OJO ENCINO CHAPTER

192 IBLA 269 Decided March 19, 2018

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. Quincy St, Suite 300

22203

703-235-3750 703-235-8349 (fax)

OJO ENCINO CHAPTER

2018-17 Decided March 2018

Appeal from a decision of the New Mexico State Director, Bureau of Land Management, denying a protest of a notice of competitive oil and gas lease sale.

Motion to dismiss granted,' appeal petition for stay denied as motion for extension of time denied as moot.

1. Rules of Practice: Appeals: Standing

Under the Board's regulations, to appeal and seek a stay of a BLM decision, an appellant must have standing. To have standing, an appellant must demonstrate that it is both a party to a case and adversely affected by the decision i t seeks to appeal to the Board. I t is the responsibility of the appellant to demonstrate both of these elements of standing. I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.

2. Rules of Practice: Appeals: Standing

An appellant challenging a BLM decision denying a protest of an oil and gas lease sale offering leases of oil and gas resources underlying multiple parcels of land must demonstrate standing as to each particular parcel to which its appeal relates.

APPEARANCES: George Werito, Ojo Encino Chapter President, for Ojo Encino Chapter, Navajo Nation; Benjamin Vaccaro, Esq., U.S. Department of the Interior, Office of the Regional Solicitor, Albuquerque, New Mexico, for the Bureau of Land Management.

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OPINION BY ACTING DEPUTY CHIEF ADMINISTRATIVE JUDGE

Ojo Encino Chapter of the Navajo Nation (Ojo Encino) has appealed from and petitioned to stay the effect of an October 2, 2017, decision issued by the State Director of the New Mexico State Office, Bureau of Land Management (BLM). In the decision, the State Director denied Ojo protest of a January 25, 2017, Notice of Competitive Oil and Gas Internet-Based Lease Sale offering four parcels of public land in Rio Arriba County and Sandoval County, New Mexico.

SUMMARY

To have standing under the Board's regulations, an appellant must be a party to the case and adversely affected by the decision i t seeks to appeal. Because Ojo Encino submitted comments during the scoping period and was a participant during the consultation process BLM conducted pursuant to the National Historic Preservation Act with respect to the lease sale, i t qualifies as a party to a case. But Ojo Encino does not demonstrate that i t is adversely affected by BLM's decision denying its protest. Because Ojo Encino provides only general statements about its and its members' use of roads in the area where oil and gas leasing wi l l occur, i t has not shown that it has a legally cognizable interest that is injured by the lease sale. We therefore grant BLM's motion to dismiss and dismiss Ojo Encino's appeal.

BACKGROUND

A. Notice of Lease Encino's Protest, and BLM's Decision Dismissing the Protest

On November 9, the BLM New Mexico State Office published a Notice of Competitive Oil and Gas Internet-Based Lease Sale (Notice of Lease Sale) offering four parcels for sale for onshore oil and gas development.1 The parcels, totaling 842.66 acres, include Federal land in Rio Arriba and Sandoval Counties, New Mexico.2 The Notice of Lease Sale announced that the sale would be held online on January 25, The Notice of Lease Sale specified that a protest of inclusion of any of the parcels in the sale must be filed by "mail in hardcopy form or by telefax," and that BLM would not accept protests filed by electronic mail.4 In the

Notice of Lease see 30 § (2012); 43 C.F.R. Part 3120 (Competitive Leases). Notice of Lease Sale at i , 1-2. Id. at i . Id. at ix.

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Notice of Lease Sale, BLM further stated that any "protest filed by electronic mail wi l l be dismissed."5

On December 6, 2016, Ojo Encino submitted a protest to BLM by electronic mail.6 On October 2, 2017, BLM issued a decision dismissing Ojo Encino's protest.7

In that decision, BLM stated that its do not show that the Ojo Encino Chapter attempted to mail or fax in a protest during the protest period."8 BLM therefore dismissed Ojo Encino's protest for failure to submit the protest "either by mail in hardcopy form or by telefax as specified in the Sale Notice. The protestor improperly submitted its protest by electronic mail despite the Sale Notice specifically prohibiting the submission of protests by electronic mail."9

B. Ojo Encino's Appeal and BLM's Motion to Dismiss

Ojo Encino appealed from and petitioned to stay the effect of BLM's October 2, 2017, decision dismissing its protest. BLM filed a motion to dismiss the appeal, alleging that Ojo Encino lacked standing to bring its appeal, or in the alternative that Ojo Encino failed to state any error in the BLM decision dismissing the protest. In an Order dated November 17, 2017, we explained that because B L M questioned the Board's jurisdiction over Ojo Encino's appeal and stay petition, we had to first rule on BLM's motion to dismiss before we could rule on Ojo Encino's stay petition. We therefore held Ojo Encino's petition for a stay in abeyance so that we could adjudicate BLM's motion.

Ojo Encino subsequently moved to withdraw its appeal based on its assumption that the regulations at 43 C.F.R. §§ 4.21(a) and 3120.1-3 prevent the Board from granting a stay of a BLM decision denying a protest. We found Ojo Encino's reasoning to be legally incorrect, explaining that while BLM's decision denying the protest is currently in effect, the regulations at 43 C.F.R. §§ 4.21(a) and 3120.1-3 do not prevent the Board from granting a stay of a BLM decision to deny a protest. We therefore denied Ojo Encino's motion to withdraw its appeal, and granted i t additional time to respond to BLM's motion to dismiss.10

Id. Motion to Dismiss, Exhibit (Ex.) 2, E-mail from Ojo Encino to BLM, attaching

protest of lease sale (Dec. 6, 2016). Id., Ex. 1, Decision, January 25, 2017, Oil & Gas Lease Sale Protest of Four

Parcels, Protest Dismissed (Oct. 2, 2017). Id. at 2. Id. Order (Dec. 11, 2017).

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Ojo Encino has filed its response, arguing that i t has standing before the Board. Ojo Encino also requests an extension of time to file a Statement of Reasons, i f the Board "grants Ojo Encino Chapter standing."11 We now resolve the jurisdictional issue presented in BLM's motion.

DISCUSSION

A. The Regulatory Requirement to Ha ve Standing to Appeal to the Board and Petition to Stay a Decision

To appeal and seek a stay of a BLM decision, an appellant must have standing under 43 C.F.R. § 4.410(a). 12 This regulation requires an appellant to demonstrate that it is both a "party to a case" and "adversely affected" by the decision i t seeks to appeal to the Board.13 I t is the responsibility of the appellant to demonstrate both of these elements of standing.14 I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.15

The "party to a case" requirement is satisfied when an appellant has "participated in the process leading to the decision under appeal, e.g., . . . by commenting on an environmental document, or by filing a protest to a proposed

The second element of standing, adverse effect, is met when the appellant shows that i t has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.17 A legally cognizable interest can include "cultural, recreational, or aesthetic use and enjoyment of the affected public lands."18 But a mere interest in a problem or

Response at 21. See 43 C.F.R. § 4.21(a)(2) ("[A] petition for a stay may be filed only by a party

who may properly maintain an appeal."). Id. § 4.410(a). Western Watersheds Project (WWP), 192 IBLA 72, 76 (2017); WildLands

Defense, 189 IBLA 203, 206 (2017); Blue Mountains Biodiversity Project, 188 IBLA 143, 146 (2016); WWP, 185 IBLA 293, 298 (2015).

WWP, 192 IBLA at 76; WildLands Defense, 189 IBLA at 206; Blue Mountains Biodiversity Project, 188 IBLA at 146; WWP, 185 IBLA at 298; WildEarth Guardians, 183 IBLA 165, 170 (2013).

43 C.F.R. § Id. § 4.410(d). WWP, 192 IBLA at 77; see Cascadia Wildlands, 188 IBLA 7, 9-10 (2016); WWP,

187 IBLA 316, 321 (2016).

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concern with the issues involved is not sufficient to establish standing.19 Rather, in order to demonstrate an adverse effect, an appellant must make colorable allegations, supported by specific facts set forth in an affidavit, declaration, or other statement, that establish a causal relationship between the approved action and alleged injury to a legally cognizable interest.20 While an appellant need not prove that an injury is certain, the appellant must show that the threat of an injury and its effect on the appellant are more than hypothetical.21

The information provided in support of an appellant's standing must as much specific evidence as possible about what interests are allegedly injured and what the connections are between those interests and the decision [the appellant] seeks to What is key is that an appellant must demonstrate a connection between its activities and interests, and the lands subject to the decision on appeal, and we have held that an appellant does not have standing when i t does not establish that i t "has used or in the future wi l l use" the lands impacted by the decision on appeal.23

[2] In the context of an appeal from a BLM decision denying a protest of a notice of lease sale offering leases of oil and gas resources underlying multiple parcels of land, an appellant challenging such decision must demonstrate standing as to each particular parcel to which its appeal relates.24 This means the appellant must show that i t has a legally cognizable interest that is substantially likely to be injured as a result of the leasing of each parcel to which i t objects.25 We have explained:

"[W]hile an individual or a group has the to protest all parcels offered at a lease sale, dismissal of such a protest does not guarantee the right to appeal the dismissal as to all parcels." Rather,

WWP, 192 IBLA at 77; Board of Commissioners of Pitkin County, 173 IBLA 173, 178 (2007); Corp., 151 IBLA 190, 195 (1999).

Cascadia Wildlands, 188 IBLA at 10; Native Ecosystems Council, 185 IBLA 268, 273 (2015); The Fund for Animals, Inc., 163 IBLA 172, 176 (2004); Fred E. Payne, 159 IBLA 69, 73 (2003).

WWP, 192 IBLA at 77; Legal & Safety Employer Research Inc., 154 IBLA 167, 172 (2001) ("Standing wi l l only be recognized where the threat of injury is real and immediate."). 22 v. BLM, 182 IBLA 1, 6 (2012) (quoting The Coalition of Concerned National Park 165 IBLA at 88).

Theodore Roosevelt Conservation Partnership, 178 IBLA 201, 208 (2009). WWP, 192 IBLA at 79. Id.

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standing to appeal must be demonstrated as to particular parcel to which the appeal

B. Ojo Encino is a Party to a Case Because it Participated in the Process Leading to BLM's Decision

BLM argues that Ojo Encino does not qualify as a party to a case under the Board's regulations because i t "did not consistently participate in the BLM's decision making process."27 BLM argues that although Ojo Encino submitted comments during the scoping period, i t did not submit comments on the environmental assessment (EA) BLM prepared for the lease sale.28 BLM also argues that Ojo Encino does not qualify as a party to a case because i t did not properly file its protest.29

In addition to submitting scoping comments before BLM prepared its EA,3 0

Ojo Encino also participated in the process BLM conducted pursuant to the National Historic Preservation Act related to the lease sale.32 And Ojo Encino states that, as a result of a meeting with BLM on January 17, 2017, to discuss the lease sale, BLM issued an amendment to the Notice of Lease Sale specifying that conditions of approval would be applied at the permit stage.33

Biodiversity Conservation Alliance, 183 IBLA 97, 108 (2013) (quoting Wyoming Outdoor Council, 153 IBLA 379, 384 (2000)).

Motion to Dismiss at 10 n.9. Id. Id. ("[T]he Chapter did not participate because it failed to abide by the protest

procedures outlined in the Sale Notice when i t improperly emailed its protest . . . ."). January 25, 2017, Competitive Oil

and Gas Lease Sale (Nov. 7, 2016) (EA), at 7 (specifying that BLM received comment letter from Ojo Encino Chapter) (available at

10-05_FINAL_January_2017_Lease_Sale_DOI-BLM-NM-F010-2016-0001_EA_FONSI.pdf (last visited Mar. 15, 2018)); Decision Record at 3 (Oct. 5, 2017).

§§ 300101-307108 (2012). EA at 29 (stating that BLM contacted Tribes, including Ojo Encino, during the

consultation process, and "Ojo Encino Chapter . . . responded" and "provided a Chapter Resolution in opposition to leasing"), 83 (stating that consultation and outreach meetings were held with various Chapter House residents, including "the

of Ojo Encino"); see Response at 2-3 (describing meetings between BLM and Ojo Encino).

Response at 3.

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As we note above, the Board's regulations define a party to a case to include an appellant that has "participated in the process leading to the decision under appeal . . . Such participation may include "commenting on an environmental document."35 But there is nothing in the regulations requiring a party to submit comments on an EA to satisfy the party-to-a-case requirement, or requiring "consistent" participation, and BLM cites no authority for its argument.

Moreover, we have explained that the purpose of the party-to-a-case requirement is '"to afford a framework by which decisionmaking at the departmental and State Office level may be intelligently I f an individual or organization has been a party to a case and then seeks review of a BLM decision,

is presumed that the Bureau had the benefit of that individual's input when the original decision was made . . .

Ojo Encino's participation in the scoping and processes associated with the lease sale, as well as other meetings i t engaged in with BLM related to the lease sale, fulfill the regulation's purpose of giving BLM the benefit of Ojo Encino's input at the time BLM made its decision, and therefore satisfy the regulation's requirement for participation in the "process leading to the decision under appeal." Based on its participation, we find that Ojo Encino qualifies as a party to a case. We therefore need not address BLM's additional argument that Ojo Encino is not a party to a case based on its failure to properly submit its protest.

C. Ojo Encino Does Not Demonstrate That It Is Adversely Affected by BLM's Decision and Therefore It Does Not Have Standing

1. An Appellant May Demonstrate Standing to Appeal a BLM Decision Denying a Protest to an Oil and Gas Lease Sale When the Lease Does Not Include a Lease-Wide Prohibition on Surface Disturbance

As a threshold matter, BLM argues generally that Ojo Encino does not have standing because i t cannot demonstrate that the leasing decision has any "immediate and real" adverse effects since "further site specific [National Environmental Policy Act (NEPA)] analysis wi l l be required at the [Application for Permit to Drill] stage of development as opposed to the leasing stage at issue

43 C.F.R. § Id. Wildlands Defense, 187 IBLA 233, 237 (2016) (quoting Committee for Idaho's

High Desert, 159 IBLA 370, 372 (2003) (quoting California Association Pour Wheel Drive Clubs, 30 IBLA 383, 385 (1977))). Id.

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here."38 In support of this argument, BLM cites to our decision in Board of County Commissioners of Pitkin County Colorado (Pitkin where we held that appellants did not have standing to appeal BLM decisions affirming the suspension of operations and production on oil and gas leases. We found that because BLM would not make a decision about whether the leases be voided, reaffirmed or subject to additional mitigation measures for site specific development proposals'" until after i t completed additional NEPA compliance, any injuries asserted by appellants as a result of the lease suspensions were "contingent on a series of future occurrences that may or may not happen."40

But Pitkin about a BLM decision to approve suspensions on existing leases. Here, what is at issue is lease issuance in the first instance. And Board case law establishes that an appellant challenging inclusion of a parcel in an oil and gas lease sale may satisfy the adverse effect prong of standing when i t demonstrates that its legally cognizable interests are substantially likely to be injured by development of that particular parcel.41 An appellant may meet this requirement when BLM's decision is to lease a parcel without a lease-wide stipulation prohibiting surface disturbance (a no surface occupancy, or NSO, stipulation), and the appellant demonstrates i t has a legally cognizable interest i n the parcel that is substantially likely to be injured by development of the parcel, even though the timing, manner, and extent of development may be uncertain.42

This is because the issuance of a lease without a lease-wide no surface occupancy stipulation is an irreversible and irretrievable commitment of public resources for private use, making development sufficiently likely to satisfy the Board's requirement that the lease sale be substantially likely to cause injury.4 3

Motion to Dismiss at 10,' see id. at 12. 186 IBLA 288, 297 (2015), reconsideration denied, 187 IBLA 328 (2016), petition

for review filed, Case No. 1:17-CV00959 (D. Colo. Apr. 19, 2017). Id. at 295; see id. at 298 ("The injuries alleged by the Appellants thus are not

'real and immediate'. . . nor are any such injuries a consequence of BLM's decisions to suspend the Leases, which simply maintain the status quo pending completion of new NEPA.").

WWP, 192 IBLA at 79. Id. (citing Biodiversity Conservation Alliance, 183 IBLA at 108; The Coalition of

Concerned National Park 165 IBLA at 81). Id. (citing Pitkin County, 186 IBLA at 301-02).

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Because the leases at issue in this appeal are subject to limited no surface occupancy stipulations that do not apply lease-wide,44 standing may be established based on impacts from future development of the leases. We therefore reject BLM's argument that Ojo Encino cannot demonstrate standing based on the nature of BLM's leasing decision, and now turn to whether Ojo Encino has demonstrated that i t has standing to appeal BLM's October 2, 2017, decision denying its protest of the Notice of Lease Sale.

2. Ojo Encino Does Not Demonstrate That It Has a Legally Cognizable Interest Substantially Likely to be Injured by the Lease Sale

Ojo Encino explains that, "[w]hile none of the [lease sale] parcels are within the land use planning area of Ojo Encino Chapter, the chapter does have voting members either residing on or living next to the lands in question."45 Ojo Encino asserts that i t has legally cognizable interests because its members and the Chapter itself use roads that wi l l be impacted by development of the leases.46 Ojo Encino states that "[a] large portion of residents of Ojo Encino Chapter utilize dirt roads in Counselor to access Farmington, NM," and that the "quickest routes to Farmington use dirt roads within Counselor which are also frequented by oil/gas Ojo Encino asserts that the impacts from heavy truck traffic on these roads, which i t states "do not appear to have been designed for heavy loads," wi l l be greater than impacts from regular And Ojo Encino states that these impacts wi l l lead to degraded road conditions, "which have impacted drivers who use these roads for work, economic needs, and to travel in general."49

Similarly, Ojo Encino also argues that, as an organization, i t is injured by the impacts to roads that wi l l occur from development of the leases.50 Ojo Encino states that i t owns a truck that i t "uses for various Chapter governmental activities and needs."51 I t states that i t uses "roads in Counselor to engage with Ojo Encino voting members who are residents of Counselor Chapter," and "to engage in other community and governmental activities in the area which are of importance to Ojo

See Notice of Lease Sale, Stipulation (NSO) ("No Surface Occupancy or Use: Occupied Structures and Dwellings"), Stipulation F-44 (NSO) ("No surface occupancy is allowed within 660 feet of any occupied residences of a community.").

Notice of Appeal at 2. Id. at 8-10. Id. at 8. Id. at 9. Id. at 10. Id. at 10. Id.

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Encino Chapter."52 And i t states that its truck "traverses Counselor roads to attend meetings and procure supplies from the Farmington area."53

There is no dispute that development of the leases wi l l result in impacts to roads in the area. In the EA, BLM acknowledges that development may impact people living near or using the area in the vicinity of the leases.54 BLM specifically states that " M i l and gas exploration, drilling, or production could create a disruption to these people due to increased traffic and traffic delays," among other impacts, and that "[t]his could be especially noticeable in rural areas where oil and gas development has been minimal."55 To address these impacts, BLM amended the Notice of Lease Sale to specify that mitigation measures would be analyzed during the NEPA process for Applications for Permits to Dri l l , and added as conditions of approval to permits.56

But Ojo Encino fails to satisfy its burden to demonstrate standing based on injuries as a result of the impacts to roads from oil and gas development. As we have explained, in order to establish standing, an appellant must provide specific information about what interests are injured and how that injury is caused by the decision on appeal.57 For example, we have found that an organization had standing to challenge a BLM decision denying a protest to an oil and gas lease sale when a member of the organization submitted maps showing the location of the parcels to be sold and the roads the member used for recreational activities.58

Similarly, we found that an organization had standing to challenge a BLM decision denying a protest to an oil and gas lease sale when a member demonstrated that he drove and stopped along a route with views of all of the parcels to be leased to enjoy the scenery and observe wildlife.59

In contrast, we have held that standing cannot be established when an appellant Tribe asserted that i t was adversely affected by a BLM decision, but expressed only a general interest in the public lands and resources affected by a project, which was located approximately 200 miles from the Tribe's reservation.60

Id. Id. EA at 73. Id. Amendment No. 2, Competitive Oil and Gas Lease Sale Notice (Jan. 19, 2017). Cascadia Wildlands, 188 IBLA at 10 (citing WWP, 182 IBLA at 6). WWP, 192 IBLA at 80-81. The Coalition of Concerned National Park [Service] Retirees, 165 IBLA at 87. Confederated Tribes the Goshute Reservation, 188 IBLA 102, 107-08 (2016);

id. at 108 ("[The Tribe] asserts general interests attributable to the fact that it is a

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Similarly, we have held that an organization lacked standing when i t asserted only a general interest in BLM's management of wild horses on Federal lands and failed to provide colorable allegations of adverse effect.61

Here, Ojo Encino provides only general statements about its members' and the Chapter's use of roads in the area. Although traffic wi l l likely be increased as a result of oil and gas development on the parcels, Ojo Encino does not identify any specific instances when the Chapter or a member or members have used such roads. Nor does Ojo Encino provide any specific information detailing which roads the Chapter and its members use or where these roads are in relation to each parcel.

Ojo Encino also suggests that the increased traffic resulting from oil and gas development on the parcels, as well as emissions from such future development, could impact air quality in the region.62 Ojo Encino states that i t has an interest in "ensuring that environmental parameters exceed basic national minimums for air quality."63 But just like its assertions that impacts to roads from development wi l l cause injury, Ojo Encino's assertions about air pollution are vague and speculative. At most, Ojo Encino expresses a mere interest in the impacts resulting from development, which is not sufficient to establish standing.

We note that in support of its standing Ojo Encino also points to two resolutions i t passed stating its objections to the lease But these resolutions do nothing more than voice Ojo Encino's concerns with the lease sale and do not demonstrate that the Chapter or any member has a legally cognizable interest substantially likely to be injured by the lease sale. They therefore do not establish Ojo Encino's standing.

Ojo Encino's general statements are insufficient to establish a causal relationship between BLM's decision and any alleged injury to a legally cognizable

Federally-recognized Indian tribe 'whose current reservation is located in eastern Nevada and western Utah, and whose ancestral homelands and current cultural territory encompasses all of the Project area, since time

Front Range Equine Rescue, 187 IBLA 269, 278 (2016) ("[A] general interest cannot serve as a proper basis for standing to appeal, no matter how meritorious the arguments that are raised in support of the appeal."), dismissed without prejudice, Case No. (D. Colo. Nov. 29, 2017).

Response at 11. Id. Id. at 7-8 (citing Resolution 06-12-16/009, passed June 12, 2016, and

Resolution #11-17-16/002, passed Nov. 17, 2016, Attachments 2 and 3 to Response).

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interest. We therefore conclude that it does not have standing to pursue its appeal and petition for a stay.

Because we conclude that Ojo Encino has not satisfied its burden to demonstrate that it has standing to appeal BLM's October 2, 2017, decision denying its protest of the November 9, 2016, Notice of Lease Sale, we lack jurisdiction to consider Ojo Encino's appeal and petition for a stay.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,65 we grant BLM's motion to dismiss and dismiss Ojo Encino's appeal. We also deny Ojo Encino's petition for a stay as moot, and deny its motion for an extension of time to file a Statement of Reasons as moot.

CONCLUSION

I concur:

43 C.F.R. § 4.1.

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