Wednesday, November 12, 2014

BIA, NEPA, and BMP

Barnsdall Main Street Well
Sometimes federal agencies seem to parody themselves, conforming neatly with the image contained in the wild imaginations of conservative critics as out-of-touch bureaucracies issuing senseless mandates spoken in liberal shibboleths.  Such is the case with the new Environmental Assessment Template issued by the Osage Agency, which is within the Bureau of Indian Affairs ("BIA").

To understand it, you will need some background.  In 1883, the Osage Indians purchased from the Cherokee Nation the land that would become Osage County in the State of Oklahoma.  When you cross over into Osage County, you are also crossing over into the Osage Reservation.  In 1906, Congress passed the Osage Allotment Act, 34 Stat. 539, which divided the land in the Osage Reservation among the members of the Osage Tribe. The subsurface mineral estate would be owned by the Tribe, but development of the mineral estate would be overseen by the United States, and the resulting revenue would be managed and distributed by the United States as trustee for the Tribe. Oil and gas leases are entered into between the Tribe and independent producers, but must be "approved" by the Secretary of the Interior through the Superintendent of the Osage Agency.


This arrangement imposes conflicting duties on the part of the BIA.  It owes a fiduciary duty to the Osage Tribe, a sovereign nation, to preserve the value of the mineral estate and maximize revenue, but it also has a duty to comply with all statutory law and executive orders governing the operations of federal agencies.  Of course, few if any of these laws serve to further the fiduciary duty owed to the Osage Tribe.

An example is the National Environmental Protection Act (“NEPA”), enacted on January 1, 1970.  It directs all federal agencies to assess the environmental impact of proposed “major federal actions” that significantly affect the quality of the environment. Arguably, BIA approval of oil and gas leases constitutes “major federal action” that must comply with NEPA mandates. This means that at a minimum, the BIA must complete an Environmental Assessment ("EA") prior to lease approval, establishing that the approval is not anticipated to have a significant impact on the environment.

In May 1979, the Area Director for the BIA approved the Environmental Assessment for the Oil and Gas Leasing Program of the Osage Indian Tribe, Osage County, Oklahoma.  Since 1979, the BIA has approved thousands of leases and well permits, premised upon that single EA being sufficient to comply with NEPA.

A surface owner in Osage County has now challenged that practice in a lawsuit filed in the United States District Court for the Northern District of Oklahoma, the argument being that drilling practices and environmental knowledge have changed since 1979 and therefore the 1979 EA has become stale.  Furthermore, it is argued that regulations specific to the approval of Osage leases, 25 CFR § 226.2(c) , provide that “[e]ach oil and/or gas lease and activities and installations associated therewith subject to these regulations shall be assessed and evaluated for its environmental impact prior to its approval by the Superintendent.”  This suggests that an assessment of some sort must be performed prior to each lease approval.

In panicked overreaction to the filing of the lawsuit, the Osage Agency issued a notice to the oil and gas producers that henceforth, they would need to perform an EA as a prerequisite to applying for a lease or drilling permit.  (NEPA places the obligation of performing an EA on the subject federal agency, but the agency will often delegate that obligation to state agencies or private actors.)

Of course, this notice appeared to give legitimacy to the charge made in the lawsuit that there has been a failure to comply with NEPA mandates.  This emboldened the plaintiff's attorney, who has now filed a class action suit which seeks to certify a plaintiffs' class comprised of all surface owners in Osage County where oil and gas operations have occurred, and a defendants' class comprised of all unnamed lessees who have operated in Osage County.  This lawsuit is a pure money-grab, made evident by the requested remedies, which include the disgorgement of all profits made by the defendants from oil and gas operations in Osage County.

Next, the Osage Agency issued an Environmental Assessment Template to instruct the producers on what each EA should look like when applying for a lease approval, drilling permit, or perhaps any permit whatsoever.  Producers estimate it will cost between $6,000 and $10,000 to complete each EA.  More troubling are the "best management practices" ("BMP" throughout the template) for lease operations set forth in the 59-page template.  They appear to have been drafted by someone who is more attuned to special interests voiced in D.C. than to the practicalities of energy production:

  • Reduce the amount of fugitive dust and vehicle emissions by controlling road speeds and carpooling
  • Use "green" completions to recapture product that otherwise would have been vented or flared
  • Use natural gas-powered engines
  • If a "noxious weed community is found," the "services of a qualified weed control contractor would be utilized.
  • The applicant must obtain information to determine the federally protected species that could potentially occur within the vicinity of the project.  (This sometimes requires hiring a biologist to count endangered beetles.)
  • "The presence of qualified cultural resource monitors during construction activities is encouraged."
  • "Environmental justice communities are present within Osage County . . . [P]otential impacts are reduced through surveys of proposed well locations, and access road and gathering pipeline routes; mitigation measures required by the BIA; and thorough reviews and determinations by the BIA that there would be no effect to historic properties."
  • Planning transportation to reduce vehicle density.
  • Posting speed limits on roads.
  • Painting facilities a color that would blend with the environment.
  • Keep a watering truck on site and water the access roads as necessary.
  • All utility lines, including gathering pipelines, and electric and fiber optic lines, essential to oil well operations, would be installed underground.
The template also contains a 2-page section under the caption, "Greenhouse Gas Emissions and Climate Change."  This section includes a chart of "temperature anomalies in the contiguous United States, 1979-2009" from NOAA, and includes the following statement: "IPCC experts concluded that most of the observed increase in globally averaged temperature since the mid-twentieth century is very likely due to the observed increase in anthropogenic GHG concentrations."  But the section concludes with this: "Oil and gas producers in the United States are not considered large GHG emitters by the EPA, and are not the subject of any current federal proposals that would regulate GHG emissions."  In other words, "climate change" speculation has no relevance to an EA prepared in support of a lease application.  It is in the template only because it is the confession that must precede absolution in the form of a permit.  

The template, combined with the pending class action lawsuit, has resulted in a fall-off of oil production in Osage County.  Since the release of the template, there have been no new wells permitted.  Rigs are going idle and service companies are laying off workers.  The Osage Tribe is facing a substantial fall in oil revenue.

Not surprisingly, there are some angry producers in Osage County who have some tough questions for the new Osage Agency superintendent.  The toughest question might by the simplest: "Why has the BIA informed producers that they must start performing environmental assessments to comply with NEPA, if the BIA will be arguing in court that the 1979 assessment is sufficient?"

This issue pits two Democrat constituencies against one another -- environmentalists and Native Americans.  We shall see which group has the most political clout.  


Sunday, August 31, 2014

An Expensive Escape



According to Forbes, the U.S. has hiked the fee to renounce U.S. citizenship 422%, so voting with your feet is becoming more difficult.  This is how the government responds to a record number of citizens leaving for greener pastures -- all stick and no carrot.

According to the article, the State Department says that hiking the exit tax is necessitated by the increase in demand on their services and all the extra workload they have to process people who are on their way out.  Notice the statist logic: bureaucrats erect hurdles to escaping the system and then demand more money from those forced to clear the hurdles on the grounds that the hurdles are so expensive to maintain.

Hey, if you don't like it, leave, if you can.    

Monday, June 23, 2014

A First Amendment Right to Commit Adultery


A North Carolina court discovered such a thing in Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014).  Mrs. Rothrock had sued her husband's paramour, Miss Cooke, for Alienation of Affection and Criminal Conversation.  Underlying these alliterative "heart balm" torts is the societal sentiment that adultery is wrong and that the victims are entitled to seek redress that is less pointed than bent golf clubs in the front yard, or a smoking .38.

But Judge John O. Craig, III was disdainful of these long-standing common law torts, and dismissed the wife's suit.  His rational for doing so essentially formulates a First Amendment right to break the Seventh Commandment:
AA inherently imposes a chilling effect upon free speech, free association, and expressive conduct within a constitutionally-protected area, or between people with a close familial or amicable relationships.  As for CC, its overly broad reach into constitutionally-protected areas infringes upon the First Amendment's protection of consensual conduct occurring within the private confines of one's home, as well as an individual's right to freely associate with another. 
This particular "association" would be horizontal, apparently.

For Judge Craig, words of seduction directed to another man's wife is protected speech, and so is the adulterous sex act itself, since it is expressive conduct -- it's how we tell one another to have a good day, in the 21st century.

Judge Craig continues his analysis to find "no compelling state interest in protecting the marital relationship" that can justify suppressing this sort of "free speech."  Furthermore:
No substantial, important, or even legitimate state interest exists for punishing affection or intimacy expressed through consensual sexual conduct that takes place in private.
Judge Craig doesn't explain how he determined that protecting the marital relationship is not a legitimate state interest, or whether the people or their representatives get a say in the matter.  It should not be surprising to read such statements in a judicial opinion after the U.S. Supreme Court's ruling in Windsor, although Judge Craig does not cite that ruling, or any other dealing with same-sex marriage, which is indeed a surprise.  He does, however, rely in part upon Lawrence, which invalidated Texas's anti-sodomy law.

In the end, Judge Craig's analysis of North Carolina's "heart balm" statutes diminishes the societal value of marriage.  The state is allowed very little say in what "marriage" is, and after the license issues, the state is to butt out until it's time to divide up the loot and the progeny.  If there are any negative consequences from the dissolution of a marriage, the state must simply look the other way.  The state has no legitimate interest in trying to prevent them.

Judge Craig sums up as follows:
Therefor, AA and CC are unconstitutional violations of the First Amendment's guarantee of free speech, the First Amendment's guaranty of free association, and the Fourteenth Amendment's substantive due process protection of private conduct involving consenting adults, because each claim for relief fails in the face of a strict scrutiny analysis.  
There might be sound policy reasons for a legislature to do away with "heart balm" torts -- most states have already done so.  But for a judge to make what would otherwise be a legislative decision by framing it as a First Amendment issue, is to abase the First Amendment.  If we are to consider any activity that takes place between "consenting adults" in private to be protected speech, then many other laws and civil causes of action must be called into question: tortious interference with contract, prostitution, any and all solicitation crimes, drug laws, antitrust laws, etc.

Again, there might be sound reasons for doing away with all such laws and transitioning towards a purely libertarian landscape, but the First Amendment is not the vehicle for doing so.

Friday, June 13, 2014

Cage the Ignorant

"Ignorance of the law is no excuse."  That is the retort frequently given by the arresting officer, prosecutor, or judge to the cry of a citizen surprised by an obscure law.  In a decision as recent as 2008, the Oklahoma Supreme Court offered this helpful reminder as it brought down the ax: "It is axiomatic, that in most instances, ignorance of the law is no excuse, and every person is presumed to know the law."

That is quite a presumption, but is one that must be made if we are to have a functioning civil society operating according to set laws.  When I told my mother I did not understand the meaning of her bare preposition, "Take the trash out," I was not spared punishment.  Similarly, there can be no mercy for the bank robber who says he doesn't understand proper withdrawal procedures.

But what of the 5,106 pieces of legislation offered up in the most recent session of the Oklahoma legislature, 1,028 of which were completed?  Does my presumed knowledge extend that far?  Or how about the Federal Register, now growing at the rate of 286 pages per day?

If each of us is charged with the duty to know, understand, and follow all laws existing now and in the future, then we all have reason to keep government small.  The alternative is more cages for the ignorant.


Friday, May 2, 2014

No Room for Moral Sentiment

In January, the United States District Court for the Northern District of Oklahoma released its ruling in Bishop v. United States, declaring Oklahoma's legal definition of marriage to be unconstitutional.  As part of his constitutional analysis, Judge Kern determined that homosexuals are a non-suspect class, and therefore the Oklahoma law must be reviewed merely for "rationality."  This standard requires the court to uphold the law "if there is any reasonable conceivable state of facts that could provide a rational basis for the classification" that the law draws between citizens.  Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005).  (This is in contrast with an earlier decision invalidating a similar law in Utah, in which the court reasoned that any legal barriers to same-sex marriage is a classification based upon sex, and therefor the law must be subjected to intermediate scrutiny.)

Judge Kern then considers and rejects possible justifications for the discriminatory law, including "promoting morality," which was not even argued by the defendants.  Judge Kern writes, "moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law."  For support, he cites Lawrence v. Texas, 539 U.S. 558 (2003), the U. S. Supreme Court decision striking down Texas's anti-sodomy law: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”  Judge Kern sums up by saying that "moral disapproval" is not a permissible justification for a law.  No doubt, such a view would seem perverse to Sir William Blacksone, who wrote: "Law is is the embodiment of the moral sentiment of the people."

I immediately thought of Judge Kern's words, this week, when I read the news story that Los Angeles has "banned the use of bullhooks, pitchforks, baseball bats and other goads that circus trainers use to control elephants and other exotic animals."  City Councillor Paul Koretz, who voted in favor of the ban, called the use of bullhooks "inhumane and unhealthy."  By "inhumane," he does not mean that humans are being harmed in any way, but that humans are behaving in a manner in which they shouldn't.  By what standard, you may ask?  Well, by Councillor Koretz's own sensibilities, and we will presume by those of his constituents.  We might go so far as to say the use of bullhooks goes against the moral sentiment of the people.

If Judge Kern is correct, then how can such a law have any legitimacy?  The same goes for all laws against animal cruelty, including Oklahoma's ban on cockfighting, approved in 2002 by 56 percent of the voters.  Since moral sentiment has been cast into outer judicial darkness, what is the permissible justification for such laws?  With no apologies to PETA and Ke$ha, elephants and roosters are property without rights of their own.  What is the rational basis for a law that interferes with a person's discretion over his own property if "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice"?

It is worth noting that Oklahoma's law defining marriage as being between a man and a woman lacks the coercive force of anti-cruelty laws.  Oklahoma's definition of marriage does not prohibit conduct by private individuals -- a same-sex couple may still have a "marriage" ceremony and hold themselves out as being married.  The cockfighting ban, however, imposes criminal penalties for violating the law.  It is difficult for me to understand how the citizens of Oklahoma can fine and imprison private individuals for engaging in behavior they just don't like, but those same citizens cannot prevent their own government from granting official recognition for behavior they just don't like.

Maybe Judge Kern can explain it.






Friday, January 10, 2014

How Low Will It Go?

This is an update to this earlier post about a foreclosed property I was interested in bidding on at sheriff's sale.  The bank's appraisers valued it at $146,000 at the time of the sheriff's sale.  Afterwards, it was listed for sale at $121,900.  Almost six months later, the property still hasn't sold.  The price has been lowered multiple times and now rests at $79,000.

As stated in my earlier post, the indebtedness was around $112,000 at the time of the foreclosure sale.  I'm assuming the lender was made whole by Fannie Mae.  The difference between that number and the ultimate sale price will be Fannie Mae's loss.


Monday, December 30, 2013

Kitchen decision already heading for U. S. Supreme Court

This is an update to last week's blog post about the Kitchen decision from a federal district court in Utah.

SCOTUSblog reports:

The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages.  State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.
Justice Sotomayor will be the one to make the initial decision on whether to grant a stay.  Read the full story here.

UPDATE:  Justice Sotomayor granted the stay.