Estate ofromani, 523 U.S. 517, , 118 S. Ct. 1478, 140 L. Ed. 2d 710 (1998); United States v. Fausto, 484 U.S. 439, 453, 108 S. Ct. 668, 98 L. Ed. 2d 830 (1988). In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone isc Telegraph Co., 512 U.S. 218, 231, 114 S. Ct. 2223, 129 L. Ed. 2d 182(1994). Id. at (bold emphasis added). Guided by the foregoing principles, the Court finds that Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use ofdiesel fuels. The BLM asserts authority to promulgate the Fracking Rule under an array of various statutes: the Federal Land Policy and Management Act of 1976 ("FLFMA"),"* 43 U.S.C ; the Mineral Leasing Act of 1920 ("MLA"), 30 U.S.C ; the 1930 Right-of-Way Leasing Act, id ; the Mineral Leasing Act for FLPMA was not initially asserted as a basis for BLM's authority to promulgate the Fracking Rule; FLPMA was added to the authorities' section in the supplemental rules issued in May of Fed. Reg. at 31, Addendum 009

91 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 10 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 91 Acquired Lands, id ; the Federal Oil and Gas Royalty Management Act of 1982, id ; the Indian Mineral Leasing Act of 1938 ("IMLA"), 25 U.S.C. 396a-396g; and the Indian Mineral Development Act of 1982 ("IMDA"), id Fed. Reg. at 16,217. The Petitioners argue none ofthese statutes authorize the BLM to regulate hydraulic fracturing activities. Substantively, BLM relies on the MLA, FLPMA, IMLA, and IMDA as granting it "broad authority" to regulate all oil and gas operations on federal and Indian lands and does not contend such authority comes from the more tangential statutes listed in the citations of authority for the Fracking Rule. (Fed. Resp'ts Br. at 6-21.) The MLA creates a program for leasing mineral deposits on federal lands.^ Congress authorized the Secretary "to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes ofthe [the MLA]." 30 U.S.C. 189 (emphasis added). "The purpose ofthe Act is to promote the orderly development of oil and gas deposits in publicly owned lands ofthe United States through private enterprise." Geosearch, Inc. v. Andrus, 508 F. Supp. 839, 842 (D. Wyo. 1981) (citing Harvey v. Udall, 384 F.2d 883 (10th Cir. 1967)).^ See also Arkla Exploration Co. v. Texas Oil c& Gas Corp., 734 F.2d 347, 358 (8th Cir. 1984) ("broad purpose ofthe MLA was to provide incentives to explore new, unproven oil and gas areas through noncompetitive leasing, while assuring through competitive bidding adequate compensation to the government for leasing in producing areas"). ^The MLA applies to deposits ofcoal, phosphate, sodium, potassium, oil, oil shale, gilsonite, or gas, and virtually all lands containing such deposits owned by the United States. 30 U.S.C SeeActof Feb. 25, 1920, ch. 85,41 Stat Addendum 010

92 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 11 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 92 specifically, for oil and gas leasing, the MLA, inter alia, establishes terms of the lease and royalty and rental amounts (30 U.S.C. 223, 226(d)&(e)), requires the lessee to "use all reasonable precautions to prevent waste ofoil or gas developed in the land, or the entrance ofwater through wells drilled by him to the oil sands or oil-bearing strata, to the destruction or injury of the oil deposits" {id. 225 (emphasis added)), authorizes the Secretary of Interior to lease all public lands subject to the Act for oil and gas development {id. 226(a)), directs the Secretary to regulate jw/^ce-disturbing activities {id. 226(g)), and allows for the establishment of cooperative development plans to conserve oil and gas resources {id. 226(m)). The language of 225 reflects the general sentiment at the time Congress enacted the MLA that underground water posed a threat to the oil and gas resources ofthe country. (DOT AR ) "Early casing and cementing programs of oil and gas wells were practical measures to prevent waters from adjacent non-productive formations and upper aquifers from flooding the oil-producing reservoir during drilling and subsequent production activities." Id} "In these early years the principal focus was on protection ofthe petroleum resource from the effects ofwater incursion and not on protection ofwater resources themselves." Id. The Secretary also invokes the statutory authority granted to the BLM by the Indian Mineral Leasing Act and the Indian Mineral Development Act as a basis for the Tracking Rule.^ These statutes, generally, grant the Secretary broad regulatory ' The MLA expressly excepts wilderness lands from oil and gas leasing. 30 U.S.C ^U.S. Dep't ofenergy, State Oil andnatural Gas Regulations Designed toprotect Water Resources (May 2009). ' "The IMLA aims to provide Indian tribes with a profitable source of revenue and to foster tribal self-determination by giving Indians a greater say in the use and disposition ofthe resources on their lands." United States v. Navajo Nation, 537 U.S. 488 (2003). 11 Addendum 011

93 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 12 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 93 jurisdiction over oil and gas development and operations on Indian lands. 25 U.S.C. 396d, However, neither the IMLA nor the IMDA delegates any more specific authority over oil and gas drilling operations than the MLA, nor has BLM promulgated separate regulations for operations on Indian lands. Rather, existing Bureau of Indian Affairs ("BIA") regulations incorporate 43 C.F.R. Part 3160 (Onshore Oil and Gas Operations - General) and require BLM to oversee implementation of those regulations. 25 C.F.R , The Fracking Rule amends and revises the Part 3160 regulations. See 80 Fed. Reg. at 16, 217. BLM contends that, as an oil and gas extraction method, hydraulic fracturing falls directly within its "regulatory sphere," and the Fracking Rule simply supplements existing requirements for oil and gas operations set out in 43 C.F.R and Onshore Oil and Gas Orders 1, 2 and Fed. Reg. at 16,129. BLM asserts it has long regulated hydraulic fracturing and other well stimulation techniques pursuant to its MLA 189 authority. In support, BLM cites to 1 Fed. Reg. at 1998, 2(d) (1936) (requiring lessee to provide notice and obtain approval prior to "stimulat[ing] production by vacuum, acid, gas, air, or water injection"), 30 C.F.R (1938) (same), and 30 C.F.R (b) (1982) (same). Historically, however, BLM's only regulation addressing hydraulic fracturing worked to prevent any additional surface disturbance and impose reporting requirements and did not regulate the fracturing process itself.^ See 43 C.F.R (b) ("Unless In its opposition briefto the Industry Petitioners' preliminary injunction motion, the Government admits, "Existing BLM regulations included some limited provisions that mentioned, but did not attempt to regulate 12 Addendum 012

94 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 13 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 94 additional surface disturbance is involved... prior approval is not required for routine fracturing or acidizing jobs... ; however, a subsequent report on these operations must be filed...") (emphasis added). This requirement makes sense because the MLA expressly authorizes regulation of "all surface-&\s\mh\ng activities... in the interest of conservation of surface resources." 30 U.S.C. 226(g) (emphasis added). The BLM cites to no other existing regulation addressing well stimulation or hydraulic fracturing operations. The BLM further argues its authority is evident in its previous regulations requiring operators to avoid damaging surface and subsurface resources, including groundwater. See 30 C.F.R (1938) ("B.S. and salt water from tanks or wells shall not be allowed to pollute streams or damage the surface or pollute the underground water ofthe leased or adjoining land."); 30 C.F.R (1982) ("The lessee shall not pollute streams or damage the surface or pollute the underground water of the leased or other land."); 43 C.F.R (b) (1988) ("The operator shall exercise due care and diligence to assure that leasehold operations do not result in undue damage to surface or subsurface resources or surface improvements."); 43 C.F.R (d) (protection of fresh water and other minerals). The BLM suggests authority for these regulations intended "to avoid groundwater pollution" emanates from 187 of the MLA which, BLM argues, expresses MLA's purpose ofensuring the "exercise ofreasonable diligence, skill, and care in the operation" of federal leases, protecting "the interests of the United hydraulic fracturing, [] which is now typically coupled with directional and horizontal drilling that can extend for miles from the drill site." {Resp't Br. in Opp'n to Pet'rs' Mot.for Prelim. Inj. at 27) (ECF No. 20 in 15-CV-041). 13 Addendum 013

95 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 14 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 95 States," and safeguarding "the public welfare." (Fed. Resp'ts Br. at 8, 14)(quoting select portions of30 U.S.C. 187). However, the statutory text Respondents did not reference makes clear what Congress intended when it required lease conditions that protect the public welfare: Each lease shall contain provisions for the purpose ofinsuring the exercise of reasonable diligence, skill, and care in the operation ofsaid property; a provision that such rules for the safety and welfare ofthe miners and for the prevention ofundue waste as may be prescribed by said Secretary shall be observed, including a restriction of the workday to not exceeding eight hours in any one day for underground workers except in cases of emergency; provisions prohibiting the employment of any child under the age of sixteen in any mine below the surface; provisions securing the workmen complete freedom of purchase; provision requiring the payment of wages at least twice a month in lawful money of the United States, and providing proper rules and regulations to insure the fair and just weighing or measurement ofthe coal mined by each miner, and such other provisions as he may deem necessary to insure the sale of the production of such leased lands to the United States and to the public at reasonable prices, for the protection of the interests of the United States, for the prevention of monopoly, and for the safeguarding ofthe public welfare. 30 U.S.C Read in context, the language quoted by the ELM does not reflect a grant to the ELM of broad authority to regulate for the protection of the environment. Instead, the language requires only that certain, specific lease provisions appear in all federal oil and gas leases for the safety and welfare of miners and prevention of undue waste, and to insure the sale of mined minerals to the United States and the public at reasonable prices. The existence of a few regulations requiring notice and approval, and requiring operators to avoid pollution to groundwater, falls short of regulating the fracking process itself and is not determinative of whether ELM has statutory authority to engage in 14 Addendum 014

96 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 15 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 96 comprehensive rulemaking to address the supposed underground environmental effects of hydraulic fracturing/' Indeed, the BLM has previously taken the position, up until promulgation of the Tracking Rule, that it lacked the authority or jurisdiction to regulate hydraulic fracturing. See Centerfor Biological Diversity v. BLM, 937 F. Supp. 2d 1140, 1156 (N.D. Cal. 2013) (. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," [the Court] typically greet[s] its announcement with a measure of skepticism. [The Court] expect[s] Congress to speak clearly if it wishes to assign to an agency decisions ofvast "economic and political significance." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014) (quoting Brown & Williamson, 529 U.S. at 159, 160). BLM's present characterization oftheir "regulation" of oil and gas well-stimulation techniques to protect groundwater as "long-standing" is without merit. Moreover, an agency's regulatory authority emanates from Congress, not an agency's self-proclaimed prior regulatory activity. In 1976, Congress enacted the Federal Land Policy and Management Act to provide "a comprehensive statement of congressional policies concerning the management of the public lands" owned by the United States and administered by the " The Intervenor-Respondents cite various cases assupport for the notion that, through the MLA, Congress delegated broad authority to the BLM over ail facets ofoil and gas development on public lands. (ECF No. 205 at ) However, each ofthese cases discusses aspects ofleasing or taxation activities, not rulemaking for environmental protection. See Boesche v. Udall, 373 U.S. 472, (1963) (explaining that the Secretary retains sufficient ownership interest and authority under the MLA to cancel a lease issued under the MLA in circumstances where such lease was granted in violation ofthe Act and regulations promulgated thereunder); Western Energy Alliance v. Salazar, 709 F.3d 1040, (10th Cir. 2013) (discussing the Secretary's "considerable discretion" to determine which lands will be leased and how the competitive bid process occurs); Ute Mountain Ute Tribe v. Rodriguez^ 660 F.3d 1177 (10th Cir. 2011) (concluding that state taxes imposed on non-indian lessees extracting oil and gas from the Ute Reservation are not preempted by federal law); Mountain States Legal Found, v. Andrus, 499 F. Supp. 383, 388 (D. Wyo. 1980) ("the Mineral Leasing Act... gives to the Secretary ofthe Interior broad power to issue oil and gas leases on public lands within known structures ofproducing oil and gas fields... and to accept or reject oil and gas lease offers"). 15 Addendum 015

97 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 16 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 97 BLM. Rocky Mm. Oil and Gas Ass'n v. Watt, 696 F.2d 734, 737 (10th Cir. 1982). As with the MLA, Congress authorized the Secretary of the Interior to "promulgate rules and regulations to carry out the purposes ofthis Act and of other laws applicable to the public lands[.]" 43 U.S.C (emphasis added). FLPMA charges the BLM with managing public lands on the basis of"multiple use and sustained yield" oftheir various resources that is, utilizing the resources "in the combination that will best meet the present and future needs of the American people... [taking] into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values[,]" and "achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use." Id. 1701(a)(7), 1702(c) & (h). "'Multiple use management' is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put[.]" Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004). The public lands are to be managed in a manner "that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values," while at the same time recognize "the Nation's need for domestic sources of minerals, food, timber, and fiber fi*om the public lands[.]" 43 U.S.C. 1701(a)(8) & (12). FLPMA "represents an attempt by Congress to balance the use ofthe public lands by interests as diverse as the lands themselves." Rocky Mtn. Oil and Gas Ass % 696 F.2d at 738. In pursuit ofthis general purpose. Congress authorized the BLM, 16 Addendum 016

98 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 17 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 98 "by regulation or otherwise," to "take any action necessary to prevent unnecessary or undue degradation of the lands" and to promulgate regulations necessary to achieve FLPMA's goals. 43 U.S.C. 1732(b), 1733(a), and Although the Secretary asserts FLPMA delegates to BLM broad authority and discretion to manage and regulate activities on public lands, nothing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing or underground injections of any kind; rather, FLPMA primarily establishes congressional policy that the Secretary manage the public lands under principles of multiple use and sustained yield. At its core, FLPMA is a land use planning statute. See 43 U.S.C. 1712; Rocky Mtn. Oil and Gas Ass'n, 696 F.2d at 739 ("FLPMA contains comprehensive inventorying and land use planning provisions to ensure that the 'proper multiple use mix of retained public lands' be achieved"); S. Utah Wilderness Alliance, 542 U.S. at 57 (FLPMA establishes a dual regime of inventory and planning); Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 555 (9th Cir. 2006) (FLPMA establishes requirements for land use planning on public land). In the context ofoil and gas operations, FLPMA generally comes into play "[a]t the earliest and broadest level of decision-making" when a land use plan is developed identifying allowable uses for a particular area. Pennaco Energy, Inc. v. U.S. Dep't ofinterior, 2>11 F.3d 1147, 1151 (10th Cir. 2004). Ifoil and gas development is allowed, BLM first determines whether the issuance of a particular oil and gas lease conforms to the land-use plan. Id. (citing 43 C.F.R (a)). The lessee must then obtain BLM approval ofan Application for Permit to Drill ("APD") before commencing 17 Addendum 017

99 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 18 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 99 any "drilling operations" or "surface disturbance preliminary thereto" and comply with other provisions ofpart 3160.'^ See id.\ 43 C.F.R l(c). As the Government points out, in the context ofa land use plan, "[i]t is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses." TVew Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 710 (10th Cir. 2009). Additionally, 1732(b) creates a "duty, independent of the planning process, to prevent undue degradation of resources." Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1136 (10th Cir. 2006) ("Because the RMP revision process is much more timeconsuming than enacting a temporary closure order, the BLM could not effectively respond to resource degradation only through the formal planning process."). Thus, particularly in the context of requests for approval of specific projects, the BLM has authority to take action necessary to prevent undue degradation to the environment. See Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30,42 (D.D.C. 2003) (BLM has authority to "disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would unduly harm or degrade the public land"). Still, the Supreme Court has acknowledged the distinction between land use planning and environmental protection. The line between environmental regulation and land use planning will not always be bright[.]... However, the coreactivity described by each phrase BLM's administration of oil and gasleases on federal land is also subject tothenational Environmental Policy Act("NEPA"), "which requires federal agencies to examine and disclose theenvironmental impacts of their proposed actions." SanJuan Citizens Alliance v. Stiles, 654 F.3d 1038, 1042 (10th Cir. 2011) (internal quotation marks and citation omitted). Thus, oiland gasapd's not otherwise exempted must undergo thenepa environmental review process. See Western EnergyAlliance v. Salazar, No. 10-CV-237-F, 2011 WL , at *3 (D. Wyo. Aug. 12, 2011) (unpublished). Regulation of the lease and APD process isoutlined in43 C.F.R , which defines what reasonable measures BLMcan require. 18 Addendum 018

100 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 19 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 100 is undoubtedly different. Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits. Congress has indicated its understanding of land use planning and environmental regulation as distinct activities.... Congress has also illustrated its understanding of land use planning and environmental regulation as distinct activities by delegating the authority to regulate these activities to different agencies.... Congress clearly envisioned that although environmental regulation and land use planning may hypothetically overlap in some instances, these two types of activity would in most cases be capable of differentiation. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, (1987). As discussed below. Congress delegated regulatory authority for environmental protection of underground water sources to the Environmental Protection Agency, not the BLM. Moreover, while FLPMA authorizes BLM to take any action necessary to prevent unnecessary or undue degradation of the lands by regulation or otherwise, the Government cites no case finding the BLM authorized to engage in the kind of comprehensive rulemaking at issue here pursuant to this FLPMA duty.*^ Prior to the enactment offlpma, Congress enacted the Safe Drinking Water Act ("SDWA"). Pub. L. No , 88 Stat (1974) (codified as amended at 42 U.S.C. 300f through 300j-26). Part C of the SDWA establishes a regulatory program specifically for the protection of underground sources of drinking water. 42 U.S.C. 300h through 300h-8. This program requires the Environmental Protection Agency ("EPA") to promulgate regulations that set forth minimum requirements for effective State underground injection control ("UIC") programs "to prevent underground injection FLPMA's application does not extend to Tribal lands. 43 U.S.C. 1702(e)(2). 19 Addendum 019

101 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 20 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 101 which endangers drinking water sources."*'* Id. 300h(b)(l). Part C prohibits "any underground injection" without a permit and mandates that a UIC program include "inspection, monitoring, recordkeeping, and reporting requirements[.]" Id. 300h(b)(l)(A) & (C). The SDWA defined "underground injection" as "the subsurface emplacement of fluids by well injection." Id. 300h(d)(l). See Legal Envtl Assistance Found, Inc. v. EPA, 118 F.3d 1467, 1470 (11th Cir. 1997) ("L L4F'). For two decades after the enactment ofthe SDWA, the EPA took the position that hydraulic fracturing was not subject to the UIC program because that technique for enhancing the recovery of natural gas from underground formations did not, by its interpretation, fall within the regulatory definition of "underground injection." See LEAF, 118 F.3d at Responding to a challenge ofalabama's UIC program because it did not regulate hydraulic fracturing activities, the EPA stated it interpreted the definition of"underground injection" as encompassing only those wells whose "principal function" is the underground emplacement of fluids. The EPA had determined that the principal function ofgas production wells which are also used for hydraulic fracturing is gas production, not the underground emplacement of fluids. Id. The Eleventh Circuit Court of Appeals rejected the EPA's position. Applying the first step in the Chevron framework, the LEAF court concluded the unambiguous language of the statute made clear that Congress intended for the EPA to regulate all underground injection under the "A state must submit to the EPA a proposed UIC program that meets these minimum requirements, and receive EPA approval, in order to obtain primary regulatory and enforcement responsibility for underground injection activities within that state. 300h-l. The state retains primary responsibility until EPA determines, by rule, that the state UIC program no longer meets the minimum requirements established under the SDWA. 300h-1(b)(3)." Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, (11th Cir. 1997). The SDWA also contains provisions allowing an Indian Tribe to assume primary enforcement responsibility for UIC. 300h-l(e). 20 Addendum 020

102 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 21 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 102 UIC programs, and the process of hydraulic fracturing obviously fell within the plain meaning of the statutory definition of "underground injection." Id. at Thus, pursuant to the SDWA's cooperative federalism system for regulating underground injection, including hydraulic fracturing, the States and Indian Tribes could assume primary enforcement responsibility for UIC programs, subject to EPA approval and oversight. See 42 U.S.C. 300h-l(b), (c) & (e). By delegation under the SDWA, Congress vested the EPA with the authority and duty to regulate hydraulic fracturing on all lands, federal, state and tribal. Such was the state of the law when Congress enacted the Energy Policy Act of 2005 ("2005 EP Act"), a comprehensive energy bill addressing a wide range of domestic energy resources, with the purpose of ensuring jobs for the future "with secure, affordable, and reliable energy." Pub. L. No , 119 Stat. 594 (2005). The2005 EP Act was intended, at least in part, to expedite oil and gas development within the United States. See Western Energy Alliance v. Salazar, No. 10-CV-237-F, 2011 WL , at *2 (D. Wyo. Aug. 12, 2011) (unpublished). Recognizing the EPA's authority to regulate hydraulic fracturing under the SDWA, the 2005 EP Act included an amendment to the SDWA, expressly and unambiguously revising the definition of "underground injection" to exclude "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities." 2005 EP Act Sec. 322 (codified at 42 U.S.C. 300h(d)(l)(B)(ii)). There can be no question that Congress intended to remove hydraulic fracturing 21 Addendum 021

103 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 22 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 103 operations (not involving diesel fuels) from EPA regulation under the SDWA's UIC program. The issue presented here is whether the 2005 EP Act's explicit removal of the EPA's regulatory authority over non-diesel hydraulic fracturing likewise precludes the BLM from regulating that activity, thereby removing fracking from the realm offederal regulation.'^ Although the BLM does not claim authority for its Fracking Rule under the SDWA, a statute administered by the EPA, it makes no sense to interpret the more general authority granted by the MLA and FLPMA as providing the BLM authority to regulate fracking when Congress has directly spoken to the "topic at hand" in the 2005 EP Act. Brown & Williamson, 529 U.S. at 133. The SDWA specifically addresses protection of underground sources of drinking water through regulation of "underground injection," and Congressional intent as expressed in the 2005 EP Act indicates clearly that hydraulic fracturing is not subject to federal regulation unless it involves the use of diesel fuels. "[T]he Executive Branch is not permitted to administer [an] Act in a manner that is inconsistent with the administrative structure that Congress enacted into law." ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988). If agency regulation is prohibited by a statute specifically directed at a particular activity, it cannot be reasonably concluded that Congress intended regulation of the same activity would be authorized under a more general statute administered by a different agency.'^ "[I]t is a See Hannah Wiseman, UntestedWaters: The RiseofHydraulic Fracturing in Oil and Gas Production and the Needto Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 145 (2009) (EPAct "conclusively withdrew fracing (sic) from the realm of federal regulation," leavingany regulatory controlto the states). "[AJgencies must operatewithinthe bounds of reasonable interpretation." Michigan v. EPA, 135 S.Ct.2699, 2707(2015). The BLM's "interpretation is also unreasonable because it would bringabouta [] transformative 22 Addendum 022

104 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 23 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 104 commonplace of statutory construction that the specific governs the general[.]" Morales V. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). See also In re Gledhill, 76 F.3d 1070, 1078 (10th Cir. 1996) ("a court should not construe a general statute to eviscerate a statute ofspecific effect"). In determining whether Congress has spoken directly to the BLM's authority to regulate hydraulic fracturing under the MLA or FLPMA, this Court cannot ignore the implication of Congress' fracking-specific legislation in the SDWA and 2005 EP Act. The "classicjudicial task of reconciling many laws enacted over time, and getting them to 'make sense' in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute." United States v. Fausto, 484 U.S., at 453, 108 S. Ct This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand. As [the Supreme Court] recognized [] in United States v. Estate ofromani, "a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended." 523 U.S., at , 118 S. Ct Brown & Williamson, 529 U.S. at 143. The BLM argues that because no provision in the SDWA or 2005 EP Act expressly prohibits regulation of underground injection under any other federal statute, those Acts do not displace its authority to regulate the activity under FLPMA and the MLA. However, a court "[does] not presume a delegation of power simply from the absence of an express withholding of power[.]" Chamber ofcommerce of U.S. V. NLRB, 721 F.3d 152, 160 (4th Cir. 2013).^^ At the time the 2005 EP Act was expansion in[blm's] regulatory authority without clearcongressional authorization." Utility AirRegulatory Group, 134 S. Ct. at " See also Am. Bar Ass'n v. FTC, 430 F.3d 457,468 (D.C. Cir. 2005) ("Plainly, ifwe were to presume adelegation of power from theabsence of an express withholding of such power, agencies would enjoy virtually limitless hegemony ") (internal quotation marks andcitation omitted); Sierra Club v. EPA, 311 F.3d 853, 861 (7th Cir. 23 Addendum 023

105 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 24 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 105 enacted, the BLM had not asserted authority to regulate the fracking process itselfand a Circuit Court of Appeals had determined Congress intended the activity to be regulated by the EPA under the SDWA. "Congress does not regulate in a vacuum." Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 789 (1st Cir. 1996). objective of statutory interpretation is to give effect to the legislative will. "The chief To achieve this objective a court must take into account the tacit assumptions that underlie a legislative enactment, including not only general policies but also preexisting statutory provisions." Id. at In recent years, as does the BLM here, federal agencies have increasingly relied on Chevron deference to stretch the outer limits of its "delegated" statutory authority by revising and reshaping legislation. See Caring Hearts Personal Home Servs., Inc. v. Burwell, F.3d, No , 2016 WL , at *1 (10th Cir. May 31, 2016). However, Chevron involved a challenge to an agency construction of a specific statutory provision where the agency had clearly been granted regulatory authority over the activity in question. Chevron, 467 U.S. at , 866. This case stands in contrast Congress has not directed the BLM to enact regulations governing hydraulic fracturing. Indeed, Congress has expressly removed federal agency authority to regulate the activity, making its intent clear. If this Court were to accept Respondents' and Intervenor- Respondents' argument, there would be no limit to the scope or extent of Congressionally delegated authority BLMhas, regardless of topic or subject matter. 2002) ("Courts will not presume a delegation of power based solely on the fact that there isnot an express withholding of such power.") (internal quotation marks and citation omitted), 24 Addendum 024

106 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 25 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 106 "PM]o matter how important, conspicuous, and controversial the issue,... an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress." Brown isc Williamson, 529 U.S. at 161. Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing. Despite the lack of authority, the BLM persisted in its rulemaking efforts. Comments made by the EPA itself suggest that the Fracking Rule is an attempt to resurrect EPA's pre-2005 EP Act authority {see DOI AR _002-3); that is, the BLM is attempting to regulate hydraulic fracturing as underground injection wells in a manner that the EPA would have done under the SDWA absent the 2005 EP Act. The BLM has attempted an end-run around the 2005 EP Act; however, regulation of an activity must be by Congressional authority, not administrative fiat. The Court finds the intent ofcongress is clear, so that is the end ofthe matter; "for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at Conclusion As this Court has previously noted, our system of government operates based upon the principle of limited and enumerated powers assigned to the three branches of government. In its simplest form, the legislative branch enacts laws, the executive branch enforces those laws, and the judicial branch ensures that the laws passed and enforced are Constitutional. See Marbury v. Madison, 5 U.S. 137, 176 (1803). A federal agency is a 25 Addendum 025

107 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 26 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 107 creature of statute and derives its existence, authority and powers from Congress alone. It has no constitutional or common law existence or authority outside that expressly conveyed to it by Congress. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also Michigan v. EPA, 268 F.3d 1075, (D.C. Cir. 2001). In the absence of a statute conferring authority, then, an administrative agency has none. See American Petroleum Inst. v. EPA, 52 F.3d 1113, (D.C. Cir. 1995). This Court "must be guided to a degree by common sense as to the manner in which Congress would likely delegate a policy decision of such economic and political magnitude to an administrative agency." Brown & Williamson, 529 U.S. at 133. Given Congress' enactment of the EP Act of 2005, to nonetheless conclude that Congress implicitly delegated BLM authority to regulate hydraulic fracturing lacks common sense. Congress' inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless ofwhether hydraulic fracturing is good or bad for the environment or the Citizens of the United States. "[The Supreme] Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation ofliberty." Mistretta v. UnitedStates, 488 U.S. 361, 380 (1989). Congress has not delegated to the Department ofinterior the authority to regulate hydraulic fracturing. The BLM's effort to do so through the Tracking Rule is in excess of its statutory authority and contrary to law. As this finding is dispositive as to each ofthe Petitions for Review, the Court need not address the other points raised in support of 26 Addendum 026

108 Case 2:15-cv SWS Document 219 Filed 06/21/16 Page 27 of 27 Appellate Case: Document: Date Filed: 08/12/2016 Page: 108 setting aside the Fracking Rule. THEREFORE, the Court holds the Fracking Rule is unlawful, and it is ORDERED that the BLM's final rule related to hydraulic fracturing on federal and Indian lands, 80 Fed. Reg. 16,128 (Mar. 26, 2015), is hereby SET ASIDE. DATED this day ofjune, "Scott W. Skavdahl United States District Judge 27 Addendum 027

109 187. Assignment or subletting of leases; relinquishment of rights..., 30 USCA 187 Appellate Case: Document: Date Filed: 08/12/2016 Page: 109 United States Code Annotated Title 30. Mineral Lands and Mining Chapter 3A. Leases and Prospecting Permits (Refs & Annos) Subchapter I. General Provisions (Refs & Annos) 30 U.S.C.A Assignment or subletting of leases; relinquishment of rights under leases; conditions in leases for protection of diverse interests in operation of mines, wells, etc.; State laws not impaired Currentness No lease issued under the authority of this chapter shall be assigned or sublet, except with the consent of the Secretary of the Interior. The lessee may, in the discretion of the Secretary of the Interior, be permitted at any time to make written relinquishment of all rights under such a lease, and upon acceptance thereof be thereby relieved of all future obligations under said lease, and may with like consent surrender any legal subdivision of the area included within the lease. Each lease shall contain provisions for the purpose of insuring the exercise of reasonable diligence, skill, and care in the operation of said property; a provision that such rules for the safety and welfare of the miners and for the prevention of undue waste as may be prescribed by said Secretary shall be observed, including a restriction of the workday to not exceeding eight hours in any one day for underground workers except in cases of emergency; provisions prohibiting the employment of any child under the age of sixteen in any mine below the surface; provisions securing the workmen complete freedom of purchase; provision requiring the payment of wages at least twice a month in lawful money of the United States, and providing proper rules and regulations to insure the fair and just weighing or measurement of the coal mined by each miner, and such other provisions as he may deem necessary to insure the sale of the production of such leased lands to the United States and to the public at reasonable prices, for the protection of the interests of the United States, for the prevention of monopoly, and for the safeguarding of the public welfare. None of such provisions shall be in conflict with the laws of the State in which the leased property is situated. CREDIT(S) (Feb. 25, 1920, c. 85, 30, 41 Stat. 449; Oct. 30, 1978, Pub.L , 5, 92 Stat ) Notes of Decisions (5) 30 U.S.C.A. 187, 30 USCA 187 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

110 189. Rules and regulations; boundary lines; State rights..., 30 USCA 189 Appellate Case: Document: Date Filed: 08/12/2016 Page: 110 United States Code Annotated Title 30. Mineral Lands and Mining Chapter 3A. Leases and Prospecting Permits (Refs & Annos) Subchapter I. General Provisions (Refs & Annos) 30 U.S.C.A Rules and regulations; boundary lines; State rights unaffected; taxation Currentness The Secretary of the Interior is authorized to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of this chapter, also to fix and determine the boundary lines of any structure, or oil or gas field, for the purposes of this chapter. Nothing in this chapter shall be construed or held to affect the rights of the States or other local authority to exercise any rights which they may have, including the right to levy and collect taxes upon improvements, output of mines, or other rights, property, or assets of any lessee of the United States. CREDIT(S) (Feb. 25, 1920, c. 85, 32, 41 Stat. 450.) Notes of Decisions (25) 30 U.S.C.A. 189, 30 USCA 189 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

111 225. Condition of lease, forfeiture for violation, 30 USCA 225 Appellate Case: Document: Date Filed: 08/12/2016 Page: 111 United States Code Annotated Title 30. Mineral Lands and Mining Chapter 3A. Leases and Prospecting Permits (Refs & Annos) Subchapter IV. Oil and Gas 30 U.S.C.A Condition of lease, forfeiture for violation Currentness All leases of lands containing oil or gas, made or issued under the provisions of this chapter, shall be subject to the condition that the lessee will, in conducting his explorations and mining operations, use all reasonable precautions to prevent waste of oil or gas developed in the land, or the entrance of water through wells drilled by him to the oil sands or oil-bearing strata, to the destruction or injury of the oil deposits. Violations of the provisions of this section shall constitute grounds for the forfeiture of the lease, to be enforced as provided in this chapter. CREDIT(S) (Feb. 25, 1920, c. 85, 16, 41 Stat. 443; Aug. 8, 1946, c. 916, 2, 60 Stat. 951.) Notes of Decisions (2) 30 U.S.C.A. 225, 30 USCA 225 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

112 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 112 KeyCite Yellow Flag - Negative Treatment Proposed Legislation United States Code Annotated Title 30. Mineral Lands and Mining Chapter 3A. Leases and Prospecting Permits (Refs & Annos) Subchapter IV. Oil and Gas 30 U.S.C.A Lease of oil and gas lands Effective: December 19, 2014 Currentness (a) Authority of Secretary All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary. (b) Lands within known geologic structure of a producing oil or gas field; lands within special tar sand areas; competitive bidding; royalties (1)(A) All lands to be leased which are not subject to leasing under paragraphs (2) and (3) of this subsection shall be leased as provided in this paragraph to the highest responsible qualified bidder by competitive bidding under general regulations in units of not more than 2,560 acres, except in Alaska, where units shall be not more than 5,760 acres. Such units shall be as nearly compact as possible. Lease sales shall be conducted by oral bidding, except as provided in subparagraph (C). Lease sales shall be held for each State where eligible lands are available at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary. A lease shall be conditioned upon the payment of a royalty at a rate of not less than 12.5 percent in amount or value of the production removed or sold from the lease. The Secretary shall accept the highest bid from a responsible qualified bidder which is equal to or greater than the national minimum acceptable bid, without evaluation of the value of the lands proposed for lease. Leases shall be issued within 60 days following payment by the successful bidder of the remainder of the bonus bid, if any, and the annual rental for the first lease year. All bids for less than the national minimum acceptable bid shall be rejected. Lands for which no bids are received or for which the highest bid is less than the national minimum acceptable bid shall be offered promptly within 30 days for leasing under subsection (c) of this section and shall remain available for leasing for a period of 2 years after the competitive lease sale. (B) The national minimum acceptable bid shall be $2 per acre for a period of 2 years from December 22, Thereafter, the Secretary, subject to paragraph (2)(B), may establish by regulation a higher national minimum acceptable bid for all leases based upon a finding that such action is necessary: (i) to enhance financial returns to the United States; and (ii) to promote more efficient management of oil and gas resources on Federal lands. Ninety days before the Secretary makes any change in the national minimum acceptable bid, the Secretary shall notify the Committee on Natural Resources of the United States House of Representatives and the Committee on Energy and Natural Resources of the United States Senate. The proposal or promulgation of any regulation to establish a national minimum acceptable bid shall not be considered a major Federal action subject to the requirements of section 4332(2)(C) of Title 42. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

113 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 113 (C) In order to diversify and expand the Nation's onshore leasing program to ensure the best return to the Federal taxpayer, reduce fraud, and secure the leasing process, the Secretary may conduct onshore lease sales through Internetbased bidding methods. Each individual Internet-based lease sale shall conclude within 7 days. (2)(A)(i) If the lands to be leased are within a special tar sand area, they shall be leased to the highest responsible qualified bidder by competitive bidding under general regulations in units of not more than 5,760 acres, which shall be as nearly compact as possible, upon the payment by the lessee of such bonus as may be accepted by the Secretary. (ii) Royalty shall be 12 ½ per centum in amount or value of production removed or sold from the lease, subject to subsection (k)(1)(c) 1 of this section. (iii) The Secretary may lease such additional lands in special tar sand areas as may be required in support of any operations necessary for the recovery of tar sands. (iv) No lease issued under this paragraph shall be included in any chargeability limitation associated with oil and gas leases. (B) For any area that contains any combination of tar sand and oil or gas (or both), the Secretary may issue under this chapter, separately-- (i) a lease for exploration for and extraction of tar sand; and (ii) a lease for exploration for and development of oil and gas. (C) A lease issued for tar sand shall be issued using the same bidding process, annual rental, and posting period as a lease issued for oil and gas, except that the minimum acceptable bid required for a lease issued for tar sand shall be $2 per acre. (D) The Secretary may waive, suspend, or alter any requirement under section 183 of this title that a permittee under a permit authorizing prospecting for tar sand must exercise due diligence, to promote any resource covered by a combined hydrocarbon lease. (3)(A) If the United States held a vested future interest in a mineral estate that, immediately prior to becoming a vested present interest, was subject to a lease under which oil or gas was being produced, or had a well capable of producing, in paying quantities at an annual average production volume per well per day of either not more than 15 barrels per day of oil or condensate, or not more than 60,000 cubic feet of gas, the holder of the lease may elect to continue the lease as a noncompetitive lease under subsection (c)(1) of this section. (B) An election under this paragraph is effective-- Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

114 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 114 (i) in the case of an interest which vested after January 1, 1990, and on or before October 24, 1992, if the election is made before the date that is 1 year after October 24, 1992; (ii) in the case of an interest which vests within 1 year after October 24, 1992, if the election is made before the date that is 2 years after October 24, 1992; and (iii) in any case other than those described in clause (i) or (ii), if the election is made prior to the interest becoming a vested present interest. (C) Notwithstanding the consent requirement referenced in section 352 of this title, the Secretary shall issue a noncompetitive lease under subsection (c)(1) of this section to a holder who makes an election under subparagraph (A) and who is qualified to hold a lease under this chapter. Such lease shall be subject to all terms and conditions under this chapter that are applicable to leases issued under subsection (c)(1) of this section. (D) A lease issued pursuant to this paragraph shall continue so long as oil or gas continues to be produced in paying quantities. (E) This paragraph shall apply only to those lands under the administration of the Secretary of Agriculture where the United States acquired an interest in such lands pursuant to the Act of March 1, 1911 (36 Stat. 961 and following). (c) Lands subject to leasing under subsection (b); first qualified applicant (1) If the lands to be leased are not leased under subsection (b)(1) of this section or are not subject to competitive leasing under subsection (b)(2) of this section, the person first making application for the lease who is qualified to hold a lease under this chapter shall be entitled to a lease of such lands without competitive bidding, upon payment of a nonrefundable application fee of at least $75. A lease under this subsection shall be conditioned upon the payment of a royalty at a rate of 12.5 percent in amount or value of the production removed or sold from the lease. Leases shall be issued within 60 days of the date on which the Secretary identifies the first responsible qualified applicant. (2)(A) Lands (i) which were posted for sale under subsection (b)(1) of this section but for which no bids were received or for which the highest bid was less than the national minimum acceptable bid and (ii) for which, at the end of the period referred to in subsection (b)(1) of this section no lease has been issued and no lease application is pending under paragraph (1) of this subsection, shall again be available for leasing only in accordance with subsection (b)(1) of this section. (B) The land in any lease which is issued under paragraph (1) of this subsection or under subsection (b)(1) of this section which lease terminates, expires, is cancelled or is relinquished shall again be available for leasing only in accordance with subsection (b)(1) of this section. (d) Annual rentals Addendum Thomson Reuters. No claim to original U.S. Government Works. 3

115 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 115 All leases issued under this section, as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987, shall be conditioned upon payment by the lessee of a rental of not less than $1.50 per acre per year for the first through fifth years of the lease and not less than $2 per acre per year for each year thereafter. A minimum royalty in lieu of rental of not less than the rental which otherwise would be required for that lease year shall be payable at the expiration of each lease year beginning on or after a discovery of oil or gas in paying quantities on the lands leased. (e) Primary terms Competitive and noncompetitive leases issued under this section shall be for a primary term of 10 years: Provided, however, That competitive leases issued in special tar sand areas shall also be for a primary term of ten years. Each such lease shall continue so long after its primary term as oil or gas is produced in paying quantities. Any lease issued under this section for land on which, or for which under an approved cooperative or unit plan of development or operation, actual drilling operations were commenced prior to the end of its primary term and are being diligently prosecuted at that time shall be extended for two years and so long thereafter as oil or gas is produced in paying quantities. (f) Notice of proposed action; posting of notice; terms and maps At least 45 days before offering lands for lease under this section, and at least 30 days before approving applications for permits to drill under the provisions of a lease or substantially modifying the terms of any lease issued under this section, the Secretary shall provide notice of the proposed action. Such notice shall be posted in the appropriate local office of the leasing and land management agencies. Such notice shall include the terms or modified lease terms and maps or a narrative description of the affected lands. Where the inclusion of maps in such notice is not practicable, maps of the affected lands shall be made available to the public for review. Such maps shall show the location of all tracts to be leased, and of all leases already issued in the general area. The requirements of this subsection are in addition to any public notice required by other law. (g) Regulation of surface-disturbing activities; approval of plan of operations; bond or surety; failure to comply with reclamation requirements as barring lease; opportunity to comply with requirements The Secretary of the Interior, or for National Forest lands, the Secretary of Agriculture, shall regulate all surfacedisturbing activities conducted pursuant to any lease issued under this chapter, and shall determine reclamation and other actions as required in the interest of conservation of surface resources. No permit to drill on an oil and gas lease issued under this chapter may be granted without the analysis and approval by the Secretary concerned of a plan of operations covering proposed surface-disturbing activities within the lease area. The Secretary concerned shall, by rule or regulation, establish such standards as may be necessary to ensure that an adequate bond, surety, or other financial arrangement will be established prior to the commencement of surface-disturbing activities on any lease, to ensure the complete and timely reclamation of the lease tract, and the restoration of any lands or surface waters adversely affected by lease operations after the abandonment or cessation of oil and gas operations on the lease. The Secretary shall not issue a lease or leases or approve the assignment of any lease or leases under the terms of this section to any person, association, corporation, or any subsidiary, affiliate, or person controlled by or under common control with such person, association, or corporation, during any period in which, as determined by the Secretary of the Interior or Secretary of Agriculture, such entity has failed or refused to comply in any material respect with the reclamation requirements and other standards established under this section for any prior lease to which such requirements and standards applied. Prior to making such determination with respect to any such entity the concerned Secretary shall provide such entity with adequate notification and an opportunity to comply with such reclamation requirements and other standards and shall consider whether any administrative or judicial appeal is pending. Once the entity has complied with the reclamation requirement or other standard concerned an oil or gas lease may be issued to such entity under this chapter. Addendum Thomson Reuters. No claim to original U.S. Government Works. 4

116 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 116 (h) National Forest System Lands The Secretary of the Interior may not issue any lease on National Forest System Lands reserved from the public domain over the objection of the Secretary of Agriculture. (i) Termination No lease issued under this section which is subject to termination because of cessation of production shall be terminated for this cause so long as reworking or drilling operations which were commenced on the land prior to or within sixty days after cessation of production are conducted thereon with reasonable diligence, or so long as oil or gas is produced in paying quantities as a result of such operations. No lease issued under this section shall expire because operations or production is suspended under any order, or with the consent, of the Secretary. No lease issued under this section covering lands on which there is a well capable of producing oil or gas in paying quantities shall expire because the lessee fails to produce the same unless the lessee is allowed a reasonable time, which shall be not less than sixty days after notice by registered or certified mail, within which to place such well in producing status or unless, after such status is established, production is discontinued on the leased premises without permission granted by the Secretary under the provisions of this chapter. (j) Drainage agreements; primary term of lease, extension Whenever it appears to the Secretary that lands owned by the United States are being drained of oil or gas by wells drilled on adjacent lands, he may negotiate agreements whereby the United States, or the United States and its lessees, shall be compensated for such drainage. Such agreements shall be made with the consent of the lessees, if any, affected thereby. If such agreement is entered into, the primary term of any lease for which compensatory royalty is being paid, or any extension of such primary term, shall be extended for the period during which such compensatory royalty is paid and for a period of one year from discontinuance of such payment and so long thereafter as oil or gas is produced in paying quantities. (k) Mining claims; suspension of running time of lease If, during the primary term or any extended term of any lease issued under this section, a verified statement is filed by any mining claimant pursuant to subsection (c) of section 527 of this title, whether such filing occur prior to September 2, 1960 or thereafter, asserting the existence of a conflicting unpatented mining claim or claims upon which diligent work is being prosecuted as to any lands covered by the lease, the running of time under such lease shall be suspended as to the lands involved from the first day of the month following the filing of such verified statement until a final decision is rendered in the matter. (l) Exchange of leases; conditions The Secretary of the Interior shall, upon timely application therefor, issue a new lease in exchange for any lease issued for a term of twenty years, or any renewal thereof, or any lease issued prior to August 8, 1946, in exchange for a twentyyear lease, such new lease to be for a primary term of five years and so long thereafter as oil or gas is produced in paying quantities and at a royalty rate of not less than 12 ½ per centum in amount or value of the production removed or sold from such leases, except that the royalty rate shall be 12 ½ per centum in amount or value of the production removed or sold from said leases as to (1) such leases, or such parts of the lands subject thereto and the deposits underlying the Addendum Thomson Reuters. No claim to original U.S. Government Works. 5

117 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 117 same, as are not believed to be within the productive limits of any producing oil or gas deposit, as such productive limits are found by the Secretary to have existed on August 8, 1946; and (2) any production on a lease from an oil or gas deposit which was discovered after May 27, 1941, by a well or wells drilled within the boundaries of the lease, and which is determined by the Secretary to be a new deposit; and (3) any production on or allocated to a lease pursuant to an approved cooperative or unit plan of development or operation from an oil or gas deposit which was discovered after May 27, 1941, on land committed to such plan, and which is determined by the Secretary to be a new deposit, where such lease, or a lease for which it is exchanged, was included in such plan at the time of discovery or was included in a duly executed and filed application for the approval of such plan at the time of discovery. (m) Cooperative or unit plan; authority of Secretary of the Interior to alter or modify; communitization or drilling agreements; term of lease, conditions; Secretary to approve operating, drilling or development contracts, and subsurface storage For the purpose of more properly conserving the natural resources of any oil or gas pool, field, or like area, or any part thereof (whether or not any part of said oil or gas pool, field, or like area, is then subject to any cooperative or unit plan of development or operation), lessees thereof and their representatives may unite with each other, or jointly or separately with others, in collectively adopting and operating under a cooperative or unit plan of development or operation of such pool, field, or like area, or any part thereof, whenever determined and certified by the Secretary of the Interior to be necessary or advisable in the public interest. The Secretary is thereunto authorized, in his discretion, with the consent of the holders of leases involved, to establish, alter, change, or revoke drilling, producing, rental, minimum royalty, and royalty requirements of such leases and to make such regulations with reference to such leases, with like consent on the part of the lessees, in connection with the institution and operation of any such cooperative or unit plan as he may deem necessary or proper to secure the proper protection of the public interest. The Secretary may provide that oil and gas leases hereafter issued under this chapter shall contain a provision requiring the lessee to operate under such a reasonable cooperative or unit plan, and he may prescribe such a plan under which such lessee shall operate, which shall adequately protect the rights of all parties in interest, including the United States. Any plan authorized by the preceding paragraph which includes lands owned by the United States may, in the discretion of the Secretary, contain a provision whereby authority is vested in the Secretary of the Interior, or any such person, committee, or State or Federal officer or agency as may be designated in the plan, to alter or modify from time to time the rate of prospecting and development and the quantity and rate of production under such plan. All leases operated under any such plan approved or prescribed by the Secretary shall be excepted in determining holdings or control under the provisions of any section of this chapter. When separate tracts cannot be independently developed and operated in conformity with an established well-spacing or development program, any lease, or a portion thereof, may be pooled with other lands, whether or not owned by the United States, under a communitization or drilling agreement providing for an apportionment of production or royalties among the separate tracts of land comprising the drilling or spacing unit when determined by the Secretary of the Interior to be in the public interest, and operations or production pursuant to such an agreement shall be deemed to be operations or production as to each such lease committed thereto. Any lease issued for a term of twenty years, or any renewal thereof, or any portion of such lease that has become the subject of a cooperative or unit plan of development or operation of a pool, field, or like area, which plan has the approval of the Secretary of the Interior, shall continue in force until the termination of such plan. Any other lease issued under any section of this chapter which has heretofore or may hereafter be committed to any such plan that contains a general provision for allocation of oil or gas shall continue in force and effect as to the land committed so long as the lease remains subject to the plan: Provided, That production is had in paying quantities under the plan prior to the expiration date of the term of such lease. Any lease heretofore or hereafter committed to any such plan embracing lands that are in part within and in part outside of the area covered by any such plan shall be segregated into separate leases as to the lands Addendum Thomson Reuters. No claim to original U.S. Government Works. 6

118 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 118 committed and the lands not committed as of the effective date of unitization: Provided, however, That any such lease as to the nonunitized portion shall continue in force and effect for the term thereof but for not less than two years from the date of such segregation and so long thereafter as oil or gas is produced in paying quantities. The minimum royalty or discovery rental under any lease that has become subject to any cooperative or unit plan of development or operation, or other plan that contains a general provision for allocation of oil or gas, shall be payable only with respect to the lands subject to such lease to which oil or gas shall be allocated under such plan. Any lease which shall be eliminated from any such approved or prescribed plan, or from any communitization or drilling agreement authorized by this section, and any lease which shall be in effect at the termination of any such approved or prescribed plan, or at the termination of any such communitization or drilling agreement, unless relinquished, shall continue in effect for the original term thereof, but for not less than two years, and so long thereafter as oil or gas is produced in paying quantities. The Secretary of the Interior is hereby authorized, on such conditions as he may prescribe, to approve operating, drilling, or development contracts made by one or more lessees of oil or gas leases, with one or more persons, associations, or corporations whenever, in his discretion, the conservation of natural products or the public convenience or necessity may require it or the interests of the United States may be best subserved thereby. All leases operated under such approved operating, drilling, or development contracts, and interests thereunder, shall be excepted in determining holdings or control under the provisions of this chapter. The Secretary of the Interior, to avoid waste or to promote conservation of natural resources, may authorize the subsurface storage of oil or gas, whether or not produced from federally owned lands, in lands leased or subject to lease under this chapter. Such authorization may provide for the payment of a storage fee or rental on such stored oil or gas or, in lieu of such fee or rental, for a royalty other than that prescribed in the lease when such stored oil or gas is produced in conjunction with oil or gas not previously produced. Any lease on which storage is so authorized shall be extended at least for the period of storage and so long thereafter as oil or gas not previously produced is produced in paying quantities. (n) Conversion of oil and gas leases and claims on hydrocarbon resources to combined hydrocarbon leases for primary term of 10 years; application (1)(A) The owner of (1) an oil and gas lease issued prior to November 16, 1981, or (2) a valid claim to any hydrocarbon resources leasable under this section based on a mineral location made prior to January 21, 1926, and located within a special tar sand area shall be entitled to convert such lease or claim to a combined hydrocarbon lease for a primary term of ten years upon the filing of an application within two years from November 16, 1981, containing an acceptable plan of operations which assures reasonable protection of the environment and diligent development of those resources requiring enhanced recovery methods of development or mining. For purposes of conversion, no claim shall be deemed invalid solely because it was located as a placer location rather than a lode location or vice versa, notwithstanding any previous adjudication on that issue. (B) The Secretary shall issue final regulations to implement this section within six months of November 16, If any oil and gas lease eligible for conversion under this section would otherwise expire after November 16, 1981, and before six months following the issuance of implementing regulations, the lessee may preserve his conversion right under such lease for a period ending six months after the issuance of implementing regulations by filing with the Secretary, before the expiration of the lease, a notice of intent to file an application for conversion. Upon submission of a complete plan of operations in substantial compliance with the regulations promulgated by the Secretary for the filing of such plans, the Secretary shall suspend the running of the term of any oil and gas lease proposed for conversion until the plan is finally approved or disapproved. The Secretary shall act upon a proposed plan of operations within fifteen months of its submittal. Addendum Thomson Reuters. No claim to original U.S. Government Works. 7

119 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 119 (C) When an existing oil and gas lease is converted to a combined hydrocarbon lease, the royalty shall be that provided for in the original oil and gas lease and for a converted mining claim, 12 ½ per centum in amount or value of production removed or sold from the lease. (2) Except as provided in this section, nothing in the Combined Hydrocarbon Leasing Act of 1981 shall be construed to diminish or increase the rights of any lessee under any oil and gas lease issued prior to November 16, (o) Certain outstanding oil and gas deposits (1) Prior to the commencement of surface-disturbing activities relating to the development of oil and gas deposits on lands described under paragraph (5), the Secretary of Agriculture shall require, pursuant to regulations promulgated by the Secretary, that such activities be subject to terms and conditions as provided under paragraph (2). (2) The terms and conditions referred to in paragraph (1) shall require that reasonable advance notice be furnished to the Secretary of Agriculture at least 60 days prior to the commencement of surface disturbing activities. (3) Advance notice under paragraph (2) shall include each of the following items of information: (A) A designated field representative. (B) A map showing the location and dimensions of all improvements, including but not limited to, well sites and road and pipeline accesses. (C) A plan of operations, of an interim character if necessary, setting forth a schedule for construction and drilling. (D) A plan of erosion and sedimentation control. (E) Proof of ownership of mineral title. Nothing in this subsection shall be construed to affect any authority of the State in which the lands concerned are located to impose any requirements with respect to such oil and gas operations. (4) The person proposing to develop oil and gas deposits on lands described under paragraph (5) shall either-- (A) permit the Secretary to market merchantable timber owned by the United States on lands subject to such activities; or Addendum Thomson Reuters. No claim to original U.S. Government Works. 8

120 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 120 (B) arrange to purchase merchantable timber on lands subject to such surface disturbing activities from the Secretary of Agriculture, or otherwise arrange for the disposition of such merchantable timber, upon such terms and upon such advance notice of the items referred to in subparagraphs (A) through (E) of paragraph (3) as the Secretary may accept. (5)(A) The lands referred to in this subsection are those lands referenced in subparagraph (B) which are under the administration of the Secretary of Agriculture where the United States acquired an interest in such lands pursuant to the Act of March 1, 1911 (36 Stat. 961 and following), but does not have an interest in oil and gas deposits that may be present under such lands. This subsection does not apply to any such lands where, under the provisions of its acquisition of an interest in the lands, the United States is to acquire any oil and gas deposits that may be present under such lands in the future but such interest has not yet vested with the United States. (B) This subsection shall only apply in the Allegheny National Forest. (p) Deadlines for consideration of applications for permits (1) In general Not later than 10 days after the date on which the Secretary receives an application for any permit to drill, the Secretary shall-- (A) notify the applicant that the application is complete; or (B) notify the applicant that information is missing and specify any information that is required to be submitted for the application to be complete. (2) Issuance or deferral Not later than 30 days after the applicant for a permit has submitted a complete application, the Secretary shall-- (A) issue the permit, if the requirements under the National Environmental Policy Act of 1969 and other applicable law have been completed within such timeframe; or (B) defer the decision on the permit and provide to the applicant a notice-- (i) that specifies any steps that the applicant could take for the permit to be issued; and (ii) a list of actions that need to be taken by the agency to complete compliance with applicable law together with timelines and deadlines for completing such actions. (3) Requirements for deferred applications Addendum Thomson Reuters. No claim to original U.S. Government Works. 9

121 226. Lease of oil and gas lands, 30 USCA 226 Appellate Case: Document: Date Filed: 08/12/2016 Page: 121 (A) In general If the Secretary provides notice under paragraph (2)(B), the applicant shall have a period of 2 years from the date of receipt of the notice in which to complete all requirements specified by the Secretary, including providing information needed for compliance with the National Environmental Policy Act of (B) Issuance of decision on permit If the applicant completes the requirements within the period specified in subparagraph (A), the Secretary shall issue a decision on the permit not later than 10 days after the date of completion of the requirements described in subparagraph (A), unless compliance with the National Environmental Policy Act of 1969 and other applicable law has not been completed within such timeframe. (C) Denial of permit If the applicant does not complete the requirements within the period specified in subparagraph (A) or if the applicant does not comply with applicable law, the Secretary shall deny the permit. CREDIT(S) (Feb. 25, 1920, c. 85, 17, 41 Stat. 443; July 3, 1930, c. 854, 1, 46 Stat. 1007; Mar. 4, 1931, c. 506, 46 Stat. 1523; Aug. 21, 1935, c. 599, 1, 49 Stat. 676; Aug. 8, 1946, c. 916, 3, 60 Stat. 951; July 29, 1954, c. 644, 1(1) to (3), 68 Stat. 583; June 11, 1960, Pub.L , 1(21), 74 Stat. 201; Sept. 2, 1960, Pub.L , 2, 74 Stat. 781; Nov. 16, 1981, Pub.L , 1(6), (8), 95 Stat. 1070, 1071; Dec. 22, 1987, Pub.L , Title V, 5102(a) to (d)(1), 101 Stat , ; Oct. 24, 1992, Pub.L , Title XXV, 2507(a), 2508(a), 2509, 106 Stat. 3107, 3108, 3109; Nov. 2, 1994, Pub.L , 11(a)(1), 108 Stat. 4589; Dec. 21, 1995, Pub.L , Title I, 1081(a), 109 Stat. 721; Aug. 8, 2005, Pub.L , Title III, 350(a), (b), 366, 369(j)(1), 119 Stat. 711, 726, 730; Pub.L , Div. B, Title XXX, 3022(a), Dec. 19, 2014, 128 Stat ) Notes of Decisions (118) Footnotes 1 So in original. Probably should be subsection (k)(1)(c). 30 U.S.C.A. 226, 30 USCA 226 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 10

122 229a. Water struck while drilling for oil and gas, 30 USCA 229a Appellate Case: Document: Date Filed: 08/12/2016 Page: 122 United States Code Annotated Title 30. Mineral Lands and Mining Chapter 3A. Leases and Prospecting Permits (Refs & Annos) Subchapter IV. Oil and Gas 30 U.S.C.A. 229a 229a. Water struck while drilling for oil and gas Currentness (a) Acquisition; condition in lease All prospecting permits and leases for oil or gas made or issued under the provisions of this chapter shall be subject to the condition that in case the permittee or lessee strikes water while drilling instead of oil or gas, the Secretary of the Interior may, when such water is of such quality and quantity as to be valuable and usable at a reasonable cost for agricultural, domestic, or other purposes, purchase the casing in the well at the reasonable value thereof to be fixed under rules and regulations to be prescribed by the Secretary. (b) Prior leases In cases where water wells producing such water have heretofore been or may hereafter be drilled upon lands embraced in any prospecting permit or lease heretofore issued under this chapter, the Secretary may in like manner purchase the casing in such wells. (c) Disposition The Secretary may make such purchase and may lease or operate such wells for the purpose of producing water and of using the same on the public lands or of disposing of such water for beneficial use on other lands, and where such wells have heretofore been plugged or abandoned or where such wells have been drilled prior to the issuance of any permit or lease by persons not in privity with the permittee or lessee, the Secretary may develop the same for the purposes of this section: Provided, That owners or occupants of lands adjacent to those upon which such water wells may be developed shall have a preference right to make beneficial use of such water. (d) Revolving fund The Secretary may use so much of any funds available for the plugging of wells as he may find necessary to start the program provided for by this section, and thereafter he may use the proceeds from the sale or other disposition of such water as a revolving fund for the continuation of such program, and such proceeds are hereby appropriated for such purpose. (e) Operations under lease not restricted Nothing in this section shall be construed to restrict operations under any oil or gas lease or permit under any other provision of this chapter. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

123 229a. Water struck while drilling for oil and gas, 30 USCA 229a Appellate Case: Document: Date Filed: 08/12/2016 Page: 123 CREDIT(S) (Feb. 25, 1920, c. 85, 40, as added June 16, 1934, c. 557, 48 Stat. 977; amended Oct. 21, 1976, Pub.L , Title VII, 704(a), 90 Stat ) 30 U.S.C.A. 229a, 30 USCA 229a Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

124 300f. Definitions, 42 USCA 300f Appellate Case: Document: Date Filed: 08/12/2016 Page: 124 KeyCite Yellow Flag - Negative Treatment Proposed Legislation United States Code Annotated Title 42. The Public Health and Welfare Chapter 6A. Public Health Service (Refs & Annos) Subchapter XII. Safety of Public Water Systems Part A. Definitions (Refs & Annos) 42 U.S.C.A. 300f 300f. Definitions Effective: August 6, 1996 Currentness For purposes of this subchapter: (1) The term primary drinking water regulation means a regulation which-- (A) applies to public water systems; (B) specifies contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons; (C) specifies for each such contaminant either-- (i) a maximum contaminant level, if, in the judgment of the Administrator, it is economically and technologically feasible to ascertain the level of such contaminant in water in public water systems, or (ii) if, in the judgment of the Administrator, it is not economically or technologically feasible to so ascertain the level of such contaminant, each treatment technique known to the Administrator which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of section 300g-1 of this title; and (D) contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels; including accepted methods for quality control and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system, and requirements as to (i) the minimum quality of water which may be taken into the system and (ii) siting for new facilities for public water systems. At any time after promulgation of a regulation referred to in this paragraph, the Administrator may add equally effective quality control and testing procedures by guidance published in the Federal Register. Such procedures Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

125 300f. Definitions, 42 USCA 300f Appellate Case: Document: Date Filed: 08/12/2016 Page: 125 shall be treated as an alternative for public water systems to the quality control and testing procedures listed in the regulation. (2) The term secondary drinking water regulation means a regulation which applies to public water systems and which specifies the maximum contaminant levels which, in the judgment of the Administrator, are requisite to protect the public welfare. Such regulations may apply to any contaminant in drinking water (A) which may adversely affect the odor or appearance of such water and consequently may cause a substantial number of the persons served by the public water system providing such water to discontinue its use, or (B) which may otherwise adversely affect the public welfare. Such regulations may vary according to geographic and other circumstances. (3) The term maximum contaminant level means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system. (4) Public water system.-- (A) In general.--the term public water system means a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals. Such term includes (i) any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system, and (ii) any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. (B) Connections.-- (i) In general.--for purposes of subparagraph (A), a connection to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection, if-- (I) the water is used exclusively for purposes other than residential uses (consisting of drinking, bathing, and cooking, or other similar uses); (II) the Administrator or the State (in the case of a State exercising primary enforcement responsibility for public water systems) determines that alternative water to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulation is provided for residential or similar uses for drinking and cooking; or (III) the Administrator or the State (in the case of a State exercising primary enforcement responsibility for public water systems) determines that the water provided for residential or similar uses for drinking, cooking, and bathing is centrally treated or treated at the point of entry by the provider, a pass-through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

126 300f. Definitions, 42 USCA 300f Appellate Case: Document: Date Filed: 08/12/2016 Page: 126 (ii) Irrigation districts.--an irrigation district in existence prior to May 18, 1994, that provides primarily agricultural service through a piped water system with only incidental residential or similar use shall not be considered to be a public water system if the system or the residential or similar users of the system comply with subclause (II) or (III) of clause (i). (C) Transition period.--a water supplier that would be a public water system only as a result of modifications made to this paragraph by the Safe Drinking Water Act Amendments of 1996 shall not be considered a public water system for purposes of the Act until the date that is two years after August 6, If a water supplier does not serve 15 service connections (as defined in subparagraphs (A) and (B)) or 25 people at any time after the conclusion of the 2-year period, the water supplier shall not be considered a public water system. (5) The term supplier of water means any person who owns or operates a public water system. (6) The term contaminant means any physical, chemical, biological, or radiological substance or matter in water. (7) The term Administrator means the Administrator of the Environmental Protection Agency. (8) The term Agency means the Environmental Protection Agency. (9) The term Council means the National Drinking Water Advisory Council established under section 300j-5 of this title. (10) The term municipality means a city, town, or other public body created by or pursuant to State law, or an Indian Tribe. (11) The term Federal agency means any department, agency, or instrumentality of the United States. (12) The term person means an individual, corporation, company, association, partnership, State, municipality, or Federal agency (and includes officers, employees, and agents of any corporation, company, association, State, municipality, or Federal agency). (13)(A) Except as provided in subparagraph (B), the term State includes, in addition to the several States, only the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands. (B) For purposes of section 300j-12 of this title, the term State means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. Addendum Thomson Reuters. No claim to original U.S. Government Works. 3

127 300f. Definitions, 42 USCA 300f Appellate Case: Document: Date Filed: 08/12/2016 Page: 127 (14) The term Indian Tribe means any Indian tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over any area. For purposes of section 300j-12 of this title, the term includes any Native village (as defined in section 1602(c) of Title 43). (15) Community water system.--the term community water system means a public water system that-- (A) serves at least 15 service connections used by year-round residents of the area served by the system; or (B) regularly serves at least 25 year-round residents. (16) Noncommunity water system.--the term noncommunity water system means a public water system that is not a community water system. CREDIT(S) (July 1, 1944, c. 373, Title XIV, 1401, as added Dec. 16, 1974, Pub.L , 2(a), 88 Stat. 1661; amended June 23, 1976, Pub.L , Title III, 301(b)(2), 90 Stat. 707; Oct. 12, 1976, Pub.L , Title IX, 905(b)(1), 90 Stat. 2325; Nov. 16, 1977, Pub.L , 8(b), 91 Stat. 1397; June 19, 1986, Pub.L , Title III, 302(b), 100 Stat. 666; Aug. 6, 1996, Pub.L , Title I, 101(a), (b)(1), 110 Stat. 1615, 1616.) Notes of Decisions (10) 42 U.S.C.A. 300f, 42 USCA 300f Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 4

128 300h. Regulations for State programs, 42 USCA 300h Appellate Case: Document: Date Filed: 08/12/2016 Page: 128 KeyCite Yellow Flag - Negative Treatment Proposed Legislation United States Code Annotated Title 42. The Public Health and Welfare Chapter 6A. Public Health Service (Refs & Annos) Subchapter XII. Safety of Public Water Systems Part C. Protection of Underground Sources of Drinking Water (Refs & Annos) 42 U.S.C.A. 300h 300h. Regulations for State programs Effective: August 8, 2005 Currentness (a) Publication of proposed regulations; promulgation; amendments; public hearings; administrative consultations (1) The Administrator shall publish proposed regulations for State underground injection control programs within 180 days after December 16, Within 180 days after publication of such proposed regulations, he shall promulgate such regulations with such modifications as he deems appropriate. Any regulation under this subsection may be amended from time to time. (2) Any regulation under this section shall be proposed and promulgated in accordance with section 553 of Title 5 (relating to rulemaking), except that the Administrator shall provide opportunity for public hearing prior to promulgation of such regulations. In proposing and promulgating regulations under this section, the Administrator shall consult with the Secretary, the National Drinking Water Advisory Council, and other appropriate Federal entities and with interested State entities. (b) Minimum requirements; restrictions (1) Regulations under subsection (a) of this section for State underground injection programs shall contain minimum requirements for effective programs to prevent underground injection which endangers drinking water sources within the meaning of subsection (d)(2) of this section. Such regulations shall require that a State program, in order to be approved under section 300h-1 of this title-- (A) shall prohibit, effective on the date on which the applicable underground injection control program takes effect, any underground injection in such State which is not authorized by a permit issued by the State (except that the regulations may permit a State to authorize underground injection by rule); (B) shall require (i) in the case of a program which provides for authorization of underground injection by permit, that the applicant for the permit to inject must satisfy the State that the underground injection will not endanger drinking water sources, and (ii) in the case of a program which provides for such an authorization by rule, that no rule may be promulgated which authorizes any underground injection which endangers drinking water sources; Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

129 300h. Regulations for State programs, 42 USCA 300h Appellate Case: Document: Date Filed: 08/12/2016 Page: 129 (C) shall include inspection, monitoring, recordkeeping, and reporting requirements; and (D) shall apply (i) as prescribed by section 300j-6(b) of this title, to underground injections by Federal agencies, and (ii) to underground injections by any other person whether or not occurring on property owned or leased by the United States. (2) Regulations of the Administrator under this section for State underground injection control programs may not prescribe requirements which interfere with or impede-- (A) the underground injection of brine or other fluids which are brought to the surface in connection with oil or natural gas production or natural gas storage operations, or (B) any underground injection for the secondary or tertiary recovery of oil or natural gas, unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection. (3)(A) The regulations of the Administrator under this section shall permit or provide for consideration of varying geologic, hydrological, or historical conditions in different States and in different areas within a State. (B)(i) In prescribing regulations under this section the Administrator shall, to the extent feasible, avoid promulgation of requirements which would unnecessarily disrupt State underground injection control programs which are in effect and being enforced in a substantial number of States. (ii) For the purpose of this subparagraph, a regulation prescribed by the Administrator under this section shall be deemed to disrupt a State underground injection control program only if it would be infeasible to comply with both such regulation and the State underground injection control program. (iii) For the purpose of this subparagraph, a regulation prescribed by the Administrator under this section shall be deemed unnecessary only if, without such regulation, underground sources of drinking water will not be endangered by an underground injection. (C) Nothing in this section shall be construed to alter or affect the duty to assure that underground sources of drinking water will not be endangered by any underground injection. (c) Temporary permits; notice and hearing (1) The Administrator may, upon application of the Governor of a State which authorizes underground injection by means of permits, authorize such State to issue (without regard to subsection (b)(1)(b)(i) of this section) temporary permits for underground injection which may be effective until the expiration of four years after December 16, 1974, if-- Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

130 300h. Regulations for State programs, 42 USCA 300h Appellate Case: Document: Date Filed: 08/12/2016 Page: 130 (A) the Administrator finds that the State has demonstrated that it is unable and could not reasonably have been able to process all permit applications within the time available; (B) the Administrator determines the adverse effect on the environment of such temporary permits is not unwarranted; (C) such temporary permits will be issued only with respect to injection wells in operation on the date on which such State's permit program approved under this part first takes effect and for which there was inadequate time to process its permit application; and (D) the Administrator determines the temporary permits require the use of adequate safeguards established by rules adopted by him. (2) The Administrator may, upon application of the Governor of a State which authorizes underground injection by means of permits, authorize such State to issue (without regard to subsection (b)(1)(b)(i) of this section), but after reasonable notice and hearing, one or more temporary permits each of which is applicable to a particular injection well and to the underground injection of a particular fluid and which may be effective until the expiration of four years after December 16, 1974, if the State finds, on the record of such hearing-- (A) that technology (or other means) to permit safe injection of the fluid in accordance with the applicable underground injection control program is not generally available (taking costs into consideration); (B) that injection of the fluid would be less harmful to health than the use of other available means of disposing of waste or producing the desired product; and (C) that available technology or other means have been employed (and will be employed) to reduce the volume and toxicity of the fluid and to minimize the potentially adverse effect of the injection on the public health. (d) Underground injection defined; underground injection endangerment of drinking water sources For purposes of this part: (1) Underground injection The term underground injection -- (A) means the subsurface emplacement of fluids by well injection; and (B) excludes-- Addendum Thomson Reuters. No claim to original U.S. Government Works. 3

131 300h. Regulations for State programs, 42 USCA 300h Appellate Case: Document: Date Filed: 08/12/2016 Page: 131 (i) the underground injection of natural gas for purposes of storage; and (ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities. (2) Underground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant, and if the presence of such contaminant may result in such system's not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons. CREDIT(S) (July 1, 1944, c. 373, Title XIV, 1421, as added Dec. 16, 1974, Pub.L , 2(a), 88 Stat. 1674; amended Nov. 16, 1977, Pub.L , 6(b), 91 Stat. 1396; Dec. 5, 1980, Pub.L , 3, 4(c), 94 Stat. 2738; June 19, 1986, Pub.L , Title II, 201(a), 100 Stat. 653; Aug. 6, 1996, Pub.L , Title V, 501(b)(1), 110 Stat. 1691; Aug. 8, 2005, Pub.L , Title III, 322, 119 Stat. 694.) Notes of Decisions (9) 42 U.S.C.A. 300h, 42 USCA 300h Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 4

132 1701. Congressional declaration of policy, 43 USCA 1701 Appellate Case: Document: Date Filed: 08/12/2016 Page: 132 United States Code Annotated Title 43. Public Lands (Refs & Annos) Chapter 35. Federal Land Policy and Management (Refs & Annos) Subchapter I. General Provisions 43 U.S.C.A Congressional declaration of policy Currentness (a) The Congress declares that it is the policy of the United States that-- (1) the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest; (2) the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts; (3) public lands not previously designated for any specific use and all existing classifications of public lands that were effected by executive action or statute before October 21, 1976, be reviewed in accordance with the provisions of this Act; (4) the Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action; (5) in administering public land statutes and exercising discretionary authority granted by them, the Secretary be required to establish comprehensive rules and regulations after considering the views of the general public; and to structure adjudication procedures to assure adequate third party participation, objective administrative review of initial decisions, and expeditious decisionmaking; (6) judicial review of public land adjudication decisions be provided by law; (7) goals and objectives be established by law as guidelines for public land use planning, and that management be on the basis of multiple use and sustained yield unless otherwise specified by law; (8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use; Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

133 1701. Congressional declaration of policy, 43 USCA 1701 Appellate Case: Document: Date Filed: 08/12/2016 Page: 133 (9) the United States receive fair market value of the use of the public lands and their resources unless otherwise provided for by statute; (10) uniform procedures for any disposal of public land, acquisition of non-federal land for public purposes, and the exchange of such lands be established by statute, requiring each disposal, acquisition, and exchange to be consistent with the prescribed mission of the department or agency involved, and reserving to the Congress review of disposals in excess of a specified acreage; (11) regulations and plans for the protection of public land areas of critical environmental concern be promptly developed; (12) the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat. 1876, 30 U.S.C. 21a) as it pertains to the public lands; and (13) the Federal Government should, on a basis equitable to both the Federal and local taxpayer, provide for payments to compensate States and local governments for burdens created as a result of the immunity of Federal lands from State and local taxation. (b) The policies of this Act shall become effective only as specific statutory authority for their implementation is enacted by this Act or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law. CREDIT(S) (Pub.L , Title I, 102, Oct. 21, 1976, 90 Stat ) Notes of Decisions (29) 43 U.S.C.A. 1701, 43 USCA 1701 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

134 1702. Definitions, 43 USCA 1702 Appellate Case: Document: Date Filed: 08/12/2016 Page: 134 United States Code Annotated Title 43. Public Lands (Refs & Annos) Chapter 35. Federal Land Policy and Management (Refs & Annos) Subchapter I. General Provisions 43 U.S.C.A Definitions Currentness Without altering in any way the meaning of the following terms as used in any other statute, whether or not such statute is referred to in, or amended by, this Act, as used in this Act-- (a) The term areas of critical environmental concern means areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards. (b) The term holder means any State or local governmental entity, individual, partnership, corporation, association, or other business entity receiving or using a right-of-way under subchapter V of this chapter. (c) The term multiple use means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output. (d) The term public involvement means the opportunity for participation by affected citizens in rulemaking, decisionmaking, and planning with respect to the public lands, including public meetings or hearings held at locations near the affected lands, or advisory mechanisms, or such other procedures as may be necessary to provide public comment in a particular instance. (e) The term public lands means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, except-- (1) lands located on the Outer Continental Shelf; and Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

135 1702. Definitions, 43 USCA 1702 Appellate Case: Document: Date Filed: 08/12/2016 Page: 135 (2) lands held for the benefit of Indians, Aleuts, and Eskimos. (f) The term right-of-way includes an easement, lease, permit, or license to occupy, use, or traverse public lands granted for the purpose listed in subchapter V of this chapter. (g) The term Secretary, unless specifically designated otherwise, means the Secretary of the Interior. (h) The term sustained yield means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use. (i) The term wilderness as used in section 1782 of this title shall have the same meaning as it does in section 1131(c) of Title 16. (j) The term withdrawal means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program; or transferring jurisdiction over an area of Federal land, other than property governed by the Federal Property and Administrative Services Act, as amended from one department, bureau or agency to another department, bureau or agency. (k) An allotment management plan means a document prepared in consultation with the lessees or permittees involved, which applies to livestock operations on the public lands or on lands within National Forests in the eleven contiguous Western States and which: (1) prescribes the manner in, and extent to, which livestock operations will be conducted in order to meet the multipleuse, sustained-yield, economic and other needs and objectives as determined for the lands by the Secretary concerned; and (2) describes the type, location, ownership, and general specifications for the range improvements to be installed and maintained on the lands to meet the livestock grazing and other objectives of land management; and (3) contains such other provisions relating to livestock grazing and other objectives found by the Secretary concerned to be consistent with the provisions of this Act and other applicable law. (l) The term principal or major uses includes, and is limited to, domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production. (m) The term department means a unit of the executive branch of the Federal Government which is headed by a member of the President's Cabinet and the term agency means a unit of the executive branch of the Federal Government which is not under the jurisdiction of a head of a department. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

136 1702. Definitions, 43 USCA 1702 Appellate Case: Document: Date Filed: 08/12/2016 Page: 136 (n) The term Bureau 1 means the Bureau of Land Management. (o) The term eleven contiguous Western States means the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. (p) The term grazing permit and lease means any document authorizing use of public lands or lands in National Forests in the eleven contiguous western States for the purpose of grazing domestic livestock. CREDIT(S) (Pub.L , Title I, 103, Oct. 21, 1976, 90 Stat ) Notes of Decisions (3) Footnotes 1 So in original. Probably should have a close quote. 43 U.S.C.A. 1702, 43 USCA 1702 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 3

137 1732. Management of use, occupancy, and development of..., 43 USCA 1732 Appellate Case: Document: Date Filed: 08/12/2016 Page: 137 United States Code Annotated Title 43. Public Lands (Refs & Annos) Chapter 35. Federal Land Policy and Management (Refs & Annos) Subchapter III. Administration 43 U.S.C.A Management of use, occupancy, and development of public lands Currentness (a) Multiple use and sustained yield requirements applicable; exception The Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him under section 1712 of this title when they are available, except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law. (b) Easements, permits, etc., for utilization through habitation, cultivation, and development of small trade or manufacturing concerns; applicable statutory requirements In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long-term leases to permit individuals to utilize public lands for habitation, cultivation, and the development of small trade or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands only through rightsof-way under section 1767 of this title, withdrawals under section 1714 of this title, and, where the proposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under section 1737(b) of this title: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations of the Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the appropriate State fish and game department. Nothing in this Act shall modify or change any provision of Federal law relating to migratory birds or to endangered or threatened species. Except as provided in section 1744, section 1782, and subsection (f) of section 1781 of this title and in the last sentence of this paragraph, no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands. (c) Revocation or suspension provision in instrument authorizing use, occupancy or development; violation of provision; procedure applicable Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

138 1732. Management of use, occupancy, and development of..., 43 USCA 1732 Appellate Case: Document: Date Filed: 08/12/2016 Page: 138 The Secretary shall insert in any instrument providing for the use, occupancy, or development of the public lands a provision authorizing revocation or suspension, after notice and hearing, of such instrument upon a final administrative finding of a violation of any term or condition of the instrument, including, but not limited to, terms and conditions requiring compliance with regulations under Acts applicable to the public lands and compliance with applicable State or Federal air or water quality standard or implementation plan: Provided, That such violation occurred on public lands covered by such instrument and occurred in connection with the exercise of rights and privileges granted by it: Provided further, That the Secretary shall terminate any such suspension no later than the date upon which he determines the cause of said violation has been rectified: Provided further, That the Secretary may order an immediate temporary suspension prior to a hearing or final administrative finding if he determines that such a suspension is necessary to protect health or safety or the environment: Provided further, That, where other applicable law contains specific provisions for suspension, revocation, or cancellation of a permit, license, or other authorization to use, occupy, or develop the public lands, the specific provisions of such law shall prevail. (d) Authorization to utilize certain public lands in Alaska for military purposes (1) The Secretary of the Interior, after consultation with the Governor of Alaska, may issue to the Secretary of Defense or to the Secretary of a military department within the Department of Defense or to the Commandant of the Coast Guard a nonrenewable general authorization to utilize public lands in Alaska (other than within a conservation system unit or the Steese National Conservation Area or the White Mountains National Recreation Area) for purposes of military maneuvering, military training, or equipment testing not involving artillery firing, aerial or other gunnery, or other use of live ammunition or ordnance. (2) Use of public lands pursuant to a general authorization under this subsection shall be limited to areas where such use would not be inconsistent with the plans prepared pursuant to section 1712 of this title. Each such use shall be subject to a requirement that the using department shall be responsible for any necessary cleanup and decontamination of the lands used, and to such other terms and conditions (including but not limited to restrictions on use of off-road or allterrain vehicles) as the Secretary of the Interior may require to-- (A) minimize adverse impacts on the natural, environmental, scientific, cultural, and other resources and values (including fish and wildlife habitat) of the public lands involved; and (B) minimize the period and method of such use and the interference with or restrictions on other uses of the public lands involved. (3)(A) A general authorization issued pursuant to this subsection shall not be for a term of more than three years and shall be revoked in whole or in part, as the Secretary of the Interior finds necessary, prior to the end of such term upon a determination by the Secretary of the Interior that there has been a failure to comply with its terms and conditions or that activities pursuant to such an authorization have had or might have a significant adverse impact on the resources or values of the affected lands. (B) Each specific use of a particular area of public lands pursuant to a general authorization under this subsection shall be subject to specific authorization by the Secretary and to appropriate terms and conditions, including such as are described in paragraph (2) of this subsection. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

139 1732. Management of use, occupancy, and development of..., 43 USCA 1732 Appellate Case: Document: Date Filed: 08/12/2016 Page: 139 (4) Issuance of a general authorization pursuant to this subsection shall be subject to the provisions of section 1712(f) of this title, section 3120 of Title 16, and all other applicable provisions of law. The Secretary of a military department (or the commandant of the Coast Guard) requesting such authorization shall reimburse the Secretary of the Interior for the costs of implementing this paragraph. An authorization pursuant to this subsection shall not authorize the construction of permanent structures or facilities on the public lands. (5) To the extent that public safety may require closure to public use of any portion of the public lands covered by an authorization issued pursuant to this subsection, the Secretary of the military department concerned or the Commandant of the Coast Guard shall take appropriate steps to notify the public concerning such closure and to provide appropriate warnings of risks to public safety. (6) For purposes of this subsection, the term conservation system unit has the same meaning as specified in section 3102 of Title 16. CREDIT(S) (Pub.L , Title III, 302, Oct. 21, 1976, 90 Stat. 2762; Pub.L , Nov. 3, 1988, 102 Stat ) Notes of Decisions (55) 43 U.S.C.A. 1732, 43 USCA 1732 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 3

140 1733. Enforcement authority, 43 USCA 1733 Appellate Case: Document: Date Filed: 08/12/2016 Page: 140 KeyCite Yellow Flag - Negative Treatment Proposed Legislation United States Code Annotated Title 43. Public Lands (Refs & Annos) Chapter 35. Federal Land Policy and Management (Refs & Annos) Subchapter III. Administration 43 U.S.C.A Enforcement authority Currentness (a) Regulations for implementation of management, use, and protection requirements; violations; criminal penalties The Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon. Any person who knowingly and willfully violates any such regulation which is lawfully issued pursuant to this Act shall be fined no more than $1,000 or imprisoned no more than twelve months, or both. Any person charged with a violation of such regulation may be tried and sentenced by any United States magistrate judge designated for that purpose by the court by which he was appointed, in the same manner and subject to the same conditions and limitations as provided for in section 3401 of Title 18. (b) Civil actions by Attorney General for violations of regulations; nature of relief; jurisdiction At the request of the Secretary, the Attorney General may institute a civil action in any United States district court for an injunction or other appropriate order to prevent any person from utilizing public lands in violation of regulations issued by the Secretary under this Act. (c) Contracts for enforcement of Federal laws and regulations by local law enforcement officials; procedure applicable; contract requirements and implementation (1) When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations. The Secretary shall negotiate on reasonable terms with such officials who have authority to enter into such contracts to enforce such Federal laws and regulations. In the performance of their duties under such contracts such officials and their agents are authorized to carry firearms; execute and serve any warrant or other process issued by a court or officer of competent jurisdiction; make arrests without warrant or process for a misdemeanor he has reasonable grounds to believe is being committed in his presence or view, or for a felony if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; search without warrant or process any person, place, or conveyance according to any Federal law or rule of law; and seize without warrant or process any evidentiary item as provided by Federal law. The Secretary shall provide such law enforcement training as he deems necessary in order to carry out the contracted for responsibilities. While exercising the powers and authorities provided by such contract pursuant to this section, such law enforcement officials and their agents shall have all the immunities of Federal law enforcement officials. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

141 1733. Enforcement authority, 43 USCA 1733 Appellate Case: Document: Date Filed: 08/12/2016 Page: 141 (2) The Secretary may authorize Federal personnel or appropriate local officials to carry out his law enforcement responsibilities with respect to the public lands and their resources. Such designated personnel shall receive the training and have the responsibilities and authority provided for in paragraph (1) of this subsection. (d) Cooperation with regulatory and law enforcement officials of any State or political subdivision in enforcement of laws or ordinances In connection with the administration and regulation of the use and occupancy of the public lands, the Secretary is authorized to cooperate with the regulatory and law enforcement officials of any State or political subdivision thereof in the enforcement of the laws or ordinances of such State or subdivision. Such cooperation may include reimbursement to a State or its subdivision for expenditures incurred by it in connection with activities which assist in the administration and regulation of use and occupancy of the public lands. (e) Uniformed desert ranger force in California Desert Conservation Area; establishment; enforcement of Federal laws and regulations Nothing in this section shall prevent the Secretary from promptly establishing a uniformed desert ranger force in the California Desert Conservation Area established pursuant to section 1781 of this title for the purpose of enforcing Federal laws and regulations relating to the public lands and resources managed by him in such area. The officers and members of such ranger force shall have the same responsibilities and authority as provided for in paragraph (1) of subsection (c) of this section. (f) Applicability of other Federal enforcement provisions Nothing in this Act shall be construed as reducing or limiting the enforcement authority vested in the Secretary by any other statute. (g) Unlawful activities The use, occupancy, or development of any portion of the public lands contrary to any regulation of the Secretary or other responsible authority, or contrary to any order issued pursuant to any such regulation, is unlawful and prohibited. CREDIT(S) (Pub.L , Title III, 303, Oct. 21, 1976, 90 Stat. 2763; Pub.L , Title III, 321, Dec. 1, 1990, 104 Stat ) Notes of Decisions (10) 43 U.S.C.A. 1733, 43 USCA 1733 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 2

142 1740. Rules and regulations, 43 USCA 1740 Appellate Case: Document: Date Filed: 08/12/2016 Page: 142 United States Code Annotated Title 43. Public Lands (Refs & Annos) Chapter 35. Federal Land Policy and Management (Refs & Annos) Subchapter III. Administration 43 U.S.C.A Rules and regulations Currentness The Secretary, with respect to the public lands, shall promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands, and the Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of this Act. The promulgation of such rules and regulations shall be governed by the provisions of chapter 5 of Title 5, without regard to section 553(a) (2). Prior to the promulgation of such rules and regulations, such lands shall be administered under existing rules and regulations concerning such lands to the extent practical. CREDIT(S) (Pub.L , Title III, 310, Oct. 21, 1976, 90 Stat ) Notes of Decisions (5) 43 U.S.C.A. 1740, 43 USCA 1740 Current through P.L Also includes P.L to End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. Addendum Thomson Reuters. No claim to original U.S. Government Works. 1

143 se: Document: Date Filed: 08/12/2016 P DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN HEARINGS BEFORE A SLIBRARY OR COVINGTON, BIJRLING. RUBLE HESON & SHORF SUBCOMMITTEE OF TI COMMITTEE ON PUBLIC LANDS AND SURVEYS UNITED STATES SENATE SEVENTY-NINTH CONGRESS FIRST SESSION ON S.1236 A'BILL TO PROMOTE THE DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN AND ON LANDS AC- QUIRED FOR THE APPALACHIAN NATIONAL FOREST, AND FOR OTHER PURPOSES CASPER, WYO., AUGUST 27 AND 28, 1945 DENVER, COLO., AUGUST 30 AND 31, 1945 Printed for the use of the Committee on Public Lands and Surveys UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1945 Addendum 062

144 se: Document: Date Filed: 08/12/2016 P COMMITTEE ON PUBLIC LANDS AND SURVEYS CARL A. HATCH, New Mexico, Chairman ROBERT F. WAGNER, New York CHAN GURNEY, South Dakota JOSEPH C. O'MAHONEY, Wyoming RAYMOND E. WILLIS, Indiana JAMES E. MURRAY, Montana EDWARD V. ROBERTSON, Wyoming PAT McCARRAN, Nevada GUY CORDON, Oregon CHARLES 0. ANDREW9, Florida BOURKE B. HICKENLOOPER, IoWa ABE MURDOCK, Utah EDWIN C. JOHNSON, Colorado GLEN H. TAYLOR, Idaho W. H. MCMAINS, Clerk N. D. MCSHERRY, Assistant Clerk SUBCOMMITTEE ON S JOSEPH C. O'MAHONEY, Wyoming, Chairman CARL A. HATCH, New Mexico CHAN GURNEY, South Dakota EDWIN C. JOHNSON, Colorado EDWARD V. ROBERTSON, Wyoming W. H. MCMAINS, Clerk II Addendum 063

145 se: Document: Date Filed: 08/12/2016 P CONTENTS Statement of- Page Atwood, J. D., member, New Mexico Oil and Gas Association, Roswell, N. Mex Ball, Max W., consulting geologist (representing Petroleum Administration for War) Denver, Colo Brimmer, George h., independent oil operator, Cheyenne, Wyo_ Bryson, R. A., Raven Oil & Refining Co., Rangely, Colo., letter from Coleman, Henry J., attorney, Billings, Mont Crass, Karl F., attorney, Denver, Colo., letter from Cullen, J. F., manager, Stanolind Oil & Gas Co., Casper, Wyo Donahue, James, president, Kinney Oil & Drilling Co., Colorado Springs, Colo Downing, Warwick M., attorney and director, Rocky Mountain Oil and Gas Association, Denver Colo Everett, W. H., Ohio Oil Co., dasper, Wyo Ferguson, W. H., executive vice president, Continental Oil Co., Denver, Colo Healy, Harold H., manager for production, Ohio Oil Co., Casper, Wyo Hill, Charles S., independent oil operator, Denver, Colo Jackson, R. P., secretary, Montana State Oil Conservation Board, Great Falls, Mont Jacobson, F. M., vice president, Buffalo Oil Co., Dallas, Tex Jessen, J. M., assistant secretary, General Petroleum Corp., Los Angeles, Calif Johnson, A. E., president, Argo Oil Corp., Denver, Colo Kelsey, Dana, vice president, Sinclair-Wyoming Oil Co., Denver, Colo Krampert, E. W., consulting geologist, Casper, Wyo McWilliams, J. R., vice president, Carter Oil Co., Tulsa, Okla Miller, Thomas 0., attorney, Lusk, Wyo Nichols, R. H., attorney, Capser, Wyo Nielson, Glenn, president, Husky Refining Co., Cody, Wyo ,87 O'Borne, Harry, consulting geologist, Colorado Springs, Colo Parker, Ben H., vice president, Frontier Refining Co., Denver, Colo Parker, H. Leslie, independent oil operator, Casper, Wyo Rowan, Arch, president, Rowan Drilling Co., Trinity Life Building, Fort Worth, Tex Sawyers, Hugh L., executive secretary, New Mexico Oil and Gas Association, Roswell, N. Mex Seth, J. 0., member, New Mexico Oil and Gas Association, Santa Fe, N. Mex Shannon, R. S., independent oil operator, Denver, Colo Staples, D. T., executive vice president, Pacific Western Oil Corp., Los Angeles, Calif Stock, Paul, president, Rocky Mountain Oil and Gas Association, Cody Wyo Terrill, bean, vice president, Kerlyn Oil Co., Oklahoma City, Okla 134, 229 Watson, C. P., vice president, Seaboard Oil Co. of Delaware, Los Angeles, Cal M Addendum 064

146 se: Document: Date Filed: 08/12/2016 P DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN MONDAY, AUGUST 27, 1945 UNITED STATES SENATE, SUBCOMMITTEE OF THE COINITTEE ON PUBLIc LANDS AND SURVEYS, Casper, Wyo. The subcommittee met, pursuant to notice, at 10 a. m. in the United States district courtroom, Federal Building, Casper, Wyo., Senator Joseph C. O'Mahoney (chairman) presiding. Present: Senator Joseph C. O'Mahoney and Senator Edward V. Robertson. Also present: Congressman Frank A. Barrett, of Wyoming; W. H. McMains, clerk, Senate Committee on Public Lands and Surveys; Harry M. Edelstein, Office of the Solicitor, Department of the Interior; H. J. Duncan, Geological Survey, Department of the Interior; Max Ball Petroleum Administration for War; and Pierre LaFleiche, Casper, Wyo. Senator O'MATIONEY. The subcommittee of the Senate Committee on Public Lands and Surveys, to whom was referred the bill S. 1236, to promote the development of oil and gas on the public domain, and on lands acquired for the Appalachian National Forest, and for other purposes, is now open. (S is as follows:) [S. 1236, 79th Cong., 1st sess.] A BILL To promote the development of oil and gas on the public domain and on lands acquired for the Appalachian National Forest, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Act approved February 25, 1920 (41 Stat. 437; U. S. C., title 30, sec. 181), as amended, is amended by striking out the words "lands acquired under the Act known as the Appalachian Forest Act, approved March 1, 1911, and." SEC. 2. Sections 17, 27, 30, and 36, respectively, of the Act approved February 25, 1920 (41 Stat. 437; U. S. C., title 30, sees. 226, 184, 187, and 192), as amended, are amended to read as follows: "SEC. 17. All lands subject to disposition under this Act which are known or believed to contain oil or gas deposits may be leased by the Secretary of the Interior. When the lands to be leased are within any known geological structure of a producing oil or gas field, they shall be leased to the highest responsible qualified bidder by competitive bidding under general regulations, in units of not exceeding six hundred and forty acres, which shall be as nearly compact In form as possible, and any lease so obtained shall be excepted in determining holdings or control under the acreage limitation provisions of any section of this Act. Such leases shall be for a period of ten years and so long thereafter as oil or gas is produced in paying quantities and shall be conditioned upon the payment by the lessee of such bonus as may be accepted and of such royalty as may be fixed in the lease, which shall be not less than 122 per centum in amount or value of the production. When the lands to be leased are not within any known geological structure of a producing oil or gas field, the person first making application for the lease who is qualified to hold a lease under this Act Addendum 065 1

147 se: Document: Date Filed: 08/12/2016 Pa 164 DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN of the Interior to fix rates of a pipe-line company upon the grounds that the tariffs on file with the Interstate Commerce Commission or with the State regulatory body are not "reasonable." To have more than one governmental agency, whether it be State or Federal, exercising a rate-making power over the same utility, will truly be chaotic. It is my understanding that the Secretary of the Interior has entertained the petitions I have referred to, and although he has hot as yet determined the question of whether the rates are or are not reasonable, that provision of the statute remains a threat which unquestionably retards the construction of pipe lines over the public domain. I would like to suggest that a sentence be added to the end of section 28 of the Oil Land Leasing Act which would provide in effect: Rates fixed by any State regulatory commission or by the Interstate Commerce Commission shall be conclusively deemed to be reasonable rate within the meaning of this section.' In conclusion, I want to state that on behalf of the California operators represented by me I have endeavored to point out constructively what we believe will materially strengthen the proposed bill and will further encourage the finding of new oil reserves. I can only express to you our sincere appreciation of the efforts of you gentlemen in endeavoring to assist the oil industry to meet its public responsibilities. I thank you, Mr. Chairman. Senator O'MAHONEY. Thank you, Mr. Watson, for your remarks. The next-speaker I have on my list is Mr. Rodman. Will you come forward, Mr. Rodian? Mr. RODmAN. What I planned on saying has been much better said by others. In view of that I prefer to rest. Thank you. Senator O'MAHONEY. Mr. Ben Parker will be the next speaker. Will you take the witness chair, please. STATEMENT OF BEN H. PARKER, VICE PRESIDENT, FRONTIER REFINING CO., DENVER, COLO. Mr. PARKER. My name is Ben H. Parker. My address is 702 First National Bank Building, Denver 2, Colo. I am vice president of the Frontier Refining Co. and am in charge of that company's leasing and exploration activities. I wish to express my appreciation to Senator O'Mahoney and Senator Hatch for their interest in the proposed changes in the Leasing Act and to thank the subcommittee of the Committee on Public Lands and Surveys for this opportunity to express my views with regard to the proposed bill which would enact important and desirable changes in the Leasing Act. FLAT 12Y PERCENT ROYALTY I wish especially to indicate my belief that a flat 121/-percent royalty with respect to Government leases is essential for adequate exploration and development on Government lands. The company with which I am affiliated became active in the exploration phase of the industry only about 21/2 years ago. We have found that, owing to our late entry into exploration activities in the Rocky Mountain States, areas available to us for prospecting and as yet untested are all extremely difficult and costly to Addendum 066

148 se: Document: Date Filed: 08/12/2016 P DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN 165 prospect and from a geological point of view do not possess production possibilities which will permit our continued prospecting if we are compelled to operate leases with sliding-scale royalties. Our entire exploration program is budgeted and based on the flat 121/2-percent royalty granted for discoveries made during the war emergency under the law of December 24, 1942, and we feel that to maintain our current rate of exploration without reduction in our personnel we must be able to anticipate with assurance that royalties to be paid on Government lands will continue to be at the same 10/- percent rate as is paid by us on privately owned and St4te lands. I am heartily in accord with the proposed change which would permit the surrender or relinquishment by the lessee of the lessee's rights without prior consent of the Secretary of the Interior. Such provision would facilitate leasing operations by the more rapid discharge of chargeable acreage which had been condemned thereby freeing the lessee to acquire additional acreage for prospecting. There are two points not covered by the proposed bill which are important to us and which I wish to call to the attention of this subcommittee. APPROVAL OF LEASES BY THE SECRETARY The first has to do with a feeling within the industry that no drilling operations may be commenced safely in areas containing Government land until all related noncompetitive Government leases are actually issued. My company has recently taken a large block of leases in. an area which is principally privately owned land but which contains some Government land. We desire to commence drilling operations immediately but feel that we caniot do this since the Department of the Interior has not yet taken action on the lease applications. Experience indicates that it may be a year or even longer before these leases are issued and in the meantime development is completely checked owing to our fear that if drilling were commenced and a discovery made prior to the issuance of the Government leases on the structure the Department of the Interior would refuse to issue these leases as noncompetitive leases. This difficulty could be remedied in part at least by speeding up the action by the Department of the Interior so that final action was always taken by the Department on noncompetitive leases within a period of say 30 days after the applicant had met all requirements and conflicts were eliminated. I I feel that the only completely satisfactory solution to this problem, however, would be an amendment to the proposed bill which would state in unequivocal language that the determination of the competitive or noncompetitive character of leases be based entirely on the facts existing as of the date of the lease application. I urge strongly that this subcommittee give serious consideration to such a provision in the proposed bill. UNIFORMITY OF LEASING PROCEDURES The other point which I wish to bring to the attention of thii committee pertains to the present multiplicity of Government organizations which control Government-owned lands and mineral rights. It is well known there is no uniformity of leasing procedures fol- Addendum 067

149 se: Document: Date Filed: 08/12/2016 P 166 DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN lowed by these various Government organizations, but I doubt if the great hindrance caused oil operators by the numerous and varying rules and regulations of the various Government organizations is realized by others than the operators themselves. In one area in which my company is interested we have been compelled to attempt to deal with three different Federal organizations in order to get leases on a few thousand acres of land. I recommend that provision be made in the proposed revision of the Leasing Act so as to bring the leasing for oil and gas of all Government land open for lease under the control of one law and the administration of the Department of the Interior. Senator O'MAHONEY. As I indicated earlier, an effort is being made to work that problem out. Mr. PARKER. In connection with some remarks that have been made to this committee earlier today, there are one or two other points that have come up which I would like to introduce. INTERIOR DEPARTMENT REGULATIONS There was some comment on the part of Mr. Terrill, I believe, and perhaps one other witness with respect to the effect of the regulations of the Department on actual operations. Mr. Duncan, I believe, made a remark or two in that connection. This paper came across my desk yesterday and I wish to introduce it just to show the committee something about the character of these regulations. A well to which this report relates is being drilled by a company with which we are associated in the State. of Wyoming. The well being located on State of Wyoming land and a State of Wyoming lease. The well happens, however, to be Within a unitized area, or an area at least proposed for unitization, so quite naturally, and properly so, the Geological Survey exercises control over that drilling operation. Before the operator in this unit could start the well he had to file with the district office of the United States Geological Survey a notice of intention to drill in which certain plans for that drilling operation were outlined. Again, before he could continue with the starting of that well, which, let us remember is on State land not on public domain, the district engineer made an approval of his intention to drill in the following form: The notice of intention to drill this well is tentatively approved subject to the following conditions: (1) Drilling operations so authorized shall be in conformity with the terms and conditions of Petroleum Administrative Order No. 11 or any modification or amendment thereof that hereafter may be issued. (2) That a satisfactory bond shall be filed and approved to cover unit operations. (3) The well to be permanently marked in a conspicuous place showing the name of the operator, well number, location and lease, certificate number. This mark is to be maintained permanently at the well. (4) A minimum of 200 feet of 13%8-inch 0. D. surface casting is to be run. This is to be in good condition, including top collar and threads and is to be cemented from bottom to surface by an approved method. (5) This approval covers completing the well to produce from one horizon only. * (6) An approved master valve and blowout preventer are to be installed on the 13/-inch 0. D. casting and maintained in good mechanical condition at all times. Sufficient drill-pipe protectors shall be used to protect surface casting during all drilling operations. Addendum 068

150 e: Document: Date Filed: 08/12/2016 P DEVELOPMENT OF OIL AND GAS ON THE PUBLIC DOMAIN 167 (7) 9-inch hole to be drilled for 7-inch 0. D. casing. E. (8) This office is to be notified sufficiently in advance of all tests in order that a representative of the Geological Survey may be present. (9) All showings of oil, gas, and water are to be confined to their respective horizons by circulating heavy mud ahead of the cement when the production string is cemented. Before running each string of casting other than conductor or surface casting a notice of intention is to be submitted and approval obtained before doing the work. (10) A satisfactory drilling record is to be kept for each tower showing the formation drilled and all other information of interest. One copy of which is to be kept at the rig while drilling is in progress for examination when a representative of the Geological Survey visits the well. (11) In addition to the regular subsequent reports of work done, this office is to be furnished with a copy of each of the records furnished by the cementing company and duplicate copies of reports furnished by testing, gun perforating, and well surveying companies; the geology or sample logs and time department charts, if such are prepared, are also to be furnished in duplicate. I do not present this to attempt to show that these particular regulations are unreasonable. In themselves they are not. But I simply wanted to show that there are numerous regulations which are pushed down upon the operator and which he must follow. GEOLOGICAL AND GEOPHYSICAL SURVEYS In connection with the comments which were made by Dean Terrill and Senator O'Mahoney in connection with the requirement or privilege for geophysical and geological examinations, and options thereof, I think it might be wise to call the committee's attention to the fact that there is no sharp line of demarcation between geological surveys and geophysical surveys. There is no geological survey method, of my knowledge, which is not to some extent geophysical in nature. Those are closely related fields and it is impossible to differentiate completely one from the other. I feel that the committee should recognize that when they are considering the advisability of changing the wording of the act to include geological as well as geophysical surveys. I strongly recommend that the geological and geophysical surveys be permitted rather than geophysical surveys alone. That is all I have, Mr. Chairman. Senator O'MAHONEY. Any questions? (No response.) Senator O'MAHONEY. The next witness will be Mr. James Donahue. STATEMENT OF JAMES DONAHUE, PRESIDENT, KINNEY,OIL & DRILLING CO., COLORADO SPRINGS, COLO. Mr. DONAHUE. My name is James'Donahue. I am president of the Kinney Oil & Drilling Co., Colorado Springs, Colo. There has been a great deal said here which I can't add to. I am going to make a few remarks from a practical operation standpoint. FLAT 12/2 PERCENT ROYALTY Under the present laws the high royalties-the tendency today is to go out and acquire an area and unitize it so that the operator will secure the one-eighth royalty. If this unitized area is drilled and finds production usually you find quite a little acreage outside of the unitized area that will eventually prove productive, and all this does Addendum 069

151 4422 grazing. Land is kept off local tax rolls, and the marketplace cannot function in establishing competitive-therefore reasonable fees and rentals. It is in this context that I conclude that the Hansen proposal, on balance, will prove favorable. The value of grazing rights is a function of the net value of the meat it will produce. To peg grazing rights is a function of the net value of the wheat it will provide. To pay rentals to the price of beef and productivity appears to me is as reasonable a basis as any other for setting rentals on land owned by a monopoly landlord. Mr. HASKELL. I yield back my time. The PRESIDING OFFICER. All time has been yielded back. The question is on agreeing to the amendment of the Senator from Wyoming. The yeas and nays have been ordered, and the clerk will call the roll. The legislative clerk called the roll. Mr. MATHIAS. Mr. President, on this vote I have a live pair with the Senator from Oregon (Mr. HATFIELD). If he were present and voting, he would vote "yea." If I were permitted to vote, I would vote "nay." Therefore, I withhold my vote. Mr. ROBERT C. BYRD. I announce that the Senator from Indiana (Mr. BAYH), the Senator from Indiana (Mr. HARTKE), and the Senator from Arkansas (Mr. MCCLELLAN) are necessarily absent. I further announce that the Senator from Montana (Mr. MANSFIELD), the Senator from North Carolina (Mr. MOR- GAN), the Senator from New Hampshire (Mr. DURKIN), and the Senator from New Mexico (Mr. MONTOYA) are absent on official business. I also announce that the Senator from Montana (Mr. METCALF), and the Senator from California (Mr. TUNNEY) are absent because of illness. On this vote, the Senator from New Mexico (Mr. MONTOYA) is paired with the Senator from North Carolina (Mr. MORGAN). If present and voting, the Senator from New Mexico would vote "yea" and the Senator from North Carolina would vote "nay." Mr. GRIFFIN. I announce that the Senator from Oregon (Mr. HATFIELD) is necessarily absent. The result was announced-yeas 36, nays 53, as follows: [Rollcall Vote No. 48 Leg.] Abourezk Baker Bartlett Bellmon Bentsen Buckley Cannon Church Curtis Dole Domenici Eastland Fannin YEAS-36 Fong Garn Goldwater Gravel Griffin Hansen Helms Hruska Inouye Laxalt McClure McGee McGovern NAYS-53 Allen Chiles Beall Clark Biden Cranston Brock Culver Brooke Eagleton Bumpers Ford Burdick Glenn Byrd, Hart, Gary Harry F., Jr. Hart, Philip A. Byrd, Robert C. Haskell Case Hathaway Moss Pearson Randolph Scott, Hugh Scott, William L. Stennis Stevens Thurmond Tower Young Hollings Huddleston Humphrey Jackson Javits Johnston Kennedy Leahy Long Magnuson McIntyre CONGRESSIONAL RECORD- SENATE February 25, 1976 Appellate Case: Document: Date Filed: 08/12/2016 Page: 151 Mondale Percy Stevenson Muskie Proxmire Stone Nelson Ribicoff Symington Nunn Roth Taft Packwood Schweiker Talmadge Pastore Sparkman Weicker Pell Stafford Williams PRESENT AND GIVING A LIVE PAIR, AS PREVIOUSLY RECORDED-1 Mathias, against. NOT VOTING-10 Bayh Mansfield Morgan Durkin McClellan Tunney Hartke Metcalf Hatfield Montoya So Mr. HANSEN S amendment No was rejected. Mr. JACKSON. Mr. President, I am pleased to join with the distinguished senior Senator from Colorado in calling for the prompt enactment of S. 507, the National Resource Lands Management Act. The Federal Government has long overlooked the national resource lands. This valuable resource comprises 20 percent of our entire land base and 60 percent of all Federal property. The neglect of this, our largest single block of federally owned lands must come to an immediate halt. Unfortunately, Mr. President, the Congress must share the blame for the lack of proper attention to these lands. Over the years we have legislated rather extensively concerning other Federal land systems, such as the national forests, parks, wildlife refuges, and wilderness systems; but, in my judgment, we have failed to provide adequate statutory protection for the greatest public land resource-the national resource lands. The public lands of the United States have always provided the arena in which we Americans have struggled to fulfill our dreams. Even today many dreams of wealth, adventure, and escape are still being acted out on these farflung lands. These lands and the dreams-fulfilled and unfulfilledwhich they foster are a part of our national destiny. They belong to all Americans. What we do with the public lands of the United States tells a great deal about what we are-what we care forand what is to become of us as a nation. Until recently, the lands under the jurisdiction of the Bureau of Land Management have been, for the most part, neglected lands. They were the leftovers from which were carved lands for homesteading, parks, forests, or other uses considered more important. They have not even been dignified with a name other than public domain. Other Federal lands have been given titles which befit their importance-such as national parks, national forests, and national seashores. Therefore, the very first section of this bill would give these lands the name of "national resource lands." Hopefully, this symbolic gesture of respect will complement the numerous, necessary authorities which this legislation would provide for the management of these lands.. Until the 20th century and the establishment of the national park, forest, and other Federal land systems, nearly all the Federal lands were in the category of what this act designates as national resource lands. Although the establishment of the various Federal land systems presaged the end of the era of wholesale disposal of Federal lands, it was only with the Taylor Grazing Act of 1934 that the general policy of disposal of national resource lands was altered. The Bureau of Land Management, the agency charged with the task of administering the national resource lands, is the successor agency to the General Land Office which was established by the act of April 25, 1812, as a bureau of the Treasury Department. The office was transferred to the Department of the Interior when that department was created in Passage of the Taylor Grazing Act led to the establishment of the Grazing Service to manage grazing districts authorized under the act. In 1946, the General Bureau of Land Management. Although many areas within the national resource lands tend to be less desirable from a recreational or scenic point of view than the lands already selected for inclusion in the national systems, our country s expanding and more mobile population has placed increasing demands for public use on these lands. In addition, our Nation s economy requires the fuels, minerals, timber, and forage resources on and under the national resource lands. In order to meet these demands, the Bureau of Land Management has fully adopted the retention philosophy and is managing those lands so as to provide for a wide variety of uses. However, the Bureau s efforts have been impeded by its dependence on a vast number of outmoded public land laws which were enacted in earlier periods in American history when disposal and largely uncontrolled development of the public domain were the dominant themes. The agencies which have jurisdiction over the other national systems possess modern statutory mandates which reflect changing philosophies toward management of the Federal lands. The Organic Act of the Forest Service, first passed in 1897, and amended thereafter, remains a "modern" mandate, particularly When supplemented by the Multiple Use-Sustained Yield Act of The Park Service s Organic Act of 1916 has been renewed through amendments and through individual acts creating national parks. Our pride in these laws must necessarily be tempered by the recognition of our failure to provide a complementary statutory base for the Bureau of Land Management and its national resource lands. The lack of a modern management mandate for the Bureau and its dependence on some 3,000 public land laws, many of which are clearly antiquated, were among the reasons for congressional recognition of a need to review and reasses the entire body of law governing Federal lands. This review was begun when, on September 19, 1964, Congress created the Public Land Law Review Commission. After 5 years of extensive investigations, the Commission completed its review and submitted its final report, entitled "One Third of the Nation s Addendum 070

152 February 25, 1976 Appellate Case: CONGRESSIONAL Document: RECORD- Date SENATE Filed: 08/12/2016 Page: 152 Land," to the President and the Congress on June 20, The report contains 137 numbered, and several hundred unnumbered, recommendations designed to improve the Federal Government s custodianship of the Federal lands. The legislation we introduce today is in accordance with over 100 of these recommendations. Principal among these recommendations is the Commission s view that: The policy of large-scale disposal of public lands reflected by the majority of statutes in force today (should) be revised and that future disposal should be only those lands that will achieve maximum benefit for the general public in non-federal ownership, while retaining in Federal ownership those whose values must be preserved so that they may be used and enjoyed by all Americans. S. 507, as reported by the Interior Committee, specifically adopts this goal in stating as policy that "the national interest will be served by retaining the national resource lands in Federal ownership" and that management of these lands will be "under principles of multiple use and sustained yield in a manner which will * * * assure the environmental quality of such lands for present and future generations." In addition, the Commission emphasized a need to develop "a clear set of goals for the management and use of public lands ** * * particularly * * * (For) lands administered by the Bureau of Land Management." The Commission s report stated specifically that: A congressional statement of policy goals and objectives for the management and use of public lands is needed to give focus and direction to the planning process. The bill also answers this call of the Commission by providing a clear statement of goals and objectives by which these lands must be managed. The National Resource Lands Management Act also directs the Secretary of the Interior to prepare and maintain an inventory of the national resource lands and their resources. Congressional recognition of the importance of such authority for proper management of the national resource lands has been long standing, as demonstrated by the passage of the 1964 Classification and Multiple Use Act. That act contained temporary authority providing the Bureau of Land Management with criteria to conduct a systematic effort to classify lands. However, this authority expired on December 23, 1970, and unless we enact the legislation, the Bureau of Land Management will continue to lack the necessary authority to properly manage the national resource lands. Perhaps the most critical finding of the Commission is the appalling absence of the enforcement authority so necessary for any land management agency. The National Resource Lands Management Act would provide the BLM with authority similar to that already possessed by the Park Service and the Forest Service. Mr. President, we must act expeditiously on this measure. It has been 12 years since the creation of the Public Land Law Review Commission, 6 years since the submission of its report and the expiration of the Classification and Multiple-Use Act, and 6 years since I first introduced a National Resource Lands Management Act. This bill s predecessors have been reported three times by the Senate Interior Committee and passed twice by the Senate. It would not be in the public interest to delay further. The PRESIDING OFFICER. Under the previous order, the engrossment and third reading of the bill are now in order. The question is on the engrossment and third reading of the bill. The bill was ordered to be engrossed for a third reading, and was read the third time. The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall it pass? This will be a 10-minute vote. The clerk will please call the roll. Mr. FORD. Mr. President, may we have order? The PRESIDING OFFICER. The Senate will be in order. There was a unanimous-consent agreement for a 10-minute rollcall on this vote. The clerk will call the roll. Mr. ROBERT C. BYRD. Mr. President, upon the disposition of this matter- Mr. PASTORE. Mr. President, may we have order? This is a very important announcement. Mr. ROBERT C. BYRD. Upon the disposition of this matter there will be no more rollcall votes today. The PRESIDING OFFICER. The clerk will call the roll. The second assistant legislative clerk called the roll. Mr. ROBERT C. BYRD. I announce that the Senator from Indiana (Mr. BAYH), the Senator from Indiana (Mr. HARTKE), and the Senator from Arkansas (Mr. MCCLELLAN) are necessarily absent. I further announce that the Senator from Montana (Mr. MANSFIELD), the Senator from Kentucky (Mr. HUDDLE- STON), the Senator from North Carolina (Mr. MORGAN), the Senator from New Hampshire (Mr. DURKIN), and the Senator from New Mexico (Mr. MONTOYA) are absent on official business. I also announce that the Senator from California (Mr. TUNNEY), and the Senator from Montana (Mr. METCALF) are absent because of illness. I further announce that, if present and voting, the Senator from North Carolina (Mr. MORGAN) would vote "yea." Mr. GRIFFIN. I announce that the Senator from Oregon (Mr. HATFIELD) is necessarily absent. I further announce that, if present and voting, the Senator from Oregon (Mr. HATFIELD) would vote "yea." The result was announced-yeas 78, nays 11, as follows: [Rollcall Vote No. 49 Leg.] Abouresk Allen Baker Beall Bellmon Bentsen Biden Brock Brooke Buckley Bumpers YEAS-78 Burdick Byrd, Harry F., Jr. Byrd, Robert C. Cannon Case Chiles Church Clark Cranston Culver Dole Eagleton Eastland Fong Ford Haskell Glenn Gravel Griffin Hart, Gary Hart, Philip A. Hathaway Hollings Hruska Humphrey Inouye Jackson Javits Johnston Kennedy Leahy Long Magnuson Mathias McGee McGovern McIntyre Bartlett Curtis Domenici Fannin Bayh Durkin Hartke Hatfield So the follows: Mondale Moss Muskie Nelson Nunn Packwood Pastore Pearson Pell Percy Proxmire Randolph Ribicoff Roth Schweiker Scott, Hugh NAYS-11 Garn Goldwater Hansen Helms 4423 Scott, William L. Sparkman Stafford Stennis Stevens Stevenson Stone Symington Taft Talmadge Thurmond Weicker Williams Young Laxalt McClure Tower NOT VOTING-11 Huddleston Montoya Mansfield Morgan McClellan Tunney Metcalf bill (S. 507) was passed, as s. 507 An act to provide for the management, protection, and development of the national resource lands, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) this Act may be cited as the "National Resource Lands Management Act". (b) TABLE OF CONTENTS.- Sec. 2. Definitions. Sec. 3. Declaration of policy. Sec. 4. Rules and regulations. Sec. 5. Public participation. Sec. 6. Advisory boards and committees. Sec. 7. Annual report. Sec. 8. Director. Sec. 9. Appropriations. TITLE I-GENERAL MANAGEMENT AUTHORITY Sec Management. Sec Inventory. Sec Land use plans. TITLE II-CONVEYANCE AND ACQUISI- TION AUTHORITIES Sec Authority to sell. Sec Disposal criteria. Sec Sales at fair market value. Sec Size of tracts. Sec Competitive bidding procedures. Sec Right to refuse or reject offer of purchase. Sec Reservation of mineral interests. Sec Conveyance of reserved mineral interests. Sec Terms of patent. Sec Conforming conveyances to State and local planning. Sec Authority to issue and correct documents of conveyance. Sec Recordable disclaimers of interests in land. Sec Acquisition and exchange of land. Sec Omitted lands. TITLE III-MANAGEMENT IMPLEMENT- ING AUTHORITY Sec Studies, cooperative agreements, and contributions. Sec Service charges, reimbursement payments, and excess payments. Sec Working capital fund. Sec Deposits and forfeitures. Sec Contracts for cadastral survey operations and resource protection. Sec Unauthorized use. Sec Enforcement authority. Sec Cooperation with State and local law enforcement agencies. Sec California desert area. Sec Mineral revenues. Sec Recordation of mining claims. Addendum 071

153 Appellate Case: Document: Date Filed: 08/12/2016 Page: 153 Addendum 072