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Secretarial Discretion

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Secretarial Discretion

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    1. Secretarial Discretion Beatty & Wozniak, P.C. Bill Sparks

    3. Broad discretion to manage federal lands Create land use plans and inventory public lands Determine which lands open for oil and gas leasing and development Details left to the Secretary and BLM

    5. Broad discretion by the Secretary to issue leases by noncompetitive process in lands not within known geologic structure. Lands “may be leased by the Secretary.” 41 Stat. 437 (1920) Broad discretion to decided whether or not to lease. Udall v. Tallman, 380 U.S. 1, 4 (1965)

    6. “All lands…which are known or believed to contain oil or gas deposits may be leased by the Secretary.” 30 U.S.C. § 226(a) Adds competitive sale process

    7. “Leases shall be issued within 60 days following payment by the successful bidder of the remainder of the bonus bid….” 30 U.S.C. § 226(b)(1)(A)

    8. “A winning bid shall be the highest oral bid by a qualified bidder….” 43 C.F.R. § 3120.5-1(a) “A lease shall be awarded to the highest qualified bidder.” 43 C.F.R. § 3120.5-3(b) “A bid … shall constitute a legally binding commitment to execute the lease bid form and accept a lease.” 43 C.F.R. § 3120.5-3(a) Creates a binding contract

    9. “once [the Secretary] has decided to lease, it is mandatory that he issue a lease to the first qualified applicant, if he is going to lease at all.” Southwestern Petroleum Corp. v. Udall, 361 F.2d 650, 654 (10th Cir. 1966)

    10. “once the Government notifies a high bidder that the bid is acceptable, the Government has contractually obligated itself to issue the lease upon fulfillment of the conditions in 43 C.F.R. 3210.5(b).”

    11. The Bureau of Land Management Wilderness Review and Valid Existing Rights, M-36910, 88 I.D. 909, Solicitor William H. Coldiron (October 5, 1981) Issuance of lease establishes property right and valid existing right

    12. “Once the lease is issued however, the applicant has valid existing rights in the lease.” 88 I.D. 909, 912 “‘valid existing rights’ are those rights short of vested rights that are immune from denial or extinguishment by exercise of secretarial discretion.” 88 I.D. at 912

    14. “Decision to Lease” Leases offered Leases sold High bids declared Money accepted Secretary’s internal memorandum Parcels withdrawn

    15. Challenging Secretary’s authority to withdraw leases 2 months after sale When is discretion exercised? “Leases shall be issued within 60 days following payment by the successful bidder of the remainder of the bonus bid….” 30 U.S.C. § 226(b)(1)(A) Decision expected fall/winter 2010

    17. Lease Sale IBLA Appeal Stay issued Wyoming Range Act Decision rejecting lease bids IBLA Appeal

    18. 22,000 acres of leases already issued “Preferred Alternative” is to cancel leases What happened to that property right? Options

    19. “A department spokesman confirmed that Secretary of Interior Ken Salazar will allow lessees who bid $114 million on 31 parcels to retain those leases.” Public Land News, Sept. 2, 2009 “one of those things that I have a responsibility to do is to honor the law and the leases that have been issued and they have been signed off on then we need to honor those rights.” February 22, 2010 interview

    20. Unissued leases – $100 Million Utah Wyoming Colorado

    21. 2008 December Lease Sale Hundreds of parcels sold and unissued in citizen proposed wilderness areas & BLM lands that possess “wilderness characteristics” in 2008 RMPs

    22. Sage-grouse ESA Listing & critical habitat designation or core areas Wyoming Range Citizen wilderness proposed areas

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