Background - Practices (Details)

Federal Lands and NEPA

One-third of the land base in the United States is owned by the federal government. We assist a wide range of resource developers in obtaining access to those federal lands. We also frequently defend development interests in administrative appeals and litigation.

Our efforts have included litigating with and against, and appearing before, the federal land management agencies. We strive to secure favorable resource planning policies and decisions under the Federal Land Policy and Management Act (FLPMA), the National Forest Management Act (NFMA), the Wild and Scenic Rivers Act, the Wilderness Act, the National Environmental Policy Act (NEPA), and the federal wildlife laws. We have assisted clients  in securing access to resources by sale, lease, permit, or land exchange under FLPMA, NFMA, the General Mining Law, the Mineral Leasing Act, the Onshore Oil and Gas Leasing Act, the Outer Continental Shelf Lands Act (OCSLA), and other federal land laws. Among our Supreme Court victories concerning federal land issues is the principal federal land planning case, Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998), that curtailed the ability of activists to bring facial challenges to federal land management plans.

One of our partners has served in the Department of the Interior as attorney-advisor in the Solicitor's Office, and one served in the Environment & Natural Resources Division at the Department of Justice.

Representative Engagements

  • Representing a trade association in a successful challenge of a Forest Service settlement agreement with the Sierra Club and a contemporaneous Forest Service policy statement requiring NEPA compliance in the form of a Forest-wide Environmental Impact Statement (EIS) before the Forest Service could process oil and gas well drilling proposals on private oil and gas estates within the Allegheny National Forest.  Minard Run Oil Co. v. U.S. Forest Service, 670 F.3d 236 (3d Cir. 2011), 2012 WL 3877625 (W.D. Pa. 2012), and 2009 WL 4937785 (W.D. Pa. 2009)
  • Representing two national trade associations in attacking a million-acre administrative withdrawal of public lands in Arizona from uranium mining and the operation of the mining law.  The district court recently held that these associations have standing to challenge the constitutionality of the FLPMA withdrawal and the agency's compliance with FLPMA and NEPA.  Yount v. Salazar, 2013 WL 93372 (D. Az. 2013).
  • Intervening on behalf of a major oil and gas company to defend against an action brought by advocacy organizations under the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), and NEPA challenging seismic operations in the Gulf of Mexico.  NRDC et al. v. Salazar, No. 2:10-cv-01882 (E.D. La.).
  • Representing major and independent oil and gas companies in negotiations with the Department of the Interior's Bureau of Ocean Energy Management and Regulatory Enforcement, the Fish and Wildlife Service, and the National Marine Fisheries Service in connection with efforts to resume operations in the Gulf of Mexico and in defending litigation challenges to Gulf of Mexico operations in the aftermath of the Deepwater Horizon incident.
  • Representing three national trade associations concerning a Bureau of Land Management rulemaking that would impose obligations affecting hydraulic fracturing ("fracking") conducted on public land. 
  • Negotiating, obtaining, defending, and litigating rights to access across federal lands to private inholdings under ANILCA. The ANILCA access guarantee applies to the National Forest System nationwide.
  • Providing guidance on FLPMA land exchanges to facilitate ski resort, coal mine, and hard rock mine development and timber management. Notably, we helped negotiate the largest federal/private coal land exchange in history and then successfully defended it in Northern Plains Resource Council v. Lujan, 874 F.2d 661 (9th Cir. 1989). We also assisted a major gold mining company with the expansion of its mines on national forest and public lands, completing two federal land exchanges in the process, and then successfully defended those actions in administrative and judicial appeals.
  • Assisting major landowners in areas of checkerboard land ownership with the federal government in obtaining access easements and in negotiating reciprocal rights of way.
  • Successfully defending a gold mining company before the Interior Board of Land Appeals against a neighboring landowner's challenge to the adequacy of its EIS and plan of operation for a gold mine expansion in Nevada.
  • Counseling on compliance with NEPA and ESA for a proposed copper/silver mine on National Forest lands in Montana. The project involved significant interaction with senior levels of the U.S. Forest Service and U.S. Department of Agriculture, including the Office of General Counsel in Washington, D.C., and Montana and of the U.S. Fish and Wildlife Service in Washington D.C. and Denver. 
  • Assisting renewable energy companies in gaining access to federal land and securing immunity from liability under federal wildlife laws.
  • Representing national and regional trade associations and individual companies in the forest products industry in dozens of environmental group lawsuits in federal district and appellate courts challenging U.S. Forest Service compliance with NEPA and the NFMA on timber harvesting and access issues.
  • Providing NEPA and ESA compliance counseling to a Colorado ski resort developer, and representing the client in litigation brought by local environmental organizations.
  • Counseling a four-state coalition of counties on NEPA issues in conjunction with Department of the Interior land management plans for the California Desert Conservation Area; and representing the coalition in NEPA and ESA litigation challenging those plans.
  • Assisting a nationwide wireless provider with locating, permitting, and installing wireless telecommunications facilities on federal lands, including in National Parks.
  • Commenting on and litigating such major rulemakings as the Department of the Interior's revision of its environmental regulations for hardrock mining on federal lands and the Forest Service's roadless area protection regulations.