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 tcollier@steptoe.com) or Jody Cummings (202.429.8096 or jcummings@steptoe.com). 

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Salazar Scratches Drilling Leases Plan – At Least for Now

Secretary Salazar has announced that the Bureau of Land Management would cancel oil and gas leases that were offered on 77 parcels of federal lands.  The decision directing BLM not to accept bids on the leases reverses a last minute move by the Bush Administration to allow drilling on more than 100,000 acres of federal land in Utah near several famous national parks and monuments, including Arches and Canyonland National Parks, Dinosaur National Monument, and Nine Mile Canyon.  In announcing the decision, Secretary Salazar cautioned that while the nation needs to develop its own oil and gas supplies to reduce dependence on foreign oil, such actions must be taken in a thoughtful and balanced way that provides for the protection of our landscape and cultural resources. 

While it seems unlikely to happen, the Secretary did not completely rule out the possibility of re-opening the 77 parcels for lease bidding.  He indicated that the Department would take a closer look at the Bush Administration’s decision to open the areas to drilling, specifically including the adequacy of the environmental review and analysis that led to the parcels being offered for oil and gas development.  Salazar also raised concerns that BLM’s consultation with other agencies, especially the National Park Service, on a decision to lease the parcels was inadequate.

The Bush Administration’s decision to permit drilling in these areas has also been the subject of federal court litigation in Washington, D.C., as a handful of environmental advocacy groups sued late last year to stop BLM from issuing the leases.  Shortly before President Obama’s inauguration, D.C. District Court Judge Ricardo Urbina granted the plaintiffs’ request for a temporary restraining order – which provided at least a temporary halt to the BLM’s ability to move forward with the leases – and ordered further briefing.  The federal government has just filed an unopposed motion requesting additional time before submitting further briefing to the court so that the Secretary’s directive could be implemented by BLM. The brief also signaled the parties’ ostensible agreement that the Secretary’s decision has effectively mooted the need for an injunction against BLM.

Natural Resources Subcommittee Leadership is Set     

House Natural Resources Committee Chairman Nick Rahall (D-WV) and Ranking Member Doc Hastings (R-WA) have just announced assignments for the Committee’s four Subcommittees.  Leadership for the Subcommittees includes:

• Subcommittee on Energy and Mineral Resources: Jim Costa (D-CA), Chair; Doug Lamborn (R-CO), Ranking Member
  
  
• Subcommittee on Insular Affairs, Oceans and Wildlife: Madeleine Z. Bordallo (D-Guam), Chair; Henry E. Brown, Jr. (R-SC), Ranking Member
  
  
• Subcommittee on National Parks, Forests, and Public Lands: Raúl M. Grijalva (D-AZ), Chair; Rob Bishop (R-UT), Ranking Member
  
  
• Subcommittee on Water and Power: Grace F. Napolitano (D-CA), Chair; Cathy McMorris Rodgers (R-WA), Ranking Member

Senate Energy and Natural Resources Committee: A Look Ahead

We were able to get a word with insiders this week about what Senate Energy and Natural Resources Chairman Jeff Bingaman’s agenda may hold in store natural resources and federal lands issues.  It looks like the following are among his priorities for the 111th Congress:

• Securing significant funding in the stimulus bill for the national parks, national forests and other public lands.
  
  
• Fixing the U.S. Forest Service’s “fire borrowing” problem. In bad forest fire years, the Forest Service borrows money from other accounts to cover firefighting costs.  Even when Congress ultimately reimburses those accounts, the full amount never completely returns to the projects that were delayed or shorted.
  
  
• Identifying a dedicated funding source for important NPS projects and operations.
  
  
• Investigating an organic act for the Minerals Management Service (MMS), and the possibility of making the MMS Director subject to Senate confirmation.
  
  
• New authorization for grants, technical assistance and improved agency accountability for rural community development projects for forest thinning and other sustainable forestry activities on federal lands.

Look for the Chairman to drop an energy bill in the coming weeks, and spend significant time involved in the formation of climate change legislation.  The vibe is that while he has some definite ideas on nationals parks and public lands issues, these priorities will be largely eclipsed by the attention he will likely devote to possible changes in national energy policy.

Appointments Buzz

Fish and Wildlife Service – Some Names and Priorities

We hear that three top candidates have emerged for the Fish and Wildlife Service (FWS) Director spot:  Dan Ash, former FWS Assistant Director; Dr. Russ Mason, Chief of the Michigan Department of Natural Resources Wildlife Division and former Game Chief for the Nevada Department of Wildlife; and Tod Stevenson, Director for the New Mexico Department of Game & Fish.  We also hear that Jamie Clark, Executive Vice President of Defenders of Wildlife and former FWS Director during the Clinton Administration, could  throw her hat in the ring for the top FWS job.

Issues on top of the list for any new FWS Director will focus mostly on reauthorization of the Endangered Species Act, and wrestling control of the statute away from the courts and back to the Department. The continued challenge of habitat designation plagues the Department, and will certainly need to be addressed.  Some unique challenges include the sage grouse, polar bears and wolves.  In addition there is a back log of Natural Resource Damages Act cases in the regions where FWS is a trustee.  Many of these assessments have been underway for years and may find a more aggressive position taken by a Salazar-led Department.

Indian Affairs – EchoHawk Making Nice With Tribes?

Although no formal nomination announcement has been made, all signs continue to point to BYU Law professor and Pawnee tribal member Larry EchoHawk as the likely nominee for Assistant Secretary for Indian Affairs.  That notion gained considerable strength this week as word leaked that EchoHawk has reached out to tribes to smooth over concerns relating to positions he took on tribal gaming while acting as Idaho’s Attorney General in the 1990s.  There had been speculation that some tribes were not completely pleased with EchoHawk’s possible nomination.  However, as several more tribes have reportedly written to the President this week to support EchoHawk’s nomination, last week’s concerns have apparently dissipated.        

Old Friend Returns to EPA

We were extremely pleased to learn recently that our old friend Robert Sussman will be returning to the Environmental Protection Agency as senior policy counsel to EPA Administrator Lisa P. Jackson.  Bob will be advising Jackson on climate and environmental issues across the agency.  During the Clinton Administration, Bob was EPA Deputy Administrator, second in command at the agency.  He is currently a climate change expert at the Center for American Progress

Enviros Unhappy?

So far, no selections have been made for Interior sub-cabinet level positions from the environmental community.  Rumblings are certainly occurring within that community, but rumor has it that the Obama Administration is looking for a more middle of the road approach in its appointments than many thought would be the case.  This tension will be  interesting to follow in coming weeks and months as the Department’s leadership fills out.   

Rahall Takes Another Stab at Revising Mining Law

House Natural Resources Committee Chairman Rahall has introduced legislation to overhaul the General Mining Act of 1872, the Hardrock Mining and Reclamation Act of 2009 (H.R. 699).  The bill appears to be nearly identical to a measure passed in the House in 2007.  In describing the new legislation, Chairman Rahall has indicated that its features include:

• An 8 percent royalty on production from future hardrock mines on public lands, and a 4 percent royalty from currently operating mines.
  
  
• A permanent end to the sell-off of public lands that contain mineral resources.
  
  
• The establishment of a clean-up fund for abandoned hardrock mine sites. 
  
  
• Stronger review requirements, specifically for mines proposed near national parks.
  
  
• A threshold environmental standard for mining to promote protection of public lands if a mining proposal would irrevocably destroy other equally valuable resources.

Chairman Rahall has been very critical of current law as set out in the General Mining Act of 1872, which he has described as, among other things, antiquated and lacking appropriate mining and reclamation standards.  The bill currently has 21 co-sponsors, and now awaits further action from the House Natural Resources Committee.