Sage Grouse Habitat Still Gets Priority in BLM Leasing Decisions

Last week, Chief Judge Brian Morris of the Federal District Court for the District of Montana vacated an “Instruction Memorandum” issued by BLM in 2018 – and also vacated numerous oil and gas leases issued in reliance on the 2018 IM.  The 2018 IM changed the way BLM interpreted land management plans issued by BLM in 2015 in order to preserve sage grouse habitat, and avoid the necessity for listing the sage grouse as endangered under the ESA.

The short version is that the 2015 plans required BLM to prioritize for leasing land that is not sage grouse habitat.  The 2018 IM required BLM to give priority to land that is not sage grouse habitat only when BLM has a backlog of potential leasing sites to review.  BLM provided no explanation for the change in how it addressed prioritization.  The Court was, of course, aware that the BLM changes resulted from President’s Trump’s drive to expand oil and gas leasing on federal lands.  Its response was short and to the point:

“Faster and easier lease sales,” at the expense of potentially imperiling the habitat of a species on the brink of listing under the ESA, falls short.

Interestingly, given the push by conservatives to decrease the deference given to agency interpretation of their own rules, BLM sought deference to its interpretation of the 2015 plan.  Here, too, the Court gave short shrift to BLM:

Courts do not defer to agency interpretations of a management plan that prove inconsistent with the plain language of the plan.

Finally, and perhaps most importantly, the Court vacated both the IM and the leases, notwithstanding BLM’s request that the Court remand without vacatur.

The Court sees no reason to leave the 2018 IM in place. BLM’s errors undercut the very reason that the 2015 Plans created a priority requirement in the first place and prevent BLM from fulfilling that requirement’s goals. As for the lease sales, the errors here occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.

That paragraph could serve as a fitting epitaph for this Administration’s overall effort to undo the entire environmental regulatory structure put in place since 1970.

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