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Summary Judgment

Secretary Zinke’s Monumental Disappointment in Montana

Sep 30, 2017 | by William Perry Pendley

Secretary of the Interior Ryan Zinke’s leaked report on President Trump’s ordered review of 27 national monument designations or expansions of the last 21 years was trebly disappointing.  He failed to recommend revocation of any Clinton and Obama decrees despite finding that many failed to satisfy the requirements of the Antiquities Act of 1906.  He offered boundary adjustments for only four (two in Utah, one in Oregon, and one in the Pacific) but suggested, with unwarranted optimism, the worst of the others could be eased by expanding the lawful activities there.  Finally, he urged using the widely discredited Act to set more land off limits, including, in his backyard in Montana.  Because the national forest he wants closed holds oil and gas leases issued by the Reagan administration that were cancelled illegally by Obama’s official, the question is whether he and Attorney General Jeff Sessions will defend lawlessness.

In 1982, the Bureau of Land Management (BLM) issued Sidney M. Longwell of Baton Rouge, Louisiana, a 6,247-acre oil and gas lease in the Badger-Two Medicine Area of the Lewis and Clark National Forest—south of Glacier National Park, the Great Northern Railroad, and U.S. Highway 2, east of private lands, and southwest of the Blackfeet Reservation in Glacier County in northwestern Montana.  In 1983, an application for permit (APD) to drill a single well was submitted to evaluate the potential of that part of the Overthrust Belt, whose unique geology may yield “100 trillion cubic feet of natural gas.”  After repeated reviews under the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA), which found no “cultural resources” and identified “no religious site or activities,” the APD was approved in 1985, 1987, 1991, and finally in 1993—subject to onerous mitigation measures and mandated new reviews if producible quantities of energy were found.

Nonetheless, the Clinton administration tried to kill the lease.  In 1993, 1994, 1995, 1996, and 1997, Secretary Babbitt temporarily suspended lease activity for various purposes; then, in 1998, he made it indefinite.  (In 1983, the nearby Blackfeet tribe supported leasing, but over the years changed its position, issued drilling rights on its reservation, and asserted the area is sacred, although one federal official suggested that a $5 million payment would remove all objections.)  In 2013, Mr. Longwell sued Obama officials to end the decades-long suspension.  In 2015, hearing of his forlorn plight, a federal judge called it “Kafkaesque” and ordered a prompt decision.  In 2016, the Secretary of the Interior ruled; but, instead of allowing Mr. Longwell to do what he contracted for and was lawfully permitted to do, she cancelled his lease and voided his APD.        

To call the decision unprecedented is an understatement.  At no time in the history of the Mineral Leasing Act of 1920, which has been amended and updated over the decades and through which Congress authorized Secretaries to issue and oversee oil and gas leases, such as the one held by Mr. Longwell, has an energy lease been cancelled, unilaterally, let alone one issued more than three decades earlier and subjected to a decade of intense, thorough, and painstaking review.  Stunningly, however, federal lawyers concede that the cancellation of the 33-year-old lease is not based upon any express delegation of authority from Congress.  Instead, they propound an amorphous “inherent authority” under the Constitution’s Property Clause, which reads, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….”  That makes one thing clear:  the power over all federal lands belongs solely to Congress and grants no authority, express or implied, to the Secretary.

President Trump and Secretary Zinke have done so much right on energy issues; it would be outrageous for them to allow a parochial issue, a desire to expand the government’s power, and deference to win-at-all-cost federal lawyers to subvert the rule of law.

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