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, DC.  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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DC Circuit Decision on OCS 5-Year Plan Not Final Yet

The DC Circuit is giving consideration to a request from the federal government that entire 5-year (2007-2012) offshore leasing plan for the Outer Continental Shelf (OCS) not be completely vacated for violation of the Outer Continental Shelf Lands Act.  In mid-April, the court ordered in Center for Biological Diversity v. Department of Interior that the current 5-year plan be vacated, even though the case originally challenged only leases in certain parts of Alaska.  In a mid-May filing, Interior asked the DC Circuit to reconsider or clarify that decision.  Interior argues that vacating the entire program would cause broader disruptions that are severe and unnecessary. 

The government’s brief states that the court’s order might require the interruption of exploration and production activity in the Gulf of Mexico and the validity of 487 leases already issued in the Chukchi Sea and 1,854 more issued in the Gulf of Mexico even though the plaintiffs have not identified any injury arising from existence of these leases, nor from further exploration and development activity on the Gulf of Mexico leases.  Given the court’s very broad order, the government asks that the court clarify the intended scope of its order and/or amend the order to remand the 5-year program to Interior for additional consideration without vacating it.

The DC Circuit has signaled that it is at least giving some consideration to the government’s request, ordering the plaintiffs to respond to the brief by the end of May.  Under the court’s rules, the government’s request for reconsideration could have been disposed of without asking for a response from the opposing party. 

Congress Gives OK on Guns in National Parks

Last week, Congress voted to allow licensed gun owners to carry loaded guns in national parks and wildlife refuges as long as they are allowed by the law of the state in which the park or refuge is located.  The legislation essentially reverses a federal district court decision issued in March, which blocked a December 2008 policy change by the Bush Administration to allow park visitors to carry concealed, loaded firearms in accordance with the laws of the state in which the national park or wildlife refuge was located.  Current regulations, which were first implemented during the Regan Administration, allows citizens to transport unloaded and dismantled or cased firearms, and to carry firearms while participating in approved hunting programs and under certain other circumstances

Congressional proponents argue that the measure merely aligns national park and wildlife refuge gun policy with regulations governing national forests and property controlled by the Bureau of Land Management.  The policy change will not take effect until February 2010.  In a press release issued late last week, the Department indicated that as it implements the new policy, it will provide additional guidance to park and refuge employees and visitors as the firearms possession rules will now be based on varying state firearms laws.

Department Taking Closer Look at 77 Cancelled Leases amidst New Litigation

Much has been made of Secretary Salazar’s decision to revoke oil and gas leases on 77 parcels of federal land in Utah in early 2009, including protests from Sen. Robert Bennett (R-UT) and Sen. Lisa Murkowski (R-AK) that held up the confirmation of Deputy Secretary nominee David Hayes until last week.  In convincing the Senators to allow a confirmation vote to proceed, the Secretary has set out some specifics about Interior’s plan for reviewing the cancelled leases.  Writing to Sen. Bennett in mid-May, the Secretary promised that upon confirmation, Deputy Secretary Hayes would: make a site visit to Utah within 10 days of confirmation; meet with BLM, the Park Service, and other governmental entities in Utah on the cancelled leases; meet with all interested stakeholders in a community forum in Utah; review the administrative record concerning the 77 lease parcels and provide a report with recommendations on the leases by May 29; and meet with Sen. Bennett and the Secretary concerning the report.  The Secretary’s plan has been set in motion as Hayes was scheduled to meet with community members in Utah on May 26 to gather community input for a review of the cancelled leases.

Despite this movement, the Department is now facing a suit filed by three Utah counties (Carbon, Duchesne, and Uintah) alleging that the Secretary exceeded his authority in withdrawing the leases.  The counties believe that Salazar did not have the discretion to cancel leases once the parcels have been identified, auctioned off, and purchased.  Several oil and gas companies have also filed suit in Utah against Interior, making similar claims.  They allege that the parcels at issue were nowhere close to the sensitive areas that Secretary Salazar was attempting to protect when revoking the leases. 

Salazar Retains Bush Administration Polar Bear Rule

Earlier this month, Secretary Salazar announced that he will retain a special rule issued by the Bush Administration in 2008 for protecting the polar bear under the Endangered Species Act.  The polar bear is listed as a threatened species under the Act, meaning it is at risk of becoming an endangered species throughout all or a significant portion of its range.  However, the rule (enacted under section 4(d) of the ESA) states that incidental take of polar bears resulting from activities outside the bear’s range, such as emission of greenhouse gases, cannot be prohibited under the ESA.   

In a statement certainly welcomed by industry, the Secretary indicated that the ESA is not the mechanism for controlling carbon emissions.  Instead, he called for a comprehensive energy and climate strategy that curbs climate change and its impacts.

In a recent letter to Sen. Murkowski, the Secretary further clarified the Department’s views, indicating that ESA consultations are not required for projects that emit greenhouse gases in cases in which such emissions cannot be causally linked to specific impacts on specific species.  The Secretary stated that he expects DOJ will rely on this position in any litigation involving the federal government on these issues, and that courts will take judicial notice of the Department’s views in any third party litigation.

Appointments Buzz

A number of key Interior appointments have been finalized in the last week, and only a few top-level slots are left to fill.  Newly confirmed appointees include:

• David J. Hayes, Deputy Secretary.  Hayes was sworn in as Deputy Secretary last week.  He returns to the same position he held at Interior between 1999 and 2001.

• Larry EchoHawk, Assistant Secretary for Indian Affairs.  EchoHawk was sworn in as Assistant Secretary for Indian Affairs last week.  EchoHawk is an enrolled member of the Pawnee Nation of Oklahoma, and most recently was a professor at Brigham Young University Law School.

• Michael Connor, Commissioner, U.S. Bureau of Reclamation.  Connor was confirmed by the Senate as Commissioner late last week.  For the last eight years, Connor served as Counsel to the Senate Energy and Natural Resources Committee.  From 1993 to 2001, he held several positions at Interior, including deputy director and then director of the Secretary’s Indian Water Rights Office. 

• Rhea S. Suh, Assistant Secretary for Policy, Management and Budget.  Suh was confirmed by the Senate last week.  Suh comes to Interior from the David and Lucile Packard Foundation, where she was a program officer managing an initiative designed to build ecological integrity and resilience in key lands and watersheds in western North America.

• Bob Stanton, Deputy Assistant Secretary for Policy, Management, and Budget.  Stanton was recently appointed to this position by Secretary Salazar.  His prior Interior experience includes serving as Director of the National Park Service from 1997 to 2001.

Senate confirmation is still needed for nominees Hillary Tompkins (Solicitor), Wilma Lewis (Assistant Secretary for Land and Minerals Management), and Anne Castle (Assistant Secretary for Water and Science). 

Although no formal announcements have been made, it appears that Jon Jarvis will be tapped as the nominee for National Park Service Director.  Jarvis has been with the Park Service since 1976, and is currently director of the Pacific West region.