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Blancett v. United States Bureau of Land Management

March 20, 2006

LINN BLANCETT, ET AL., PLAINTIFFS,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, owners of a New Mexico cattle ranch with grazing rights on federal lands, bring this action against the Bureau of Land Management ("BLM") and several of its management officials pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, alleging that BLM has failed to comply with mandatory duties under the Taylor Grazing Act and BLM regulations implementing the Mineral Leasing Act by not taking enforcement action against oil and gas operators and pipeline companies who have violated BLM regulations. The federal defendants and defendant-intervenor New Mexico Oil and Gas Association (collectively, "defendants") move for judgment on the pleadings or, in the alternative, for summary judgment, on the ground that the Court lacks subject matter jurisdiction because the APA does not authorize judicial review of the alleged failures to act. The Court held a hearing on the motions on October 28, 2005. For the reasons explained below, the Court grants defendants' motions for judgment on the pleadings.

BACKGROUND

I. Statutory and Regulatory Background

A. Taylor Grazing Act

The Taylor Grazing Act of 1934 delegates to the Interior Department the "enormous administrative task" of determining the bounds of the public range and creating and regulating grazing districts, which even today encompass millions of acres still being actively grazed. See Public Lands Council v. Babbitt, 529 U.S. 728, 734, 737 (2000). Enacted in response to problems created by population growth, forage competition among cattle, and inadequate range control, the Act set as specific goals "to 'stop injury' to the lands from 'overgrazing and soil deterioration,' to 'provide for their use, improvement and development,' and 'to stabilize the livestock industry dependent on the public range.'" Id. at 734 (quoting 48 Stat. 1269).

The Act authorizes the Secretary "to issue or cause to be issued permits to graze livestock," and further provides that "[s]o far as consistent with the purposes and provisions of this subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit . . . shall not create any right, title, interest, or estate in or to the lands." 43 U.S.C. § 315b. At the same time, the Act protects other competing interests. For example, it provides that "nothing contained in this subchapter shall restrict prospecting, locating, developing, mining, entering, leasing, or patenting the mineral resources of such districts under law applicable thereto." 43 U.S.C. § 315e. Under this provision, the BLM must not only consider mineral interests, but must give them priority over grazing privileges. See Hinton v. Udall, 364 F.2d 676, 678-79 (D.C. Cir. 1966) (noting that the interests of Taylor Grazing Act permit holders "were expressly made subordinate to mineral interests by Section 6 of the Taylor Act, 43 U.S.C. § 315e").

B. Mineral Leasing Act

In 1920, Congress enacted the Mineral Leasing Act, 41 Stat. 437, as amended, 30 U.S.C. §§ 181 et seq., to regulate the disposition of mineral resources on lands in the public domain. See generally Andrus v. Shell Oil Co., 446 U.S. 657, 658-59 (1980). The Act provides for leasing of mineral rights, with title to the lands to remain in the federal government, subject to a savings clause for rights that had accrued under pre-existing law. Id. (citing 30 U.S.C. § 193). The Act authorizes 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 of this chapter." 30 U.S.C. § 189. Pursuant to this authority, the Secretary has promulgated regulations codified at 43 C.F.R. Part 3160 on Onshore Oil and Gas Operations, with the objective of "promot[ing] the orderly and efficient exploration, development and production of oil and gas." 43 C.F.R. § 3160.0-4. Part 3160, among other things, contains detailed provisions addressing the jurisdiction and responsibility of the agency (Subpart 3161), requirements applicable to operating rights owners and operators (Subpart 3162), and noncompliance (Subpart 3163).

C. Federal Land Policy and Management Act

BLM's management of public lands is also governed by the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. ("FLPMA"), which provides that BLM "shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans" developed by the agency. 43 U.S.C. § 1732(a). As the Supreme Court has noted, "'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, 'including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.'" Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (quoting 43 U.S.C. § 1702(c)). The principle of "sustained yield" refers to sustaining "a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use." 42 U.S.C. § 1702(h). Nothing in FLPMA repeals existing law by implication. Pub. L. 94-579, § 701(f), 90 Stat. 2743, 2786 (1976).

II. Factual Background

Although the completeness of the administrative record remains in dispute, the Court has determined that this matter is ripe for resolution. The facts relevant to resolution of the motion are not in dispute and, and to the extent gaps exist, the Court will construe the factual allegations of the complaint in the light most favorable to plaintiffs. Plaintiffs Linn and Treciafaye Blancett have rights to graze cattle on a 32,000 acre ranch located in San Juan County, New Mexico, consisting of 86 percent federal land, 10 percent state land, and 4 percent private land.*fn1 Compl. ¶ 13. The Blancett family has ranched the area since 1881, and leased their grazing allotment from the BLM since the early 1930s. Id. ¶ 14.

Since granting the Blancett family this allotment, BLM has leased more than 400 well sites on the same allotment to oil and gas operators and pipeline companies (collectively, "oil and gas operators"), but has failed to require those companies to comply with BLM regulations that provide for protection of the environment. Id. ¶¶ 15-17. As alleged by plaintiffs, BLM's failure to enforce the regulations has resulted in the following types of violations:

A. Improperly constructed reserve pits, overflow pits, and drip/condensate tanks allowing leaks and contaminations;

B. Oil, gas and pipeline sites with trash and debris present;

C. Equipment on oil, gas and pipeline sites not painted to blend ...


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