Tipton guest opinion: BLM rushing to highway robbery in lease review
This week I spoke on the House floor to address an ongoing environmental review process within my district that I firmly believe represents yet another in a long line of abuses of private property rights by the federal government, and more specifically the land management agencies that oversee a majority of the land in the western United States. The outcome of this process will likely set a disturbing precedent under which the integrity of contracts into which federal agencies enter with private parties is undermined.
The Bureau of Land Management is currently reviewing 65 existing oil and gas leases issued in the White River National Forest beginning in 1993. This retroactive review was prompted by a 2007 decision on three of the leases by the Interior Board of Land Appeals in which the BLM was found to have not formally adopted a Forest Service environmental analysis that was utilized to make the leasing decisions — basically what amounts to an administrative oversight.
It should be emphasized here that extensive environmental review did in fact take place, and that the BLM played a significant role in that process. The agency argued as much to the Board of Land Appeals during the review. The fault was simply the need for BLM to sign on the dotted line, and the board expressly made this option available to remedy the problem. However, instead of adopting that commonsense approach, the BLM succumbed to political pressure from environmental extremists and determined to revisit every one of the leases issued since 1993.
The new proposal from BLM deals with the leases in one of two ways; it either imposes new, significantly restrictive stipulations that were not in place at the time the original leases were acquired, or it outright revokes the leases. The federal government is acting as nothing more than a highway robber, in this case and many others, robbing citizens and businesses of property they have bought and paid for and telling us that we should just be grateful there’s someone looking out for our greater interests.
I highlight this particular process because, should the BLM follow through with certain of its proposed actions, it will set a precedent not only for oil and gas development, but for any lessee or permittee, who, when entering into contract in good faith with a federal agency, may see their lease or permit threatened with retroactive revocation or severely restricted based on any flimsy pretext. Many important industries rely on federal leases and permits, including livestock grazing, recreation and renewable energy, and no business can successfully operate if its license to do so no longer enjoys protections against arbitrary cancellations or changes depending on the ideology of the current occupant of the White House.
Numerous stakeholders and local governments recognized that the BLM’s final decision would have impacts far beyond those to the specific leases in question, and undertook efforts to draft detailed and substantive feedback to the agency. This is a very laborious and time-consuming process, yet the BLM provided only the bare minimum public comment period required by the law, and the agency’s scheduled comment period overlapped the Thanksgiving, Christmas and New Year holidays. It also overlaps another environmental review comment period for the well-known Roan Plateau, which involves many of the same stakeholders and local governments, and has been under review in some form since the late 1990s.
As such, several stakeholders and local governments, with the support of several members of Colorado’s congressional delegation, requested a modest extension to the comment period. These extension requests are routinely granted by federal agencies in recognition of the technical nature of these issues, interruptions due to federal holidays, and when there are several similar issues under review simultaneously. Despite this, the requests in this instance were dismissed out of hand. One can only conclude that the BLM is afraid of the scrutiny that could result from its effectuating a government taking of property rights under the guise of rectifying an administrative error from over 20 years ago.
It is abundantly clear that the BLM intends to ramrod through a decision which will trample lease owners’ rights by cancelling or altering leases to the point as to make them economically unviable. This is unfortunately in line with a disturbing trend of federal agency abuses of private property rights, whether it is the Forest Service’s repeated attempts to leverage special use permits to forcibly acquire private water rights or the EPA’s determination to classify every ditch and puddle as a “Water of the United States” to further insert itself in to the everyday lives of ordinary, hard-working Americans.
Property rights and the integrity of contracts are at the very foundation of our liberal economic system. Yet too often federal agencies casually cast these important considerations aside. If the BLM is confident that it is making the right decision and is willing to defend it, then it should have no problem providing additional time for the public and other interested stakeholders to comment on their proposed actions in the White River National Forest.
Scott Tipton is a Republican who represents Colorado’s 3rd District in the U.S. House.
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