Welcome to The New Interior, a periodic update from Steptoe & Johnson LLP to keep you informed of coming changes at the Department of Interior, and for related matters on Capitol Hill and elsewhere with a new administration taking charge in Washington, D.C.  We intend to bring you the very latest on anticipated moves by the Obama Administration and in the 111^th Congress over the next several months, as a new direction takes shape for Interior-related positions and policies.

If you would like to speak with a Steptoe attorney about our Interior practice, please reply to this email or contact Tom Collier (202.429.6242) or Jody Cummings (202.429.8096). 

DOI Appointments: Look for “Acting” Appointments Next and More

Other than our recent mention of David Hayes as the likely nominee for Deputy Secretary of Interior, news on DOI’s next group of Assistant Secretaries and Bureau Directors and other political appointments has been limited.  It is unlikely that we will see much action on this front until after Senator Salazar is confirmed as Secretary. 

That being said, rumor has it that Jon Berry, who Hayes edged out for the Deputy Secretary spot, will become Director of the Office of Personnel Management.  We also hear that Laura Daniels-Davis, who served as Hayes’ Chief of Staff and chief Congressional lobbyist when Hayes was Deputy Secretary during the Clinton Administration will return to DOI in the new Administration.  In addition, look for Michael Connor, a staffer on the Senate Committee on Energy and Natural Resources to end up as Assistant Secretary for Water and Science.

As is customary with administration changes, expect a handful of DOI career employees to be appointed as “acting” heads of DOI’s sub-agencies for the next several months until new DOI leaders can be nominated and confirmed.  It is likely that the following individuals will take on “acting” positions at the beginning of the Obama Administration:

• Rowan Gould, Acting Director, Fish and Wildlife Service (currently in this position)
• Walter Cruikshank, Acting Director, Minerals Management Service
• Ron Wenker, Acting Director, Bureau of Land Management
• Dan Wenk, Acting Director, National Park Service
• Amy Holley, Acting Assistant Secretary for Water and Science
• Rich Cardinale, Acting Assistant Secretary for Land and Minerals Management
• George Skibine, Acting Assistant Secretary for Indian Affairs (currently in this position)

Senate Pushes Through Omnibus Lands Bill, Headed to the House

After overcoming Sen. Tom Coburn’s (R-OK) filibuster efforts with a successful cloture vote early this week, the Senate passed on January 15 the Omnibus Public Lands Management Act, a bill that contains more than 160 bills primarily from the Senate Committee on Energy and Natural Resources.  The package includes 159 bills that were considered by that committee in the last Congress.

The legislation would, among other things, designate over 2 million acres of wildness in nine different states, designate over 1,000 miles of new additions to the National Wild and Scenic River system, and establish in the law BLM’s National Landscape Conservation System, a collection of national monuments and conservation areas administered  by BLM.  A number of land exchanges and conveyances are authorized by the bill.  The package also incorporates a number of measures that will address water resource needs on the local and national level.

Critics of the bill indicate that the legislation will limit new opportunities for mining, logging, and oil and gas leasing.  They say the bill removes from public use several million acres that would otherwise be available for recreational, commercial and private ownership use.  Some also raise the expected cost of implementing the legislation as a leading concern.  The Congressional Budget Office scored a very similar version of the bill in the 110th Congress at $8 billion, which included more than $7 billion of discretionary spending, and nearly $1 billion in mandatory spending.

The measure now goes to the House, where approval seems likely.  The House approved a similar measure last Congress despite the Senate’s failure to get it passed.

More on Midnight Regulations: Do Democrats Have Recent DOI Rulemakings in the Crosshairs?

Speculation is rampant that Congressional Democrats may seek to nullify a number of recent Bush Administration rulemakings, including several new regulations coming out of DOI and its sub-agencies, through a rarely-used process provided by the Congressional Review Act of 1996 (CRA). 

Under the CRA, any federal agency that promulgates a rule must submit it to Congress before the rule can take effect. The CRA permits Congress, through joint resolution, to prohibit the rule from becoming law.  If the rule is invalidated, the agency cannot reissue the same rule or any substantially similar rule, except under authority of a subsequently enacted law.  The applicable time frames for review established under the Act could give Congress a chance to overturn regulations finalized by the Bush Administration during the last half of 2008.

A group of House Democrats have just acted in efforts to overturn under the CRA a controversial Endangered Species Act consultation rulemaking we discussed in our first issue of The New Interior.  Several other recent DOI rulemakings could also come under CRA scrutiny, including:

• BLM Rule, “Oil Shale Management – General” (RIN: 1004-AD90): This rulemaking sets out the policies and procedures for the implementation of a commercial leasing program for the management of federally-owned oil shale and associated minerals located on federal lands.  The rule would lead to leasing 2 million acres of public land in Colorado, Utah and Wyoming.  Opponents are concerned about extensive environmental impacts of the exploration process, which includes significant energy and water use.

• BLM Rule, “Land Withdrawals; Amendment of Regulations Regarding Emergency Withdrawals” (RIN: 1004-AE05): This rulemaking, which provided  only a 15-day comment period, amends BLM’s emergency withdrawal regulation to remove language that directs the Secretary of the Interior to immediately make an emergency withdrawal upon notification by the House Natural Resources Committee or Senate Energy and Natural Resources Committee.  Critics charge that the rulemaking gave no opportunity for environmental analysis of the proposed rule change, and will subject the Grand Canyon to harms resulting from uranium mining and contamination. The rule overrides a House Natural Resources Committee resolution issued in June 2008 directing Secretary Kempthorne to immediately withdraw the million acres of public lands near Grand Canyon National Park from all forms of mineral entry and location.

• Office of Surface Mining Reclamation and Enforcement Rule, “Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams” (RIN 1029-AC04): This rule establishes permit application requirements and review procedures for applications that propose to place excess spoil or coal mine waste from surface coal mining operations into waters of the United States. Among other things, it will require that mine operators minimize the creation of excess spoil and the adverse environmental impacts resulting from the construction of excess spoil fills.  Opponents claim that the rule could make it easier for mining companies to dump debris from mountaintop removal into waterways, deteriorating water quality and causing other environmental harms.

Salazar Received Well by Committee, Confirmation Appears On Track

Sen. Ken Salazar (D-CO) went before the Senate Energy and Natural Resources Committee on January 15 for a hearing on his nomination for Secretary of Interior.  The Committee, of which Salazar is still technically a member, appeared to receive him warmly. His written comments to the Committee highlighted several issue areas that may be telling for Interior policy over the next four years.

On energy issues, Salazar emphasized an interest in reducing dependence on foreign oil, modernizing the interstate electrical grid, expanding the use of renewable energy (solar, wind) on public lands, and assisting tribes in developing renewable energy resources on tribal lands.  He called for measured use of conventional energy resources such as coal, oil, and natural gas, as well as promoting responsible energy development in areas like the Alaska National Petroleum Reserve and prioritizing construction of the Alaska natural gas pipeline.

Discussing water issues, Salazar suggested assistance to local communities in reducing water use by investing in new water conservation technology, and encouraging innovative, market-based conservation programs like voluntary water banks to help communities develop programs that work for them.

Moving to tribal concerns, Salazar highlighted the importance of recognizing nation-to-nation relationships and addressing Interior’s trust management issues.  He also mentioned partnering with tribal communities to advance sustainable economic development, and addressing educational needs for Indian children, including the repair and construction of Indian schools.

In a repeated theme, Salazar indicated that science would be a primary guide for Interior policy.  He was non-committal about maintaining several recent controversial Bush Administration rulemakings, including policy on snowmobiles and guns in national parks, and protection for gray wolves.  He also indicated that Interior could consider how global warming impacts endangered species protection.