With Mining Law Segregation on 10 Million Acres to Expire in Three Months, Interior Forms Sage-Grouse Review Team

by Stoel Rives LLP
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Late Wednesday Secretary of the Interior Zinke signed Secretarial Order 3353 establishing a Sage-Grouse Review Team to review the Obama Administration’s 2015 amendments to federal land use management plans.  To avoid listing the greater sage-grouse under the Endangered Species Act, those plan amendments had proposed that over 10 million acres of “sagebrush focal areas” on public lands in six western states be withdrawn from mineral location and entry under the General Mining Law for up to 20 years.  The new Sage-Grouse Review Team’s work will include recommending changes to the amended plans that “give appropriate weight to the value of energy and other development on public lands within BLM’s overall multiple-use mission.”  Comprised of representatives from various Department of the Interior agencies and working with the U.S. Forest Service and state agencies, the Sage-Grouse Review Team is to provide a written report on or before August 6, 2017.

This expedited schedule is propelled by a rapidly approaching late September 2017 decision point. When adopting the plan amendments and proposing the withdrawal in 2015, the Obama Administration commenced a temporary segregation period of up to two years during which the location and entry of new mining claims is prohibited within those “sagebrush focal areas.”  That two-year period will end September 24, 2017, which will likely force Trump Administration decisions regarding both the proposed withdrawal and the underlying Endangered Species Act issue.  (Prior post on proposed withdrawal here; prior post on withdrawal’s draft environmental impact statement here.)

Meanwhile, litigation over the plan amendments continues. (Prior article summarizing litigation as of September 2016 here.)  Appeals have been filed in two of the lawsuits.  In late March Idaho Governor Otter appealed Judge Sullivan’s decision earlier this year that he lacked standing to challenge the plan amendments.  Days later, in a lawsuit brought by several Nevada counties, Judge Du concluded that the federal government’s adoption of the 2015 plan amendments failed to comply with the National Environmental Policy Act (NEPA) because substantial changes had been made to the proposed plans, such as designating millions of acres of “sagebrush focal areas,” without affording an opportunity for public comment.  As a result, the plan amendments were remanded for preparation of a supplemental environmental impact statement, but the court denied the requested injunction against implementation of the plan amendments.  The plaintiffs appealed that decision yesterday.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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