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From: Hayes, Michael E
To: Boario, Sara D
Subject: CPSEIS letter
Date: Thursday, May 4, 2023 11:10:09 AM
Attachments: CPSEIS_Response to NVK_5-3-23.pdf
Sara,
I just wanted to double check with you that I should send the PDF of the CPSEIS (attached)
over to Steve’s office. I bounced it off of the one we sent (just to ensure that no alterations
were made) and put your signature on. Once, I get the thumbs up from you, I’ll date stamp it
(at Michelle’s request) and send it to them.
Respectfully,
Michael (Mike) Hayes
Executive Assistant, Regional Director’s Office
Alaska Region (R7)
U.S. Fish and Wildlife Service
1011 East Tudor Road, MS-361
Anchorage, AK 99503
907-786-3542
United
States
Department
of
the
Interior
BUREAU
OF
LAND
MANAGEMENT
U.S. FISH
&
WILDLIFE
SERVICE
Native Village
of
Kaktovik
P.O.
Box
52
Kaktovik,
Alaska
99747
Email:
nvkaktovik@gmail.com
SENT VIA
EMAIL
Dear
Mr.
Rexford
and Mr.
Lampe:
We
are
writing
to
respond
to
the
letter
you sent
regarding
the
Coastal Plain
Supplemental
Environmental
Impact
Statement
(EIS)
process.
Thank
you
for
clearly
communicating
your
concerns
and we look
forward
to
continuing
to
engage
with
you
on this
important
issue.
You
asked
in
your
letter
for
clarification
regarding
the
legal
deficiencies
of
the
original
ElS and
to
provide
reasoning
for
expanding
Indigenous
Knowledge
(1K)
in the
Supplemental
EIS.
The
Department
of
the
Interior Secretary’s
Order
3401, dated June
1,
2021,
determined
that:
1)
The
BLM
did
not
adequately
analyze
a
reasonable
range
of
alternatives
in
the
ElS,
and
2)
The Record
of
Decision
(ROD)
did
not
properly
interpret
Section
20001
of
Public
Law
115-97
(commonly known
as
the Tax
Act).
A
subsequent
letter
also
on
June
1,
from the
Principal Deputy
Assistant
Secretary
for
Land
and
Minerals
Management
to
leaseholders
in
the
Coastal
Plain,
further
clarified
both
of
those
deficiencies
(Items
1
&
2
below),
identified other
potential
legal
defects (Items
3
and
4
below),
and
addressed
the
potential
need
for further analysis
and
consultation
(Item
5
below):
1)
The
Coastal
Plain
Leasing Program
EIS
failed
to
analyze
a
reasonable
range
of
alternatives
in
that
it
did
not
analyze
an
alternative,
besides
the
no
action alternative,
that
involved
fewer than
2,000
acres
of
surface
development.
2)
The Tax
Act
provides
for
authorization
of
up
to
2,000
acres
to
be covered
by “production
and
support facilities.”
However,
inclusion
of
the
phrase
“up
to”
indicates
that
less
than
2,000 acres
may
be
authorized
in
appropriate
circumstances,
such
as
for
alternatives
that
make
large
areas
unavailable
for
leasing
or
surface
development
and
thus
may
require
fewer
production
and
support
facilities.
The
explanation
in
the
ROD
for
not
considering
such
an
alternative
—
that
the Tax
Act
provides
a
mandate
to
the
BLM
requiring
it to
approve
production
and
support facilities
up
to
that
limit
—
is
both
implausible
and
contrary
to
Congressional
intent,
which
is
itself
a
legal
error.
3)
The EIS’s
treatment
of
foreign
greenhouse
gas
(GHG)
emissions,
and
4)
Compliance
with
section
810
of
the
Alaska
National Interest
Lands
Conservation
Act
(ANILCA).
INTERIOR
REGION
11
•
ALASKA
5)
Further,
any
new
NEPA
analysis
involving
an
additional alternative
may
also
result
in
connected reviews,
such
as
under
section
106
of
the
National Historic Preservation
Act
and
consultation
under
Section
7
of
the
Endangered
Species
Act.
While
1K
was
not
specifically
detennined
to
be
deficient, further
recent
guidance
from
the
White
House,
Department
of
the
Interior,
the
Bureau
of
Land
Management,
and
the Fish
&
Wildlife
Service
emphasize
inclusion
of
1K
into
environmental
analyses
and
decision
making.
The
1K
that
your
community
shared
in
the
first
EIS
process
has
not
been
lost
and
will
be
incorporated
into
the
supplemental
EIS
process.
We
are
working
to
build
and
expand
upon
the
existing
Indigenous
Knowledge
through
the NEPA
process.
In
addition,
we
are
very
interested
in
exploring
additional
methods
for
fully
capturing
1K
as
we strive
to
improve
our
process
going
forward.
We
invite
your suggestions
on
how
we
can
better
improve
our
communications with your
community
and
meet
in
a
way
that
ensures
that
everyone
has
equitable
access
to
the
process
and
opportunities
to
participate.
Lastly,
we’d
like
to
respond
to
your
concerns
about
inclusion
of
tribal
input
into
the
National
Environmental
Policy
Act
(NEPA) process.
The development
of
this
Supplemental
EIS
requires
the
engagement
of
tribes
and
the
public-at-large
in
the
decision-making
process.
Information
generated
through
this
exchange
can
include input
about
the
potential
environmental
effects
of
proposed
actions
as
well
as
identification
of
reasonable
alternatives.
As
the
lead
federal
agencies,
a
primary
role
of
BLM
and
FWS
is
to
ensure the
fair
and
equitable
treatment
of
all
stakeholder
input
through
incorporation
of
relevant
information
into
the
NEPA
process.
As
the
Native
Village
of
Kaktovik
has
become
a
fonnal
cooperating
agency
for
the
Supplemental
EIS,
we
are
committed
to
ensuring
that
NVK
and
all
of
the
cooperating
agencies
receive
the same
opportunities
to
participate
while
receiving
the
appropriate
infonTlation
and
updates
throughout
the
remainder
of
the
Supplemental
EIS
process.
We
would
like
to
thank
you
again
for
your patience
and
continued
engagement
as
we
work
to
improve
our
processes
and
our
relationship.
While
we
have ideas
of
how
to
better
ensure
equitable gathering
and
use
of
1K,
we
would like
to
hear
your
suggestions
and
work
together
to
determine
how
best
to go
about
this.
We
look
forward
to
continuing
to
engage
with
you
on
appropriate
and
equitable
methods
for
gathering
and
use
of
Indigenous
and
local
knowledge
as
well
as
your
thoughts
on
how
to
navigate
a
best path
forward
through
the
NEPA
process.
Sincerely,
Steven
M.
Cohn
Sara
Boario
State
Director
Regional
Director
Bureau
of
Land
Management
Alaska
U.S.
Fish
&
Wildlife Service
-
Region
7
From: Daniel-Davis, Laura E
To: Sundaresan, Siva R; Stone-Manning, Tracy M; Williams, Martha M
Cc: Woods, Candice R; Abler, Eugene (Mike); Long, Amanda D
Subject: Re: Coastal Plain meeting Monday
Date: Monday, May 8, 2023 5:27:42 AM
Good morning-
I’ve reset this for tomorrow, Tuesday, at 1 pm. I hope that works for some - all! - of you, but I
wanted to get it back on with the coalition given my last minute cancellation of today. It’s still
set for in person. Please let me know - thanks!
Laura
Get Outlook for iOS
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Saturday, May 6, 2023 8:02:02 AM
To: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Subject: Re: Coastal Plain meeting Monday
Sounds good! Thanks, Laura!
Siva Sundaresan
US Fish and Wildlife Service
Get Outlook for iOS
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Friday, May 5, 2023 7:20:30 PM
To: Stone-Manning, Tracy M <tstonemanning@blm.gov>; Williams, Martha M
<martha_williams@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>
Subject: Coastal Plain meeting Monday
Hi friends,
With apologies for a late Friday message, I need to reschedule our Monday 10 am meeting to
discuss the Refuge SEIS. (Siva I think you were already covering for Martha.) We will
prioritize getting it back on and thank you for understanding.
Laura
Get Outlook for iOS
From: Sundaresan, Siva R
To: Daniel-Davis, Laura E; Stone-Manning, Tracy M; Williams, Martha M
Cc: Woods, Candice R; Abler, Eugene (Mike); Long, Amanda D
Subject: RE: Coastal Plain meeting Monday
Date: Monday, May 8, 2023 6:23:28 AM
Thanks, Laura!
I will be on travel and can’t make this. Martha is out today so not what her schedule is tomorrow
and whether she can accommodate this.
Thanks,
Siva
--
Siva Sundaresan | Deputy Director | U.S. Fish and Wildlife Service | Office: 202-208-4331 | Cell:
202-577-1654 | Pronouns: he/him/his
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Monday, May 8, 2023 7:28 AM
To: Sundaresan, Siva R <siva_sundaresan@fws.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Cc: Woods, Candice R <candice_woods@ios.doi.gov>; Abler, Eugene (Mike)
<Eugene.Abler@boem.gov>; Long, Amanda D <adlong@blm.gov>
Subject: Re: Coastal Plain meeting Monday
Good morning-
I’ve reset this for tomorrow, Tuesday, at 1 pm. I hope that works for some - all! - of you, but I
wanted to get it back on with the coalition given my last minute cancellation of today. It’s still set for
in person. Please let me know - thanks!
Laura
Get Outlook for iOS
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Saturday, May 6, 2023 8:02:02 AM
To: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Subject: Re: Coastal Plain meeting Monday
Sounds good! Thanks, Laura!
Siva Sundaresan
US Fish and Wildlife Service
Get Outlook for iOS
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Friday, May 5, 2023 7:20:30 PM
To: Stone-Manning, Tracy M <tstonemanning@blm.gov>; Williams, Martha M
<martha_williams@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>
Subject: Coastal Plain meeting Monday
Hi friends,
With apologies for a late Friday message, I need to reschedule our Monday 10 am meeting to discuss
the Refuge SEIS. (Siva I think you were already covering for Martha.) We will prioritize getting it back
on and thank you for understanding.
Laura
Get Outlook for iOS
From: Director"s Office, FWS
To: Williams, Martha M
Cc: Director"s Office, FWS
Subject: Fw: Coastal Plain meeting 5/9 at 1pm.
Date: Monday, May 8, 2023 8:37:44 AM
Good morning Martha,
This was going to be covered by Siva today but it has been rescheduled tomorrow at 1pm and
Siva will be on travel. I see that you will have a conflict if at 1pm tomorrow as there is a
detail check-in with Wizipan, Anthony Rodman and Wendi. I can reach out and see about
rescheduling this check-in to 10:30 tomorrow to accommodate this other meeting on SEIS.
Just let me know
Kindest,
Stacey Garcia
Scheduling Team | Office of the Director | U.S. Fish and Wildlife Service (FWS) | 202-
208-4545
Please email scheduling related matters to scheduling@fws.gov
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Monday, May 8, 2023 9:54 AM
To: Director's Office, FWS <Scheduling@fws.gov>
Cc: Hausman, Alyssa B <alyssa_hausman@fws.gov>
Subject: FW: Coastal Plain meeting Monday
FYI – This is the SEIS meeting that was meant for today at 10a but now rescheduled to tomorrow at
1p. I can’t make it but please check if Martha can and wants to…Else, we’ll need to talk with ASLM to
reschedule.
Alyssa – I know you’re off but just copying you so you can have the history in case this needs
attention when you return. Sorry and thanks.
Thanks
Siva
--
Siva Sundaresan | Deputy Director | U.S. Fish and Wildlife Service | Office: 202-208-4331 | Cell:
202-577-1654 | Pronouns: he/him/his
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Monday, May 8, 2023 7:28 AM
To: Sundaresan, Siva R <siva_sundaresan@fws.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Cc: Woods, Candice R <candice_woods@ios.doi.gov>; Abler, Eugene (Mike)
<Eugene.Abler@boem.gov>; Long, Amanda D <adlong@blm.gov>
Subject: Re: Coastal Plain meeting Monday
Good morning-
I’ve reset this for tomorrow, Tuesday, at 1 pm. I hope that works for some - all! - of you, but I
wanted to get it back on with the coalition given my last minute cancellation of today. It’s still set for
in person. Please let me know - thanks!
Laura
Get Outlook for iOS
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Saturday, May 6, 2023 8:02:02 AM
To: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Subject: Re: Coastal Plain meeting Monday
Sounds good! Thanks, Laura!
Siva Sundaresan
US Fish and Wildlife Service
Get Outlook for iOS
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Friday, May 5, 2023 7:20:30 PM
To: Stone-Manning, Tracy M <tstonemanning@blm.gov>; Williams, Martha M
<martha_williams@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>
Subject: Coastal Plain meeting Monday
Hi friends,
With apologies for a late Friday message, I need to reschedule our Monday 10 am meeting to discuss
the Refuge SEIS. (Siva I think you were already covering for Martha.) We will prioritize getting it back
on and thank you for understanding.
Laura
Get Outlook for iOS
From: Director"s Office, FWS
To: Williams, Martha M
Cc: Director"s Office, FWS
Subject: Re: Coastal Plain meeting 5/9 at 1pm.
Date: Monday, May 8, 2023 10:03:27 AM
Hi Martha, disregard, should work now.
Kindest,
Stacey Garcia
Scheduling Team | Office of the Director | U.S. Fish and Wildlife Service (FWS) | 202-
208-4545
Please email scheduling related matters to scheduling@fws.gov
From: Director's Office, FWS <Scheduling@fws.gov>
Sent: Monday, May 8, 2023 10:37 AM
To: Williams, Martha M <martha_williams@fws.gov>
Cc: Director's Office, FWS <Scheduling@fws.gov>
Subject: Fw: Coastal Plain meeting 5/9 at 1pm.
Good morning Martha,
This was going to be covered by Siva today but it has been rescheduled tomorrow at 1pm and
Siva will be on travel. I see that you will have a conflict if at 1pm tomorrow as there is a
detail check-in with Wizipan, Anthony Rodman and Wendi. I can reach out and see about
rescheduling this check-in to 10:30 tomorrow to accommodate this other meeting on SEIS.
Just let me know
Kindest,
Stacey Garcia
Scheduling Team | Office of the Director | U.S. Fish and Wildlife Service (FWS) | 202-
208-4545
Please email scheduling related matters to scheduling@fws.gov
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Monday, May 8, 2023 9:54 AM
To: Director's Office, FWS <Scheduling@fws.gov>
Cc: Hausman, Alyssa B <alyssa_hausman@fws.gov>
Subject: FW: Coastal Plain meeting Monday
FYI – This is the SEIS meeting that was meant for today at 10a but now rescheduled to tomorrow at
1p. I can’t make it but please check if Martha can and wants to…Else, we’ll need to talk with ASLM to
reschedule.
Alyssa – I know you’re off but just copying you so you can have the history in case this needs
attention when you return. Sorry and thanks.
Thanks
Siva
--
Siva Sundaresan | Deputy Director | U.S. Fish and Wildlife Service | Office: 202-208-4331 | Cell:
202-577-1654 | Pronouns: he/him/his
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Monday, May 8, 2023 7:28 AM
To: Sundaresan, Siva R <siva_sundaresan@fws.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Cc: Woods, Candice R <candice_woods@ios.doi.gov>; Abler, Eugene (Mike)
<Eugene.Abler@boem.gov>; Long, Amanda D <adlong@blm.gov>
Subject: Re: Coastal Plain meeting Monday
Good morning-
I’ve reset this for tomorrow, Tuesday, at 1 pm. I hope that works for some - all! - of you, but I
wanted to get it back on with the coalition given my last minute cancellation of today. It’s still set for
in person. Please let me know - thanks!
Laura
Get Outlook for iOS
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Saturday, May 6, 2023 8:02:02 AM
To: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Subject: Re: Coastal Plain meeting Monday
Sounds good! Thanks, Laura!
Siva Sundaresan
US Fish and Wildlife Service
Get Outlook for iOS
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Friday, May 5, 2023 7:20:30 PM
To: Stone-Manning, Tracy M <tstonemanning@blm.gov>; Williams, Martha M
<martha_williams@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>
Subject: Coastal Plain meeting Monday
Hi friends,
From: Williams, Martha M
To: Daniel-Davis, Laura E; Sundaresan, Siva R; Stone-Manning, Tracy M
Cc: Woods, Candice R; Abler, Eugene (Mike); Long, Amanda D
Subject: RE: Coastal Plain meeting Monday
Date: Tuesday, May 9, 2023 8:29:28 AM
Planning on it!
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Monday, May 8, 2023 7:28 AM
To: Sundaresan, Siva R <siva_sundaresan@fws.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Cc: Woods, Candice R <candice_woods@ios.doi.gov>; Abler, Eugene (Mike)
<Eugene.Abler@boem.gov>; Long, Amanda D <adlong@blm.gov>
Subject: Re: Coastal Plain meeting Monday
Good morning-
I’ve reset this for tomorrow, Tuesday, at 1 pm. I hope that works for some - all! - of you, but I
wanted to get it back on with the coalition given my last minute cancellation of today. It’s still set for
in person. Please let me know - thanks!
Laura
Get Outlook for iOS
From: Sundaresan, Siva R <siva_sundaresan@fws.gov>
Sent: Saturday, May 6, 2023 8:02:02 AM
To: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>; Stone-Manning, Tracy M
<tstonemanning@blm.gov>; Williams, Martha M <martha_williams@fws.gov>
Subject: Re: Coastal Plain meeting Monday
Sounds good! Thanks, Laura!
Siva Sundaresan
US Fish and Wildlife Service
Get Outlook for iOS
From: Daniel-Davis, Laura E <laura_daniel-davis@ios.doi.gov>
Sent: Friday, May 5, 2023 7:20:30 PM
To: Stone-Manning, Tracy M <tstonemanning@blm.gov>; Williams, Martha M
<martha_williams@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>
Subject: Coastal Plain meeting Monday
Hi friends,
With apologies for a late Friday message, I need to reschedule our Monday 10 am meeting to discuss
From: Skibo, Bobbie Jo
To: Sweet, Serena E; Amy Lewis; Pendergast, Kevin J; Cribley, Bud C; Loya, Wendy M; Gieryic, Michael S; Routhier,
Michael P; Boario, Sara D; Cohn, Steven M; ashlee.adoko@alaska.gov; Matthew Newman; Megan Condon; Rob
Rosenfeld; boldrick.lauren@epa.gov; Matthew Rexford; doreen.leavitt@icas-nsn.gov; Teresa-Imm@outlook.com;
morrie.lemen@icas-nsn.gov; Kuhns, Stephanie L; Erin Hudson
Subject: Heads Up: Coastal Plain SEIS Preliminary Draft Released Tomorrow!
Date: Thursday, June 1, 2023 7:01:14 PM
Hello Coastal Plain SEIS Cooperating Agencies,
On behalf of the joint lead agencies, BLM and FWS, we are pleased to let you know that you will be
receiving the Coastal Plain Oil and Gas Leasing Program Preliminary Draft SEIS tomorrow, Friday,
June 2nd.
We wanted to give you a heads up to keep a look out for the email that will provide the necessary
instructions and resources for your review.
We understand that there was a desire for a longer review timeframe but in order to maintain the
schedule toward the completion of the SEIS, in time for a 2nd lease sale by December 2024, we must
keep to a firm review schedule and will need to receive input by 5pm Alaska Time on Friday, June
16th.
Please note that there will be additional opportunities for cooperating agency reviews during the
following stages of the SEIS development process; including the minimum 45-day public comment
period and the Preliminary Final SEIS.
Also note that the SEIS team is available, upon request, to meet with your entity during this review
timeframe. Ideal dates for us are June 5th and/or 6th. Please reach out to request a session.
Thank you again for your involvement in the SEIS process. We look forward to continuing this
important work with all of you.
Sincerely,
The SEIS Team (Bobbie Jo, Serena, and Stephanie)
************************
Bobbie Jo Skibo, MS (she/her)
Coastal Plain SEIS Project Lead
Science Applications Program
US Fish and Wildlife Service
907-441-1539
From: Rob Rosenfeld
To: Skibo, Bobbie Jo
Cc: Sweet, Serena E; Amy Lewis; Loya, Wendy M; Boario, Sara D; Cohn, Steven M; Matthew Newman; Megan
Condon; Kuhns, Stephanie L
Subject: Heads Up: Coastal Plain SEIS Preliminary Draft Released Tomorrow!
Date: Friday, June 2, 2023 8:10:46 AM
Thank you Bobbie Jo for the email regarding the Coastal Plain Oil and Gas Leasing Program
Preliminary Draft SEIS.
Can BLM / FWS get us the preliminary draft in a digital format please?
Thank you
Rob
Hello Coastal Plain SEIS Cooperating Agencies,
On behalf of the joint lead agencies, BLM and FWS, we are pleased to let you
know that you will be receiving the Coastal Plain Oil and Gas Leasing Program
Preliminary Draft SEIS tomorrow, Friday, June 2nd.
We wanted to give you a heads up to keep a look out for the email that will
provide the necessary instructions and resources for your review.
We understand that there was a desire for a longer review timeframe but in order
to maintain the schedule toward the completion of the SEIS, in time for a
2nd lease sale by December 2024, we must keep to a firm review schedule and
will need to receive input by 5pm Alaska Time on Friday, June 16th.
Please note that there will be additional opportunities for cooperating agency
reviews during the following stages of the SEIS development process; including
the minimum 45-day public comment period and the Preliminary Final SEIS.
Also note that the SEIS team is available, upon request, to meet with your entity
during this review timeframe. Ideal dates for us are June 5th and/or 6th. Please
reach out to request a session.
Thank you again for your involvement in the SEIS process. We look forward to
continuing this important work with all of you.
Sincerely,
The SEIS Team (Bobbie Jo, Serena, and Stephanie)
************************
Bobbie Jo Skibo, MS (she/her)
Coastal Plain SEIS Project Lead
Science Applications Program
US Fish and Wildlife Service
907-441-1539
From: Rob Rosenfeld
To: Skibo, Bobbie Jo
Cc: Sweet, Serena E; Amy Lewis; Loya, Wendy M; Boario, Sara D; Cohn, Steven M; Matthew Newman; Megan
Condon; Kuhns, Stephanie L
Subject: [EXTERNAL] Heads Up: Coastal Plain SEIS Preliminary Draft Released Tomorrow!
Date: Friday, June 2, 2023 8:10:52 AM
This email has been received from outside of DOI - Use caution before clicking on
links, opening attachments, or responding.
Thank you Bobbie Jo for the email regarding the Coastal Plain Oil and Gas Leasing Program
Preliminary Draft SEIS.
Can BLM / FWS get us the preliminary draft in a digital format please?
Thank you
Rob
Hello Coastal Plain SEIS Cooperating Agencies,
On behalf of the joint lead agencies, BLM and FWS, we are pleased to let you
know that you will be receiving the Coastal Plain Oil and Gas Leasing Program
Preliminary Draft SEIS tomorrow, Friday, June 2nd.
We wanted to give you a heads up to keep a look out for the email that will
provide the necessary instructions and resources for your review.
We understand that there was a desire for a longer review timeframe but in order
to maintain the schedule toward the completion of the SEIS, in time for a
2nd lease sale by December 2024, we must keep to a firm review schedule and
will need to receive input by 5pm Alaska Time on Friday, June 16th.
Please note that there will be additional opportunities for cooperating agency
reviews during the following stages of the SEIS development process; including
the minimum 45-day public comment period and the Preliminary Final SEIS.
Also note that the SEIS team is available, upon request, to meet with your entity
during this review timeframe. Ideal dates for us are June 5th and/or 6th. Please
reach out to request a session.
Thank you again for your involvement in the SEIS process. We look forward to
continuing this important work with all of you.
Sincerely,
The SEIS Team (Bobbie Jo, Serena, and Stephanie)
************************
Bobbie Jo Skibo, MS (she/her)
Coastal Plain SEIS Project Lead
Science Applications Program
US Fish and Wildlife Service
907-441-1539
From: Skibo, Bobbie Jo
To: Sweet, Serena E; Amy Lewis; Pendergast, Kevin J; Cribley, Bud C; Loya, Wendy M; Gieryic, Michael S; Routhier,
Michael P; Boario, Sara D; Cohn, Steven M; ashlee.adoko@alaska.gov; Matthew Newman; Megan Condon; Rob
Rosenfeld; boldrick.lauren@epa.gov; Matthew Rexford; doreen.leavitt@icas-nsn.gov; Teresa-Imm@outlook.com;
morrie.lemen@icas-nsn.gov; Kuhns, Stephanie L; Erin Hudson
Subject: Friendly Reminder: Coastal Plain PDSEIS Input Deadline--5pm Alaska Time, Friday, June 16th
Date: Wednesday, June 14, 2023 4:19:37 PM
Hello All,
This is a friendly reminder that we are expecting all input to be received by 5pm Alaska Time on
Friday, June 16th.
Please reach out with any questions. Much appreciated, Bobbie Jo (and the SEIS Team)
From: Skibo, Bobbie Jo
Sent: Thursday, June 1, 2023 5:01 PM
To: Sweet, Serena E <ssweet@blm.gov>; Amy Lewis <amy.lewis@empsi.com>; Pendergast, Kevin J
<kpendergast@blm.gov>; Cribley, Bud C <bud_cribley@fws.gov>; Loya, Wendy M
<wendy_loya@fws.gov>; Gieryic, Michael S <Mike.Gieryic@sol.doi.gov>; Routhier, Michael P
<michael.routhier@sol.doi.gov>; Boario, Sara D <sara_boario@fws.gov>; Cohn, Steven M
<scohn@blm.gov>; ashlee.adoko@alaska.gov; Matthew Newman <mnewman@narf.org>; Megan
Condon <mcondon@narf.org>; Rob Rosenfeld <robrosey@gmail.com>; boldrick.lauren@epa.gov;
Matthew Rexford <nvkaktovik@gmail.com>; doreen.leavitt@icas-nsn.gov; Teresa-
Imm@outlook.com; morrie.lemen@icas-nsn.gov; Kuhns, Stephanie L <skuhns@blm.gov>; Erin
Hudson <erin.hudson@empsi.com>
Subject: Heads Up: Coastal Plain SEIS Preliminary Draft Released Tomorrow!
Hello Coastal Plain SEIS Cooperating Agencies,
On behalf of the joint lead agencies, BLM and FWS, we are pleased to let you know that you will be
receiving the Coastal Plain Oil and Gas Leasing Program Preliminary Draft SEIS tomorrow, Friday,
June 2nd.
We wanted to give you a heads up to keep a look out for the email that will provide the necessary
instructions and resources for your review.
We understand that there was a desire for a longer review timeframe but in order to maintain the
schedule toward the completion of the SEIS, in time for a 2nd lease sale by December 2024, we must
keep to a firm review schedule and will need to receive input by 5pm Alaska Time on Friday, June
16th.
Please note that there will be additional opportunities for cooperating agency reviews during the
following stages of the SEIS development process; including the minimum 45-day public comment
period and the Preliminary Final SEIS.
Also note that the SEIS team is available, upon request, to meet with your entity during this review
timeframe. Ideal dates for us are June 5th and/or 6th. Please reach out to request a session.
Thank you again for your involvement in the SEIS process. We look forward to continuing this
important work with all of you.
Sincerely,
The SEIS Team (Bobbie Jo, Serena, and Stephanie)
************************
Bobbie Jo Skibo, MS (she/her)
Coastal Plain SEIS Project Lead
Science Applications Program
US Fish and Wildlife Service
907-441-1539
From: Skibo, Bobbie Jo
To: Timmy_070@hotmail.com; venetiegas12@gmail.com
Cc: sarahjamesav@hotmail.com; Matthew Newman; Charlene Stern; Tonya Garnett; Rob Rosenfeld; Boario, Sara D;
Cohn, Steven M; Sweet, Serena E; Kuhns, Stephanie L; Lor, Socheata; Leonetti, Crystal; Loya, Wendy M; Skibo,
Bobbie Jo
Subject: Coastal Plain SEIS Letter from BLM/FWS: Indigenous Knowledge
Date: Wednesday, June 14, 2023 5:27:49 PM
Attachments: BLM0037935_Gwich_in Response_ Re Indigenous knowledge inclusion to SEIS_Tritt.pdf
Greetings Chief Tritt (Venetie Village Council),
On behalf of Sara Boario, U.S. Fish & Wildlife Service Regional Director, Region 7, and Steve
Cohn, Bureau of Land Management - Alaska State Director, please find the attached letter that
has been sent directly to you via mail. We wanted to share via email, as well, to ensure that
you received it in a timely manner. Please feel free to reach out to me and the Coastal Plain
SEIS Project Management Team with any follow up questions or comments.
Respectfully,
Bobbie Jo Skibo
************************
Bobbie Jo Skibo, MS (she/her)
Strategic Conservation and Coastal Plain Coordinator
Science Applications Program
US Fish and Wildlife Service
907-441-1539
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
U.S. FISH & WILDLIFE SERVICE
1st Chief Paul Tritt
Venetie Village Council
P.O. Box 81119
Venetie, Alaska 99781
VIA EMAIL: Timmy_070@hotmail.com
Dear Chief Tritt:
We are reaching out to follow up with you and your representatives on the inclusion of Gwich’in
Indigenous knowledge (IK) into the Coastal Plain Oil and Gas Leasing Program Supplemental
Environmental Impact Statement (SEIS).
We acknowledge that cancelling federal participation in the workshop held in Fairbanks,
February 27th-March 3rd was met with frustration and feelings of disrespect to the elders and
knowledge bearers who were in attendance. At that time, we became aware that other Indigenous
knowledge bearers did not feel they had an equitable opportunity to participate in the process,
and that there were several barriers preventing their attendance. For these reasons, we asked our
staff to step back and re-evaluate a path forward.
We understand that the workshop in Fairbanks was accomplished in our absence. While we
regret missing it, we are hopeful that you will be willing to share valuable IK gained.
Additionally, IK that you shared during the prior EIS process has not been lost and will be
incorporated into the SEIS process. Our intent is to build and expand upon the existing IK.
We are committed to ensuring that all of the cooperating agencies receive the same opportunities
to participate while receiving the appropriate information and updates throughout the remainder
of the SEIS process. We seek your suggestions on how we can better improve our
communications with you and meet in a way that ensures that everyone has equitable access to
the process and opportunities to participate.
Thank you again for your patience and continued engagement as we work to improve our
processes and our relationship.
We look
forward
to
coordinating
with
you
on
appropriate
and
equitable
methods
for
gathering
and
use
of
Indigenous
and
local
knowledge,
as
well
as
your thoughts
on
how
to
navigate
a
best
path
forward
through
the
remainder
of
the
NEPA
process.
Sincerely,
Steven
M.
Cohn
Sara
D.
Boario
State
Director
Regional
Director
Bureau
of
Land
Management
Fish
and
Wildlife
Service
Identical letters
sent
to:
1st
Chief
Galen Gilbert
-
Arctic
Village Council,
Galengi1bert257(igmail.com
St
Chief
RaeAnn Gamett,
Native
Village
of
Venetie
Tribal
Government,
garnett.raeann@gmail.com
cc:
2nd
Chief
Gary Simple-
Venetie
Village Council,
venetiegasl2(gmail.corn
2nd
Chief
Michael
Lee
-
Arctic Village
Council
2nd
Chief
Angel Gilbert
of
NVVTG
angel
.gilbert
I32@gmail.com
Matt
Newman
mnewmancnarf.org
Rob
Rosenfeld
robrosey(gmail.com
Charlene
Sterne
cbstern(alaska.edu
Tonya Garnett
Tonya.Garnett@arcticvillage.gov
From: Skibo, Bobbie Jo
To: Galengilbert257@gmail.com
Cc: sarahjamesav@hotmail.com; Matthew Newman; Charlene Stern; Tonya Garnett; Rob Rosenfeld; Boario, Sara D;
Cohn, Steven M; Sweet, Serena E; Kuhns, Stephanie L; Lor, Socheata; Leonetti, Crystal; Loya, Wendy M
Subject: Coastal Plain SEIS Letter from BLM/FWS: Indigenous Knowledge
Date: Wednesday, June 14, 2023 5:30:29 PM
Attachments: BLM0037935_Gwich_in Response_ Re Indigenous knowledge inclusion to SEIS_Gilbert.pdf
Greetings Chief Gilbert (Arctic Village Council),
On behalf of Sara Boario, U.S. Fish & Wildlife Service Regional Director, Region 7, and Steve
Cohn, Bureau of Land Management - Alaska State Director, please find the attached letter that
has been sent directly to you via mail. We wanted to share via email, as well, to ensure that
you received it in a timely manner. Please feel free to reach out to me and the Coastal Plain
SEIS Project Management Team with any follow up questions or comments.
Respectfully,
Bobbie Jo Skibo
************************
Bobbie Jo Skibo, MS (she/her)
Strategic Conservation and Coastal Plain Coordinator
Science Applications Program
US Fish and Wildlife Service
907-441-1539
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
U.S. FISH & WILDLIFE SERVICE
1st Chief Galen Gilbert
Arctic Village Traditional Council
P.O. Box 22059
Arctic Village, Alaska 99722
VIA EMAIL: galengilbert257@gmail.com
Dear Chief Gilbert:
We are reaching out to follow up with you and your representatives on the inclusion of Gwich’in
Indigenous knowledge (IK) into the Coastal Plain Oil and Gas Leasing Program Supplemental
Environmental Impact Statement (SEIS).
We acknowledge that cancelling federal participation in the workshop held in Fairbanks,
February 27th-March 3rd was met with frustration and feelings of disrespect to the elders and
knowledge bearers who were in attendance. At that time, we became aware that other Indigenous
knowledge bearers did not feel they had an equitable opportunity to participate in the process,
and that there were several barriers preventing their attendance. For these reasons, we asked our
staff to step back and re-evaluate a path forward.
We understand that the workshop in Fairbanks was accomplished in our absence. While we
regret missing it, we are hopeful that you will be willing to share valuable IK gained.
Additionally, IK that you shared during the prior EIS process has not been lost and will be
incorporated into the SEIS process. Our intent is to build and expand upon the existing IK.
We are committed to ensuring that all of the cooperating agencies receive the same opportunities
to participate while receiving the appropriate information and updates throughout the remainder
of the SEIS process. We seek your suggestions on how we can better improve our
communications with you and meet in a way that ensures that everyone has equitable access to
the process and opportunities to participate.
Thank you again for your patience and continued engagement as we work to improve our
processes and our relationship.
We
look
forward
to
coordinating
with
you
on
appropriate
and
equitable
methods
for
gathering
and use
of
Indigenous
and
local
knowledge,
as
well
as
your
thoughts
on
how
to
navigate
a
best
path
forward
through
the
remainder
of
the
NEPA
process.
Sincerely,
Steven
M.
Cohn
Sara
D.
Boario
State
Director
Regional
Director
Bureau
of
Land
Management
Fish
and
Wildlife
Service
Identical
letters
sent
to:
Chief
Paul
Tritt,
Venetie Village
Council,
Timmy070@hotmai1.com
1st
Chief
RaeAnn
Garnett,
Native
Village
of
Venetie
Tribal
Government,
garnett.raeann(mai
1
.com
cc:
2nd
Chief
Gary
Simple-
Venetie
Village Council,
venetiegas12(gmail.com
2nd
Chief
Michael
Lee
-
Arctic
Village
Council
2nd
Chief
Angel Gilbert
of
NVVTG
angel
.gilbert
I
32(,grnai1.com
Matt
Newman
mnewman(narf.org
Rob
Rosenfeld
robrosey(i2gmail.corn
Charlene Sterne
cbstern(alaska.edu
Tonya Garnett Tonya.Garnett(,arcticvi11age.
gov
From: Skibo, Bobbie Jo
To: Garnett.raeann@gmail.com
Cc: sarahjamesav@hotmail.com; Matthew Newman; Charlene Stern; Tonya Garnett; Rob Rosenfeld; Boario, Sara D;
Cohn, Steven M; Sweet, Serena E; Kuhns, Stephanie L; Lor, Socheata; Leonetti, Crystal; Loya, Wendy M
Subject: Coastal Plain SEIS Letter from BLM/FWS: Indigenous Knowledge
Date: Wednesday, June 14, 2023 5:37:13 PM
Attachments: BLM0037935_Gwich_in Response_ Re Indigenous knowledge inclusion to SEIS_Garnett.pdf
Greetings Chief Garnett (Native Village of Venetie Village Council),
On behalf of Sara Boario, U.S. Fish & Wildlife Service Regional Director, Region 7, and Steve
Cohn, Bureau of Land Management - Alaska State Director, please find the attached letter that
has been sent directly to you via mail. We wanted to share via email, as well, to ensure that
you received it in a timely manner. Please feel free to reach out to me and the Coastal Plain
SEIS Project Management Team with any follow up questions or comments.
Respectfully,
Bobbie Jo Skibo
************************
Bobbie Jo Skibo, MS (she/her)
Strategic Conservation and Coastal Plain Coordinator
Science Applications Program
US Fish and Wildlife Service
907-441-1539
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
U.S. FISH & WILDLIFE SERVICE
1st Chief RaeAnn Garnett
Native Village of Venetie
P.O. Box 81080
Venetie, Alaska 99781
VIA EMAIL: Garnett.raeann@gmail.com
Dear Chief Garnett:
We are reaching out to follow up with you and your representatives on the inclusion of Gwich’in
Indigenous knowledge (IK) into the Coastal Plain Oil and Gas Leasing Program Supplemental
Environmental Impact Statement (SEIS).
We acknowledge that cancelling federal participation in the workshop held in Fairbanks,
February 27th-March 3rd was met with frustration and feelings of disrespect to the elders and
knowledge bearers who were in attendance. At that time, we became aware that other Indigenous
knowledge bearers did not feel they had an equitable opportunity to participate in the process,
and that there were several barriers preventing their attendance. For these reasons, we asked our
staff to step back and re-evaluate a path forward.
We understand that the workshop in Fairbanks was accomplished in our absence. While we
regret missing it, we are hopeful that you will be willing to share valuable IK gained.
Additionally, IK that you shared during the prior EIS process has not been lost and will be
incorporated into the SEIS process. Our intent is to build and expand upon the existing IK.
We are committed to ensuring that all of the cooperating agencies receive the same opportunities
to participate while receiving the appropriate information and updates throughout the remainder
of the SEIS process. We seek your suggestions on how we can better improve our
communications with you and meet in a way that ensures that everyone has equitable access to
the process and opportunities to participate.
Thank you again for your patience and continued engagement as we work to improve our
processes and our relationship.
We
look
forward
to
coordinating with
you
on
appropriate
and
equitable
methods
for
gathering
and
use
of
Indigenous
and
local
knowledge,
as
well
as
your
thoughts
on
how
to
navigate
a
best
path
forward through
the
remainder
of
the
NEPA
process.
Sincerely,
Sara
D.
Boario
Regional Director
Fish and
Wildlife
Service
Identical
letters
sent
to:
1st
Chief
Galen
Gilbert
-
Arctic
Village
Council,
Galengilbert257(,gmail.com
Pt
Chief
Paul
Tritt
-
Venetie
Village
Council,
TimmyO7Ohotrnail.com
cc:
2nd
Chief
Gary
Simple-
Venetie
Village
Council, venetiegas
I
2,gmail
.com
2nd
Chief
Michael
Lee
-
Arctic
Village
Council
2nd
Chief
Angel
Gilbert
of
NVVTG angel.gilbert
I
32(gmail.com
Matt
Newman
mnewman(narf.org
Rob
Rosenfeld robrosey@gmail.com
Charlene
Sterne
cbstem(äalaska.edu
Tonya
Garnett
Tonya.Gamett(arcticvillage.
gov
State
Director
Bureau
of
Land
Management
From: Guthrie, James M
To: Guertin, Stephen; Sundaresan, Siva R; Weber, Wendi; Leaverton, Chloe Q
Cc: Williams, Martha M
Subject: Project 2025 report
Date: Wednesday, July 26, 2023 7:47:32 AM
Attachments: 2025_MandateForLeadership_Civil Service.pdf
2025_MandateForLeadership_DOI.pdf
Attached are the two sections from the Heritage Foundation's Project 2025 report that I
mentioned in this morning's meeting. Below is a link to the full document.
https://thf_media.s3.amazonaws.com/project2025/2025_MandateForLeadership_FULL.pdf
Jim Guthrie
— 69 —
3
CENTRAL PERSONNEL AGENCIES:
MANAGING THE BUREAUCRACY
Donald Devine,
Dennis Dean Kirk,
and Paul Dans
OVERVIEW
From the very first Mandate for Leadership, the “personnel is policy” theme has been
the fundamental principle guiding the government’s personnel management. As the U.S.
Constitution makes clear, the President’s appointment, direction, and removal author-
ities are the central elements of his executive power.
1
In implementing that power, the
people and the President deserve the most talented and responsible workforce possible.
Who the President assigns to design and implement his political policy agenda
will determine whether he can carry out the responsibility given to him by the
American people. The President must recognize that whoever holds a government
position sets its policy. To fulfill an electoral mandate, he must therefore give per-
sonnel management his highest priority, including Cabinet-level precedence.
The federal government’s immense bureaucracy spreads into hundreds of agen-
cies and thousands of units and is centered and overseen at the top by key central
personnel agencies and their governing laws and regulations. The major separate
personnel agencies in the national government today are:
lThe Oce of Personnel Management (OPM);
lThe Merit Systems Protection Board (MSPB);
lThe Federal Labor Relations Authority (FLRA); and
lThe Oce of Special Counsel (OSC).
— 70 —
Mandate for Leadership: The Conservative Promise
Title 5 of the U.S. Code charges the OPM with executing, administering, and
enforcing the rules, regulations, and laws governing the civil service.2 It grants the
OPM direct responsibility for activities like retirement, pay, health, training, federal
unionization, suitability, and classification functions not specifically granted to other
agencies by statute. The agency’s Director is charged with aiding the President, as
the President may request, in preparing such civil service rules as the President pre-
scribes and otherwise advising the President on actions that may be taken to promote
an ecient civil service and a systematic application of the merit system principles,
including recommending policies relating to the selection, promotion, transfer, per-
formance, pay, conditions of service, tenure, and separation of employees.
The MSPB is the lead adjudicator for hearing and resolving cases and contro
-
versies for 2.2 million federal employees.3 It is required to conduct fair and neutral
case adjudications, regulatory reviews, and actions and studies to improve the
workforce. Its court-like adjudications investigate and hear appeals from agency
actions such as furloughs, suspensions, demotions, and terminations and are
appealable to the U.S. Court of Appeals.
The FLRA hears appeals of agency personnel cases involving federal labor griev-
ance procedures to provide judicial review with binding decisions appealable to
appeals courts.4 It interprets the rights and duties of agencies and employee labor
organizations—on management rights, OPM interpretations, recognition of labor
organizations, and unfair labor practices—under the general principle of bargain-
ing in good faith and compelling need.
The OSC serves as the investigator, mediator, publisher, and prosecutor before
the MSPB with respect to agency and employees regarding prohibited person-
nel practices, Hatch Act
5
politicization, Uniformed Services Employment and
Reemployment Rights Act6 issues, and whistleblower complaints.7
The Equal Employment Opportunity Commission (EEOC) has general respon-
sibility for reviewing charges of employee discrimination against all civil rights
breaches. However, it also administers a government employee section that investi-
gates and adjudicates federal employee complaints concerning equal employment
violations as with the private sector.
8
This makes the agency an additional de facto
factor in government personnel management.
While not a personnel agency per se, the General Services Administration (GSA)
is charged with general supervision of contracting.
9
Today, there are many more
contractors in government than there are civil service employees. The GSA must
therefore be a part of any personnel management discussion.
ANALYSIS AND RECOMMENDATIONS
OPM: Managing the Federal Bureaucracy. At the very pinnacle of the
modern progressive program to make government competent stands the ideal
of professionalized, career civil service. Since the turn of the 20th century,
— 71 —
2025 Presidential Transition Project
progressives have sought a system that could eectively select, train, reward,
and guard from partisan influence the neutral scientific experts they believe are
required to sta the national government and run the administrative state. Their
U.S. system was initiated by the Pendleton Act of 188310 and institutionalized by
the 1930s New Deal to set principles and practices that were meant to ensure that
expert merit rather than partisan favors or personal favoritism ruled within the
federal bureaucracy. Yet, as public frustration with the civil service has grown,
generating calls to “drain the swamp,” it has become clear that their project has
had serious unintended consequences.
The civil service was devised to replace the amateurism and presumed corrup-
tion of the old spoils system, wherein government jobs rewarded loyal partisans
who might or might not have professional backgrounds. Although the system
appeared to be sucient for the nation’s first century, progressive intellectuals
and activists demanded a more professionalized, scientific, and politically neutral
Administration. Progressives designed a merit system to promote expertise and
shield bureaucrats from partisan political pressure, but it soon began to insulate
civil servants from accountability. The modern merit system increasingly made it
almost impossible to fire all but the most incompetent civil servants. Complying
with arcane rules regarding recruiting, rating, hiring, and firing simply replaced
the goal of cultivating competence and expertise.
In the 1970s, Georgia Democratic Governor Jimmy Carter, then a political
unknown, ran for President supporting New Deal programs and their Great Soci-
ety expansion but opposing the way they were being administered. The policies
were not actually reducing poverty, increasing prosperity, or improving the envi-
ronment, he argued, and to make them work required fundamental bureaucratic
reform. He correctly charged that almost all government employees were rated
as “successful,” all received the same pay regardless of performance, and even the
worst were impossible to fire—and he won the presidency.
President Carter fulfilled his campaign promise by hiring Syracuse University
Dean Alan Campbell, who served first as Chairman of the U.S. Civil Service Com-
mission and then as Director of the OPM and helped him devise and pass the Civil
Service Reform Act of 1978 (CSRA)
11
to reset the basic structure of today’s bureau-
cracy. A new performance appraisal system was devised with a five rather than
three distribution of rating categories and individual goals more related to agency
missions and more related to employee promotion for all. Pay and benefits were
based directly on improved performance appraisals (including sizable bonuses) for
mid-level managers and senior executives. But time ran out on President Carter
before the act could be fully executed, so it was left to President Ronald Reagan
and his new OPM and agency leadership to implement.
Overall, the new law seemed to work for a few years under Reagan, but the Carter–
Reagan reforms were dissipated within a decade. Today, employee evaluation is back
— 72 —
Mandate for Leadership: The Conservative Promise
to pre-reform levels with almost all rated successful or above, frustrating any rela-
tion between pay and performance. An “outstanding” rating should be required for
Senior Executive Service (SES) chiefs to win big bonuses, but a few years ago, when
it was disclosed that the Veterans Administration executives who encouraged false
reporting of waiting lists for hospital admission were rated outstanding, the Senior
Executive Association justified it, telling Congress that only outstanding performers
would be promoted to the SES in the first place and that precise ratings were unnec-
essary.
12
The Government Accountability Oce (GAO), however, has reported that
pay raises, within-grade pay increases, and locality pay for regular employees and
executives have become automatic rather than based on performance—as a result
of most employees being rated at similar appraisal levels.13
OPM: Merit Hiring in a Merit System. It should not be impossible even
for a large national government to hire good people through merit selection. The
government did so for years, but it has proven dicult in recent times to select
personnel based on their knowledge, skills, and abilities (KSA) as the law dictates.
Yet for the past 34 years, the U.S. civil service has been unable to distinguish con-
sistently between strong and unqualified applicants for employment.
As the Carter presidency was winding down, the U.S. Department of Justice
and top lawyers at the OPM contrived with plaintis to end civil service IQ exam-
inations because of concern about their possible impact on minorities. The OPM
had used the Professional and Administrative Career Examination (PACE) gen-
eral intelligence exam to select college graduates for top agency employment, but
Carter Administration ocials—probably without the President’s informed con
-
currence—abolished the PACE through a legal consent court decree capitulating
to demands by civil rights petitioners who contended that it was discriminatory.
The judicial decree was to last only five years but still controls federal hiring and
is applied to all KSA tests even today.
General ability tests like the PACE have been used successfully to assess the use-
fulness and cost-eectiveness of broad intellectual qualities across many separate
occupations. Courts have ruled that even without evidence of overt, intentional
discrimination, such results might suggest discrimination. This doctrine of dispa-
rate impact could be ended legislatively or at least narrowed through the regulatory
process by a future Administration. In any event, the federal government has been
denied the use of a rigorous entry examination for three decades, relying instead
on self-evaluations that have forced managers to resort to subterfuge such as
preselecting friends or associates that they believe are competent to obtain qual-
ified employees.
In 2015, President Barack Obama’s OPM began to introduce an improved merit
examination called USAHire, which it had been testing quietly since 2012 in a few
agencies for a dozen job descriptions. The tests had multiple-choice questions with
only one correct answer. Some questions even required essay replies: questions
— 73 —
2025 Presidential Transition Project
that would change regularly to depress cheating. President Donald Trump’s OPM
planned to implement such changes but was delayed because of legal concerns
over possible disparate impact.
Courts have agreed to review the consent decree if the Uniform Guidelines
on Employee Selection Procedures setting the technical requirements for sound
exams are reformed. A government that is unable to select employees based on
KSA-like test qualifications cannot work, and the OPM must move forward on this
very basic personnel management obligation.
The Centrality of Performance Appraisal. In the meantime, the OPM must
manage the workforce it has. Before they can reward or discipline federal employees,
managers must first identify who their top performers are and who is performing
less than adequately. In fact, as Ludwig von Mises proved in his classic Bureaucracy,
14
unlike the profit-and-loss evaluation tool used in the private sector, government
performance measurement depends totally on a functioning appraisal system. If
they cannot be identified in the first place within a functioning appraisal system, it is
impossible to reward good performance or correct poor performance. The problem
is that the collegial atmosphere of a bureaucracy in a multifaceted appraisal system
that is open to appeals makes this a very challenging ideal to implement successfully.
The GAO reported more recently that overly high and widely spread perfor-
mance ratings were again plaguing the government, with more than 99 percent of
employees rated fully successful or above by their managers, a mere 0.3 percent
rated as minimally successful, and 0.1 percent actually rated unacceptable.
15
Why?
It is human nature that no one appreciates being told that he or she is less than
outstanding in every way. Informing subordinates in a closely knit bureaucracy
that they are not performing well is dicult. Rating compatriots is even consid-
ered rude and unprofessional. Moreover, managers can be and often are accused
of racial or sexual discrimination for a poor rating, and this discourages honesty.
In 2018, President Trump issued Executive Order 13839
16
requiring agen-
cies to reduce the time for employees to improve performance before corrective
action could be taken; to initiate disciplinary actions against poorly performing
employees more expeditiously; to reiterate that agencies are obligated to make
employees improve; to reduce the time for employees to respond to allegations
of poor performance; to mandate that agencies remind supervisors of expiring
employee probationary periods; to prohibit agencies from entering into settlement
agreements that modify an employee’s personnel record; and to reevaluate proce-
dures for agencies to discipline supervisors who retaliate against whistleblowers.
Unfortunately, the order was overturned by the Biden Administration,17 so it will
need to be reintroduced in 2025.
The fact remains that meaningfully evaluating employees’ performance is a
critical part of a manager’s job. In the Reagan appraisal process, managers were
evaluated on how they themselves rated their subordinates. This is critical to
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Mandate for Leadership: The Conservative Promise
responsibility and improved management. It is essential that political executives
build policy goals directly into employee appraisals both for mission success and
for employees to know what is expected. Indistinguishable from their coworkers
on paper, hard-working federal employees often go unrewarded for their eorts
and are often the system’s greatest critics. Federal workers who are performing
inadequately get neither the benefit of an honest appraisal nor clear guidance on
how to improve. Political executives should take an active role in supervising per-
formance appraisals of career sta, not unduly delegate this responsibility to senior
career managers, and be willing to reward and support good performers.
Merit Pay. Performance appraisal means little to daily operations if it is not tied
directly to real consequences for success as well as failure. According to a survey of
major U.S. private companies—which, unlike the federal government, also have a
profit-and-loss evaluation—90 percent use a system of merit pay for performance
based on some type of appraisal system. Despite early eorts to institute merit pay
throughout the federal government, however, compensation is still based primarily
on seniority rather than merit.
Merit pay for executives and managers was part of the Carter reforms and was
implemented early in the Reagan presidency. Beginning in the summer of 1982,
the Reagan OPM entered 18 months of negotiations with House and Senate sta
on extending merit pay to the entire workforce. Long and detailed talks between
the OPM and both Democrats and Republicans in Congress ensued, and a final
agreement was reached in 1983 that supposedly ensured the passage of legislation
creating a new Performance Management and Recognition System (PMRS) for all,
(not just management) GS-13 through GS-15 employees.
Meanwhile, the OPM issued regulations to expand the role of performance
related to pay throughout the entire workforce, but congressional allies of the
employee unions, led by Representative Steny Hoyer (D) of government employee–
rich Maryland, stoutly resisted this extension of pay-for-performance and, with
strong union support, used the congressional appropriations process to block OPM
administrative pay reforms. Bonuses for SES career employees survived, but per-
formance appraisals became so high and widely distributed that there was little
relationship between performance and remuneration.
Ever since the original merit pay system for federal managers (GM-13 through
GM-15 grade levels, just below the SES) was allowed to expire in September 1993,
little to nothing has been done either to reinstate the federal merit pay program for
managers or to distribute performance rating evaluations for the SES, much less to
extend the program to the remainder of the workforce. A reform-friendly President
and Congress might just provide the opportunity to create a more comprehensive
performance plan; in the meantime, however, political executives should use exist-
ing pay and especially fiscal awards strategically to reward good performance to
the degree allowed by law.
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2025 Presidential Transition Project
Making the Appeals Process Work. The nonmilitary government dismissal
rate is well below 1 percent, and no private-sector industry employee enjoys the
job security that a federal employee enjoys. Both safety and justice demand that
managers learn to act strategically to hire good and fire poor performers legally.
The initial paperwork required to separate poor or abusive performers (when they
are infrequently identified) is not overwhelming, and managers might be motivated
to act if it were not for the appeals and enforcement processes. Formal appeal in the
private sector is mostly a rather simple two-step process, but government unions
and associations have been able to convince politicians to support a multiple and
extensive appeals and enforcement process.
As noted, there are multiple administrative appeals bodies. The FLRA, OSC,
and EEOC have relatively narrow jurisdictions. Claims that an employee’s removal
or disciplinary actions violate the terms of a collective bargaining agreement
between an agency and a union are handled by the FLRA, employees who claim
their removal was the result of discrimination can appeal to the EEOC, and employ-
ees who believe their firing was retribution for being a whistleblower can go to the
OSC. While the MSPB specializes in abuses of direct merit system issues, it can
and does hear and review almost any of the matters heard by the other agencies.
Cases involving race, gender, religion, age, pregnancy, disability, or national
origin can be appealed to the EEOC or the MSPB—and in some cases to both—and
to the OSC. This gives employees multiple opportunities to prove their cases, and
while the EEOC, MSPB, FLRA, and OSC may all apply essentially the same burden
of proof, the odds of success may be substantially dierent in each forum. In fact,
forum shopping among them for a friendlier venue is a common practice, but fre-
quent filers face no consequences for frivolous complaints. As a result, meritorious
cases are frequently delayed, denying relief and justice to truly aggrieved individuals.
The MSPB can and does handle all such matters, but it faces a backlog of an
estimated 3,000 cases of people who were potentially wrongfully terminated or
disciplined as far back as 2013. From 2017–2022 the MSPB lacked the quorum
required to decide appeals. On the other hand, as of January 2023, the EEOC had
a backlog of 42,000 cases.
While federal employees win appeals relatively infrequently—MSPB adminis-
trative judges have upheld agency decisions as much as 80 percent of the time—the
real problem is the time and paperwork involved in the elaborate process that
managers must undergo during appeals. This keeps even the best managers from
bringing cases in all but the most egregious cases of poor performance or mis-
conduct. As a result, the MSPB, EEOC, FLRA, and OSC likely see very few cases
compared to the number of occurrences, and nonperformers continue to be paid
and often are placed in nonwork positions.
Having a choice of appeals is especially unique to the government. If lower-pri-
ority issues were addressed in-house, serious adverse actions would be less subject
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Mandate for Leadership: The Conservative Promise
to delay. With the proper limitation of labor union actions, the FLRA should
have limited reason for appeals. The EEOC’s federal employee section should be
transferred to the MSPB, and many of the OCS’s investigatory functions should be
returned to the OPM. The MSPB could then become the main reviewer of adverse
actions, greatly simplifying the burdensome appeal process.
Making Civil Service Benefits Economically and Administratively Ratio-
nal. In recent years, the combined wages and benefits of the executive branch
civilian workforce totaled $300 billion according to ocial data. But even that
amount does not properly account for billions in unfunded liability for retirement
and other government reporting distortions. Ocial data also report employment
as approximately 2 million, but this ignores approximately 20 million contractors
who, while not eligible for government pay and benefits, do receive them indirectly
through contracting (even if they are less generous). Ocial data also claim that
national government employees are paid less than private-sector employees are
paid for similar work, but several more neutral sources demonstrate that pub-
lic-sector workers make more on average than their private-sector counterparts.
All of this extravagance deserves close scrutiny.
Market-Based Pay and Benefits. According to current law, federal workers
are to be paid wages comparable to equivalent private-sector workers rather than
compared to all private-sector employees. While the ocial studies claim that
federal employees are underpaid relative to the private sector by 20 percent or
more,
a 2016 Heritage Foundation study found that federal employees received
wages that were 22 percent higher than wages for similar private-sector workers;
if the value of employee benefits was included, the total compensation premium
for federal employees over their private-sector equivalents increased to between
30 percent and 40 percent.
18
The American Enterprise Institute found a 14 percent
pay premium and a 61 percent total compensation premium.19
Base salary is only one component of a federal employee’s total compensation.
In addition to high starting wages, federal employees normally receive an annual
cost-of-living adjustment (available to all employees) and generous scheduled
raises known as step increases. Moreover, a large proportion of federal employ-
ees are stationed in the Washington, D.C., area and other large cities and are
entitled to steep locality pay enhancement to account for the high cost of living
in these areas.
A federal employee with five years’ experience receives 20 vacation days, 13 paid
sick days, and all 10 federal holidays compared to an employee at a large private
company who receives 13 days of vacation and eight paid sick days. Federal health
benefits are more comparable to those provided by Fortune 500 employers with
the government paying 72 percent of the weighted average premiums, but this is
much higher than for most private plans. Almost half of private firms do not oer
any employer contributions at all.
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2025 Presidential Transition Project
The obvious solution to these discrepancies is to move closer to a market model
for federal pay and benefits. One need is for a neutral agency to oversee pay hiring
decisions, especially for high-demand occupations. The OPM is independent of
agency operations, so it can assess requirements more neutrally. For many years,
with its Special Pay Rates program, the OPM evaluated claims that federal rates
in an area were too low to attract competent employees and allowed agencies to
oer higher pay when needed rather than increased rates for all. Ideally, the OPM
should establish an initial pay schedule for every occupation and region, monitor
turnover rates and applicant-to-position ratios, and adjust pay and recruitment
on that basis. Most of this requires legislation, but the OPM should be an advocate
for a true equality of benefits between the public and private sectors.
Reforming Federal Retirement Benefits. Career civil servants enjoy retire-
ment benefits that are nearly unheard of in the private sector. Federal employees
retire earlier (normally at age 55 after 30 years), enjoy richer pension annuities,
and receive automatic cost-of-living adjustments based on the areas in which they
retire. Defined-benefit federal pensions are fully indexed for inflation—a practice
that is extremely rare in the private sector. A federal employee with a preretire-
ment income of $25,000 under the older of the two federal retirement plans will
receive at least $200,000 more over a 20-year period than will private-sector work-
ers with the same preretirement salary under historic inflation levels.
During the early Reagan years, the OPM reformed many specific provisions of
the federal pension program to save billions administratively. Under OPM pres-
sure, Reagan and Congress ultimately ended the old Civil Service Retirement
System (CSRS) entirely for new employees, which (counting disbursements for
the unfunded liability) accounted for 51.3 percent of the federal government's
total payroll. The retirement system that replaced it—the Federal Employees
Retirement System (FERS)—reduced the cost of federal employee retirement dis-
bursements to 28.5 percent of payroll (including contributions to Social Security
and the employer match to the Thrift Savings Plan). More of the pension cost was
shifted to the employee, but the new system was much more equitable for the 40
percent who received few or no benefits under the old system.
By 1999, more than half of the federal workforce was covered by the new system,
and the government’s per capita share of the cost (as the employer) was less than
half the cost of the old system: 20.2 percent of FERS payroll vs. 44.3 percent of
CSRS payroll, representing one of the largest examples of government savings
anywhere. Although the government pension system has become more like private
pension systems, it still remains much more generous, and other means might be
considered in the future to move it even closer to private plans.
GSA: Landlord and Contractor Management. The General Services
Administration is best known as the federal government’s landlord—designing,
constructing, managing, and preserving government buildings and leasing and
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Mandate for Leadership: The Conservative Promise
managing outside commercial real estate contracting with 376.9 million square feet
of space. Obviously, as its prime function, real estate expertise is key to the GSA’s
success. However, the GSA is also the government’s purchasing agent, connecting
federal purchasers with commercial products and services in the private sector
and their personnel management functions. With contractors performing so many
functions today, the GSA therefore becomes a de facto part of governmentwide
personnel management. The GSA also manages the Presidential Transition Act
(PTA) process, which also directly involves the OPM. A recent proposal would
have incorporated the OPM and GSA (and OMB). Fortunately, this did not take
place in that form, but it would make sense for GSA and OPM leadership and sta
to hold regular meetings to work through matters of common interest such as
moderating PTA personnel restrictions and the relationships between contract
and civil service employees.
Reductions-in-Force. Reducing the number of federal employees seems an
obvious way to reduce the overall expense of the civil service, and many prior
Administrations have attempted to do just this. Presidents Bill Clinton and
Barack Obama began their terms, as did Ronald Reagan and Donald Trump, by
mandating a freeze on the hiring of new federal employees, but these eorts did
not lead to permanent and substantive reductions in the number of nondefense
federal employees.
First, it is a challenge even to know which workers to cut. As mentioned, there
are 2 million federal employees, but since budgets have exploded, so has the
total number of personnel with nearly 10 times more federal contractors than
federal employees. Contractors are less expensive because they are not entitled
to high government pensions or benefits and are easier to fire and discipline. In
addition, millions of state government employees work under federal grants, in
eect administering federal programs; these cannot be cut directly. Cutting federal
employment can be helpful and can provide a simple story to average citizens, but
cutting functions, levels, funds, and grants is much more important than setting
simple employment size.
Simply reducing numbers can actually increase costs. OMB instructions fol-
lowing President Trump’s employment freeze told agencies to consider buyout
programs, encouraging early retirements in order to shift costs from current bud-
gets in agencies to the retirement system and minimize the number of personnel
fired. The Environmental Protection Agency immediately implemented such a
program, and OMB urged the passage of legislation to increase payout maximums
from $25,000 to $40,000 to further increase spending under the “cuts.” President
Clinton’s OMB had introduced a similar buyout that cost the Treasury $2.8 billion,
mostly for those who were going to retire anyway. Moreover, when a new employee
is hired to fill a job recently vacated in a buyout, the government for a time is paying
two people to fill one job.
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2025 Presidential Transition Project
What is needed at the beginning is a freeze on all top career-position hiring
to prevent “burrowing-in” by outgoing political appointees. Moreover, four fac-
tors determine the order in which employees are protected during layos: tenure,
veterans’ preference, seniority, and performance in that order of importance.
Despite several attempts in the House of Representatives during the Trump years
to enact legislation that would modestly increase the weight given to performance
over time-of-service, the fierce opposition by federal managers associations and
unions representing long-serving but not necessarily well-performing constituents
explains why the bills failed to advance. A determined President should insist that
performance be first and be wary of costly types of reductions-in-force.
Impenetrable Bureaucracy. The GAO has identified almost a hundred actions
that the executive branch or Congress could take to improve eciency and eec-
tiveness across 37 areas that span a broad range of government missions and
functions. It identified 33 actions to address mission fragmentation, overlap, and
duplication in the 12 areas of defense, economic development, health, homeland
security, and information technology. It also identified 59 other opportunities for
executive agencies or Congress to reduce the cost of government operations or
enhance revenue collection across 25 areas of government.20
A logical place to begin would be to identify and eliminate functions and pro-
grams that are duplicated across Cabinet departments or spread across multiple
agencies. Congress hoped to help this eort by passing the Government Perfor-
mance and Results Act of 1993,
21
which required all federal agencies to define
their missions, establish goals and objectives, and measure and report their per-
formance to Congress. Three decades of endless time-consuming reports later,
the government continues to grow but with more paper and little change either
in performance or in the number of levels between government and the people.
The Brookings Institution’s Paul Light emphasizes the importance of the
increasing number of levels between the top heads of departments and the people
at the bottom who receive the products of government decision-making. He esti-
mates that there are perhaps 50 or more levels of impenetrable bureaucracy and no
way other than imperfect performance appraisals to communicate between them.
22
The Trump Administration proposed some possible consolidations, but these
were not received favorably in Congress, whose approval is necessary for most such
proposals. The best solution is to cut functions and budgets and devolve respon-
sibilities. That is a challenge primarily for Presidents, Congress, and the entire
government, but the OPM still needs to lead the way governmentwide in managing
personnel properly even in any future smaller government.
Creating a Responsible Career Management Service. The people elect a
President who is charged by Article 2, Section 3 of the Constitution23 with seeing
that the laws are “faithfully executed” with his political appointees democratically
linked to that legitimizing responsibility. An autonomous bureaucracy has neither
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Mandate for Leadership: The Conservative Promise
independent constitutional status nor separate moral legitimacy. Therefore, career
civil servants by themselves should not lead major policy changes and reforms.
The creation of the Senior Executive Service was the top career change intro-
duced by the 1978 Carter–Campbell Civil Service Reform Act. Its aim was to
professionalize the career service and make it more responsible to the democrat-
ically elected commander in chief and his political appointees while respecting the
rights due to career employees, very much including those in the top positions. The
new SES would allow management to be more flexible in filling and reassigning
executive positions and locations beyond narrow specialties for more ecient
mission accomplishment and would provide pay and large bonuses to motivate
career performance.
The desire to infiltrate political appointees improperly into the high career
civil service has been widespread in every Administration, whether Democrat or
Republican. Democratic Administrations, however, are typically more successful
because they require the cooperation of careerists, who generally lean heavily to
the Left. Such burrowing-in requires career job descriptions for new positions that
closely mirror the functions of a political appointee; a special hiring authority that
allows the bypassing of veterans’ preference as well as other preference categories;
and the ability to frustrate career candidates from taking the desired position.
President Reagan’s OPM began by limiting such SES burrowing-in, arguing
that the proper course was to create and fill political positions. This simultane-
ously promotes the CSRA principle of political leadership of the bureaucracy and
respects the professional autonomy of the career service. But this requires that
career SES employees should respect political rights too. Actions such as career
sta reserving excessive numbers of key policy positions as “career reserved” to
deny them to noncareer SES employees frustrate CSRA intent. Another evasion
is the general domination by career sta on SES personnel evaluation boards, the
opposite of noncareer executives dominating these critical meeting discussions
as expected in the SES. Career training also often underplays the political role in
leadership and inculcates career-first policy and value viewpoints.
Frustrated with these activities by top career executives, the Trump Adminis-
tration issued Executive Order 1395724 to make career professionals in positions
that are not normally subject to change as a result of a presidential transition but
who discharge significant duties and exercise significant discretion in formulating
and implementing executive branch policy and programs an exception to the com-
petitive hiring rules and examinations for career positions under a new Schedule
F. It ordered the Director of OPM and agency heads to set procedures to prepare
lists of such confidential, policy-determining, policymaking, or policy-advocating
positions and prepare procedures to create exceptions from civil service rules when
careerists hold such positions, from which they can relocate back to the regular
civil service after such service. The order was subsequently reversed by President
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2025 Presidential Transition Project
Biden
25
at the demand of the civil service associations and unions. It should be
reinstated, but SES responsibility should come first.
Managing Personnel in a Union Environment. Historically, unions were
thought to be incompatible with government management. There is a natural limit
to the bargaining power of private-sector unions, but the financial bottom line of
public-sector unions is not similarly constrained. If private-sector unions push
too hard a bargain, they can so harm a company or so reduce eciency that their
employer is forced to go out of business and eliminate union jobs altogether. There
is no such limit in government, which cannot go out of business, so demands can
be excessive without negatively aecting employee and union bottom lines.
Even Democratic President Franklin Roosevelt considered union representa-
tion in the federal government to be incompatible with democracy. Striking and
even threats of bargaining and delay were considered acts against the people and
thus improper. It was not until President John Kennedy that union representation
in the federal government was recognized—and then merely by executive order.
Labor bargaining was not set in statute until the Carter Administration was forced
by Congress to do so in order to pass the CSRA, although all bargaining was placed
under OPM review.
The CSRA was able to maintain strong management rights for the OPM and
agencies and forbade collective bargaining on pay and benefits as well as manage-
ment prerogatives. Over time, OPM, FLRA, and agencies’ personnel oces and
courts, especially in Democratic Administrations, narrowed management rights
so that labor bargaining expanded as management rights contracted. But the man-
agement rights are still in statute, have been enforced by some Administrations,
and should be enforced again by any future OPM and agency managements, which
should not be intimidated by union power.
Rather than being daunted, President Trump issued three executive orders:
lExecutive Order 13836, encouraging agencies to renegotiate all union
collective bargaining agreements to ensure consistency with the law and
respect for management rights;26
lExecutive Order 13837, encouraging agencies to prevent union
representatives from using ocial time preparing or pursuing grievances or
from engaging in other union activity on government time;27 and
lExecutive Order 13839, encouraging agencies both to limit labor grievances
on removals from service or on challenging performance appraisals and to
prioritize performance over seniority when deciding who should be retained
following reductions-in-force.28
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Mandate for Leadership: The Conservative Promise
All were revoked by the Biden Administration
29
and should be reinstated by the
next Administration, to include the immediate appointment of the FLRA General
Counsel and reactivation of the Impasses Panel.
Congress should also consider whether public-sector unions are appropriate
in the first place. The bipartisan consensus up until the middle of the 20th cen-
tury held that these unions were not compatible with constitutional government.
30
After more than half a century of experience with public-sector union frustrations
of good government management, it is hard to avoid reaching the same conclusion.
Fully Stang the Ranks of Political Appointees. The President must rely
legally on his top department and agency ocials to run the government and on top
White House sta employees to coordinate operations through regular Cabinet and
other meetings and communications. Without this political leadership, the career
civil service becomes empowered to lead the executive branch without democratic
legitimacy. While many obstacles stand in his way, a President is constitutionally
and statutorily required to fill the top political positions in the executive branch
both to assist him and to provide overall legitimacy.
Most Presidents have had some diculty obtaining congressional approval of
their appointees, but this has worsened recently. After the 2016 election, President
Trump faced special hostility from the opposition party and the media in getting
his appointees confirmed or even considered by the Senate. His early Oce of
Presidential Personnel (PPO) did not generally remove political appointees from
the previous Administration but instead relied mostly on prior political appoin
-
tees and career civil servants to run the government. Such a reliance on holdovers
and bureaucrats led to a lack of agency control and the absolute refusal of the
Acting Attorney General from the Obama Administration to obey a direct order
from the President.
Under the early PPO, the Trump Administration appointed fewer political
appointees in its first few months in oce than had been appointed in any recent
presidency, partly because of historically high partisan congressional obstructions
but also because several ocials announced that they preferred fewer political
appointees in the agencies as a way to cut federal spending. Whatever the reasoning,
this had the eect of permanently hampering the rollout of the new President’s
agenda. Thus, in those critical early years, much of the government relied on senior
careerists and holdover Obama appointees to carry out the sensitive responsibili-
ties that would otherwise belong to the new President’s appointees.
Fortunately, the later PPO, OPM, and Senate leadership began to cooperate to
build a strong team to implement the President’s personnel appointment agenda.
Any new Administration would be wise to learn that it will need a full cadre of
sound political appointees from the beginning if it expects to direct this enormous
federal bureaucracy. A close relationship between the PPO at the White House
and the OPM, coordinating with agency assistant secretaries of administration
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2025 Presidential Transition Project
and PPO’s chosen White House Liaisons and their sta at each agency, is essential
to the management of this large, multilevel, resistant, and bureaucratic challenge.
If “personnel is policy” is to be our general guide, it would make sense to give the
President direct supervision of the bureaucracy with the OPM Director available
in his Cabinet.
A REFORMED BUREAUCRACY
Today, the federal government’s bureaucracy cannot even meet its own civil
service ideals. The merit criteria of ability, knowledge, and skills are no longer the
basis for recruitment, selection, or advancement, while pay and benefits for com-
parable work are substantially above those in the private sector. Retention is not
based primarily on performance, and for the most part, inadequate performance
is not appraised, corrected, or punished.
The authors have made many suggestions here that, if implemented, could
bring that bureaucracy more under control and enable it to work more eciently
and responsibly, which is especially required for the half of civilian government
that administers its undeniable responsibilities for defense and foreign aairs.
While a better administered central bureaucracy is crucial for both those and
domestic responsibilities, the problem of properly running the government goes
beyond simple bureaucratic administration. The specific deficiencies of the fed-
eral bureaucracy—size, levels of organization, ineciency, expense, and lack of
responsiveness to political leadership—are rooted in the progressive ideology that
unelected experts can and should be trusted to promote the general welfare in just
about every area of social life.
The Constitution, however, reserved a few enumerated powers to the federal
government while leaving the great majority of domestic activities to state, local,
and private governance. As James Madison explained: “The powers reserved to
the several States will extend to all the objects, which, in the ordinary course of
aairs, concern the lives, liberties and properties of the people; and the internal
order, improvement and prosperity of the state.”
31
Modern progressive politics
has simply given the national government more to do than the complex separa-
tion-of-powers Constitution allows.
That progressive system has broken down in our time, and the only real solution
is for the national government to do less: to decentralize and privatize as much as
possible and then ensure that the remaining bureaucracy is managed eectively
along the lines of the enduring principles set out in detail here.
AUTHORS’ NOTE: The authors are grateful for the collaborative work of the individuals listed as contributors to
this chapter for the 2025 Presidential Transition Project. The authors alone assume responsibility for the content of
this chapter, and no views expressed herein should be attributed to any other individual.
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ENDNOTES
U.S. Constitution, Article II, Section 2, https://www.law.cornell.edu/constitution/articleii#section1 (accessed
February 1, 2023).
5 U.S. Code §§ 1101 et seq. and 1103(a)(5), https://www.law.cornell.edu/uscode/text/5/part-II/chapter-11
(accessed February 1, 2023).
5 U.S. Code § 1201, https://www.law.cornell.edu/uscode/text/5/1201 (accessed February 1, 2023).
5 U.S. Code § 7101, https://www.law.cornell.edu/uscode/text/5/7101 (accessed February 1, 2023), and § 7117,
https://www.law.cornell.edu/uscode/text/5/7117 (accessed February 1, 2023).
S. 1871, An Act to Prevent Pernicious Political Activities, Public Law No. 76-252, August 2, 1939, https://
govtrackus.s3.amazonaws.com/legislink/pdf/stat/53/STATUTE-53-Pg1147.pdf (accessed February 1, 2023).
H.R. 995, Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law No. 103-353,
101st Congress, October 13, 1994, https://www.congress.gov/103/statute/STATUTE-108/STATUTE-108-Pg3149.
pdf (accessed February 1, 2023).
5 U.S. Code § 1206, https://www.law.cornell.edu/uscode/text/5/1206 (accessed February 1, 2023).
42 U.S. Code § 2000e, https://www.law.cornell.edu/uscode/text/42/2000e (accessed February 1, 2023).
40 U.S. Code § 581, https://www.law.cornell.edu/uscode/text/40/581 (accessed February 1, 2023).
U.S. National Archives, “Milestone Documents: Pendleton Act (1883),” last reviewed February 8, 2022, https://
www.archives.gov/milestone-documents/pendleton-act (accessed February 2, 2023).
S. 2640, Civil Service Reform Act of 1978, Public Law No. 95-454, 95th Congress, October 13, 1978, https://
www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1111.pdf (accessed February 2, 2023).
Donovan Sack and Bill Theobald, “Veterans Aairs Pays $140 Million in Bonuses Amid Scandals,” USA Today,
November 11, 2015, https://www.usatoday.com/story/news/politics/2015/11/11/veterans-aairs-pays-142-
million-bonuses-amid-scandals/75537586/ (accessed March 15, 2023).
U.S. Government Accountability Oce, “Federal Workforce: Distribution of Performance Ratings Across
the Federal Government, 2013,” GAO-16-520R, May 9, 2016, https://www.gao.gov/assets/gao-16-520r.pdf
(accessed March 15, 2023); U.S. Government Accountability Oce, Results-Oriented Management: OPM Needs
to Do More to Ensure Meaningful Distinctions Are Made in SES Ratings and Performance Awards, GAO-15-
189, January 2015, https://www.gao.gov/assets/gao-15-189.pdf (accessed March 15, 2023); U.S. Government
Accountability Oce, “Measuring Federal Employee Performance,” WatchBlog, posted October 18, 2016,
https://www.gao.gov/blog/2016/10/18/measuring-federal-employee-performance (accessed March 15, 2023);
Lisa Rein, “The Federal Workforce, Where Everyone’s Performance Gets Rave Reviews,” The Washington Post,
June 13, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/06/13/heres-the-news-from-the-
federal-government-where-everyone-is-above-average-way-above/ (accessed March 15, 2023).
Ludwig von Mises, Bureaucracy (New Haven, CT: Yale University Press, 1944), https://ia902300.us.archive.
org/17/items/mises-pdfs/1944-01-01_LudwigVonMises_Bureaucracy.pdf (accessed February 2, 2023).
Figure 1, “Permanent, Non-Senior Executive Service Employee Performance Rating Outcomes (All Rating
Systems, Calendar Year 2013),” in U.S. Government Accountability Oce, “Federal Workforce: Distribution of
Performance Ratings Across the Federal Government, 2013,” p. 6.
President Donald J. Trump, Executive Order 13839, “Promoting Accountability and Streamlining Removal
Procedures Consistent with Merit System Principles,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25343–25347, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11939.pdf (accessed
February 2, 2023).
President Joseph R. Biden Jr., Executive Order 14003, “Protecting the Federal Workforce,” January 22, 2021, in
Federal Register, Vol. 86, No. 16 (January 27, 2021), pp. 7231–7233, https://www.govinfo.gov/content/pkg/FR-
2021-01-27/pdf/2021-01924.pdf (accessed February 2, 2023).
Rachel Greszler and James Sherk, “Why It Is Time to Reform Compensation for Federal Employees,” The
Heritage Foundation, July 27, 2016, https://www.heritage.org/jobs-and-labor/report/why-it-time-reform-
compensation-federal-employees.
Andrew G. Biggs and Jason Richwine, “Comparing Federal and Private Sector Compensation,” American
Enterprise Institute Working Paper No. 2011-02, revised June 2011, https://www.aei.org/wp-content/
uploads/2011/10/AEI-Working-Paper-on-Federal-Pay-May-2011.pdf?x91208 (accessed February 2, 2023).
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2025 Presidential Transition Project
See Gene L. Dodaro, Comptroller General of the United States, “Government Eciency and Eectiveness:
Opportunities to Reduce Fragmentation, Overlap, and Duplication and Achieve Billions in Financial Benefits,”
testimony before the Subcommittee on Emerging Threats and Spending Oversight, Committee on Homeland
Security and Governmental Aairs, U.S. Senate, GAO-21-544T, May 12, 2021, https://www.gao.gov/assets/gao-
21-544t.pdf (accessed February 2, 2023).
S. 20, Government Performance and Results Act of 1993, Public Law No. 103-62, 103rd Congress, August
3, 1993, https://www.congress.gov/103/statute/STATUTE-107/STATUTE-107-Pg285.pdf (accessed
February 2, 2023).
Paul Light, “The Real Crisis in Government,” The Capital Times (Madison, Wisconsin), January 22, 2010, https://
captimes.com/news/opinion/column/paul-c-light-the-real-crisis-in-government/article_9e139318-3d00-
5898-908d-4c7aee1e105d.html (accessed March 15, 2023).
U.S. Constitution, Article II, Section 3, https://www.law.cornell.edu/constitution/articleii#section3 (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13957, “Creating Schedule F in the Excepted Service,” October 21,
2020, in Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635, https://www.govinfo.gov/
content/pkg/FR-2020-10-26/pdf/2020-23780.pdf (accessed February 2, 2023).
See note 17, supra.
President Donald J. Trump, Executive Order 13836, “Developing Ecient, Eective, and Cost-Reducing
Approaches to Federal Sector Collective Bargaining,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25329–25334, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11913.pdf (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13837, “Ensuring Transparency, Accountability, and Eciency
in Taxpayer-Funded Union Time Use,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1, 2018),
pp. 25335–25340, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11916.pdf (accessed
February 2, 2023).
See note 16, supra.
See note 17, supra.
Philip K. Howard, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (Garden City,
NY: Rodin Books, 2023).
James Madison, The Federalist Papers No. 45, January 26, 1788, https://founders.archives.gov/documents/
Madison/01-10-02-0254 (accessed February 1, 2023).
— 517 —
16
DEPARTMENT OF
THE INTERIOR
William Perry Pendley
T
he U.S. Department of the Interior (DOI) oversees, manages, and protects
the nation’s natural resources and cultural heritage; provides scientific
and other information about those resources; and honors the nation’s trust
responsibilities or special commitments to American Indians, Alaska Natives, and
aliated island communities.
AGENCY OVERVIEW
DOI’s purview encompasses more than 500 million acres of federal lands,
including national parks and national wildlife refuges; 700 million acres of sub-
surface minerals; 1.7 billion acres of the Outer Continental Shelf (OCS); 23 percent
of the nation’s energy; water in 17 western states; and trust responsibilities for 566
Indian tribes and Alaska Natives. DOI’s 2024 budget request totals $18.9 billion, an
increase of $2 billion, or 12 percent, more than the 2023 enacted level. The budget
also provides an estimated $12.6 billion in permanent funding in 2024. In 2024,
DOI will generate receipts of $19.6 billion.
A “Home Department” had been considered in 1789 and urged by Presidents
over the decades until DOI’s creation in 1849. The variety of its early responsibil-
ities—the Indian Bureau, the General Land Oce, the Bureau of Pensions, and
the Patent Oce, among others—earned it various nicknames, including “Great
Miscellany,” “hydra-headed monster,” and “Mother of Departments.”1 Its mission
became more focused on natural resources with the rise of the conservation move-
ment in the early 20th century; however, it kept its historic (since the days of the
Founding Fathers) role as overseer of vast working landscapes involving grazing,
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Mandate for Leadership: The Conservative Promise
logging, mining, oil, and gas and, with the Bureau of Reclamation in 1902, as the
nation’s dam builder. Today, DOI has 70,000 employees in approximately 2,400
locations with oces across the United States, Puerto Rico, and U.S. Territories
and Freely Associated States.
Historically, DOI operated in a bipartisan manner consistent with the laws
enacted by Congress pursuant to its powers under the Property Clause.
2
Thus,
DOI fulfilled its statutory responsibilities in a manner that ensured the ability of
western states, counties, and communities to be sustained by both economic and
recreational activities on neighboring federal lands, especially given that in some
rural western counties, federal lands constituted 50, 60, 70, 80—even 90 percent
of the county’s landmass.3
That ended with the Administration of President Jimmy Carter, who, beholden
to environmental groups that supported his election, adopted DOI policies consis-
tent with their demands, much to the horror of western governors, most of whom
were Democrats. President Ronald Reagan campaigned against this “War on the
West,” declared himself a “Sagebrush Rebel,” and, on taking oce,4 quelled the
rebellion by reversing Carter Administration policies. President George H. W.
Bush distanced himself from Reagan’s western policies, committed to a “kinder
and gentler America,” and proclaimed his desire to be “the environmental Pres-
ident,” which resulted in changes at the his Administration’s DOI—again, much
to the dismay of westerners.
5
President Bill Clinton resumed Carter’s “War on
the West,” epitomized by his DOI’s deploying of wolves into the states bordering
Yellowstone National Park; the decreed death of a world-class mine in Montana;
and the designation of a vast national monument in Utah over the objections of
Utah leaders—but with the support of the Hollywood elite.6
Although Texas Governor George W. Bush and former Wyoming Representative
Dick Cheney (R–WY) campaigned in 2000 against Clinton’s worst outrages, includ-
ing the Utah monument, there was no significant ratcheting back of DOI policies
that were either objected to by westerners or contrary to the express provisions of
federal statutes. President Barack Obama’s DOI resumed the anti-economic fed-
eral lands policies activated by Carter and amplified by Clinton; however, Obama’s
DOI’s antipathy to oil and gas activity on federal lands as mandated by Congress
could not have come at a worse time.
After the demonstrated success of fracking on Bureau of Land Management
(BLM) acreage in Wyoming in 1993, the fracking revolution soon swept the nation,7
yielding massive discoveries on state and private land from coast to coast, but not,
thanks to Obama, on western federal lands.8 President Donald Trump, on the other
hand, immediately ordered his DOI to comply with federal law, conduct congressio-
nally mandated lease sales, and seek to achieve energy dominance or independence.
Thanks in part to the success of oil and gas operations on federal land in the West,
the United States achieved energy security for the first time since 1957 in 2019.9
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2025 Presidential Transition Project
President Joe Biden’s DOI, as is well documented, abandoned all pretense of
complying with federal law regarding federally owned oil and gas resources. Not
since the Administration of President Harry S. Truman—prior to creation of the
OCS oil and gas program—have fewer federal leases been issued.10
At DOI, not since the Reagan Administration was the radical environmen-
tal agenda (first implemented by Carter, resumed by Clinton, and revitalized
by Obama) rolled back as substantially as it was by President Trump. Trump’s
DOI change aected not only oil and gas leasing, as noted above, but all statutory
responsibilities of its various agencies, bureaus, and oces. Thus, whether the
statutory mandate was to promote economic activity, to ensure and expand rec-
reational opportunities, or to protect valuable natural resources, including, for
example, parks, wilderness areas, national monuments, and wild and scenic areas,
eorts were expended, barriers were removed, and career employees were aided
in the accomplishment of those missions.
Unfortunately, Biden’s DOI is at war with the department’s mission, not only
when it comes to DOI’s obligation to develop the vast oil and gas and coal resources
for which it is responsible, but also as to its statutory mandate, for example, to
manage much of federal land overseen by the BLM pursuant to “multiple use” and
“sustained yield” principles.11 Instead, Biden’s DOI believes most BLM land should
be placed o-limits to all economic and most recreational uses. Worse yet, Biden’s
DOI not only refuses to adhere to the statutes enacted by Congress as to how the
lands under its jurisdiction are managed, but it also insists on implementing a vast
regulatory regime (for which Congress has not granted authority) and overturning,
by unilateral regulatory action, congressional acts that set forth the productive
economic uses permitted on DOI-managed federal land.
BUDGET STRUCTURE
At $18.9 billion, DOI’s 2024 proposed budget is small relative to many other
federal agencies. On the other side of the ledger, the DOI forecasts it will generate
more than $19.6 billion in “osetting receipts” from oil and gas royalties, timber
and grazing fees, park user fees, and land sales, among other sources. Most of the
proposed allocations are divided among nine bureaus.
Bureau of Indian Aairs. Fulfills Indian trust responsibilities on behalf of
566 Indian tribes; supports natural resource education, law enforcement, and
social service programs delivered by tribes; operates 182 elementary and secondary
schools and dormitories and 29 tribally controlled community colleges, universi-
ties, and post-secondary schools.
Bureau of Land Management. Manages and conserves resources for 245
million acres of public land and 700 million acres of subsurface federal mineral
estate, including energy and mineral development, forest management, timber
and biomass production, and wild horse and burro management.
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Mandate for Leadership: The Conservative Promise
Bureau of Ocean Energy Management. Manages access to renewable and
conventional energy resources of the Outer Continental Shelf, including more than
6,400 fluid mineral leases on approximately 35 million OCS acres; issues leases
for 24 percent of domestic crude oil and 8 percent of domestic natural gas supply;
oversees lease and grant issuance for oshore renewable energy projects.
Bureau of Reclamation. Manages, develops, and protects water and related
resources, including 476 dams and 337 reservoirs; delivers water to one in every
five western farmers and more than 31 million people; is America’s second-largest
producer of hydroelectric power.
Bureau of Safety and Environmental Enforcement. Regulates oshore oil
and gas facilities on 1.7 billion acres of the Outer Continental Shelf; oversees oil
spill response; supports research on technology for oil spill response.
National Park Service. Maintains and manages 401 natural, cultural, and
recreational sites, 26,000 historic structures, and more than 44 million acres of
wilderness; provides outdoor recreation; provides technical assistance and support
to state and local programs.
Oce of Surface Mining Reclamation and Enforcement. Regulates coal
mining and site reclamation; provides grants to states and tribes for mining over-
sight; mitigates the eects of past mining.
U.S. Fish and Wildlife Service. Manages the 150-million-acre National Wild-
life Refuge System; manages 70 fish hatcheries and other related facilities for
endangered species recovery; protects migratory birds and some marine mammals.
U.S. Geological Survey. Conducts scientific research in ecosystems, climate,
and land-use change, mineral assessments, environmental health, and water
resources; produces information about natural hazards (earthquakes, volcanoes,
and landslides); leads climate change research for the department.
RESTORING AMERICAN ENERGY DOMINANCE
Given the dire adverse national impact of Biden’s war on fossil fuels, no other
initiative is as important for the DOI under a conservative President than the
restoration of the department’s historic role managing the nation’s vast store-
house of hydrocarbons, much of which is yet to be discovered. The U.S. depends
on reliable and cheap energy resources to ensure the economic well-being of its
citizens, the vitality of its economy, and its geopolitical standing in an uncertain
and dangerous world. Not only are valuable natural resources owned generally
by the American people involved, so too are those owned separately by American
Indian tribes and individual American Indians, both of which have been injured
by Biden’s illegal actions.
The federal government owns 61 percent of the onshore and oshore min-
eral estate of the U.S., but only 22 percent of the nation’s oil and 12 percent of U.S.
natural gas comes from those federal lands and waters—and even that amount is
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2025 Presidential Transition Project
declining. Additionally, 42 percent of coal production takes place on federal lands
in 11 states.
12
DOI manages a subsurface mineral estate of 700 million acres onshore
and 1.76 billion acres oshore, for a total of 2.46 billion acres.
The total land area of the U.S. is 2.263 billion acres. Private and state lands,
at 1.563 billion acres, make up only 39 percent of the total onshore and oshore
subsurface area of the United States. Oil, natural gas, coal, and other minerals on
federal lands and waters are managed by the Bureau of Land Management, Bureau
of Ocean Energy Management, and Oce of Surface Mining Reclamation and
Enforcement; these agencies’ responsibilities frequently overlap with resource
management by the U.S. Forest Service in the U.S. Department of Agriculture, state
governments, and private property owners.
Biden is “aligning the management of…public lands and waters…to support
robust climate action,” as envisioned in Executive Orders 14008 and 13990.
13
One of
his first actions was to ban federal coal, oil, and natural gas leasing on federal lands
and waters to fulfill his campaign promise of “no federal oil,” followed by actions
from Interior Secretary Deb Haaland to rescind the Trump Administration’s
Energy Dominance Agenda. To this end, DOI unilaterally overhauled resource
management plans, lease sales, fees, rents, royalty rates, bonding requirements,
and permitting processes to prevent new production of coal, oil, and natural gas
on federal lands and waters; to dramatically increase production of solar and wind
energy; and to accomplish its “30 by 30,” “America the Beautiful” agenda to remove
federal lands from “multiple”—that is, productive—use.
DOI is abusing National Environmental Policy Act (NEPA)
14
processes, the
Antiquities Act,
15
and bureaucratic procedures to advance a radical climate agenda,
ostensibly to reduce greenhouse gas emissions, for which DOI has no statutory
responsibility or authority.
16
The Federal Land Policy and Management Act
(FLPMA), Outer Continental Shelf Lands Act (OSCLA), General Mining Law,
17
and other congressional acts clearly set forth multiple-use principles and processes
that include production of coal, oil, natural gas, and other minerals, as legitimate
activities consistent with the welfare of all Americans and of environmental
stewardship.
Biden’s DOI is hoarding supplies of energy and keeping them from Americans
whose lives could be improved with cheaper and more abundant energy while
making the economy stronger and providing job opportunities for Americans.
DOI is a bad manager of the public trust and has operated lawlessly in defiance of
congressional statute and federal court orders.
ADMINISTRATION PRIORITIES
Rollbacks. A new Administration must immediately roll back Biden’s orders,
reinstate the Trump-era Energy Dominance Agenda, rescind Secretarial Order
(SO) 3398, and review all regulations, orders, guidance documents, policies, and
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Mandate for Leadership: The Conservative Promise
similar agency actions made in compliance with that order.
18
Meanwhile, the
new Administration must immediately reinstate the following Trump DOI sec-
retarial orders:
lSO 3348: Concerning the Federal Coal Moratorium;19
lSO 3349: American Energy Independence;20
lSO 3350: America-First Oshore Energy Strategy;21
lSO 3351: Strengthening the Department of the Interior’s Energy Portfolio;22
lSO 3352: National Petroleum Reserve—Alaska;23
lSO 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program;24
lSO 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and
Accountability in the Environmental Review and Permitting Process for
Infrastructure Projects”;25
lSO 3358: Executive Committee for Expedited Permitting;26
lSO 3360: Rescinding Authorities Inconsistent with Secretary’s Order 3349,
“American Energy Independence;”27
lSO 3380: Public Notice of the Costs Associated with Developing Department
of the Interior Publications and Similar Documents;28
lSO 3385: Enforcement Priorities;29 and
lSO 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews.30
Actions. At the same time, the new Administration must:
lReinstate quarterly onshore lease sales in all producing states according to
the model of BLM’s IM 2018–034, with the slight adjustment of including
expanded public notice and comment.31 The new Administration should
work with Congress on legislation, such as the Lease Now Act32 and
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2025 Presidential Transition Project
ONSHORE Act,33 to increase state participation and federal accountability
for energy production on the federal estate.
lConduct oshore oil and natural gas lease sales to the maximum extent
permitted under the 2023–2028 lease program,34 with the possibility to
move forward under a previously studied but unselected plan alternative.35
lDevelop immediately and finalize a new five-year plan, while working with
Congress to reform the OCSLA by eliminating five-year plans in favor of
rolling or quarterly lease sales.
lReview all resource management plans finalized in the previous four years
and, when necessary, select studied alternatives to restore the multi-use
concept enshrined in FLPMA and to eliminate management decisions that
advance the 30 by 30 agenda.
lSet rents, royalty rates, and bonding requirements to no higher than what is
required under the Inflation Reduction Act.36
lComply with the Alaska National Interest Lands Conservation Act
(ANILCA) and the Tax Cuts and Jobs Act of 2017 to establish a competitive
leasing and development program in the Coastal Plain, an area of Alaska
that was set aside by Congress specifically for future oil and gas exploration
and development. It is often referred to as the “Section 1002 Area” after
the section of ANILCA that excludes the area from Arctic National Wildlife
Refuge’s wilderness designation.37
lConclude the programmatic review of the coal leasing program, and work
with the congressional delegations and governors of Wyoming and Montana
to restart the program immediately.38
lAbandon withdrawals of lands from leasing in the Thompson Divide of the
White River National Forest, Colorado; the 10-mile buer around Chaco
Cultural Historic National Park in New Mexico (restoring the compromise
forged in the Arizona Wilderness Act39); and the Boundary Waters area
in northern Minnesota if those withdrawals have not been completed.40
Meanwhile, revisit associated leases and permits for energy and mineral
production in these areas in consultation with state elected ocials.
lRequire regional oces to complete right-of-way and drilling permits
within the average time it takes states in the region to complete them.
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Mandate for Leadership: The Conservative Promise
Rulemaking. The following policy reversals require rulemaking:
lRescind the Biden rules and reinstate the Trump rules regarding:
1. BLM waste prevention;
2. The Endangered Species Act rules defining Critical Habitat and Critical
Habitat Exclusions;41
3. The Migratory Bird Treaty Act;42 and
4. CEQ reforms to NEPA.43
lReinstate President Trump’s plan for opening most of the National
Petroleum Reserve of Alaska to leasing and development.
Personnel Changes. The new Administration should be able to draw on the
enormous expertise of state agency personnel throughout the country who are
capable and knowledgeable about land management and prove it daily. States are
better resource managers than the federal government because they must live with
the results. President Trump’s Schedule F proposal44 regarding accountability in
hiring must be reinstituted to bring success to these reforms. Consistent with the
theme of bringing successful state resource management examples to the forefront
of federal policy, DOI should also look for opportunities to broaden state–federal
and tribal–federal cooperative agreements.
IMMEDIATE ACTIONS
BLM Headquarters. BLM headquarters belongs in the American West. After
all, the overwhelming majority of the 245 million surface acres (10 percent of the
nation’s landmass) managed by the agency lies in the 11 western states and Alaska:
A mere 50,000 surface acres lie elsewhere. Moreover, 97 percent of BLM employees
are located in the American West.
Thus, the Trump Administration’s decision to relocate BLM headquarters from
Washington, D.C., to the West was the epitome of good governance: That is, it was
not only well-informed, but it was also implemented eciently, eectively, and
with an eye toward aected career civil servants. Plus, despite overblown chatter
from the inside-the-Beltway media, Congress, with bipartisan support, approved
funding the move.
Meanwhile, state, tribal, and local ocials, the diverse collection of stakehold-
ers who use public lands and western neighbors became accustomed to having
top BLM decision-makers in Grand Junction, Colorado, rather than up to four
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2025 Presidential Transition Project
time zones away. All of them also appreciated that the BLM’s top subject matter
experts were located not in the District of Columbia, but in the western states
that most need their knowledge and expertise. Westerners no longer had to travel
cross country to address BLM issues. Neither did ocials in the West, closest to
the resources and people they manage.
On July 16, 2019, Secretary of the Interior David L. Bernhardt delivered to Con-
gress the proposal for the relocation of nearly 600 BLM headquarters employees.
On August 10, 2020, Secretary Bernhardt formally established the Robert F. Burford
headquarters—named after the longest-serving BLM director, a Grand Junction
native—with a sta of 41 senior ocials and assistants. Another 76 positions were
assigned to BLM state oces in western communities such as Billings, Montana;
Boise, Idaho; Reno, Nevada; Salt Lake City, Utah; and Cheyenne, Wyoming, to meet
critical needs. Scores of other positions were assigned to the states that required
BLM expertise. For example, wild horse and burro professionals were relocated
to Nevada, home to nearly 60 percent of these western icons. Sixty-one positions
were retained in Washington, D.C., to address public, congressional, and regulatory
aairs, Freedom of Information Act compliance, and budget development.
Despite the dislocating impact of the COVID-19 pandemic, the BLM success-
fully filled hundreds of long-vacant positions, as well as those that opened because
of the move West. The BLM saw notable numbers of applicants for these positions—
so numerous that the BLM capped the number of eligible applicants to no more
than 50. Obviously, reduced commuting times (often from hours to mere minutes),
lower cost of living, and opportunity to access vast public lands for recreation made
these jobs attractive to potential employees. Many, if not most, applicants stated
they would not have applied had the positions been based in Washington, D.C. At
the same time, western positions attracted those with the skills needed to meet
the BLM’s multiple-use, sustained-yield mandate, disproving the claim that the
BLM was suering a “brain drain.”
The Trump Administration recognized that, despite its attractions, not every-
one employed by BLM in Washington, D.C., could move West. The Administration
applied a hands-on approach, with all-employee briefing and question-and-answer
sessions, regular email communications, and a website devoted to frequently asked
questions. Two human resources teams aided employees wishing to remain in
federal jobs in the D.C. area: All received new opportunities.
The BLM’s move West incurred no legal challenges, no formal Equal Employ-
ment Opportunity or U.S. Merit Systems Protection Board complaints, and no
adverse union activity. It is hard to please everyone, but the Trump Administra-
tion’s BLM did just that, putting the lie to assertions, by some, that the BLM was
trying to “fire” federal employees.
The total cost of $17.9 million for relocation incentives, permanent change-of-
station moves, temporary labor, travel, printing, rent, supplies, equipment, and
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Mandate for Leadership: The Conservative Promise
other contracts will save money for the American people. For example, in fiscal
2020, the BLM estimated $1.6 million in travel costs savings, which will grow
slightly over time, and $1.9 million in savings from its terminated lease in Wash-
ington, D.C. Furthermore, BLM estimated that, by October 2022, the BLM move
West would generate a net savings of $3.5 million, which, the following fiscal year,
would increase to $10.3 million.
Those funds can be devoted to reducing the risk of wildfires, increasing recre-
ational opportunities, conserving public lands, and addressing tough issues such
as wild horses and burros. Moreover, those funds will be used more wisely thanks
to the eciency of senior, seasoned managers working closely with BLM field
employees in near daily contact with western ocials, stakeholders, and neighbors.
In late 2022, Secretary of the Interior Deb Haaland announced the return of
headquarters and scores of highly paid, senior employees to Washington, D.C. Sub-
sequently, BLM Director Tracy Stone-Manning revealed 56 BLM jobs in BLM’s
“Western Headquarters” and 70 other BLM jobs will remain in Grand Junction,
an increase of 15 from the 41 announced by Trump’s BLM in 2019, and an increase
of 40 other jobs above the 16 first announced by Biden ocials. Thus, the director,
the two deputy directors, six of seven assistant directors (ADs) and their stas are
now or soon will be in Washington.
The Biden Administration failed to recognize the wisdom of having BLM’s lead-
ership, including its director, deputy directors, and ADs in the West. That is why,
decades ago, the AD and sta in charge of BLM’s firefighters were relocated to Boise,
Idaho, where they remain. Not so the head of BLM law enforcement and security,
who supervises over 200 uniformed law enforcement rangers and 76 special agents
stationed mainly in 11 western states and Alaska. Haaland moved that ocial to
Washington, far from state troopers, county sheris and deputies, and city police
with whom BLM law enforcement ocers keep the peace in the West’s wide-open
spaces. BLM’s “top cop” might as well be on the moon.
The AD in charge of oil, gas, and minerals was also moved to Washington, D.C.,
notwithstanding that most oil, gas, and minerals are in the West and Alaska; New
Mexico’s Permian Basin, for example, is second only to Alaska in petroleum poten-
tial, and Montana and Wyoming’s Powder River Basin contains the world’s best
low-sulfur coal. The AD responsible for wild horses and burros was moved east as
well, despite the fact that the uncontrolled growth of wild horses and burros poses
an existential threat to public lands; 60 percent of the nation’s wild horses are in
Nevada,45 but thousands are in nine other western states. There is no way these
and other ADs can professionally manage issues thousands of miles and multiple
time zones away.
It is not just eective and responsive management that has been lost; Colorado
lost its chance to become a must-visit destination for BLM’s stakeholders. Those
seeking to develop world-class mineral deposits in Minnesota or another Prudhoe
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2025 Presidential Transition Project
Bay in Alaska; to expand recreation across BLM’s vast, diverse, and unique land-
scapes; or to manage timber and rangelands to prevent wildfires, would all journey
to Grand Junction. Convention opportunities on Colorado’s western slope would
abound for BLM’s disparate constituencies to congregate and meet with BLM
leadership. The Western States Sheris’ Association, for example, whose annual
gathering attracts hundreds of law enforcement ocers from 17 western and plains
states might have moved its event to Grand Junction.
Law Enforcement Ocers. In 2002, at the direction of the Secretary of the
Interior in the days following the 9/11 attack, the Inspector General (IG) for DOI
made a series of department-wide recommendations regarding law enforcement.
Then-Secretary of the Interior Gale Norton ordered adoption of those recom-
mendations, which drew strong bipartisan support from Congress. Over the years,
most were implemented. One, however, remained undone: placing all BLM law
enforcement ocers (LEOs), that is, its 212 Law Enforcement Rangers and 76
Special Agents, in an exclusively law enforcement chain of command.
This was not just the IG’s recommendation in 2002, but that of every IG who fol-
lowed. It is also the strong recommendation of the department’s top LEO. Moreover,
it has been the urgent recommendation of law enforcement professionals across
the country, especially in the West, for decades, including the Western States Sher-
is Association. Unfortunately, over time, BLM leadership stonewalled, adhering
to a haphazard system in which LEOs reported to non-LEO superiors, including
not only state directors, but also district and field managers with expertise in other
fields—range management or petroleum engineering, for example—with only 24
hours of law enforcement study. Obviously, those managers lack a comprehensive
understanding of law enforcement issues—constitutional, legal, and tactical. In
addition, they do not uniformly apply or enforce rules of conduct or ethical stan-
dards for LEOs and special agents, leading to weakened esprit de corps and morale.
Worse yet, because of their duties as managers of the multiple-use lands under
their jurisdiction, they are exposed to conflicts of interests and may intentionally
or unintentionally prevent LEOs from investigating violations or applying the law.
In the final days of the Trump Administration, Secretary David L. Bernhardt
ordered, and Deputy Director William Perry Pendley implemented, the IG’s recom-
mendation. Of course, leadership heads exploded; they were furious with their loss
of authority, not to mention subordinates and budgets. Unfortunately, in the first
days of the Biden Administration, BLM Deputy Director Mike Nedd suspended
Pendley’s order.
Nonetheless, LEOs, the BLM, and westerners want LEOs—who make life-and-
death decisions—to be as well-trained and well-equipped as possible. They should
report to a professional, expert, and knowledgeable chain of command. After all,
they protect visitors to BLM lands and the natural and cultural resources of those
lands, as well as the employees who manage those lands.
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Mandate for Leadership: The Conservative Promise
BLM’s LEOs must keep in touch, work closely, and coordinate with fellow fed-
eral, state, and local law enforcement ocers. In the Trump Administration, they
joined state and local law enforcement in arresting dangerous suspects in Cortez,
Colorado; responded to a request from a rural sheri in Arizona to rescue a family
stuck in freezing temperatures; and, teamed up in an all-hands-on-deck eort to
locate a missing American Indian teenager in rural Montana. More important,
western LEOs need the assurance that the BLM LEOs with whom they work are
professionals who report through a professional chain of command.
Wild Horses and Burros. In 1971, Congress ordered the BLM to manage wild
horses and burros to ensure their iconic presence never disappeared from the
western landscape. For decades, Congress watched as these herds overwhelmed
the land’s ability to sustain them, crowded out indigenous plant and other animal
species, threatened the survival of species listed under the Endangered Species
Act, invaded private and permitted public land, disturbed private property rights,
and turned the sod into concrete. BLM experts said in 2019 that some aected land
will never recover from this unmitigated damage.
There are 95,000 wild horses and burros roaming nearly 32 million acres in the
West—triple what scientists and land management experts say the range can sup-
port. These animals face starvation and death from lack of forage and water. The
population has more than doubled in just the past 10 years and continues to grow
at a rate of 10 to 15 percent annually. This number includes the more than 47,000
animals the BLM has already gathered from public lands, at a cost to the American
taxpayer of nearly $50 million annually to care for them in o-range corrals.
This is not a new issue—it is not just a western issue—it is an American issue.
What is happening to these once-proud beasts of burden is neither compassionate
nor humane, and what these animals are doing to federal lands and fragile ecosys-
tems is unacceptable. In 2019, the American Association of Equine Practitioners
and the American Veterinary Medication Association—two of the largest organi-
zations of professional veterinarians in the world—issued a joint policy calling for
further reducing overpopulation to protect the health and well-being of wild horses
and burros on public lands. The National Wild Horse and Burro Advisory Board,
a panel of nine experts and professionals convened to advise the BLM, endorsed
the joint policy. Furthermore, animal welfare organizations such as the American
Society for the Prevention of Cruelty to Animals and the Humane Society of the
United States recognize that the prosperity of wild horses and burros on public
lands is threatened if herds continue to grow unabated.
The BLM’s multi-pronged approach in its 2020 Report to Congress46 included
expanded adoptions and sales of horses gathered from overpopulated herds;
increased gathers and increased capacity for o-range holding facilities and pas-
tures; more eective use of fertility control eorts; and improved research, in
concert with the academic and veterinary communities, to identify more eective
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2025 Presidential Transition Project
contraceptive techniques and strategies. All of that will not be enough to solve
the problem, however. Congress must enact laws permitting the BLM to dispose
humanely of these animals.
IMMEDIATE ACTIONS REGARDING ALASKA
Alaska is a special case and deserves immediate action.
47
When Alaska was
admitted to the Union in 1959, nearly its entire landmass was federally owned;
therefore, Alaska was granted the right to select 104 million acres (out of 375
million acres) to manage for the benefit of its residents.48 In less than eight years,
Alaska selected 26 million acres. Then-Interior Secretary Stewart Udall—who
served during the Kennedy and Johnson Administrations—put a freeze on further
land selections to protect any claims that might be asserted by Native Alaskans.49
Alaska Native Claims Settlement Act. The discovery of oil at Prudhoe Bay in
1968 made resolution of the issue by Congress a matter of urgency. As a result, in
1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA), which
allowed the Native community to select 44 million acres.50
Environmentalists, upset that too much of the land they coveted would be selected
by the state and Native Alaskans for development, demanded the inclusion in the act
of a provision—Section 17(d)(2)—that ordered the Interior Secretary to withdraw 80
million acres for future designation by Congress as parks, refuges, wild and scenic
rivers, and national forests.51 The deadline for this congressional action was 1978,
and as it neared, the Carter Administration, impatient and worried, decided to force
Congress’s hand. The Administration unilaterally withdrew 100 million acres from
any use by the state or Native Alaskans.52 Alaska promptly sued, charging that the
Administration had failed to comply with the National Environmental Policy Act.53
In a lame duck session at the end of 1980, Congress passed (over the objec-
tions of the Alaskan delegation) the Alaska National Interest Lands Conservation
Act, which revoked all of the withdrawals of the Carter Administration and sub-
stituted congressional designations that put 100 million acres permanently in
federal enclaves, doubled the acreage of national parks and refuges, and tripled the
amount of land declared to be wilderness.54 Through all of this, Alaska pressed for
the DOI to convey the lands to which Alaska was entitled by federal law, but the
department grudgingly transferred only portions of that land.
By the time Ronald Reagan took oce, Alaska had received less than half the
lands to which it was entitled after its admission into the Union, and Native Alas-
kans had received only one-third of the land due to them.55 From January of 1981
through 1983, however, under Reagan, Alaska received 30 million acres and a com-
mitment of land transfers at the rate of 13 million acres annually. In the same
period, Native Alaskans received 11 million acres, which constituted nearly 60
percent of their entitlement, and an additional 15 million acres were transferred
by the end of 1988.56
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Mandate for Leadership: The Conservative Promise
Despite the passage of nearly 40 years since the end of the Reagan Adminis-
tration, the federal government has yet to fulfill its statutory obligation to Alaska
and Alaska Natives—specifically, each group has 5 million acres of entitlement
remaining. Standing in the way are Public Land Orders (PLOs) issued by the BLM
seizing that land for the agency. Those PLOs must be lifted to permit Alaska and
Alaska Natives to select what was promised by Congress.
For example, revocation of PLO 5150
57
will provide the state of Alaska 1.3 million
acres of its remaining state entitlement. This revocation should be a top priority.
BLM recommended this revocation in the 2006 report to Congress based on the
Alaska Land Transfer Acceleration Act, and the Interior Secretary has authority
to revoke based on the Alaska Native Claims Settlement Act under section d(1).58
All other remaining BLM PLOs—all of which are more than 50 years old—should
be revoked immediately.
Alaska has untapped potential for increased oil production, which is important
not just to the revitalization of the nation’s energy sector but is vital to the Alaskan
economy. One-quarter of Alaska’s jobs are in the oil industry, and half of its overall
economy depends on that industry. Without oil production, the Alaskan economy
would be half its size.
A new Administration must take the following actions immediately:
lApprove the 2020 National Petroleum Reserve Alaska Integrated Activity
Plan (NPRA-IAP) by resigning the Record of Decision. (Secretary Haaland’s
order reverted to the 2013 IAP, the science for which is out of date, unlike
the 2020 IAP.)
lReinstate the 2020 Arctic National Wildlife Refuge Environmental Impact
Statement (EIS) by secretarial order and lift the suspension of the leases.
lApprove the 2020 Willow EIS, the largest pending oil and gas projection in
the United States in the National Petroleum Reserve-Alaska, and expand
approval from three to five drilling pads.59
Minerals. Alaska is not just blessed with an abundance of oil, it has vast
untapped mineral potential. Therefore, the new Administration must immedi-
ately approve the Ambler Road Project60 across BLM-managed lands, pursuant
to the Secretary’s authority under the ANILCA and based on the Final Envi-
ronmental Impact Statement on the project.
61
This will permit construction of
a new 211-mile roadway on the south side of the Brooks Range, west from the
Dalton Highway to the south bank of the Ambler River, and open the area only
to mining-related industrial uses, providing high-paying jobs in an area known
for unemployment.
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2025 Presidential Transition Project
Wildlife and Waters. Throughout Alaska’s history, the federal government
has treated Alaska as less than a sovereign state. This is especially the case when
it comes to two of Alaska’s most valued resources, its wildlife and its waters.
Immediate action is required to end, at least in part, this injustice. A new Admin-
istration should:
lRevoke National Park Service and U.S. Fish and Wildlife Service rules
regarding predator control and bear baiting, which are matters for state
regulation. Such revocation is permitted under the 2017 Congressional
Review Act.62
lRecognize Alaska’s authority to manage fish and game on all federal lands
in accordance with ANILCA as during the Reagan Administration, when
each DOI agency in Alaska signed a Memorandum of Understanding with
the Alaska Department of Fish and Game ceding to the state the lead on fish
and wildlife management matters.63
lIssue a secretarial order declaring navigable waters in Alaska to be owned
by the state so that the lands beneath these waters belong to Alaska. This
will force the BLM to prove that water is not navigable, since in the case of
non-navigability, any submerged lands belong to the BLM. Currently, BLM
requires Alaska to prove navigability at its own expense—including the
BLM’s preposterous assertion that the mighty Yukon River is non-navigable.
lReinstate President Trump’s 2020 Alaska Roadless Rule64 for the Tongass
National Forest in Alaska, which was replaced by a Biden Roadless Rule
that continues a 2001 Clinton rule aecting 9.37 million of the forest’s 16.7
million acres.65 The Clinton rule aects an area where communities are in
small islands with no road access. It has prevented multiple infrastructure
projects, including roads, electric transmission lines, and water and sewer
projects, and it forces residents to use a heavily subsidized ferry system.
Logging has been shut down to the extent that New York harvests more
timber than does all of Alaska.
OTHER ACTIONS
The 30 by 30 Plan.
66
President Biden’s Executive Order 14008 (30 by 30
plan)
67
requires that the federal government, which already owns one-third of
the country: (1) remove vast amounts of private property from productive use;
and (2) end congressionally mandated uses of all federal land. The end result
will be “total federal control of an additional 440 million acres of land or oceans
in the U.S. by 2030.”68
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Mandate for Leadership: The Conservative Promise
Although the new President should vacate that order, DOI under a conservative
President must take immediate action on the 30 by 30 plan by vacating a secre-
tarial order issued by the Biden DOI
69
that eliminated the Trump Administration’s
requirement for the approval of state and local governments before federal acquisi-
tion of private property with monies from the Land and Water Conservation Fund.
70
National Monument Designations. As has every Democratic President before
him beginning with Jimmy Carter, Joe Biden has abused his authority under the
Antiquities Act of 1906. Like the outrageous, unilateral withdrawals from public use
of multiple use federal land under the Carter, Clinton, and Obama Administrations,
Biden’s first national monument was one in Colorado—adopted over the objections
of scores of local groups and at least one American Indian tribe.
71
In the days before
the 2024 election, Biden will likely designate more western monuments.
Although President Trump courageously ordered a review of national mon-
ument designations, the result of that review was insucient in that only two
national monuments in one state (Utah) were adjusted.72 Monuments in Maine
and Oregon, for example, should have been adjusted downward given the finding
of Secretary Ryan Zinke’s review that they were improperly designated. The new
Administration’s review will permit a fresh look at past monument decrees and
new ones by President Biden.
Furthermore, the new Administration must vigorously defend the downward
adjustments it makes to permit a ruling on a President’s authority to reduce the
size of national monuments by the U.S. Supreme Court.
Finally, the new Administration must seek repeal of the Antiquities Act of 1906,
which permitted emergency action by a President long before the statutory author-
ity existed for the protection of special federal lands, such as those with wild and
scenic rivers, endangered specials, or other unique places. Moreover, in recent
years, Congress has designated as national monuments those areas deserving of
such congressional action.
Oregon and California Lands Act. One national monument worthy of down-
ward adjustment is in Oregon, where its designation and subsequent expansion
interfere with the federal obligation to residents to harvest timber on its BLM
lands. A federal district court ruled in 2019 that land subject to the Oregon and
California (O&C) Grant Lands Act of 1937
73
was set aside by Congress to be har-
vested for the benefit of the people of Oregon. Specifically, those federal lands are
to be “managed…for permanent forest production” and its timber “sold, cut, and
removed in conformity with the princip[le] of sustained yield.”74
As the district court concluded,
75
beginning in 1990, the federal government
erected a trifecta of illegal barriers to the accomplishment of the congressional
mandate, beginning with a response to the listing of the northern spotted owl,76
continuing a decade later with the designation of the Cascade–Siskiyou National
Monument,
77
and concluding in 2017 with an expansion of that monument.
78
In
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2025 Presidential Transition Project
order to fulfill the yet-unaltered congressional mandate contained in federal law,
to provide for jobs and well-paying employment opportunities in rural Oregon,
and to ameliorate the eects of wildfires, the new Administration must immedi-
ately fulfill its responsibilities and manage the O&C lands for “permanent forest
production” to ensure that the timber is “sold, cut, and removed.”79
NEPA Reforms. Congress never intended for the National Environmental
Policy Act to grow into the tree-killing, project-dooming, decade-spanning mon-
strosity that it has become. Instead, in 1970, Congress intended a short, succinct,
timely presentation of information regarding major federal action that signifi-
cantly aects the quality of the human environment so that decisionmakers can
make informed decisions to benefit the American people.
The Trump Administration adopted common-sense NEPA reform that must
be restored immediately. Meanwhile, DOI should reinstate the secretarial orders
adopted by the Trump Administration, such as placing time and page limits on
NEPA documents and setting forth—on page one—the costs of the document itself.
Meanwhile, the new Administration should call upon Congress to reform NEPA
to meet its original goal. Consideration should be given, for example, to eliminat-
ing judicial review of the adequacy of NEPA documents or the rectitude of NEPA
decisions. This would allow Congress to engage in eective oversight of federal
agencies when prudent.
Settlement Transparency. Interior Secretary David Bernhardt required DOI
to prominently display and provide open access to any and all litigation settlements
into which DOI or its agencies entered, and any attorneys’ fees paid for ending
the litigation.
80
Biden’s DOI, aware that the settlements into which it planned to
enter and the attorneys’ fees it was likely to pay would cause controversy, ended
this policy.81 A new Administration should reinstate it.
The Endangered Species Act. The Endangered Species Act was intended
to bring endangered and threatened species back from the brink of extinction
and, when appropriate, to restore real habitat critical to the survival of the spe-
cies. The act’s success rate, however, is dismal. Its greatest deficiency, according
to one renowned expert, is “conflict of interest.”
82
Specifically, the work of the
Fish and Wildlife Service is the product of “species cartels” aicted with group-
think, confirmation bias, and a common desire to preserve the prestige, power,
and appropriations of the agency that pays or employs them. For example, in one
highly influential sage-grouse monograph, 41 percent of the authors were federal
workers. The editor, a federal bureaucrat, had authored one-third of the paper.83
Meaningful reform of the Endangered Species Act requires that Congress
take action to restore its original purpose and end its use to seize private prop-
erty, prevent economic development, and interfere with the rights of states over
their wildlife populations. In the meantime, a new Administration should take the
following immediate action:
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Mandate for Leadership: The Conservative Promise
lDelist the grizzly bear in the Greater Yellowstone and Northern
Continental Divide Ecosystems and defend to the Supreme Court of the
United States the agency’s fact-based decision to do so.84
lDelist the gray wolf in the lower 48 states in light of its full recovery
under the ESA.85
lCede to western states jurisdiction over the greater sage-grouse,
recognizing the on-the-ground expertise of states and preventing use
of the sage-grouse to interfere with public access to public land and
economic activity.
lDirect the Fish and Wildlife Service to end its abuse of Section 10(j) of the
ESA by re-introducing so-called “experiment species” populations into
areas that no longer qualify as habitat and lie outside the historic ranges
of those species, which brings with it the full weight of the ESA in areas
previously without federal government oversight.86
lDirect the Fish and Wildlife Service to design and implement an impartial
conservation triage program by prioritizing the allocation of limited
resources to maximize conservation returns, relative to the conservation
goals, under a constrained budget.87
lDirect the Fish and Wildlife Service to make all data used in ESA decisions
available to the public, with limited or no exceptions, to fulfill the public’s
right to know and to prevent the agency’s previous opaque decision-making.
lAbolish the Biological Resources Division of the U.S. Geological Survey
and obtain necessary scientific research about species of concern from
universities via competitive requests for proposals.
lDirect the Fish and Wildlife Service to: (1) design and implement an
Endangered Species Act program that ensures independent decision-
making by ending reliance on so-called species specialists who have
obvious self-interest, ideological bias, and land-use agendas; and (2) ensure
conformity with the Information Quality Act.88
Oce of Surface Mining. The Oce of Surface Mining Reclamation and
Enforcement (OSM) was created by the Surface Mining Control and Reclamation
Act of 1977 (SMCRA)89 to administer programs for controlling the impacts of surface
coal mining operations. Although the coal industry is contracting, coal constitutes
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2025 Presidential Transition Project
20 percent of the nation’s electricity and is a mainstay of many regional economies.
The following actions should ensure OSM’s ability to perform its mission while com-
plying with SMCRA and without interfering with the production of high-quality
American coal:
lRelocate the OSM Reclamation and Enforcement headquarters to
Pittsburgh, Pennsylvania, to recognize that the agency is field-driven and
should be headquartered in the coal field.90
lReduce the number of field coal-reclamation inspectors to recognize the
industry is smaller.
lReissue Trump’s Schedule F executive order to permit discharge of
nonperforming employees.91
lPermit coal company employees to benefit from the OSM Training
Program, which is currently restricted to state and federal employees.
lRevise the Applicant Violator System, the nationwide database for the
federal and state programs, to permit federal and state regulators to
consider extenuating circumstances.
lMaintain the current “Ten-Day Notice” rule, which requires OSM to work
with state regulators in determining if a SMCRA violation has taken place in
recognition of the fact that a coal mining state with primacy has the lead in
implementing state and federal law.
lPreserve Directive INE-26, which relates to approximate original contour,
a critical factor in permitting ecient and environmentally sound surface
mining, especially in Appalachia.92
Western Water Issues. The American West, from the Great Plains to the Cas-
cades Range, is arid, as recognized by John Wesley Powell during his famous trip
across a large part of its length. Pursuant to an Executive Order signed by President
Trump, and consistent with its authority along with other federal agencies, DOI’s
Bureau of Reclamation must take the following actions:
lDevelop additional storage capacity across the arid west, including by:
1. Updating dam water control manuals for existing facilities during
routine operations; and
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Mandate for Leadership: The Conservative Promise
2. Engaging in real-time monitoring of operations.
lReduce bureaucratic ineciencies by consolidating federal water
working groups.
lImplement actions identified in the Federal Action Plan for Improving Fore-
casts of Water Availability,93 especially by adopting improvements related to:
1. Forecast Informed Reservoir Operations; and
2. Arial Snow Observation Systems.
lClarify the Water Infrastructure Finance and Innovation Act94 to ensure
consistent application with other federal infrastructure loan programs
under the Federal Credit Reform Act. This should be done to foster
opportunities for locally led investment in water infrastructure.
lReinstate Presidential Memorandum on Promoting the Reliable Supply
and Delivery of Water in the West.95
AMERICAN INDIANS AND U.S. TRUST RESPONSIBILITY
The Biden Administration has breached its federal trust responsibilities to
American Indians. This is unconscionable. Specifically, the Biden Administra-
tion’s war on domestically available fossil fuels and mineral sources has been
devastating. To wit:
lThe ability of American Indians and tribal governments to develop their
abundant oil and gas resources has been severely hampered, depriving
them of the revenue and profits to which they are entitled during a time of
increasing worldwide energy prices, forcing American Indians—who are
among the poorest Americans—to choose between food and fuel.
lIndian nations with significant coal resources have some of the
highest quality and cleanest-burning coal in the world, but the Biden
Administration has sought to destroy the market for their coal by
eliminating coal-fired electricity in the country and to prevent the transport
of their coal for sale internationally. Meanwhile, the Biden Administration,
at great public expense, artificially boosted the demand for electric
vehicles, which, because of their remote locations, the absence of increased
electricity demands for charging electric vehicles nearby, and the distances
to be traveled, are not a choice for Indian communities.
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2025 Presidential Transition Project
lA significant percentage of critical minerals needed by the United States
is on Indian lands, but the Biden Administration has actively discouraged
development of critical mineral mining projects on Indian lands rather than
assisting in their advancement.
lDespite Indian nations having primary responsibility for their lands and
environment and responsibility for the safety of their communities, the
Biden Administration is reversing eorts to put Indian nations in charge of
environmental regulation on their own lands.
Moreover, Biden Administration policies, including those of the DOI, have dis-
proportionately impacted American Indians and Indian nations.
lBy its failure to secure the border, the Biden Administration has
robbed Indian nations on or near the Mexican border of safe and secure
communities while permitting them to be swamped by a tide of illegal drugs,
particularly fentanyl.
lWhen ending COVID protocols at Bureau of Indian Education (BIE) schools,
Biden’s DOI failed to ensure an accurate accounting of students returning
from school shutdowns, which presents a significant danger to the families
that trust their children to that federal agency.
lThe BIE is not reporting student academic assessment data to ensure
parents and the larger tribal communities know their children are learning
and are receiving a quality education.
The new Administration must take the following actions to fulfill the nation’s
trust responsibilities to American Indians and Indian nations:
lEnd the war on fossil fuels and domestically available minerals and
facilitate their development on lands owned by Indians and Indian nations.
lEnd federal mandates and subsidies of electric vehicles.
lRestore the right of tribal governments to enforce environmental
regulation on their lands.
lSecure the nation’s border to protect the sovereignty and safety of
tribal lands.
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Mandate for Leadership: The Conservative Promise
lOverhaul BIE schools to put parents and their children first.
Finally, the new Administration should seek congressional reauthorization
of the Land Buy-Back Program for Tribal Nations,
96
which provided a $1.9 bil-
lion Trust Land Consolidation Fund to purchase fractional interests in trust or
restricted land from willing sellers at fair market value, but which sunsets Novem-
ber 24, 2022. New funds should come from the Great American Outdoors Act.97
AUTHOR’S NOTE: The preparation of this chapter was a collective enterprise of individuals involved in the
2025 Presidential Transition Project. All contributors to this chapter are listed at the front of this volume, but some
deserve special mention. Kathleen Sgamma, Dan Kish, and Katie Tubb wrote the section on energy in its entirety. I
received thoughtful, knowledgeable, and swift assistance from Aubrey Bettencourt, Mark Cruz, Lanny Erdos, Aurelia
S. Giacometto, Casey Hammond, Jim Magagna, Chad Padgett, Jim Pond, Rob Roy Ramey II, Kyle E. Scherer, Tara
Sweeney, John Tahsuda, Rob Wallace, and Gregory Zerzan. The author alone assumes responsibility for the content
of this chapter; no views expressed herein should be attributed to any other individual.
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2025 Presidential Transition Project
ENDNOTES
See generally William Perry Pendley, Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and
Why It Matters Today (Regnery, 2013), preface, pp. xvi-xxii.
U.S. Const. art. IV, § 3, cl. 2. “The 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.”
In Wyoming, the federal government owns 48 percent of the land; in Wyoming’s Teton County, the federal
government owns 97 percent of the land.
Pendley, Sagebrush Rebel.
Keith Schneider, “The 1992 Campaign; Bush on the Environment: A Record of Contradictions,” New York Times,
July 4, 1992, https://www.nytimes.com/1992/07/04/us/the-1992-campaign-bush-on-the-environment-a-
record-of-contradictions.html (accessed March 15, 2023).
William Perry Pendley, War on the West: Government Tyranny on America’s Great Frontier (Regnery, 1995).
William Perry Pendley, “Bureau of Land Management Yesterday and Today: Energy Independence,” Cowboy
State Daily, April 5, 2022, https://cowboystatedaily.com/2022/04/05/bureau-of-land-management-
yesterday-and-today-energy-independence/ (accessed March 15, 2023).
Ibid.
William Perry Pendley, “Perspective: Biden’s War on Western Energy,” The Gazette, November 6, 2022, https://
gazette.com/opinion/perspective-biden-s-war-on-western-energy/article_3823a584-5bb2-11ed-a598-
235c22e34687.html (accessed March 15, 2023).
Ibid.
Multiple-Use Sustained-Yield Act of 1960, Public Law 86–517.
Federal Register, Vol. 86, No. 159 (August 20, 2021), pp. 46873–46877.
Federal Register, Vol. 86, No. 19 (February 1, 2021), pp. 7619–7633, and White House, “Executive Order on
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” January
20, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-
protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/ (accessed
March 16, 2023).
National Environmental Policy Act, Public Law 91–160.
Antiquities Act of 1906, Public Law 59–209.
“You know what there’s not is a shall for? ‘I shall manage the land to stop climate change,’ or something
similar to that,” Secretary of the Interior David Bernhardt testified. “You guys come up with the shalls.” Chris
D’Angelo, “Interior Secretary Blames Congress for His Inaction on Climate Change,” High Country News,
May 9, 2019.
Federal Land Policy and Land Management Act of 1976, Public Law 94–579; Outer Continental Shelf Lands Act,
Public Law 95–372; and 30 U.S.C. § 21 et seq.
U.S. Department of the Interior, “Order No. 3398: Revocation of Secretary’s Orders Inconsistent with
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” April
16, 2021, https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3348: Concerning the Federal Coal Moratorium,” March 29, 2017,
https://www.doi.gov/sites/doi.gov/files/uploads/so_3348_coal_moratorium.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3349: American Energy Independence,” March 29, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so_3349_-american_energy_independence.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3350: America First Oshore Energy Strategy,” May 1, 2017,
https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3350-oshore-508.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3351: Strengthening the Department of the Interior’s Energy
Portfolio,” May 1, 2017, https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3351-energy-
counselor-508.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3352: National Petroleum Reserve—Alaska,” May 31, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so-3352.pdf (accessed March 16, 2023).
— 540 —
Mandate for Leadership: The Conservative Promise
U.S. Department of the Interior, “Order No. 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program, July 6, 2017, https://www.doi.gov/sites/doi.gov/
files/uploads/so_-_3354_signed.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects,” August 31, 2017, https://www.doi.gov/sites/doi.gov/
files/elips/documents/3355_-_streamlining_national_environmental_policy_reviews_and_implementation_
of_executive_order_13807_establishing_discipline_and_accountability_in_the_environmental_review_
and_permitting_process_for.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3358: Executive Committee for Expedited Permitting,” October
25, 2017, https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3358_executive_committee_for_
expedited_permitting_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3360: Rescinding Authorities Inconsistent with Secretary’s Order
3349, “American Energy Independence,” December 22, 2017, https://www.doi.gov/sites/doi.gov/files/elips/
documents/3360_-_rescinding_authorities_inconsistent_with_secretarys_order_3349_american_energy_
independence.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3380: Public Notice of the Costs Associated with Developing
Department of the Interior Publications and Similar Documents,” March 10, 2020, https://www.doi.gov/sites/
doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3385: Enforcement Priorities,” September 14, 2020, https://
www.doi.gov/sites/doi.gov/files/elips/documents/signed-so-3385-enforcement-priorities.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews,” September 14, 2020, https://www.doi.gov/sites/doi.gov/files/elips/documents/signed-
so-3385-enforcement-priorities.pdf (accessed March 16, 2023).
Bureau of Land Management, “Updating Oil and Gas Leasing Reform: Land Use Planning and Lease Parcel
Reviews,” IM 2018–034, January 31, 2018, https://www.blm.gov/policy/im-2018-034 (accessed March 16, 2023).
Lease Now Act, S. 4228, 117th Cong., 2nd Sess. (2022).
ONSHORE Act, S. 218, 116th Cong., 2nd Sess. (2019). https://www.congress.gov/bill/116th-congress/senate-
bill/218/text (accessed March 18, 2023).
Federal Register, Vol. 87, No. 130 (July 8, 2022), pp. 40859–40863.
The Biden Administration’s 2023–2028 proposed program is fatally flawed. Katie Tubb, “Comment for the
2023–2028 National OCS Oil and Gas Leasing Proposed Program,” BOEM–2022–0031, October 6, 2022, http://
thf_media.s3.amazonaws.com/2022/Regulatory_Comments/BOEM%202023-2028%20lease%20plan%20
comment%20KTubb.pdf (accessed March 16, 2023).
See Inflation Reduction Act of 2022, Public Law No. 117–169, §§ 50261–50263.
Tax Cuts and Jobs Act of 2017, Public Law No. 115–97, § 20001, and U.S. Department of the Interior, “Order No.
3401: Comprehensive Analysis and Temporary Halt on All Activities in the Arctic National Wildlife Refuge Relating
to the Coastal Plain Oil and Gas Leasing Program,” June 1, 2021, https://www.doi.gov/sites/doi.gov/files/elips/
documents/so-3401-comprehensive-analysis-and-temporary-halt-on-all-activitives-in-the-arctic-national-
wildlife-refuge-relating-to-the-coastal-plain-oil-and-gas-leasing-program.pdf (accessed March 16, 2023).
In 2016, Interior Secretary Sally Jewell instituted a moratorium on new coal leases while conducting a
programmatic environmental impact statement under NEPA to address concerns about competition and
inconsistency with the Obama Administration’s climate policy. In 2017, Interior Secretary Ryan Zinke lifted
the moratorium and ended development of a programmatic environmental impact statement. In April 2021,
Interior Secretary Debra Haaland rescinded Zinke’s order and initiated a new review of the coal-leasing
program. See U.S. Department of the Interior, “Order No. 3338: Discretionary Programmatic Environmental
Impact Statement to Modernize the Federal Coal Program,” January 15, 2016, https://www.doi.gov/sites/doi.
gov/files/elips/documents/archived-3338_-discretionary_programmatic_environmental_impact_statement_
to_modernize_the_federal_coal_program.pdf (accessed March 16, 2023); U.S. Department of the Interior,
“Order No. 3348”; U.S. Department of the Interior, “Order No. 3398”; and Federal Register, Vol. 86, No. 159
(August 20, 2021), pp. 46873–46877.
— 541 —
2025 Presidential Transition Project
Katie Tubb, “No More Standos: Protecting Federal Employees and Ending the Culture of Anti-Government
Attacks and Abuse,” testimony before the Subcommittee on National Parks, Forests, and Public Lands,
Committee on Natural Resources, U.S. House of Representatives, pp. 2–4, October 22, 2019, https://congress.
gov/116/meeting/house/110104/witnesses/HHRG-116-II10-Wstate-TubbK-20191022.pdf (accessed March 16, 2023).
News release, “Secretary Haaland Announces Steps to Establish Protections for Culturally Significant Chaco
Canyon Landscape,” U.S. Department of the Interior, November 15, 2021, https://www.doi.gov/pressreleases/
secretary-haaland-announces-steps-establish-protections-culturally-significant-chaco (accessed March
16, 2023); News release, “Biden–Harris Administration Proposes Protections for Thompson Divide,” U.S.
Department of the Interior, October 12, 2022, https://www.doi.gov/pressreleases/biden-harris-administration-
proposes-protections-thompson-divide (accessed March 16, 2023); News release, “Biden Administration Takes
Action to Complete Study of Boundary Waters Area Watershed,” U.S. Department of the Interior, October
20, 2021, https://www.doi.gov/pressreleases/biden-administration-takes-action-complete-study-boundary-
waters-area-watershed (accessed March 16, 2023); and News release, “Interior Department Takes Action on
Mineral Leases Improperly Renewed in the Watershed of the Boundary Waters Wilderness,” U.S. Department
of the Interior, January 26, 2022, https://www.doi.gov/pressreleases/interior-department-takes-action-
mineral-leases-improperly-renewed-watershed-boundary (accessed March 16, 2023).
Endangered Species Act, Public Law 91–135, § 4(b)(2), and Federal Register, Vol. 85, No. 244 (December 18,
2020), pp. 82376–82389.
U.S. Fish and Wildlife Service, “Governing the Take of Migratory Birds Under the Migratory Bird Treaty Act.”
https://www.fws.gov/regulations/mbta (accessed March 16, 2023).
Dino Grandoni and Anna Phillips, “Biden Restores Climate Safeguards in Key Environmental Law,
Reversing Trump,” Washington Post, April 19, 2022, https://www.washingtonpost.com/climate-
environment/2022/04/19/biden-nepa-climate-trump/ (accessed March 16, 2023).
Donald Trump, “Executive Order on Creating Schedule F in the Accepted Service,” Executive Order 13957,
October 21, 2020, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating-
schedule-f-excepted-service/ (accessed March 16, 2023).
Kathleen Masterson, “Nevada Wild Horse Population Skyrockets To New High,” KUNR Public Radio, July 22,
2019, https://www.kunr.org/energy-and-environment/2019-07-22/nevada-wild-horse-population-skyrockets-
to-new-high (accessed March 20, 2023).
U.S. Department of the Interior, Bureau of Land Management, “Report to Congress: An Analysis of Achieving
a Sustainable Horse and Burro Program,” Fact sheet, May 8, 2020, https://www.blm.gov/sites/blm.gov/files/
Final%20Fact%20Sheet%20WHB%20Report%20To%20Congress.pdf (accessed March 17, 2023).
Pendley, Sagebrush Rebel, pp. 45–47.
James D. Linxwiler, The Alaska Native Claims Settlement Act At 35: Delivering on the Promise, Rocky Mountain
Mineral Law Institute, Vol. 53, Chap. 12 (2007), § 12.03(1)(a)(iv), https://www.guessrudd.com/wp-content/
uploads/sites/1600422/2020/05/The-Alaska-Native-Claims-Settlement-Act-at-35.pdf (accessed March 16, 2023).
Ibid., § 12.03(1)(a)(vii). See generally Richard S. Jones, Alaska Native Claims Settlement Act of 1971 (Public
Law 92–203): History And Analysis Together With Subsequent Amendments, Report No. 81–127 GOV, June
1, 1981, http://www.alaskool.org/PROJECTS/ANCSA/reports/rsjones1981/ANCSA_History71.htm (accessed
March 16, 2023).
43 U.S. Code, Ch. 33. ANCSA also created 12 Native-owned regional corporations and authorized $962 million
in “seed money.” Linxwiler, The Alaska Native Claims Settlement Act At 35, § 12.03(2)(e).
ANCSA provided that the withdrawal of the lands would expire in 1978 if Congress had not designated the
lands as federal enclaves. John K. Norman Cole and Steven W. Silver, Alaska’s D-2 Lands, Rocky Mountain
Mineral Law Institute, Vol. 6B, Ch. 5, September 1978, and Raymond A. Peck, Jr., And Then There Were None:
Evolving Federal Restraints on the Availability of Public Lands for Mineral Development, Rocky Mountain
Mineral Law Institute, Vol. 25, Ch. 3, 1979.
Andrus used purported authority under the FLPMA to withdraw 40 million acres, and Carter used purported
authority under the Antiquities Act of to withdraw 56 million acres. James D. Linxwiler, The Alaska Native
Claims Settlement Act: The First Twenty Years, Rocky Mountain Mineral Law Institute, Vol. 38 Ch. 2, 1992 at
2.04(8)(c), https://ancsa.lbblawyers.com/wp-content/uploads/ANCSA-Paper-with-Table-of-Contents-1992.pdf
(accessed March 16, 2023).
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Mandate for Leadership: The Conservative Promise
Alaska’s request for an injunction was denied. State of Alaska v. Carter, 462 F. Supp. 1155, 1156 (D. Alaska
1978) (NEPA does not apply to presidential proclamations under the Antiquities Act). Alaska’s lawsuit was
similar to one filed by Wyoming challenging use of the Antiquities Act to designate the Grand Teton National
Monument. Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945). See generally Carol Hardy Vincent and
Kristina Alexander, “National Monuments and the Antiquities Act,” Congressional Research Service Report for
Congress, R41330, July 20, 2010, https://digital.library.unt.edu/ark:/67531/metadc813640/m2/1/high_res_d/
R41330_2011Aug22.pdf (accessed March 16, 2023). In December 1980, President Carter signed the Alaska
National Interest Lands Conservations Act; subsequently, during the Reagan Administration, Alaska dropped
its lawsuit.
Alaska National Interest Lands Conservation Act, Public Law 96–487 (codified as amended in scattered
sections of 16 U.S.C., 43 U.S.C., 48 U.S.C.), and Joseph J. Perkins, Jr., The Great Land Divided But Not
Conquered: The Eects of Statehood, ANCSA, and ANILCA on Alaska, Rocky Mountain Mineral Law Institute,
Vol. 34, Ch. 6, 1988, § 6.02.
U.S. Department of the Interior, 1983: A Year Of Enrichment: Improving The Quality Of Life For All Americans,
October 1983, p. 25, https://www.reaganlibrary.gov/public/digitallibrary/smof/publicliaison/blackwell/box-
006/40_047_7006969_006_022_2017.pdf (accessed March 16, 2023).
Ibid. The conveyances by the Reagan Administration to Alaska and Native Alaskans greatly exceeded the
amount of land transferred to each during the Carter Administration. See U.S. Department of the Interior,
1983: A Year Of Enrichment, pp. 86–87.
Federal Register, Vol. 36, No. 252 (December 31, 1971), pp. 25410–25412. “On December 28, 1971, ten days
after enactment of ANCSA, the Secretary of Interior through his Assistant Secretary issued Public Land Order
(PLO) 5150 which withdrew and reserved various federal public lands, subject to valid existing rights, as a
utility and transportation corridor for the Alaska oil pipeline. 36 Fed. Reg. 25410 (December 31, 1971). The land
order was issued ‘by virtue of the authority vested in the President and pursuant to Executive Order 10355 of
May 26, 1952 (17 Fed. Reg. 4831)….PLO 5150 established a corridor extending from the North Slope of Alaska
(Prudhoe Bay) south to Valdez on Prince William Sound.’” Wisenak, Inc. v. Andrus, 471 F. Supp. 1004, 1006 (D.
Alaska 1979).
Alaska Land Transfer Acceleration Act, Public Law 108–452.
Philip Elliott, “Biden May Be About to Sign O on a Huge Alaska Oil Drilling Project,” Time, December 13, 2022,
https://time.com/6240733/biden-alaska-oil-drilling-willow-project/ (accessed March 16, 2023). A Biden
approval of the bare minimum three pads for ConocoPhillips disincentivized the ability of any other oil and
gas company to make the huge investment necessary to operate in NPRA.
Alaska Department of Natural Resources, Division of Mining, Land and Water, “Ambler Road Project,” https://
dnr.alaska.gov/mlw/ambler-road/ (accessed March 17, 2023).
U.S. Department of the Interior, Bureau of Land Management, Ambler Road: Environmental Impact Statement:
Vol. 1, March 2020, https://eplanning.blm.gov/public_projects/nepa/57323/20015364/250020506/Ambler_
FEIS_Volume_1-_Chp_1-3_&__Appendices_A-F_.pdf (accessed March 18, 2023).
5 U.S. Code § 801(a)(1)(A).
U.S. Department of the Interior, “Master Memorandum of Understanding Between the Alaska Department
of Fish and Game, Juneau, Alaska and the U.S. National Park Service,” October 14, 1982; U.S. Department
of the Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and
Game, Juneau, Alaska and the U.S. Fish and Wildlife Survey,” March 13, 1982; and U.S. Department of the
Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and Game, Juneau,
Alaska and the Bureau of Land Management,” August 3, 1983, https://eplanning.blm.gov/public_projects/
lup/66967/84127/100727/Memorandum_of_Understanding_BLM_and_ADFG.pdf (accessed March 16, 2023).
Federal Register, Vol. 85, No. 210 (October 29, 2020), pp. 68668–68703.
Federal Register, Vol. 88, No. 18 (January 27, 2023), pp. 5252–5272.
E. Dinerstein et al., “A Global Deal For Nature: Guiding Principles, Milestones, and Targets,” Science Advances,
Vol. 5, No. 4 (April 19, 2019), https://www.science.org/doi/10.1126/sciadv.aaw2869 (accessed March 18, 2023).
Joseph R. Biden, “Tackling the Climate Crisis at Home and Abroad,” Executive Order 14008, https://www.
whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-
crisis-at-home-and-abroad/ (accessed March 17, 2023).
— 543 —
2025 Presidential Transition Project
Karen Budd Falen, “Biden’s ‘30 By 30 Plan’: A Slap at American Private Property Rights,” Cowboy State Daily,
April 15, 2021, https://cowboystatedaily.com/2021/04/15/bidens-30-by-30-plan-a-slap-at-american-private-
property-rights/ (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3396: Rescission of Secretary’s Order 3388, ‘Land and Water
Conservation Fund Implementation by the U.S. Department of the Interior,’” February 11, 2021, https://www.
doi.gov/sites/doi.gov/files/elips/documents/so-3396-signed-2-11-21-final.pdf (accessed March 17, 2021).
Ibid.
Associated Press, “Ute Indian Tribe Criticizes Biden’s Camp Hale Monument Designation,” KUER 90.1,
October 13, 2022.
William Perry Pendley, “Trump Wants to Free Up Federal Lands, His Interior Secretary Fails Him,” National
Review Online, September 25, 2017, https://www.nationalreview.com/2017/09/secretary-interior-ryan-zinke-
monuments-review-trump-executive-order-antiquities-act-environmentalists/ (accessed March 16, 2023).
The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75-405, 43
U.S. Code § 2601.
Ibid., and American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184, 187 (D.D.C. 2019).
American Forest Resource Council v. Hammond, 422 F. Supp. 3d, pp. 187–188.
Federal Register, Vol. 55, No. 26 (June 26, 1990), p. 26114–26194.
Federal Register, Vol. 65, No. 114 (June 13, 2000), pp. 37249–37252.
Federal Register, Vol. 82, No. 11 (January 18, 2017), pp. 6145–6150.
American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184 (D.D.C. 2019).
U.S. Department of the Interior, “Final Consent Decrees/Settlement Agreements,” https://www.doi.gov/
solicitor/transparency/final (accessed March 16, 2023).
Michael Doyle, “Interior Order Erases Litigation Website,” E&E News, June 17, 2022, https://www.eenews.net/
articles/interior-order-erases-litigation-website/ (accessed March 16, 2023).
Rob Roy Ramey, On the Origin of Specious Species (Lexington Books 2012), pp. 77–97.
William Perry Pendley, “Killing Jobs to Save the Sage Grouse: Junk Science, Weird Science, and Plain
Nonsense,” Washington Times, May 31, 2012, https://www.washingtontimes.com/news/2012/may/31/killing-
jobs-to-save-the-sage-grouse/ (accessed March 16, 2023).
Michael Lee, “Wyoming’s Push to Delist Grizzly Bears from Endangered Species List Faces Opposition from
Anti-Hunting Group,” Fox News, January 21, 2022, https://www.foxnews.com/politics/wyoming-delist-grizzly-
endangered-species-list-opposition-anti-hunting-group (accessed March 18, 2023).
News release, “Trump Administration Returns Management and Protection of Gray Wolves to States and
Tribes Following Successful Recovery Eorts,” October 29, 2020, https://www.doi.gov/pressreleases/trump-
administration-returns-management-and-protection-gray-wolves-states-and-tribes (accessed March 18, 2023).
50 Code of Federal Regulations §17, and Sean Paige, “‘Rewilding’ Will Backfire on Colorado,” The Gazette,
June 19, 2022, https://gazette.com/opinion/guest-column-rewilding-will-backfire-on-colorado/article_
d0016672-ed79-11ec-b027-abe62ba840a1.html (accessed March 18, 2023).
Madeleine C. Bottrill et al., “Is Conservation Triage Just Smart Decision Making?” Trends in Ecology & Evolution,
Vol. 23, No. 12 (December 2008), pp. 649–654, https://karkgroup.org/wp-content/uploads/Bottrill-et-al-2008.
pdf (accessed March 16, 2023).
Rob Roy Ramey II, testimony before the Committee on Resources, U.S. House of Representatives, April 8, 2014,
https://naturalresources.house.gov/uploadedfiles/rameytestimony4_8.pdf (accessed March 16, 2023).
Surface Mining Control and Reclamation Act of 1977, Public Law 95–87.
Pennsylvania is the nation’s third-largest coal producer, and its state program was the model for SMCRA.
Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635.
U.S. Department of the Interior, Oce of Surface Mining Reclamation and Enforcement, “Approximate Original
Contour,” INE–26, June 23, 2020, https://www.osmre.gov/sites/default/files/pdfs/directive1003.pdf (accessed
March 18, 2023).
Tim Gallaudet and Timothy R. Petty, “Federal Action Plan for Improving Forecasts of Water Availability,”
National Oceanic and Atmospheric Administration, October 2019, https://www.noaa.gov/sites/default/files/
legacy/document/2019/Oct/Federal%20Action%20Plan%20for%20Improving%20Forecasts%20of%20
Water%20Availability.pdf (accessed March 17, 2023).
— 544 —
Mandate for Leadership: The Conservative Promise
32 U.S. Code, ch. 52.
Donald J. Trump, “Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water
in the West,” October 19, 2018, https://trumpwhitehouse.archives.gov/presidential-actions/presidential-
memorandum-promoting-reliable-supply-delivery-water-west/ (accessed March 17, 2023).
U.S. Department of the Interior, “Land Buy-Back Program for Tribal Nations,” https://www.doi.gov/
buybackprogram (accessed March 18, 2023).
Great American Outdoors Act, Public Law 116–152.
From: Williams, Martha M
To: Stone-Manning, Tracy M
Subject: FW: Project 2025 report
Date: Thursday, August 3, 2023 12:28:07 PM
Attachments: image001.png
image002.png
2025_MandateForLeadership_Civil Service.pdf
2025_MandateForLeadership_DOI.pdf
Imagine you may have seen this. Creative ideas, or else not. Looks like much of what I have seen
before.
Martha Williams | Director | U.S. Fish and Wildlife Service | Office: 202-208-4545 | Pronouns: she,
her, hers
Conserving the Nature of America. Learn more at www.fws.gov.
From: Guthrie, James M <james_guthrie@fws.gov>
Sent: Wednesday, July 26, 2023 9:48 AM
To: Guertin, Stephen <Stephen_Guertin@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>;
Weber, Wendi <wendi_weber@fws.gov>; Leaverton, Chloe Q <chloe_leaverton@fws.gov>
Cc: Williams, Martha M <martha_williams@fws.gov>
Subject: Project 2025 report
Attached are the two sections from the Heritage Foundation's Project 2025 report that I
mentioned in this morning's meeting. Below is a link to the full document.
https://thf_media.s3.amazonaws.com/project2025/2025_MandateForLeadership_FULL.pdf
Jim Guthrie
— 69 —
3
CENTRAL PERSONNEL AGENCIES:
MANAGING THE BUREAUCRACY
Donald Devine,
Dennis Dean Kirk,
and Paul Dans
OVERVIEW
From the very first Mandate for Leadership, the “personnel is policy” theme has been
the fundamental principle guiding the government’s personnel management. As the U.S.
Constitution makes clear, the President’s appointment, direction, and removal author-
ities are the central elements of his executive power.
1
In implementing that power, the
people and the President deserve the most talented and responsible workforce possible.
Who the President assigns to design and implement his political policy agenda
will determine whether he can carry out the responsibility given to him by the
American people. The President must recognize that whoever holds a government
position sets its policy. To fulfill an electoral mandate, he must therefore give per-
sonnel management his highest priority, including Cabinet-level precedence.
The federal government’s immense bureaucracy spreads into hundreds of agen-
cies and thousands of units and is centered and overseen at the top by key central
personnel agencies and their governing laws and regulations. The major separate
personnel agencies in the national government today are:
lThe Oce of Personnel Management (OPM);
lThe Merit Systems Protection Board (MSPB);
lThe Federal Labor Relations Authority (FLRA); and
lThe Oce of Special Counsel (OSC).
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Mandate for Leadership: The Conservative Promise
Title 5 of the U.S. Code charges the OPM with executing, administering, and
enforcing the rules, regulations, and laws governing the civil service.2 It grants the
OPM direct responsibility for activities like retirement, pay, health, training, federal
unionization, suitability, and classification functions not specifically granted to other
agencies by statute. The agency’s Director is charged with aiding the President, as
the President may request, in preparing such civil service rules as the President pre-
scribes and otherwise advising the President on actions that may be taken to promote
an ecient civil service and a systematic application of the merit system principles,
including recommending policies relating to the selection, promotion, transfer, per-
formance, pay, conditions of service, tenure, and separation of employees.
The MSPB is the lead adjudicator for hearing and resolving cases and contro
-
versies for 2.2 million federal employees.3 It is required to conduct fair and neutral
case adjudications, regulatory reviews, and actions and studies to improve the
workforce. Its court-like adjudications investigate and hear appeals from agency
actions such as furloughs, suspensions, demotions, and terminations and are
appealable to the U.S. Court of Appeals.
The FLRA hears appeals of agency personnel cases involving federal labor griev-
ance procedures to provide judicial review with binding decisions appealable to
appeals courts.4 It interprets the rights and duties of agencies and employee labor
organizations—on management rights, OPM interpretations, recognition of labor
organizations, and unfair labor practices—under the general principle of bargain-
ing in good faith and compelling need.
The OSC serves as the investigator, mediator, publisher, and prosecutor before
the MSPB with respect to agency and employees regarding prohibited person-
nel practices, Hatch Act
5
politicization, Uniformed Services Employment and
Reemployment Rights Act6 issues, and whistleblower complaints.7
The Equal Employment Opportunity Commission (EEOC) has general respon-
sibility for reviewing charges of employee discrimination against all civil rights
breaches. However, it also administers a government employee section that investi-
gates and adjudicates federal employee complaints concerning equal employment
violations as with the private sector.
8
This makes the agency an additional de facto
factor in government personnel management.
While not a personnel agency per se, the General Services Administration (GSA)
is charged with general supervision of contracting.
9
Today, there are many more
contractors in government than there are civil service employees. The GSA must
therefore be a part of any personnel management discussion.
ANALYSIS AND RECOMMENDATIONS
OPM: Managing the Federal Bureaucracy. At the very pinnacle of the
modern progressive program to make government competent stands the ideal
of professionalized, career civil service. Since the turn of the 20th century,
— 71 —
2025 Presidential Transition Project
progressives have sought a system that could eectively select, train, reward,
and guard from partisan influence the neutral scientific experts they believe are
required to sta the national government and run the administrative state. Their
U.S. system was initiated by the Pendleton Act of 188310 and institutionalized by
the 1930s New Deal to set principles and practices that were meant to ensure that
expert merit rather than partisan favors or personal favoritism ruled within the
federal bureaucracy. Yet, as public frustration with the civil service has grown,
generating calls to “drain the swamp,” it has become clear that their project has
had serious unintended consequences.
The civil service was devised to replace the amateurism and presumed corrup-
tion of the old spoils system, wherein government jobs rewarded loyal partisans
who might or might not have professional backgrounds. Although the system
appeared to be sucient for the nation’s first century, progressive intellectuals
and activists demanded a more professionalized, scientific, and politically neutral
Administration. Progressives designed a merit system to promote expertise and
shield bureaucrats from partisan political pressure, but it soon began to insulate
civil servants from accountability. The modern merit system increasingly made it
almost impossible to fire all but the most incompetent civil servants. Complying
with arcane rules regarding recruiting, rating, hiring, and firing simply replaced
the goal of cultivating competence and expertise.
In the 1970s, Georgia Democratic Governor Jimmy Carter, then a political
unknown, ran for President supporting New Deal programs and their Great Soci-
ety expansion but opposing the way they were being administered. The policies
were not actually reducing poverty, increasing prosperity, or improving the envi-
ronment, he argued, and to make them work required fundamental bureaucratic
reform. He correctly charged that almost all government employees were rated
as “successful,” all received the same pay regardless of performance, and even the
worst were impossible to fire—and he won the presidency.
President Carter fulfilled his campaign promise by hiring Syracuse University
Dean Alan Campbell, who served first as Chairman of the U.S. Civil Service Com-
mission and then as Director of the OPM and helped him devise and pass the Civil
Service Reform Act of 1978 (CSRA)
11
to reset the basic structure of today’s bureau-
cracy. A new performance appraisal system was devised with a five rather than
three distribution of rating categories and individual goals more related to agency
missions and more related to employee promotion for all. Pay and benefits were
based directly on improved performance appraisals (including sizable bonuses) for
mid-level managers and senior executives. But time ran out on President Carter
before the act could be fully executed, so it was left to President Ronald Reagan
and his new OPM and agency leadership to implement.
Overall, the new law seemed to work for a few years under Reagan, but the Carter–
Reagan reforms were dissipated within a decade. Today, employee evaluation is back
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Mandate for Leadership: The Conservative Promise
to pre-reform levels with almost all rated successful or above, frustrating any rela-
tion between pay and performance. An “outstanding” rating should be required for
Senior Executive Service (SES) chiefs to win big bonuses, but a few years ago, when
it was disclosed that the Veterans Administration executives who encouraged false
reporting of waiting lists for hospital admission were rated outstanding, the Senior
Executive Association justified it, telling Congress that only outstanding performers
would be promoted to the SES in the first place and that precise ratings were unnec-
essary.
12
The Government Accountability Oce (GAO), however, has reported that
pay raises, within-grade pay increases, and locality pay for regular employees and
executives have become automatic rather than based on performance—as a result
of most employees being rated at similar appraisal levels.13
OPM: Merit Hiring in a Merit System. It should not be impossible even
for a large national government to hire good people through merit selection. The
government did so for years, but it has proven dicult in recent times to select
personnel based on their knowledge, skills, and abilities (KSA) as the law dictates.
Yet for the past 34 years, the U.S. civil service has been unable to distinguish con-
sistently between strong and unqualified applicants for employment.
As the Carter presidency was winding down, the U.S. Department of Justice
and top lawyers at the OPM contrived with plaintis to end civil service IQ exam-
inations because of concern about their possible impact on minorities. The OPM
had used the Professional and Administrative Career Examination (PACE) gen-
eral intelligence exam to select college graduates for top agency employment, but
Carter Administration ocials—probably without the President’s informed con
-
currence—abolished the PACE through a legal consent court decree capitulating
to demands by civil rights petitioners who contended that it was discriminatory.
The judicial decree was to last only five years but still controls federal hiring and
is applied to all KSA tests even today.
General ability tests like the PACE have been used successfully to assess the use-
fulness and cost-eectiveness of broad intellectual qualities across many separate
occupations. Courts have ruled that even without evidence of overt, intentional
discrimination, such results might suggest discrimination. This doctrine of dispa-
rate impact could be ended legislatively or at least narrowed through the regulatory
process by a future Administration. In any event, the federal government has been
denied the use of a rigorous entry examination for three decades, relying instead
on self-evaluations that have forced managers to resort to subterfuge such as
preselecting friends or associates that they believe are competent to obtain qual-
ified employees.
In 2015, President Barack Obama’s OPM began to introduce an improved merit
examination called USAHire, which it had been testing quietly since 2012 in a few
agencies for a dozen job descriptions. The tests had multiple-choice questions with
only one correct answer. Some questions even required essay replies: questions
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2025 Presidential Transition Project
that would change regularly to depress cheating. President Donald Trump’s OPM
planned to implement such changes but was delayed because of legal concerns
over possible disparate impact.
Courts have agreed to review the consent decree if the Uniform Guidelines
on Employee Selection Procedures setting the technical requirements for sound
exams are reformed. A government that is unable to select employees based on
KSA-like test qualifications cannot work, and the OPM must move forward on this
very basic personnel management obligation.
The Centrality of Performance Appraisal. In the meantime, the OPM must
manage the workforce it has. Before they can reward or discipline federal employees,
managers must first identify who their top performers are and who is performing
less than adequately. In fact, as Ludwig von Mises proved in his classic Bureaucracy,
14
unlike the profit-and-loss evaluation tool used in the private sector, government
performance measurement depends totally on a functioning appraisal system. If
they cannot be identified in the first place within a functioning appraisal system, it is
impossible to reward good performance or correct poor performance. The problem
is that the collegial atmosphere of a bureaucracy in a multifaceted appraisal system
that is open to appeals makes this a very challenging ideal to implement successfully.
The GAO reported more recently that overly high and widely spread perfor-
mance ratings were again plaguing the government, with more than 99 percent of
employees rated fully successful or above by their managers, a mere 0.3 percent
rated as minimally successful, and 0.1 percent actually rated unacceptable.
15
Why?
It is human nature that no one appreciates being told that he or she is less than
outstanding in every way. Informing subordinates in a closely knit bureaucracy
that they are not performing well is dicult. Rating compatriots is even consid-
ered rude and unprofessional. Moreover, managers can be and often are accused
of racial or sexual discrimination for a poor rating, and this discourages honesty.
In 2018, President Trump issued Executive Order 13839
16
requiring agen-
cies to reduce the time for employees to improve performance before corrective
action could be taken; to initiate disciplinary actions against poorly performing
employees more expeditiously; to reiterate that agencies are obligated to make
employees improve; to reduce the time for employees to respond to allegations
of poor performance; to mandate that agencies remind supervisors of expiring
employee probationary periods; to prohibit agencies from entering into settlement
agreements that modify an employee’s personnel record; and to reevaluate proce-
dures for agencies to discipline supervisors who retaliate against whistleblowers.
Unfortunately, the order was overturned by the Biden Administration,17 so it will
need to be reintroduced in 2025.
The fact remains that meaningfully evaluating employees’ performance is a
critical part of a manager’s job. In the Reagan appraisal process, managers were
evaluated on how they themselves rated their subordinates. This is critical to
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Mandate for Leadership: The Conservative Promise
responsibility and improved management. It is essential that political executives
build policy goals directly into employee appraisals both for mission success and
for employees to know what is expected. Indistinguishable from their coworkers
on paper, hard-working federal employees often go unrewarded for their eorts
and are often the system’s greatest critics. Federal workers who are performing
inadequately get neither the benefit of an honest appraisal nor clear guidance on
how to improve. Political executives should take an active role in supervising per-
formance appraisals of career sta, not unduly delegate this responsibility to senior
career managers, and be willing to reward and support good performers.
Merit Pay. Performance appraisal means little to daily operations if it is not tied
directly to real consequences for success as well as failure. According to a survey of
major U.S. private companies—which, unlike the federal government, also have a
profit-and-loss evaluation—90 percent use a system of merit pay for performance
based on some type of appraisal system. Despite early eorts to institute merit pay
throughout the federal government, however, compensation is still based primarily
on seniority rather than merit.
Merit pay for executives and managers was part of the Carter reforms and was
implemented early in the Reagan presidency. Beginning in the summer of 1982,
the Reagan OPM entered 18 months of negotiations with House and Senate sta
on extending merit pay to the entire workforce. Long and detailed talks between
the OPM and both Democrats and Republicans in Congress ensued, and a final
agreement was reached in 1983 that supposedly ensured the passage of legislation
creating a new Performance Management and Recognition System (PMRS) for all,
(not just management) GS-13 through GS-15 employees.
Meanwhile, the OPM issued regulations to expand the role of performance
related to pay throughout the entire workforce, but congressional allies of the
employee unions, led by Representative Steny Hoyer (D) of government employee–
rich Maryland, stoutly resisted this extension of pay-for-performance and, with
strong union support, used the congressional appropriations process to block OPM
administrative pay reforms. Bonuses for SES career employees survived, but per-
formance appraisals became so high and widely distributed that there was little
relationship between performance and remuneration.
Ever since the original merit pay system for federal managers (GM-13 through
GM-15 grade levels, just below the SES) was allowed to expire in September 1993,
little to nothing has been done either to reinstate the federal merit pay program for
managers or to distribute performance rating evaluations for the SES, much less to
extend the program to the remainder of the workforce. A reform-friendly President
and Congress might just provide the opportunity to create a more comprehensive
performance plan; in the meantime, however, political executives should use exist-
ing pay and especially fiscal awards strategically to reward good performance to
the degree allowed by law.
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Making the Appeals Process Work. The nonmilitary government dismissal
rate is well below 1 percent, and no private-sector industry employee enjoys the
job security that a federal employee enjoys. Both safety and justice demand that
managers learn to act strategically to hire good and fire poor performers legally.
The initial paperwork required to separate poor or abusive performers (when they
are infrequently identified) is not overwhelming, and managers might be motivated
to act if it were not for the appeals and enforcement processes. Formal appeal in the
private sector is mostly a rather simple two-step process, but government unions
and associations have been able to convince politicians to support a multiple and
extensive appeals and enforcement process.
As noted, there are multiple administrative appeals bodies. The FLRA, OSC,
and EEOC have relatively narrow jurisdictions. Claims that an employee’s removal
or disciplinary actions violate the terms of a collective bargaining agreement
between an agency and a union are handled by the FLRA, employees who claim
their removal was the result of discrimination can appeal to the EEOC, and employ-
ees who believe their firing was retribution for being a whistleblower can go to the
OSC. While the MSPB specializes in abuses of direct merit system issues, it can
and does hear and review almost any of the matters heard by the other agencies.
Cases involving race, gender, religion, age, pregnancy, disability, or national
origin can be appealed to the EEOC or the MSPB—and in some cases to both—and
to the OSC. This gives employees multiple opportunities to prove their cases, and
while the EEOC, MSPB, FLRA, and OSC may all apply essentially the same burden
of proof, the odds of success may be substantially dierent in each forum. In fact,
forum shopping among them for a friendlier venue is a common practice, but fre-
quent filers face no consequences for frivolous complaints. As a result, meritorious
cases are frequently delayed, denying relief and justice to truly aggrieved individuals.
The MSPB can and does handle all such matters, but it faces a backlog of an
estimated 3,000 cases of people who were potentially wrongfully terminated or
disciplined as far back as 2013. From 2017–2022 the MSPB lacked the quorum
required to decide appeals. On the other hand, as of January 2023, the EEOC had
a backlog of 42,000 cases.
While federal employees win appeals relatively infrequently—MSPB adminis-
trative judges have upheld agency decisions as much as 80 percent of the time—the
real problem is the time and paperwork involved in the elaborate process that
managers must undergo during appeals. This keeps even the best managers from
bringing cases in all but the most egregious cases of poor performance or mis-
conduct. As a result, the MSPB, EEOC, FLRA, and OSC likely see very few cases
compared to the number of occurrences, and nonperformers continue to be paid
and often are placed in nonwork positions.
Having a choice of appeals is especially unique to the government. If lower-pri-
ority issues were addressed in-house, serious adverse actions would be less subject
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Mandate for Leadership: The Conservative Promise
to delay. With the proper limitation of labor union actions, the FLRA should
have limited reason for appeals. The EEOC’s federal employee section should be
transferred to the MSPB, and many of the OCS’s investigatory functions should be
returned to the OPM. The MSPB could then become the main reviewer of adverse
actions, greatly simplifying the burdensome appeal process.
Making Civil Service Benefits Economically and Administratively Ratio-
nal. In recent years, the combined wages and benefits of the executive branch
civilian workforce totaled $300 billion according to ocial data. But even that
amount does not properly account for billions in unfunded liability for retirement
and other government reporting distortions. Ocial data also report employment
as approximately 2 million, but this ignores approximately 20 million contractors
who, while not eligible for government pay and benefits, do receive them indirectly
through contracting (even if they are less generous). Ocial data also claim that
national government employees are paid less than private-sector employees are
paid for similar work, but several more neutral sources demonstrate that pub-
lic-sector workers make more on average than their private-sector counterparts.
All of this extravagance deserves close scrutiny.
Market-Based Pay and Benefits. According to current law, federal workers
are to be paid wages comparable to equivalent private-sector workers rather than
compared to all private-sector employees. While the ocial studies claim that
federal employees are underpaid relative to the private sector by 20 percent or
more,
a 2016 Heritage Foundation study found that federal employees received
wages that were 22 percent higher than wages for similar private-sector workers;
if the value of employee benefits was included, the total compensation premium
for federal employees over their private-sector equivalents increased to between
30 percent and 40 percent.
18
The American Enterprise Institute found a 14 percent
pay premium and a 61 percent total compensation premium.19
Base salary is only one component of a federal employee’s total compensation.
In addition to high starting wages, federal employees normally receive an annual
cost-of-living adjustment (available to all employees) and generous scheduled
raises known as step increases. Moreover, a large proportion of federal employ-
ees are stationed in the Washington, D.C., area and other large cities and are
entitled to steep locality pay enhancement to account for the high cost of living
in these areas.
A federal employee with five years’ experience receives 20 vacation days, 13 paid
sick days, and all 10 federal holidays compared to an employee at a large private
company who receives 13 days of vacation and eight paid sick days. Federal health
benefits are more comparable to those provided by Fortune 500 employers with
the government paying 72 percent of the weighted average premiums, but this is
much higher than for most private plans. Almost half of private firms do not oer
any employer contributions at all.
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2025 Presidential Transition Project
The obvious solution to these discrepancies is to move closer to a market model
for federal pay and benefits. One need is for a neutral agency to oversee pay hiring
decisions, especially for high-demand occupations. The OPM is independent of
agency operations, so it can assess requirements more neutrally. For many years,
with its Special Pay Rates program, the OPM evaluated claims that federal rates
in an area were too low to attract competent employees and allowed agencies to
oer higher pay when needed rather than increased rates for all. Ideally, the OPM
should establish an initial pay schedule for every occupation and region, monitor
turnover rates and applicant-to-position ratios, and adjust pay and recruitment
on that basis. Most of this requires legislation, but the OPM should be an advocate
for a true equality of benefits between the public and private sectors.
Reforming Federal Retirement Benefits. Career civil servants enjoy retire-
ment benefits that are nearly unheard of in the private sector. Federal employees
retire earlier (normally at age 55 after 30 years), enjoy richer pension annuities,
and receive automatic cost-of-living adjustments based on the areas in which they
retire. Defined-benefit federal pensions are fully indexed for inflation—a practice
that is extremely rare in the private sector. A federal employee with a preretire-
ment income of $25,000 under the older of the two federal retirement plans will
receive at least $200,000 more over a 20-year period than will private-sector work-
ers with the same preretirement salary under historic inflation levels.
During the early Reagan years, the OPM reformed many specific provisions of
the federal pension program to save billions administratively. Under OPM pres-
sure, Reagan and Congress ultimately ended the old Civil Service Retirement
System (CSRS) entirely for new employees, which (counting disbursements for
the unfunded liability) accounted for 51.3 percent of the federal government's
total payroll. The retirement system that replaced it—the Federal Employees
Retirement System (FERS)—reduced the cost of federal employee retirement dis-
bursements to 28.5 percent of payroll (including contributions to Social Security
and the employer match to the Thrift Savings Plan). More of the pension cost was
shifted to the employee, but the new system was much more equitable for the 40
percent who received few or no benefits under the old system.
By 1999, more than half of the federal workforce was covered by the new system,
and the government’s per capita share of the cost (as the employer) was less than
half the cost of the old system: 20.2 percent of FERS payroll vs. 44.3 percent of
CSRS payroll, representing one of the largest examples of government savings
anywhere. Although the government pension system has become more like private
pension systems, it still remains much more generous, and other means might be
considered in the future to move it even closer to private plans.
GSA: Landlord and Contractor Management. The General Services
Administration is best known as the federal government’s landlord—designing,
constructing, managing, and preserving government buildings and leasing and
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Mandate for Leadership: The Conservative Promise
managing outside commercial real estate contracting with 376.9 million square feet
of space. Obviously, as its prime function, real estate expertise is key to the GSA’s
success. However, the GSA is also the government’s purchasing agent, connecting
federal purchasers with commercial products and services in the private sector
and their personnel management functions. With contractors performing so many
functions today, the GSA therefore becomes a de facto part of governmentwide
personnel management. The GSA also manages the Presidential Transition Act
(PTA) process, which also directly involves the OPM. A recent proposal would
have incorporated the OPM and GSA (and OMB). Fortunately, this did not take
place in that form, but it would make sense for GSA and OPM leadership and sta
to hold regular meetings to work through matters of common interest such as
moderating PTA personnel restrictions and the relationships between contract
and civil service employees.
Reductions-in-Force. Reducing the number of federal employees seems an
obvious way to reduce the overall expense of the civil service, and many prior
Administrations have attempted to do just this. Presidents Bill Clinton and
Barack Obama began their terms, as did Ronald Reagan and Donald Trump, by
mandating a freeze on the hiring of new federal employees, but these eorts did
not lead to permanent and substantive reductions in the number of nondefense
federal employees.
First, it is a challenge even to know which workers to cut. As mentioned, there
are 2 million federal employees, but since budgets have exploded, so has the
total number of personnel with nearly 10 times more federal contractors than
federal employees. Contractors are less expensive because they are not entitled
to high government pensions or benefits and are easier to fire and discipline. In
addition, millions of state government employees work under federal grants, in
eect administering federal programs; these cannot be cut directly. Cutting federal
employment can be helpful and can provide a simple story to average citizens, but
cutting functions, levels, funds, and grants is much more important than setting
simple employment size.
Simply reducing numbers can actually increase costs. OMB instructions fol-
lowing President Trump’s employment freeze told agencies to consider buyout
programs, encouraging early retirements in order to shift costs from current bud-
gets in agencies to the retirement system and minimize the number of personnel
fired. The Environmental Protection Agency immediately implemented such a
program, and OMB urged the passage of legislation to increase payout maximums
from $25,000 to $40,000 to further increase spending under the “cuts.” President
Clinton’s OMB had introduced a similar buyout that cost the Treasury $2.8 billion,
mostly for those who were going to retire anyway. Moreover, when a new employee
is hired to fill a job recently vacated in a buyout, the government for a time is paying
two people to fill one job.
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What is needed at the beginning is a freeze on all top career-position hiring
to prevent “burrowing-in” by outgoing political appointees. Moreover, four fac-
tors determine the order in which employees are protected during layos: tenure,
veterans’ preference, seniority, and performance in that order of importance.
Despite several attempts in the House of Representatives during the Trump years
to enact legislation that would modestly increase the weight given to performance
over time-of-service, the fierce opposition by federal managers associations and
unions representing long-serving but not necessarily well-performing constituents
explains why the bills failed to advance. A determined President should insist that
performance be first and be wary of costly types of reductions-in-force.
Impenetrable Bureaucracy. The GAO has identified almost a hundred actions
that the executive branch or Congress could take to improve eciency and eec-
tiveness across 37 areas that span a broad range of government missions and
functions. It identified 33 actions to address mission fragmentation, overlap, and
duplication in the 12 areas of defense, economic development, health, homeland
security, and information technology. It also identified 59 other opportunities for
executive agencies or Congress to reduce the cost of government operations or
enhance revenue collection across 25 areas of government.20
A logical place to begin would be to identify and eliminate functions and pro-
grams that are duplicated across Cabinet departments or spread across multiple
agencies. Congress hoped to help this eort by passing the Government Perfor-
mance and Results Act of 1993,
21
which required all federal agencies to define
their missions, establish goals and objectives, and measure and report their per-
formance to Congress. Three decades of endless time-consuming reports later,
the government continues to grow but with more paper and little change either
in performance or in the number of levels between government and the people.
The Brookings Institution’s Paul Light emphasizes the importance of the
increasing number of levels between the top heads of departments and the people
at the bottom who receive the products of government decision-making. He esti-
mates that there are perhaps 50 or more levels of impenetrable bureaucracy and no
way other than imperfect performance appraisals to communicate between them.
22
The Trump Administration proposed some possible consolidations, but these
were not received favorably in Congress, whose approval is necessary for most such
proposals. The best solution is to cut functions and budgets and devolve respon-
sibilities. That is a challenge primarily for Presidents, Congress, and the entire
government, but the OPM still needs to lead the way governmentwide in managing
personnel properly even in any future smaller government.
Creating a Responsible Career Management Service. The people elect a
President who is charged by Article 2, Section 3 of the Constitution23 with seeing
that the laws are “faithfully executed” with his political appointees democratically
linked to that legitimizing responsibility. An autonomous bureaucracy has neither
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Mandate for Leadership: The Conservative Promise
independent constitutional status nor separate moral legitimacy. Therefore, career
civil servants by themselves should not lead major policy changes and reforms.
The creation of the Senior Executive Service was the top career change intro-
duced by the 1978 Carter–Campbell Civil Service Reform Act. Its aim was to
professionalize the career service and make it more responsible to the democrat-
ically elected commander in chief and his political appointees while respecting the
rights due to career employees, very much including those in the top positions. The
new SES would allow management to be more flexible in filling and reassigning
executive positions and locations beyond narrow specialties for more ecient
mission accomplishment and would provide pay and large bonuses to motivate
career performance.
The desire to infiltrate political appointees improperly into the high career
civil service has been widespread in every Administration, whether Democrat or
Republican. Democratic Administrations, however, are typically more successful
because they require the cooperation of careerists, who generally lean heavily to
the Left. Such burrowing-in requires career job descriptions for new positions that
closely mirror the functions of a political appointee; a special hiring authority that
allows the bypassing of veterans’ preference as well as other preference categories;
and the ability to frustrate career candidates from taking the desired position.
President Reagan’s OPM began by limiting such SES burrowing-in, arguing
that the proper course was to create and fill political positions. This simultane-
ously promotes the CSRA principle of political leadership of the bureaucracy and
respects the professional autonomy of the career service. But this requires that
career SES employees should respect political rights too. Actions such as career
sta reserving excessive numbers of key policy positions as “career reserved” to
deny them to noncareer SES employees frustrate CSRA intent. Another evasion
is the general domination by career sta on SES personnel evaluation boards, the
opposite of noncareer executives dominating these critical meeting discussions
as expected in the SES. Career training also often underplays the political role in
leadership and inculcates career-first policy and value viewpoints.
Frustrated with these activities by top career executives, the Trump Adminis-
tration issued Executive Order 1395724 to make career professionals in positions
that are not normally subject to change as a result of a presidential transition but
who discharge significant duties and exercise significant discretion in formulating
and implementing executive branch policy and programs an exception to the com-
petitive hiring rules and examinations for career positions under a new Schedule
F. It ordered the Director of OPM and agency heads to set procedures to prepare
lists of such confidential, policy-determining, policymaking, or policy-advocating
positions and prepare procedures to create exceptions from civil service rules when
careerists hold such positions, from which they can relocate back to the regular
civil service after such service. The order was subsequently reversed by President
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2025 Presidential Transition Project
Biden
25
at the demand of the civil service associations and unions. It should be
reinstated, but SES responsibility should come first.
Managing Personnel in a Union Environment. Historically, unions were
thought to be incompatible with government management. There is a natural limit
to the bargaining power of private-sector unions, but the financial bottom line of
public-sector unions is not similarly constrained. If private-sector unions push
too hard a bargain, they can so harm a company or so reduce eciency that their
employer is forced to go out of business and eliminate union jobs altogether. There
is no such limit in government, which cannot go out of business, so demands can
be excessive without negatively aecting employee and union bottom lines.
Even Democratic President Franklin Roosevelt considered union representa-
tion in the federal government to be incompatible with democracy. Striking and
even threats of bargaining and delay were considered acts against the people and
thus improper. It was not until President John Kennedy that union representation
in the federal government was recognized—and then merely by executive order.
Labor bargaining was not set in statute until the Carter Administration was forced
by Congress to do so in order to pass the CSRA, although all bargaining was placed
under OPM review.
The CSRA was able to maintain strong management rights for the OPM and
agencies and forbade collective bargaining on pay and benefits as well as manage-
ment prerogatives. Over time, OPM, FLRA, and agencies’ personnel oces and
courts, especially in Democratic Administrations, narrowed management rights
so that labor bargaining expanded as management rights contracted. But the man-
agement rights are still in statute, have been enforced by some Administrations,
and should be enforced again by any future OPM and agency managements, which
should not be intimidated by union power.
Rather than being daunted, President Trump issued three executive orders:
lExecutive Order 13836, encouraging agencies to renegotiate all union
collective bargaining agreements to ensure consistency with the law and
respect for management rights;26
lExecutive Order 13837, encouraging agencies to prevent union
representatives from using ocial time preparing or pursuing grievances or
from engaging in other union activity on government time;27 and
lExecutive Order 13839, encouraging agencies both to limit labor grievances
on removals from service or on challenging performance appraisals and to
prioritize performance over seniority when deciding who should be retained
following reductions-in-force.28
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Mandate for Leadership: The Conservative Promise
All were revoked by the Biden Administration
29
and should be reinstated by the
next Administration, to include the immediate appointment of the FLRA General
Counsel and reactivation of the Impasses Panel.
Congress should also consider whether public-sector unions are appropriate
in the first place. The bipartisan consensus up until the middle of the 20th cen-
tury held that these unions were not compatible with constitutional government.
30
After more than half a century of experience with public-sector union frustrations
of good government management, it is hard to avoid reaching the same conclusion.
Fully Stang the Ranks of Political Appointees. The President must rely
legally on his top department and agency ocials to run the government and on top
White House sta employees to coordinate operations through regular Cabinet and
other meetings and communications. Without this political leadership, the career
civil service becomes empowered to lead the executive branch without democratic
legitimacy. While many obstacles stand in his way, a President is constitutionally
and statutorily required to fill the top political positions in the executive branch
both to assist him and to provide overall legitimacy.
Most Presidents have had some diculty obtaining congressional approval of
their appointees, but this has worsened recently. After the 2016 election, President
Trump faced special hostility from the opposition party and the media in getting
his appointees confirmed or even considered by the Senate. His early Oce of
Presidential Personnel (PPO) did not generally remove political appointees from
the previous Administration but instead relied mostly on prior political appoin
-
tees and career civil servants to run the government. Such a reliance on holdovers
and bureaucrats led to a lack of agency control and the absolute refusal of the
Acting Attorney General from the Obama Administration to obey a direct order
from the President.
Under the early PPO, the Trump Administration appointed fewer political
appointees in its first few months in oce than had been appointed in any recent
presidency, partly because of historically high partisan congressional obstructions
but also because several ocials announced that they preferred fewer political
appointees in the agencies as a way to cut federal spending. Whatever the reasoning,
this had the eect of permanently hampering the rollout of the new President’s
agenda. Thus, in those critical early years, much of the government relied on senior
careerists and holdover Obama appointees to carry out the sensitive responsibili-
ties that would otherwise belong to the new President’s appointees.
Fortunately, the later PPO, OPM, and Senate leadership began to cooperate to
build a strong team to implement the President’s personnel appointment agenda.
Any new Administration would be wise to learn that it will need a full cadre of
sound political appointees from the beginning if it expects to direct this enormous
federal bureaucracy. A close relationship between the PPO at the White House
and the OPM, coordinating with agency assistant secretaries of administration
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2025 Presidential Transition Project
and PPO’s chosen White House Liaisons and their sta at each agency, is essential
to the management of this large, multilevel, resistant, and bureaucratic challenge.
If “personnel is policy” is to be our general guide, it would make sense to give the
President direct supervision of the bureaucracy with the OPM Director available
in his Cabinet.
A REFORMED BUREAUCRACY
Today, the federal government’s bureaucracy cannot even meet its own civil
service ideals. The merit criteria of ability, knowledge, and skills are no longer the
basis for recruitment, selection, or advancement, while pay and benefits for com-
parable work are substantially above those in the private sector. Retention is not
based primarily on performance, and for the most part, inadequate performance
is not appraised, corrected, or punished.
The authors have made many suggestions here that, if implemented, could
bring that bureaucracy more under control and enable it to work more eciently
and responsibly, which is especially required for the half of civilian government
that administers its undeniable responsibilities for defense and foreign aairs.
While a better administered central bureaucracy is crucial for both those and
domestic responsibilities, the problem of properly running the government goes
beyond simple bureaucratic administration. The specific deficiencies of the fed-
eral bureaucracy—size, levels of organization, ineciency, expense, and lack of
responsiveness to political leadership—are rooted in the progressive ideology that
unelected experts can and should be trusted to promote the general welfare in just
about every area of social life.
The Constitution, however, reserved a few enumerated powers to the federal
government while leaving the great majority of domestic activities to state, local,
and private governance. As James Madison explained: “The powers reserved to
the several States will extend to all the objects, which, in the ordinary course of
aairs, concern the lives, liberties and properties of the people; and the internal
order, improvement and prosperity of the state.”
31
Modern progressive politics
has simply given the national government more to do than the complex separa-
tion-of-powers Constitution allows.
That progressive system has broken down in our time, and the only real solution
is for the national government to do less: to decentralize and privatize as much as
possible and then ensure that the remaining bureaucracy is managed eectively
along the lines of the enduring principles set out in detail here.
AUTHORS’ NOTE: The authors are grateful for the collaborative work of the individuals listed as contributors to
this chapter for the 2025 Presidential Transition Project. The authors alone assume responsibility for the content of
this chapter, and no views expressed herein should be attributed to any other individual.
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ENDNOTES
U.S. Constitution, Article II, Section 2, https://www.law.cornell.edu/constitution/articleii#section1 (accessed
February 1, 2023).
5 U.S. Code §§ 1101 et seq. and 1103(a)(5), https://www.law.cornell.edu/uscode/text/5/part-II/chapter-11
(accessed February 1, 2023).
5 U.S. Code § 1201, https://www.law.cornell.edu/uscode/text/5/1201 (accessed February 1, 2023).
5 U.S. Code § 7101, https://www.law.cornell.edu/uscode/text/5/7101 (accessed February 1, 2023), and § 7117,
https://www.law.cornell.edu/uscode/text/5/7117 (accessed February 1, 2023).
S. 1871, An Act to Prevent Pernicious Political Activities, Public Law No. 76-252, August 2, 1939, https://
govtrackus.s3.amazonaws.com/legislink/pdf/stat/53/STATUTE-53-Pg1147.pdf (accessed February 1, 2023).
H.R. 995, Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law No. 103-353,
101st Congress, October 13, 1994, https://www.congress.gov/103/statute/STATUTE-108/STATUTE-108-Pg3149.
pdf (accessed February 1, 2023).
5 U.S. Code § 1206, https://www.law.cornell.edu/uscode/text/5/1206 (accessed February 1, 2023).
42 U.S. Code § 2000e, https://www.law.cornell.edu/uscode/text/42/2000e (accessed February 1, 2023).
40 U.S. Code § 581, https://www.law.cornell.edu/uscode/text/40/581 (accessed February 1, 2023).
U.S. National Archives, “Milestone Documents: Pendleton Act (1883),” last reviewed February 8, 2022, https://
www.archives.gov/milestone-documents/pendleton-act (accessed February 2, 2023).
S. 2640, Civil Service Reform Act of 1978, Public Law No. 95-454, 95th Congress, October 13, 1978, https://
www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1111.pdf (accessed February 2, 2023).
Donovan Sack and Bill Theobald, “Veterans Aairs Pays $140 Million in Bonuses Amid Scandals,” USA Today,
November 11, 2015, https://www.usatoday.com/story/news/politics/2015/11/11/veterans-aairs-pays-142-
million-bonuses-amid-scandals/75537586/ (accessed March 15, 2023).
U.S. Government Accountability Oce, “Federal Workforce: Distribution of Performance Ratings Across
the Federal Government, 2013,” GAO-16-520R, May 9, 2016, https://www.gao.gov/assets/gao-16-520r.pdf
(accessed March 15, 2023); U.S. Government Accountability Oce, Results-Oriented Management: OPM Needs
to Do More to Ensure Meaningful Distinctions Are Made in SES Ratings and Performance Awards, GAO-15-
189, January 2015, https://www.gao.gov/assets/gao-15-189.pdf (accessed March 15, 2023); U.S. Government
Accountability Oce, “Measuring Federal Employee Performance,” WatchBlog, posted October 18, 2016,
https://www.gao.gov/blog/2016/10/18/measuring-federal-employee-performance (accessed March 15, 2023);
Lisa Rein, “The Federal Workforce, Where Everyone’s Performance Gets Rave Reviews,” The Washington Post,
June 13, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/06/13/heres-the-news-from-the-
federal-government-where-everyone-is-above-average-way-above/ (accessed March 15, 2023).
Ludwig von Mises, Bureaucracy (New Haven, CT: Yale University Press, 1944), https://ia902300.us.archive.
org/17/items/mises-pdfs/1944-01-01_LudwigVonMises_Bureaucracy.pdf (accessed February 2, 2023).
Figure 1, “Permanent, Non-Senior Executive Service Employee Performance Rating Outcomes (All Rating
Systems, Calendar Year 2013),” in U.S. Government Accountability Oce, “Federal Workforce: Distribution of
Performance Ratings Across the Federal Government, 2013,” p. 6.
President Donald J. Trump, Executive Order 13839, “Promoting Accountability and Streamlining Removal
Procedures Consistent with Merit System Principles,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25343–25347, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11939.pdf (accessed
February 2, 2023).
President Joseph R. Biden Jr., Executive Order 14003, “Protecting the Federal Workforce,” January 22, 2021, in
Federal Register, Vol. 86, No. 16 (January 27, 2021), pp. 7231–7233, https://www.govinfo.gov/content/pkg/FR-
2021-01-27/pdf/2021-01924.pdf (accessed February 2, 2023).
Rachel Greszler and James Sherk, “Why It Is Time to Reform Compensation for Federal Employees,” The
Heritage Foundation, July 27, 2016, https://www.heritage.org/jobs-and-labor/report/why-it-time-reform-
compensation-federal-employees.
Andrew G. Biggs and Jason Richwine, “Comparing Federal and Private Sector Compensation,” American
Enterprise Institute Working Paper No. 2011-02, revised June 2011, https://www.aei.org/wp-content/
uploads/2011/10/AEI-Working-Paper-on-Federal-Pay-May-2011.pdf?x91208 (accessed February 2, 2023).
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2025 Presidential Transition Project
See Gene L. Dodaro, Comptroller General of the United States, “Government Eciency and Eectiveness:
Opportunities to Reduce Fragmentation, Overlap, and Duplication and Achieve Billions in Financial Benefits,”
testimony before the Subcommittee on Emerging Threats and Spending Oversight, Committee on Homeland
Security and Governmental Aairs, U.S. Senate, GAO-21-544T, May 12, 2021, https://www.gao.gov/assets/gao-
21-544t.pdf (accessed February 2, 2023).
S. 20, Government Performance and Results Act of 1993, Public Law No. 103-62, 103rd Congress, August
3, 1993, https://www.congress.gov/103/statute/STATUTE-107/STATUTE-107-Pg285.pdf (accessed
February 2, 2023).
Paul Light, “The Real Crisis in Government,” The Capital Times (Madison, Wisconsin), January 22, 2010, https://
captimes.com/news/opinion/column/paul-c-light-the-real-crisis-in-government/article_9e139318-3d00-
5898-908d-4c7aee1e105d.html (accessed March 15, 2023).
U.S. Constitution, Article II, Section 3, https://www.law.cornell.edu/constitution/articleii#section3 (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13957, “Creating Schedule F in the Excepted Service,” October 21,
2020, in Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635, https://www.govinfo.gov/
content/pkg/FR-2020-10-26/pdf/2020-23780.pdf (accessed February 2, 2023).
See note 17, supra.
President Donald J. Trump, Executive Order 13836, “Developing Ecient, Eective, and Cost-Reducing
Approaches to Federal Sector Collective Bargaining,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25329–25334, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11913.pdf (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13837, “Ensuring Transparency, Accountability, and Eciency
in Taxpayer-Funded Union Time Use,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1, 2018),
pp. 25335–25340, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11916.pdf (accessed
February 2, 2023).
See note 16, supra.
See note 17, supra.
Philip K. Howard, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (Garden City,
NY: Rodin Books, 2023).
James Madison, The Federalist Papers No. 45, January 26, 1788, https://founders.archives.gov/documents/
Madison/01-10-02-0254 (accessed February 1, 2023).
— 517 —
16
DEPARTMENT OF
THE INTERIOR
William Perry Pendley
T
he U.S. Department of the Interior (DOI) oversees, manages, and protects
the nation’s natural resources and cultural heritage; provides scientific
and other information about those resources; and honors the nation’s trust
responsibilities or special commitments to American Indians, Alaska Natives, and
aliated island communities.
AGENCY OVERVIEW
DOI’s purview encompasses more than 500 million acres of federal lands,
including national parks and national wildlife refuges; 700 million acres of sub-
surface minerals; 1.7 billion acres of the Outer Continental Shelf (OCS); 23 percent
of the nation’s energy; water in 17 western states; and trust responsibilities for 566
Indian tribes and Alaska Natives. DOI’s 2024 budget request totals $18.9 billion, an
increase of $2 billion, or 12 percent, more than the 2023 enacted level. The budget
also provides an estimated $12.6 billion in permanent funding in 2024. In 2024,
DOI will generate receipts of $19.6 billion.
A “Home Department” had been considered in 1789 and urged by Presidents
over the decades until DOI’s creation in 1849. The variety of its early responsibil-
ities—the Indian Bureau, the General Land Oce, the Bureau of Pensions, and
the Patent Oce, among others—earned it various nicknames, including “Great
Miscellany,” “hydra-headed monster,” and “Mother of Departments.”1 Its mission
became more focused on natural resources with the rise of the conservation move-
ment in the early 20th century; however, it kept its historic (since the days of the
Founding Fathers) role as overseer of vast working landscapes involving grazing,
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Mandate for Leadership: The Conservative Promise
logging, mining, oil, and gas and, with the Bureau of Reclamation in 1902, as the
nation’s dam builder. Today, DOI has 70,000 employees in approximately 2,400
locations with oces across the United States, Puerto Rico, and U.S. Territories
and Freely Associated States.
Historically, DOI operated in a bipartisan manner consistent with the laws
enacted by Congress pursuant to its powers under the Property Clause.
2
Thus,
DOI fulfilled its statutory responsibilities in a manner that ensured the ability of
western states, counties, and communities to be sustained by both economic and
recreational activities on neighboring federal lands, especially given that in some
rural western counties, federal lands constituted 50, 60, 70, 80—even 90 percent
of the county’s landmass.3
That ended with the Administration of President Jimmy Carter, who, beholden
to environmental groups that supported his election, adopted DOI policies consis-
tent with their demands, much to the horror of western governors, most of whom
were Democrats. President Ronald Reagan campaigned against this “War on the
West,” declared himself a “Sagebrush Rebel,” and, on taking oce,4 quelled the
rebellion by reversing Carter Administration policies. President George H. W.
Bush distanced himself from Reagan’s western policies, committed to a “kinder
and gentler America,” and proclaimed his desire to be “the environmental Pres-
ident,” which resulted in changes at the his Administration’s DOI—again, much
to the dismay of westerners.
5
President Bill Clinton resumed Carter’s “War on
the West,” epitomized by his DOI’s deploying of wolves into the states bordering
Yellowstone National Park; the decreed death of a world-class mine in Montana;
and the designation of a vast national monument in Utah over the objections of
Utah leaders—but with the support of the Hollywood elite.6
Although Texas Governor George W. Bush and former Wyoming Representative
Dick Cheney (R–WY) campaigned in 2000 against Clinton’s worst outrages, includ-
ing the Utah monument, there was no significant ratcheting back of DOI policies
that were either objected to by westerners or contrary to the express provisions of
federal statutes. President Barack Obama’s DOI resumed the anti-economic fed-
eral lands policies activated by Carter and amplified by Clinton; however, Obama’s
DOI’s antipathy to oil and gas activity on federal lands as mandated by Congress
could not have come at a worse time.
After the demonstrated success of fracking on Bureau of Land Management
(BLM) acreage in Wyoming in 1993, the fracking revolution soon swept the nation,7
yielding massive discoveries on state and private land from coast to coast, but not,
thanks to Obama, on western federal lands.8 President Donald Trump, on the other
hand, immediately ordered his DOI to comply with federal law, conduct congressio-
nally mandated lease sales, and seek to achieve energy dominance or independence.
Thanks in part to the success of oil and gas operations on federal land in the West,
the United States achieved energy security for the first time since 1957 in 2019.9
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2025 Presidential Transition Project
President Joe Biden’s DOI, as is well documented, abandoned all pretense of
complying with federal law regarding federally owned oil and gas resources. Not
since the Administration of President Harry S. Truman—prior to creation of the
OCS oil and gas program—have fewer federal leases been issued.10
At DOI, not since the Reagan Administration was the radical environmen-
tal agenda (first implemented by Carter, resumed by Clinton, and revitalized
by Obama) rolled back as substantially as it was by President Trump. Trump’s
DOI change aected not only oil and gas leasing, as noted above, but all statutory
responsibilities of its various agencies, bureaus, and oces. Thus, whether the
statutory mandate was to promote economic activity, to ensure and expand rec-
reational opportunities, or to protect valuable natural resources, including, for
example, parks, wilderness areas, national monuments, and wild and scenic areas,
eorts were expended, barriers were removed, and career employees were aided
in the accomplishment of those missions.
Unfortunately, Biden’s DOI is at war with the department’s mission, not only
when it comes to DOI’s obligation to develop the vast oil and gas and coal resources
for which it is responsible, but also as to its statutory mandate, for example, to
manage much of federal land overseen by the BLM pursuant to “multiple use” and
“sustained yield” principles.11 Instead, Biden’s DOI believes most BLM land should
be placed o-limits to all economic and most recreational uses. Worse yet, Biden’s
DOI not only refuses to adhere to the statutes enacted by Congress as to how the
lands under its jurisdiction are managed, but it also insists on implementing a vast
regulatory regime (for which Congress has not granted authority) and overturning,
by unilateral regulatory action, congressional acts that set forth the productive
economic uses permitted on DOI-managed federal land.
BUDGET STRUCTURE
At $18.9 billion, DOI’s 2024 proposed budget is small relative to many other
federal agencies. On the other side of the ledger, the DOI forecasts it will generate
more than $19.6 billion in “osetting receipts” from oil and gas royalties, timber
and grazing fees, park user fees, and land sales, among other sources. Most of the
proposed allocations are divided among nine bureaus.
Bureau of Indian Aairs. Fulfills Indian trust responsibilities on behalf of
566 Indian tribes; supports natural resource education, law enforcement, and
social service programs delivered by tribes; operates 182 elementary and secondary
schools and dormitories and 29 tribally controlled community colleges, universi-
ties, and post-secondary schools.
Bureau of Land Management. Manages and conserves resources for 245
million acres of public land and 700 million acres of subsurface federal mineral
estate, including energy and mineral development, forest management, timber
and biomass production, and wild horse and burro management.
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Mandate for Leadership: The Conservative Promise
Bureau of Ocean Energy Management. Manages access to renewable and
conventional energy resources of the Outer Continental Shelf, including more than
6,400 fluid mineral leases on approximately 35 million OCS acres; issues leases
for 24 percent of domestic crude oil and 8 percent of domestic natural gas supply;
oversees lease and grant issuance for oshore renewable energy projects.
Bureau of Reclamation. Manages, develops, and protects water and related
resources, including 476 dams and 337 reservoirs; delivers water to one in every
five western farmers and more than 31 million people; is America’s second-largest
producer of hydroelectric power.
Bureau of Safety and Environmental Enforcement. Regulates oshore oil
and gas facilities on 1.7 billion acres of the Outer Continental Shelf; oversees oil
spill response; supports research on technology for oil spill response.
National Park Service. Maintains and manages 401 natural, cultural, and
recreational sites, 26,000 historic structures, and more than 44 million acres of
wilderness; provides outdoor recreation; provides technical assistance and support
to state and local programs.
Oce of Surface Mining Reclamation and Enforcement. Regulates coal
mining and site reclamation; provides grants to states and tribes for mining over-
sight; mitigates the eects of past mining.
U.S. Fish and Wildlife Service. Manages the 150-million-acre National Wild-
life Refuge System; manages 70 fish hatcheries and other related facilities for
endangered species recovery; protects migratory birds and some marine mammals.
U.S. Geological Survey. Conducts scientific research in ecosystems, climate,
and land-use change, mineral assessments, environmental health, and water
resources; produces information about natural hazards (earthquakes, volcanoes,
and landslides); leads climate change research for the department.
RESTORING AMERICAN ENERGY DOMINANCE
Given the dire adverse national impact of Biden’s war on fossil fuels, no other
initiative is as important for the DOI under a conservative President than the
restoration of the department’s historic role managing the nation’s vast store-
house of hydrocarbons, much of which is yet to be discovered. The U.S. depends
on reliable and cheap energy resources to ensure the economic well-being of its
citizens, the vitality of its economy, and its geopolitical standing in an uncertain
and dangerous world. Not only are valuable natural resources owned generally
by the American people involved, so too are those owned separately by American
Indian tribes and individual American Indians, both of which have been injured
by Biden’s illegal actions.
The federal government owns 61 percent of the onshore and oshore min-
eral estate of the U.S., but only 22 percent of the nation’s oil and 12 percent of U.S.
natural gas comes from those federal lands and waters—and even that amount is
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2025 Presidential Transition Project
declining. Additionally, 42 percent of coal production takes place on federal lands
in 11 states.
12
DOI manages a subsurface mineral estate of 700 million acres onshore
and 1.76 billion acres oshore, for a total of 2.46 billion acres.
The total land area of the U.S. is 2.263 billion acres. Private and state lands,
at 1.563 billion acres, make up only 39 percent of the total onshore and oshore
subsurface area of the United States. Oil, natural gas, coal, and other minerals on
federal lands and waters are managed by the Bureau of Land Management, Bureau
of Ocean Energy Management, and Oce of Surface Mining Reclamation and
Enforcement; these agencies’ responsibilities frequently overlap with resource
management by the U.S. Forest Service in the U.S. Department of Agriculture, state
governments, and private property owners.
Biden is “aligning the management of…public lands and waters…to support
robust climate action,” as envisioned in Executive Orders 14008 and 13990.
13
One of
his first actions was to ban federal coal, oil, and natural gas leasing on federal lands
and waters to fulfill his campaign promise of “no federal oil,” followed by actions
from Interior Secretary Deb Haaland to rescind the Trump Administration’s
Energy Dominance Agenda. To this end, DOI unilaterally overhauled resource
management plans, lease sales, fees, rents, royalty rates, bonding requirements,
and permitting processes to prevent new production of coal, oil, and natural gas
on federal lands and waters; to dramatically increase production of solar and wind
energy; and to accomplish its “30 by 30,” “America the Beautiful” agenda to remove
federal lands from “multiple”—that is, productive—use.
DOI is abusing National Environmental Policy Act (NEPA)
14
processes, the
Antiquities Act,
15
and bureaucratic procedures to advance a radical climate agenda,
ostensibly to reduce greenhouse gas emissions, for which DOI has no statutory
responsibility or authority.
16
The Federal Land Policy and Management Act
(FLPMA), Outer Continental Shelf Lands Act (OSCLA), General Mining Law,
17
and other congressional acts clearly set forth multiple-use principles and processes
that include production of coal, oil, natural gas, and other minerals, as legitimate
activities consistent with the welfare of all Americans and of environmental
stewardship.
Biden’s DOI is hoarding supplies of energy and keeping them from Americans
whose lives could be improved with cheaper and more abundant energy while
making the economy stronger and providing job opportunities for Americans.
DOI is a bad manager of the public trust and has operated lawlessly in defiance of
congressional statute and federal court orders.
ADMINISTRATION PRIORITIES
Rollbacks. A new Administration must immediately roll back Biden’s orders,
reinstate the Trump-era Energy Dominance Agenda, rescind Secretarial Order
(SO) 3398, and review all regulations, orders, guidance documents, policies, and
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Mandate for Leadership: The Conservative Promise
similar agency actions made in compliance with that order.
18
Meanwhile, the
new Administration must immediately reinstate the following Trump DOI sec-
retarial orders:
lSO 3348: Concerning the Federal Coal Moratorium;19
lSO 3349: American Energy Independence;20
lSO 3350: America-First Oshore Energy Strategy;21
lSO 3351: Strengthening the Department of the Interior’s Energy Portfolio;22
lSO 3352: National Petroleum Reserve—Alaska;23
lSO 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program;24
lSO 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and
Accountability in the Environmental Review and Permitting Process for
Infrastructure Projects”;25
lSO 3358: Executive Committee for Expedited Permitting;26
lSO 3360: Rescinding Authorities Inconsistent with Secretary’s Order 3349,
“American Energy Independence;”27
lSO 3380: Public Notice of the Costs Associated with Developing Department
of the Interior Publications and Similar Documents;28
lSO 3385: Enforcement Priorities;29 and
lSO 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews.30
Actions. At the same time, the new Administration must:
lReinstate quarterly onshore lease sales in all producing states according to
the model of BLM’s IM 2018–034, with the slight adjustment of including
expanded public notice and comment.31 The new Administration should
work with Congress on legislation, such as the Lease Now Act32 and
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2025 Presidential Transition Project
ONSHORE Act,33 to increase state participation and federal accountability
for energy production on the federal estate.
lConduct oshore oil and natural gas lease sales to the maximum extent
permitted under the 2023–2028 lease program,34 with the possibility to
move forward under a previously studied but unselected plan alternative.35
lDevelop immediately and finalize a new five-year plan, while working with
Congress to reform the OCSLA by eliminating five-year plans in favor of
rolling or quarterly lease sales.
lReview all resource management plans finalized in the previous four years
and, when necessary, select studied alternatives to restore the multi-use
concept enshrined in FLPMA and to eliminate management decisions that
advance the 30 by 30 agenda.
lSet rents, royalty rates, and bonding requirements to no higher than what is
required under the Inflation Reduction Act.36
lComply with the Alaska National Interest Lands Conservation Act
(ANILCA) and the Tax Cuts and Jobs Act of 2017 to establish a competitive
leasing and development program in the Coastal Plain, an area of Alaska
that was set aside by Congress specifically for future oil and gas exploration
and development. It is often referred to as the “Section 1002 Area” after
the section of ANILCA that excludes the area from Arctic National Wildlife
Refuge’s wilderness designation.37
lConclude the programmatic review of the coal leasing program, and work
with the congressional delegations and governors of Wyoming and Montana
to restart the program immediately.38
lAbandon withdrawals of lands from leasing in the Thompson Divide of the
White River National Forest, Colorado; the 10-mile buer around Chaco
Cultural Historic National Park in New Mexico (restoring the compromise
forged in the Arizona Wilderness Act39); and the Boundary Waters area
in northern Minnesota if those withdrawals have not been completed.40
Meanwhile, revisit associated leases and permits for energy and mineral
production in these areas in consultation with state elected ocials.
lRequire regional oces to complete right-of-way and drilling permits
within the average time it takes states in the region to complete them.
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Mandate for Leadership: The Conservative Promise
Rulemaking. The following policy reversals require rulemaking:
lRescind the Biden rules and reinstate the Trump rules regarding:
1. BLM waste prevention;
2. The Endangered Species Act rules defining Critical Habitat and Critical
Habitat Exclusions;41
3. The Migratory Bird Treaty Act;42 and
4. CEQ reforms to NEPA.43
lReinstate President Trump’s plan for opening most of the National
Petroleum Reserve of Alaska to leasing and development.
Personnel Changes. The new Administration should be able to draw on the
enormous expertise of state agency personnel throughout the country who are
capable and knowledgeable about land management and prove it daily. States are
better resource managers than the federal government because they must live with
the results. President Trump’s Schedule F proposal44 regarding accountability in
hiring must be reinstituted to bring success to these reforms. Consistent with the
theme of bringing successful state resource management examples to the forefront
of federal policy, DOI should also look for opportunities to broaden state–federal
and tribal–federal cooperative agreements.
IMMEDIATE ACTIONS
BLM Headquarters. BLM headquarters belongs in the American West. After
all, the overwhelming majority of the 245 million surface acres (10 percent of the
nation’s landmass) managed by the agency lies in the 11 western states and Alaska:
A mere 50,000 surface acres lie elsewhere. Moreover, 97 percent of BLM employees
are located in the American West.
Thus, the Trump Administration’s decision to relocate BLM headquarters from
Washington, D.C., to the West was the epitome of good governance: That is, it was
not only well-informed, but it was also implemented eciently, eectively, and
with an eye toward aected career civil servants. Plus, despite overblown chatter
from the inside-the-Beltway media, Congress, with bipartisan support, approved
funding the move.
Meanwhile, state, tribal, and local ocials, the diverse collection of stakehold-
ers who use public lands and western neighbors became accustomed to having
top BLM decision-makers in Grand Junction, Colorado, rather than up to four
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2025 Presidential Transition Project
time zones away. All of them also appreciated that the BLM’s top subject matter
experts were located not in the District of Columbia, but in the western states
that most need their knowledge and expertise. Westerners no longer had to travel
cross country to address BLM issues. Neither did ocials in the West, closest to
the resources and people they manage.
On July 16, 2019, Secretary of the Interior David L. Bernhardt delivered to Con-
gress the proposal for the relocation of nearly 600 BLM headquarters employees.
On August 10, 2020, Secretary Bernhardt formally established the Robert F. Burford
headquarters—named after the longest-serving BLM director, a Grand Junction
native—with a sta of 41 senior ocials and assistants. Another 76 positions were
assigned to BLM state oces in western communities such as Billings, Montana;
Boise, Idaho; Reno, Nevada; Salt Lake City, Utah; and Cheyenne, Wyoming, to meet
critical needs. Scores of other positions were assigned to the states that required
BLM expertise. For example, wild horse and burro professionals were relocated
to Nevada, home to nearly 60 percent of these western icons. Sixty-one positions
were retained in Washington, D.C., to address public, congressional, and regulatory
aairs, Freedom of Information Act compliance, and budget development.
Despite the dislocating impact of the COVID-19 pandemic, the BLM success-
fully filled hundreds of long-vacant positions, as well as those that opened because
of the move West. The BLM saw notable numbers of applicants for these positions—
so numerous that the BLM capped the number of eligible applicants to no more
than 50. Obviously, reduced commuting times (often from hours to mere minutes),
lower cost of living, and opportunity to access vast public lands for recreation made
these jobs attractive to potential employees. Many, if not most, applicants stated
they would not have applied had the positions been based in Washington, D.C. At
the same time, western positions attracted those with the skills needed to meet
the BLM’s multiple-use, sustained-yield mandate, disproving the claim that the
BLM was suering a “brain drain.”
The Trump Administration recognized that, despite its attractions, not every-
one employed by BLM in Washington, D.C., could move West. The Administration
applied a hands-on approach, with all-employee briefing and question-and-answer
sessions, regular email communications, and a website devoted to frequently asked
questions. Two human resources teams aided employees wishing to remain in
federal jobs in the D.C. area: All received new opportunities.
The BLM’s move West incurred no legal challenges, no formal Equal Employ-
ment Opportunity or U.S. Merit Systems Protection Board complaints, and no
adverse union activity. It is hard to please everyone, but the Trump Administra-
tion’s BLM did just that, putting the lie to assertions, by some, that the BLM was
trying to “fire” federal employees.
The total cost of $17.9 million for relocation incentives, permanent change-of-
station moves, temporary labor, travel, printing, rent, supplies, equipment, and
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Mandate for Leadership: The Conservative Promise
other contracts will save money for the American people. For example, in fiscal
2020, the BLM estimated $1.6 million in travel costs savings, which will grow
slightly over time, and $1.9 million in savings from its terminated lease in Wash-
ington, D.C. Furthermore, BLM estimated that, by October 2022, the BLM move
West would generate a net savings of $3.5 million, which, the following fiscal year,
would increase to $10.3 million.
Those funds can be devoted to reducing the risk of wildfires, increasing recre-
ational opportunities, conserving public lands, and addressing tough issues such
as wild horses and burros. Moreover, those funds will be used more wisely thanks
to the eciency of senior, seasoned managers working closely with BLM field
employees in near daily contact with western ocials, stakeholders, and neighbors.
In late 2022, Secretary of the Interior Deb Haaland announced the return of
headquarters and scores of highly paid, senior employees to Washington, D.C. Sub-
sequently, BLM Director Tracy Stone-Manning revealed 56 BLM jobs in BLM’s
“Western Headquarters” and 70 other BLM jobs will remain in Grand Junction,
an increase of 15 from the 41 announced by Trump’s BLM in 2019, and an increase
of 40 other jobs above the 16 first announced by Biden ocials. Thus, the director,
the two deputy directors, six of seven assistant directors (ADs) and their stas are
now or soon will be in Washington.
The Biden Administration failed to recognize the wisdom of having BLM’s lead-
ership, including its director, deputy directors, and ADs in the West. That is why,
decades ago, the AD and sta in charge of BLM’s firefighters were relocated to Boise,
Idaho, where they remain. Not so the head of BLM law enforcement and security,
who supervises over 200 uniformed law enforcement rangers and 76 special agents
stationed mainly in 11 western states and Alaska. Haaland moved that ocial to
Washington, far from state troopers, county sheris and deputies, and city police
with whom BLM law enforcement ocers keep the peace in the West’s wide-open
spaces. BLM’s “top cop” might as well be on the moon.
The AD in charge of oil, gas, and minerals was also moved to Washington, D.C.,
notwithstanding that most oil, gas, and minerals are in the West and Alaska; New
Mexico’s Permian Basin, for example, is second only to Alaska in petroleum poten-
tial, and Montana and Wyoming’s Powder River Basin contains the world’s best
low-sulfur coal. The AD responsible for wild horses and burros was moved east as
well, despite the fact that the uncontrolled growth of wild horses and burros poses
an existential threat to public lands; 60 percent of the nation’s wild horses are in
Nevada,45 but thousands are in nine other western states. There is no way these
and other ADs can professionally manage issues thousands of miles and multiple
time zones away.
It is not just eective and responsive management that has been lost; Colorado
lost its chance to become a must-visit destination for BLM’s stakeholders. Those
seeking to develop world-class mineral deposits in Minnesota or another Prudhoe
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2025 Presidential Transition Project
Bay in Alaska; to expand recreation across BLM’s vast, diverse, and unique land-
scapes; or to manage timber and rangelands to prevent wildfires, would all journey
to Grand Junction. Convention opportunities on Colorado’s western slope would
abound for BLM’s disparate constituencies to congregate and meet with BLM
leadership. The Western States Sheris’ Association, for example, whose annual
gathering attracts hundreds of law enforcement ocers from 17 western and plains
states might have moved its event to Grand Junction.
Law Enforcement Ocers. In 2002, at the direction of the Secretary of the
Interior in the days following the 9/11 attack, the Inspector General (IG) for DOI
made a series of department-wide recommendations regarding law enforcement.
Then-Secretary of the Interior Gale Norton ordered adoption of those recom-
mendations, which drew strong bipartisan support from Congress. Over the years,
most were implemented. One, however, remained undone: placing all BLM law
enforcement ocers (LEOs), that is, its 212 Law Enforcement Rangers and 76
Special Agents, in an exclusively law enforcement chain of command.
This was not just the IG’s recommendation in 2002, but that of every IG who fol-
lowed. It is also the strong recommendation of the department’s top LEO. Moreover,
it has been the urgent recommendation of law enforcement professionals across
the country, especially in the West, for decades, including the Western States Sher-
is Association. Unfortunately, over time, BLM leadership stonewalled, adhering
to a haphazard system in which LEOs reported to non-LEO superiors, including
not only state directors, but also district and field managers with expertise in other
fields—range management or petroleum engineering, for example—with only 24
hours of law enforcement study. Obviously, those managers lack a comprehensive
understanding of law enforcement issues—constitutional, legal, and tactical. In
addition, they do not uniformly apply or enforce rules of conduct or ethical stan-
dards for LEOs and special agents, leading to weakened esprit de corps and morale.
Worse yet, because of their duties as managers of the multiple-use lands under
their jurisdiction, they are exposed to conflicts of interests and may intentionally
or unintentionally prevent LEOs from investigating violations or applying the law.
In the final days of the Trump Administration, Secretary David L. Bernhardt
ordered, and Deputy Director William Perry Pendley implemented, the IG’s recom-
mendation. Of course, leadership heads exploded; they were furious with their loss
of authority, not to mention subordinates and budgets. Unfortunately, in the first
days of the Biden Administration, BLM Deputy Director Mike Nedd suspended
Pendley’s order.
Nonetheless, LEOs, the BLM, and westerners want LEOs—who make life-and-
death decisions—to be as well-trained and well-equipped as possible. They should
report to a professional, expert, and knowledgeable chain of command. After all,
they protect visitors to BLM lands and the natural and cultural resources of those
lands, as well as the employees who manage those lands.
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Mandate for Leadership: The Conservative Promise
BLM’s LEOs must keep in touch, work closely, and coordinate with fellow fed-
eral, state, and local law enforcement ocers. In the Trump Administration, they
joined state and local law enforcement in arresting dangerous suspects in Cortez,
Colorado; responded to a request from a rural sheri in Arizona to rescue a family
stuck in freezing temperatures; and, teamed up in an all-hands-on-deck eort to
locate a missing American Indian teenager in rural Montana. More important,
western LEOs need the assurance that the BLM LEOs with whom they work are
professionals who report through a professional chain of command.
Wild Horses and Burros. In 1971, Congress ordered the BLM to manage wild
horses and burros to ensure their iconic presence never disappeared from the
western landscape. For decades, Congress watched as these herds overwhelmed
the land’s ability to sustain them, crowded out indigenous plant and other animal
species, threatened the survival of species listed under the Endangered Species
Act, invaded private and permitted public land, disturbed private property rights,
and turned the sod into concrete. BLM experts said in 2019 that some aected land
will never recover from this unmitigated damage.
There are 95,000 wild horses and burros roaming nearly 32 million acres in the
West—triple what scientists and land management experts say the range can sup-
port. These animals face starvation and death from lack of forage and water. The
population has more than doubled in just the past 10 years and continues to grow
at a rate of 10 to 15 percent annually. This number includes the more than 47,000
animals the BLM has already gathered from public lands, at a cost to the American
taxpayer of nearly $50 million annually to care for them in o-range corrals.
This is not a new issue—it is not just a western issue—it is an American issue.
What is happening to these once-proud beasts of burden is neither compassionate
nor humane, and what these animals are doing to federal lands and fragile ecosys-
tems is unacceptable. In 2019, the American Association of Equine Practitioners
and the American Veterinary Medication Association—two of the largest organi-
zations of professional veterinarians in the world—issued a joint policy calling for
further reducing overpopulation to protect the health and well-being of wild horses
and burros on public lands. The National Wild Horse and Burro Advisory Board,
a panel of nine experts and professionals convened to advise the BLM, endorsed
the joint policy. Furthermore, animal welfare organizations such as the American
Society for the Prevention of Cruelty to Animals and the Humane Society of the
United States recognize that the prosperity of wild horses and burros on public
lands is threatened if herds continue to grow unabated.
The BLM’s multi-pronged approach in its 2020 Report to Congress46 included
expanded adoptions and sales of horses gathered from overpopulated herds;
increased gathers and increased capacity for o-range holding facilities and pas-
tures; more eective use of fertility control eorts; and improved research, in
concert with the academic and veterinary communities, to identify more eective
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2025 Presidential Transition Project
contraceptive techniques and strategies. All of that will not be enough to solve
the problem, however. Congress must enact laws permitting the BLM to dispose
humanely of these animals.
IMMEDIATE ACTIONS REGARDING ALASKA
Alaska is a special case and deserves immediate action.
47
When Alaska was
admitted to the Union in 1959, nearly its entire landmass was federally owned;
therefore, Alaska was granted the right to select 104 million acres (out of 375
million acres) to manage for the benefit of its residents.48 In less than eight years,
Alaska selected 26 million acres. Then-Interior Secretary Stewart Udall—who
served during the Kennedy and Johnson Administrations—put a freeze on further
land selections to protect any claims that might be asserted by Native Alaskans.49
Alaska Native Claims Settlement Act. The discovery of oil at Prudhoe Bay in
1968 made resolution of the issue by Congress a matter of urgency. As a result, in
1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA), which
allowed the Native community to select 44 million acres.50
Environmentalists, upset that too much of the land they coveted would be selected
by the state and Native Alaskans for development, demanded the inclusion in the act
of a provision—Section 17(d)(2)—that ordered the Interior Secretary to withdraw 80
million acres for future designation by Congress as parks, refuges, wild and scenic
rivers, and national forests.51 The deadline for this congressional action was 1978,
and as it neared, the Carter Administration, impatient and worried, decided to force
Congress’s hand. The Administration unilaterally withdrew 100 million acres from
any use by the state or Native Alaskans.52 Alaska promptly sued, charging that the
Administration had failed to comply with the National Environmental Policy Act.53
In a lame duck session at the end of 1980, Congress passed (over the objec-
tions of the Alaskan delegation) the Alaska National Interest Lands Conservation
Act, which revoked all of the withdrawals of the Carter Administration and sub-
stituted congressional designations that put 100 million acres permanently in
federal enclaves, doubled the acreage of national parks and refuges, and tripled the
amount of land declared to be wilderness.54 Through all of this, Alaska pressed for
the DOI to convey the lands to which Alaska was entitled by federal law, but the
department grudgingly transferred only portions of that land.
By the time Ronald Reagan took oce, Alaska had received less than half the
lands to which it was entitled after its admission into the Union, and Native Alas-
kans had received only one-third of the land due to them.55 From January of 1981
through 1983, however, under Reagan, Alaska received 30 million acres and a com-
mitment of land transfers at the rate of 13 million acres annually. In the same
period, Native Alaskans received 11 million acres, which constituted nearly 60
percent of their entitlement, and an additional 15 million acres were transferred
by the end of 1988.56
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Mandate for Leadership: The Conservative Promise
Despite the passage of nearly 40 years since the end of the Reagan Adminis-
tration, the federal government has yet to fulfill its statutory obligation to Alaska
and Alaska Natives—specifically, each group has 5 million acres of entitlement
remaining. Standing in the way are Public Land Orders (PLOs) issued by the BLM
seizing that land for the agency. Those PLOs must be lifted to permit Alaska and
Alaska Natives to select what was promised by Congress.
For example, revocation of PLO 5150
57
will provide the state of Alaska 1.3 million
acres of its remaining state entitlement. This revocation should be a top priority.
BLM recommended this revocation in the 2006 report to Congress based on the
Alaska Land Transfer Acceleration Act, and the Interior Secretary has authority
to revoke based on the Alaska Native Claims Settlement Act under section d(1).58
All other remaining BLM PLOs—all of which are more than 50 years old—should
be revoked immediately.
Alaska has untapped potential for increased oil production, which is important
not just to the revitalization of the nation’s energy sector but is vital to the Alaskan
economy. One-quarter of Alaska’s jobs are in the oil industry, and half of its overall
economy depends on that industry. Without oil production, the Alaskan economy
would be half its size.
A new Administration must take the following actions immediately:
lApprove the 2020 National Petroleum Reserve Alaska Integrated Activity
Plan (NPRA-IAP) by resigning the Record of Decision. (Secretary Haaland’s
order reverted to the 2013 IAP, the science for which is out of date, unlike
the 2020 IAP.)
lReinstate the 2020 Arctic National Wildlife Refuge Environmental Impact
Statement (EIS) by secretarial order and lift the suspension of the leases.
lApprove the 2020 Willow EIS, the largest pending oil and gas projection in
the United States in the National Petroleum Reserve-Alaska, and expand
approval from three to five drilling pads.59
Minerals. Alaska is not just blessed with an abundance of oil, it has vast
untapped mineral potential. Therefore, the new Administration must immedi-
ately approve the Ambler Road Project60 across BLM-managed lands, pursuant
to the Secretary’s authority under the ANILCA and based on the Final Envi-
ronmental Impact Statement on the project.
61
This will permit construction of
a new 211-mile roadway on the south side of the Brooks Range, west from the
Dalton Highway to the south bank of the Ambler River, and open the area only
to mining-related industrial uses, providing high-paying jobs in an area known
for unemployment.
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2025 Presidential Transition Project
Wildlife and Waters. Throughout Alaska’s history, the federal government
has treated Alaska as less than a sovereign state. This is especially the case when
it comes to two of Alaska’s most valued resources, its wildlife and its waters.
Immediate action is required to end, at least in part, this injustice. A new Admin-
istration should:
lRevoke National Park Service and U.S. Fish and Wildlife Service rules
regarding predator control and bear baiting, which are matters for state
regulation. Such revocation is permitted under the 2017 Congressional
Review Act.62
lRecognize Alaska’s authority to manage fish and game on all federal lands
in accordance with ANILCA as during the Reagan Administration, when
each DOI agency in Alaska signed a Memorandum of Understanding with
the Alaska Department of Fish and Game ceding to the state the lead on fish
and wildlife management matters.63
lIssue a secretarial order declaring navigable waters in Alaska to be owned
by the state so that the lands beneath these waters belong to Alaska. This
will force the BLM to prove that water is not navigable, since in the case of
non-navigability, any submerged lands belong to the BLM. Currently, BLM
requires Alaska to prove navigability at its own expense—including the
BLM’s preposterous assertion that the mighty Yukon River is non-navigable.
lReinstate President Trump’s 2020 Alaska Roadless Rule64 for the Tongass
National Forest in Alaska, which was replaced by a Biden Roadless Rule
that continues a 2001 Clinton rule aecting 9.37 million of the forest’s 16.7
million acres.65 The Clinton rule aects an area where communities are in
small islands with no road access. It has prevented multiple infrastructure
projects, including roads, electric transmission lines, and water and sewer
projects, and it forces residents to use a heavily subsidized ferry system.
Logging has been shut down to the extent that New York harvests more
timber than does all of Alaska.
OTHER ACTIONS
The 30 by 30 Plan.
66
President Biden’s Executive Order 14008 (30 by 30
plan)
67
requires that the federal government, which already owns one-third of
the country: (1) remove vast amounts of private property from productive use;
and (2) end congressionally mandated uses of all federal land. The end result
will be “total federal control of an additional 440 million acres of land or oceans
in the U.S. by 2030.”68
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Mandate for Leadership: The Conservative Promise
Although the new President should vacate that order, DOI under a conservative
President must take immediate action on the 30 by 30 plan by vacating a secre-
tarial order issued by the Biden DOI
69
that eliminated the Trump Administration’s
requirement for the approval of state and local governments before federal acquisi-
tion of private property with monies from the Land and Water Conservation Fund.
70
National Monument Designations. As has every Democratic President before
him beginning with Jimmy Carter, Joe Biden has abused his authority under the
Antiquities Act of 1906. Like the outrageous, unilateral withdrawals from public use
of multiple use federal land under the Carter, Clinton, and Obama Administrations,
Biden’s first national monument was one in Colorado—adopted over the objections
of scores of local groups and at least one American Indian tribe.
71
In the days before
the 2024 election, Biden will likely designate more western monuments.
Although President Trump courageously ordered a review of national mon-
ument designations, the result of that review was insucient in that only two
national monuments in one state (Utah) were adjusted.72 Monuments in Maine
and Oregon, for example, should have been adjusted downward given the finding
of Secretary Ryan Zinke’s review that they were improperly designated. The new
Administration’s review will permit a fresh look at past monument decrees and
new ones by President Biden.
Furthermore, the new Administration must vigorously defend the downward
adjustments it makes to permit a ruling on a President’s authority to reduce the
size of national monuments by the U.S. Supreme Court.
Finally, the new Administration must seek repeal of the Antiquities Act of 1906,
which permitted emergency action by a President long before the statutory author-
ity existed for the protection of special federal lands, such as those with wild and
scenic rivers, endangered specials, or other unique places. Moreover, in recent
years, Congress has designated as national monuments those areas deserving of
such congressional action.
Oregon and California Lands Act. One national monument worthy of down-
ward adjustment is in Oregon, where its designation and subsequent expansion
interfere with the federal obligation to residents to harvest timber on its BLM
lands. A federal district court ruled in 2019 that land subject to the Oregon and
California (O&C) Grant Lands Act of 1937
73
was set aside by Congress to be har-
vested for the benefit of the people of Oregon. Specifically, those federal lands are
to be “managed…for permanent forest production” and its timber “sold, cut, and
removed in conformity with the princip[le] of sustained yield.”74
As the district court concluded,
75
beginning in 1990, the federal government
erected a trifecta of illegal barriers to the accomplishment of the congressional
mandate, beginning with a response to the listing of the northern spotted owl,76
continuing a decade later with the designation of the Cascade–Siskiyou National
Monument,
77
and concluding in 2017 with an expansion of that monument.
78
In
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2025 Presidential Transition Project
order to fulfill the yet-unaltered congressional mandate contained in federal law,
to provide for jobs and well-paying employment opportunities in rural Oregon,
and to ameliorate the eects of wildfires, the new Administration must immedi-
ately fulfill its responsibilities and manage the O&C lands for “permanent forest
production” to ensure that the timber is “sold, cut, and removed.”79
NEPA Reforms. Congress never intended for the National Environmental
Policy Act to grow into the tree-killing, project-dooming, decade-spanning mon-
strosity that it has become. Instead, in 1970, Congress intended a short, succinct,
timely presentation of information regarding major federal action that signifi-
cantly aects the quality of the human environment so that decisionmakers can
make informed decisions to benefit the American people.
The Trump Administration adopted common-sense NEPA reform that must
be restored immediately. Meanwhile, DOI should reinstate the secretarial orders
adopted by the Trump Administration, such as placing time and page limits on
NEPA documents and setting forth—on page one—the costs of the document itself.
Meanwhile, the new Administration should call upon Congress to reform NEPA
to meet its original goal. Consideration should be given, for example, to eliminat-
ing judicial review of the adequacy of NEPA documents or the rectitude of NEPA
decisions. This would allow Congress to engage in eective oversight of federal
agencies when prudent.
Settlement Transparency. Interior Secretary David Bernhardt required DOI
to prominently display and provide open access to any and all litigation settlements
into which DOI or its agencies entered, and any attorneys’ fees paid for ending
the litigation.
80
Biden’s DOI, aware that the settlements into which it planned to
enter and the attorneys’ fees it was likely to pay would cause controversy, ended
this policy.81 A new Administration should reinstate it.
The Endangered Species Act. The Endangered Species Act was intended
to bring endangered and threatened species back from the brink of extinction
and, when appropriate, to restore real habitat critical to the survival of the spe-
cies. The act’s success rate, however, is dismal. Its greatest deficiency, according
to one renowned expert, is “conflict of interest.”
82
Specifically, the work of the
Fish and Wildlife Service is the product of “species cartels” aicted with group-
think, confirmation bias, and a common desire to preserve the prestige, power,
and appropriations of the agency that pays or employs them. For example, in one
highly influential sage-grouse monograph, 41 percent of the authors were federal
workers. The editor, a federal bureaucrat, had authored one-third of the paper.83
Meaningful reform of the Endangered Species Act requires that Congress
take action to restore its original purpose and end its use to seize private prop-
erty, prevent economic development, and interfere with the rights of states over
their wildlife populations. In the meantime, a new Administration should take the
following immediate action:
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Mandate for Leadership: The Conservative Promise
lDelist the grizzly bear in the Greater Yellowstone and Northern
Continental Divide Ecosystems and defend to the Supreme Court of the
United States the agency’s fact-based decision to do so.84
lDelist the gray wolf in the lower 48 states in light of its full recovery
under the ESA.85
lCede to western states jurisdiction over the greater sage-grouse,
recognizing the on-the-ground expertise of states and preventing use
of the sage-grouse to interfere with public access to public land and
economic activity.
lDirect the Fish and Wildlife Service to end its abuse of Section 10(j) of the
ESA by re-introducing so-called “experiment species” populations into
areas that no longer qualify as habitat and lie outside the historic ranges
of those species, which brings with it the full weight of the ESA in areas
previously without federal government oversight.86
lDirect the Fish and Wildlife Service to design and implement an impartial
conservation triage program by prioritizing the allocation of limited
resources to maximize conservation returns, relative to the conservation
goals, under a constrained budget.87
lDirect the Fish and Wildlife Service to make all data used in ESA decisions
available to the public, with limited or no exceptions, to fulfill the public’s
right to know and to prevent the agency’s previous opaque decision-making.
lAbolish the Biological Resources Division of the U.S. Geological Survey
and obtain necessary scientific research about species of concern from
universities via competitive requests for proposals.
lDirect the Fish and Wildlife Service to: (1) design and implement an
Endangered Species Act program that ensures independent decision-
making by ending reliance on so-called species specialists who have
obvious self-interest, ideological bias, and land-use agendas; and (2) ensure
conformity with the Information Quality Act.88
Oce of Surface Mining. The Oce of Surface Mining Reclamation and
Enforcement (OSM) was created by the Surface Mining Control and Reclamation
Act of 1977 (SMCRA)89 to administer programs for controlling the impacts of surface
coal mining operations. Although the coal industry is contracting, coal constitutes
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2025 Presidential Transition Project
20 percent of the nation’s electricity and is a mainstay of many regional economies.
The following actions should ensure OSM’s ability to perform its mission while com-
plying with SMCRA and without interfering with the production of high-quality
American coal:
lRelocate the OSM Reclamation and Enforcement headquarters to
Pittsburgh, Pennsylvania, to recognize that the agency is field-driven and
should be headquartered in the coal field.90
lReduce the number of field coal-reclamation inspectors to recognize the
industry is smaller.
lReissue Trump’s Schedule F executive order to permit discharge of
nonperforming employees.91
lPermit coal company employees to benefit from the OSM Training
Program, which is currently restricted to state and federal employees.
lRevise the Applicant Violator System, the nationwide database for the
federal and state programs, to permit federal and state regulators to
consider extenuating circumstances.
lMaintain the current “Ten-Day Notice” rule, which requires OSM to work
with state regulators in determining if a SMCRA violation has taken place in
recognition of the fact that a coal mining state with primacy has the lead in
implementing state and federal law.
lPreserve Directive INE-26, which relates to approximate original contour,
a critical factor in permitting ecient and environmentally sound surface
mining, especially in Appalachia.92
Western Water Issues. The American West, from the Great Plains to the Cas-
cades Range, is arid, as recognized by John Wesley Powell during his famous trip
across a large part of its length. Pursuant to an Executive Order signed by President
Trump, and consistent with its authority along with other federal agencies, DOI’s
Bureau of Reclamation must take the following actions:
lDevelop additional storage capacity across the arid west, including by:
1. Updating dam water control manuals for existing facilities during
routine operations; and
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Mandate for Leadership: The Conservative Promise
2. Engaging in real-time monitoring of operations.
lReduce bureaucratic ineciencies by consolidating federal water
working groups.
lImplement actions identified in the Federal Action Plan for Improving Fore-
casts of Water Availability,93 especially by adopting improvements related to:
1. Forecast Informed Reservoir Operations; and
2. Arial Snow Observation Systems.
lClarify the Water Infrastructure Finance and Innovation Act94 to ensure
consistent application with other federal infrastructure loan programs
under the Federal Credit Reform Act. This should be done to foster
opportunities for locally led investment in water infrastructure.
lReinstate Presidential Memorandum on Promoting the Reliable Supply
and Delivery of Water in the West.95
AMERICAN INDIANS AND U.S. TRUST RESPONSIBILITY
The Biden Administration has breached its federal trust responsibilities to
American Indians. This is unconscionable. Specifically, the Biden Administra-
tion’s war on domestically available fossil fuels and mineral sources has been
devastating. To wit:
lThe ability of American Indians and tribal governments to develop their
abundant oil and gas resources has been severely hampered, depriving
them of the revenue and profits to which they are entitled during a time of
increasing worldwide energy prices, forcing American Indians—who are
among the poorest Americans—to choose between food and fuel.
lIndian nations with significant coal resources have some of the
highest quality and cleanest-burning coal in the world, but the Biden
Administration has sought to destroy the market for their coal by
eliminating coal-fired electricity in the country and to prevent the transport
of their coal for sale internationally. Meanwhile, the Biden Administration,
at great public expense, artificially boosted the demand for electric
vehicles, which, because of their remote locations, the absence of increased
electricity demands for charging electric vehicles nearby, and the distances
to be traveled, are not a choice for Indian communities.
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2025 Presidential Transition Project
lA significant percentage of critical minerals needed by the United States
is on Indian lands, but the Biden Administration has actively discouraged
development of critical mineral mining projects on Indian lands rather than
assisting in their advancement.
lDespite Indian nations having primary responsibility for their lands and
environment and responsibility for the safety of their communities, the
Biden Administration is reversing eorts to put Indian nations in charge of
environmental regulation on their own lands.
Moreover, Biden Administration policies, including those of the DOI, have dis-
proportionately impacted American Indians and Indian nations.
lBy its failure to secure the border, the Biden Administration has
robbed Indian nations on or near the Mexican border of safe and secure
communities while permitting them to be swamped by a tide of illegal drugs,
particularly fentanyl.
lWhen ending COVID protocols at Bureau of Indian Education (BIE) schools,
Biden’s DOI failed to ensure an accurate accounting of students returning
from school shutdowns, which presents a significant danger to the families
that trust their children to that federal agency.
lThe BIE is not reporting student academic assessment data to ensure
parents and the larger tribal communities know their children are learning
and are receiving a quality education.
The new Administration must take the following actions to fulfill the nation’s
trust responsibilities to American Indians and Indian nations:
lEnd the war on fossil fuels and domestically available minerals and
facilitate their development on lands owned by Indians and Indian nations.
lEnd federal mandates and subsidies of electric vehicles.
lRestore the right of tribal governments to enforce environmental
regulation on their lands.
lSecure the nation’s border to protect the sovereignty and safety of
tribal lands.
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Mandate for Leadership: The Conservative Promise
lOverhaul BIE schools to put parents and their children first.
Finally, the new Administration should seek congressional reauthorization
of the Land Buy-Back Program for Tribal Nations,
96
which provided a $1.9 bil-
lion Trust Land Consolidation Fund to purchase fractional interests in trust or
restricted land from willing sellers at fair market value, but which sunsets Novem-
ber 24, 2022. New funds should come from the Great American Outdoors Act.97
AUTHOR’S NOTE: The preparation of this chapter was a collective enterprise of individuals involved in the
2025 Presidential Transition Project. All contributors to this chapter are listed at the front of this volume, but some
deserve special mention. Kathleen Sgamma, Dan Kish, and Katie Tubb wrote the section on energy in its entirety. I
received thoughtful, knowledgeable, and swift assistance from Aubrey Bettencourt, Mark Cruz, Lanny Erdos, Aurelia
S. Giacometto, Casey Hammond, Jim Magagna, Chad Padgett, Jim Pond, Rob Roy Ramey II, Kyle E. Scherer, Tara
Sweeney, John Tahsuda, Rob Wallace, and Gregory Zerzan. The author alone assumes responsibility for the content
of this chapter; no views expressed herein should be attributed to any other individual.
— 539 —
2025 Presidential Transition Project
ENDNOTES
See generally William Perry Pendley, Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and
Why It Matters Today (Regnery, 2013), preface, pp. xvi-xxii.
U.S. Const. art. IV, § 3, cl. 2. “The 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.”
In Wyoming, the federal government owns 48 percent of the land; in Wyoming’s Teton County, the federal
government owns 97 percent of the land.
Pendley, Sagebrush Rebel.
Keith Schneider, “The 1992 Campaign; Bush on the Environment: A Record of Contradictions,” New York Times,
July 4, 1992, https://www.nytimes.com/1992/07/04/us/the-1992-campaign-bush-on-the-environment-a-
record-of-contradictions.html (accessed March 15, 2023).
William Perry Pendley, War on the West: Government Tyranny on America’s Great Frontier (Regnery, 1995).
William Perry Pendley, “Bureau of Land Management Yesterday and Today: Energy Independence,” Cowboy
State Daily, April 5, 2022, https://cowboystatedaily.com/2022/04/05/bureau-of-land-management-
yesterday-and-today-energy-independence/ (accessed March 15, 2023).
Ibid.
William Perry Pendley, “Perspective: Biden’s War on Western Energy,” The Gazette, November 6, 2022, https://
gazette.com/opinion/perspective-biden-s-war-on-western-energy/article_3823a584-5bb2-11ed-a598-
235c22e34687.html (accessed March 15, 2023).
Ibid.
Multiple-Use Sustained-Yield Act of 1960, Public Law 86–517.
Federal Register, Vol. 86, No. 159 (August 20, 2021), pp. 46873–46877.
Federal Register, Vol. 86, No. 19 (February 1, 2021), pp. 7619–7633, and White House, “Executive Order on
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” January
20, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-
protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/ (accessed
March 16, 2023).
National Environmental Policy Act, Public Law 91–160.
Antiquities Act of 1906, Public Law 59–209.
“You know what there’s not is a shall for? ‘I shall manage the land to stop climate change,’ or something
similar to that,” Secretary of the Interior David Bernhardt testified. “You guys come up with the shalls.” Chris
D’Angelo, “Interior Secretary Blames Congress for His Inaction on Climate Change,” High Country News,
May 9, 2019.
Federal Land Policy and Land Management Act of 1976, Public Law 94–579; Outer Continental Shelf Lands Act,
Public Law 95–372; and 30 U.S.C. § 21 et seq.
U.S. Department of the Interior, “Order No. 3398: Revocation of Secretary’s Orders Inconsistent with
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” April
16, 2021, https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3348: Concerning the Federal Coal Moratorium,” March 29, 2017,
https://www.doi.gov/sites/doi.gov/files/uploads/so_3348_coal_moratorium.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3349: American Energy Independence,” March 29, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so_3349_-american_energy_independence.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3350: America First Oshore Energy Strategy,” May 1, 2017,
https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3350-oshore-508.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3351: Strengthening the Department of the Interior’s Energy
Portfolio,” May 1, 2017, https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3351-energy-
counselor-508.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3352: National Petroleum Reserve—Alaska,” May 31, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so-3352.pdf (accessed March 16, 2023).
— 540 —
Mandate for Leadership: The Conservative Promise
U.S. Department of the Interior, “Order No. 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program, July 6, 2017, https://www.doi.gov/sites/doi.gov/
files/uploads/so_-_3354_signed.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects,” August 31, 2017, https://www.doi.gov/sites/doi.gov/
files/elips/documents/3355_-_streamlining_national_environmental_policy_reviews_and_implementation_
of_executive_order_13807_establishing_discipline_and_accountability_in_the_environmental_review_
and_permitting_process_for.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3358: Executive Committee for Expedited Permitting,” October
25, 2017, https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3358_executive_committee_for_
expedited_permitting_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3360: Rescinding Authorities Inconsistent with Secretary’s Order
3349, “American Energy Independence,” December 22, 2017, https://www.doi.gov/sites/doi.gov/files/elips/
documents/3360_-_rescinding_authorities_inconsistent_with_secretarys_order_3349_american_energy_
independence.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3380: Public Notice of the Costs Associated with Developing
Department of the Interior Publications and Similar Documents,” March 10, 2020, https://www.doi.gov/sites/
doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3385: Enforcement Priorities,” September 14, 2020, https://
www.doi.gov/sites/doi.gov/files/elips/documents/signed-so-3385-enforcement-priorities.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews,” September 14, 2020, https://www.doi.gov/sites/doi.gov/files/elips/documents/signed-
so-3385-enforcement-priorities.pdf (accessed March 16, 2023).
Bureau of Land Management, “Updating Oil and Gas Leasing Reform: Land Use Planning and Lease Parcel
Reviews,” IM 2018–034, January 31, 2018, https://www.blm.gov/policy/im-2018-034 (accessed March 16, 2023).
Lease Now Act, S. 4228, 117th Cong., 2nd Sess. (2022).
ONSHORE Act, S. 218, 116th Cong., 2nd Sess. (2019). https://www.congress.gov/bill/116th-congress/senate-
bill/218/text (accessed March 18, 2023).
Federal Register, Vol. 87, No. 130 (July 8, 2022), pp. 40859–40863.
The Biden Administration’s 2023–2028 proposed program is fatally flawed. Katie Tubb, “Comment for the
2023–2028 National OCS Oil and Gas Leasing Proposed Program,” BOEM–2022–0031, October 6, 2022, http://
thf_media.s3.amazonaws.com/2022/Regulatory_Comments/BOEM%202023-2028%20lease%20plan%20
comment%20KTubb.pdf (accessed March 16, 2023).
See Inflation Reduction Act of 2022, Public Law No. 117–169, §§ 50261–50263.
Tax Cuts and Jobs Act of 2017, Public Law No. 115–97, § 20001, and U.S. Department of the Interior, “Order No.
3401: Comprehensive Analysis and Temporary Halt on All Activities in the Arctic National Wildlife Refuge Relating
to the Coastal Plain Oil and Gas Leasing Program,” June 1, 2021, https://www.doi.gov/sites/doi.gov/files/elips/
documents/so-3401-comprehensive-analysis-and-temporary-halt-on-all-activitives-in-the-arctic-national-
wildlife-refuge-relating-to-the-coastal-plain-oil-and-gas-leasing-program.pdf (accessed March 16, 2023).
In 2016, Interior Secretary Sally Jewell instituted a moratorium on new coal leases while conducting a
programmatic environmental impact statement under NEPA to address concerns about competition and
inconsistency with the Obama Administration’s climate policy. In 2017, Interior Secretary Ryan Zinke lifted
the moratorium and ended development of a programmatic environmental impact statement. In April 2021,
Interior Secretary Debra Haaland rescinded Zinke’s order and initiated a new review of the coal-leasing
program. See U.S. Department of the Interior, “Order No. 3338: Discretionary Programmatic Environmental
Impact Statement to Modernize the Federal Coal Program,” January 15, 2016, https://www.doi.gov/sites/doi.
gov/files/elips/documents/archived-3338_-discretionary_programmatic_environmental_impact_statement_
to_modernize_the_federal_coal_program.pdf (accessed March 16, 2023); U.S. Department of the Interior,
“Order No. 3348”; U.S. Department of the Interior, “Order No. 3398”; and Federal Register, Vol. 86, No. 159
(August 20, 2021), pp. 46873–46877.
— 541 —
2025 Presidential Transition Project
Katie Tubb, “No More Standos: Protecting Federal Employees and Ending the Culture of Anti-Government
Attacks and Abuse,” testimony before the Subcommittee on National Parks, Forests, and Public Lands,
Committee on Natural Resources, U.S. House of Representatives, pp. 2–4, October 22, 2019, https://congress.
gov/116/meeting/house/110104/witnesses/HHRG-116-II10-Wstate-TubbK-20191022.pdf (accessed March 16, 2023).
News release, “Secretary Haaland Announces Steps to Establish Protections for Culturally Significant Chaco
Canyon Landscape,” U.S. Department of the Interior, November 15, 2021, https://www.doi.gov/pressreleases/
secretary-haaland-announces-steps-establish-protections-culturally-significant-chaco (accessed March
16, 2023); News release, “Biden–Harris Administration Proposes Protections for Thompson Divide,” U.S.
Department of the Interior, October 12, 2022, https://www.doi.gov/pressreleases/biden-harris-administration-
proposes-protections-thompson-divide (accessed March 16, 2023); News release, “Biden Administration Takes
Action to Complete Study of Boundary Waters Area Watershed,” U.S. Department of the Interior, October
20, 2021, https://www.doi.gov/pressreleases/biden-administration-takes-action-complete-study-boundary-
waters-area-watershed (accessed March 16, 2023); and News release, “Interior Department Takes Action on
Mineral Leases Improperly Renewed in the Watershed of the Boundary Waters Wilderness,” U.S. Department
of the Interior, January 26, 2022, https://www.doi.gov/pressreleases/interior-department-takes-action-
mineral-leases-improperly-renewed-watershed-boundary (accessed March 16, 2023).
Endangered Species Act, Public Law 91–135, § 4(b)(2), and Federal Register, Vol. 85, No. 244 (December 18,
2020), pp. 82376–82389.
U.S. Fish and Wildlife Service, “Governing the Take of Migratory Birds Under the Migratory Bird Treaty Act.”
https://www.fws.gov/regulations/mbta (accessed March 16, 2023).
Dino Grandoni and Anna Phillips, “Biden Restores Climate Safeguards in Key Environmental Law,
Reversing Trump,” Washington Post, April 19, 2022, https://www.washingtonpost.com/climate-
environment/2022/04/19/biden-nepa-climate-trump/ (accessed March 16, 2023).
Donald Trump, “Executive Order on Creating Schedule F in the Accepted Service,” Executive Order 13957,
October 21, 2020, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating-
schedule-f-excepted-service/ (accessed March 16, 2023).
Kathleen Masterson, “Nevada Wild Horse Population Skyrockets To New High,” KUNR Public Radio, July 22,
2019, https://www.kunr.org/energy-and-environment/2019-07-22/nevada-wild-horse-population-skyrockets-
to-new-high (accessed March 20, 2023).
U.S. Department of the Interior, Bureau of Land Management, “Report to Congress: An Analysis of Achieving
a Sustainable Horse and Burro Program,” Fact sheet, May 8, 2020, https://www.blm.gov/sites/blm.gov/files/
Final%20Fact%20Sheet%20WHB%20Report%20To%20Congress.pdf (accessed March 17, 2023).
Pendley, Sagebrush Rebel, pp. 45–47.
James D. Linxwiler, The Alaska Native Claims Settlement Act At 35: Delivering on the Promise, Rocky Mountain
Mineral Law Institute, Vol. 53, Chap. 12 (2007), § 12.03(1)(a)(iv), https://www.guessrudd.com/wp-content/
uploads/sites/1600422/2020/05/The-Alaska-Native-Claims-Settlement-Act-at-35.pdf (accessed March 16, 2023).
Ibid., § 12.03(1)(a)(vii). See generally Richard S. Jones, Alaska Native Claims Settlement Act of 1971 (Public
Law 92–203): History And Analysis Together With Subsequent Amendments, Report No. 81–127 GOV, June
1, 1981, http://www.alaskool.org/PROJECTS/ANCSA/reports/rsjones1981/ANCSA_History71.htm (accessed
March 16, 2023).
43 U.S. Code, Ch. 33. ANCSA also created 12 Native-owned regional corporations and authorized $962 million
in “seed money.” Linxwiler, The Alaska Native Claims Settlement Act At 35, § 12.03(2)(e).
ANCSA provided that the withdrawal of the lands would expire in 1978 if Congress had not designated the
lands as federal enclaves. John K. Norman Cole and Steven W. Silver, Alaska’s D-2 Lands, Rocky Mountain
Mineral Law Institute, Vol. 6B, Ch. 5, September 1978, and Raymond A. Peck, Jr., And Then There Were None:
Evolving Federal Restraints on the Availability of Public Lands for Mineral Development, Rocky Mountain
Mineral Law Institute, Vol. 25, Ch. 3, 1979.
Andrus used purported authority under the FLPMA to withdraw 40 million acres, and Carter used purported
authority under the Antiquities Act of to withdraw 56 million acres. James D. Linxwiler, The Alaska Native
Claims Settlement Act: The First Twenty Years, Rocky Mountain Mineral Law Institute, Vol. 38 Ch. 2, 1992 at
2.04(8)(c), https://ancsa.lbblawyers.com/wp-content/uploads/ANCSA-Paper-with-Table-of-Contents-1992.pdf
(accessed March 16, 2023).
— 542 —
Mandate for Leadership: The Conservative Promise
Alaska’s request for an injunction was denied. State of Alaska v. Carter, 462 F. Supp. 1155, 1156 (D. Alaska
1978) (NEPA does not apply to presidential proclamations under the Antiquities Act). Alaska’s lawsuit was
similar to one filed by Wyoming challenging use of the Antiquities Act to designate the Grand Teton National
Monument. Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945). See generally Carol Hardy Vincent and
Kristina Alexander, “National Monuments and the Antiquities Act,” Congressional Research Service Report for
Congress, R41330, July 20, 2010, https://digital.library.unt.edu/ark:/67531/metadc813640/m2/1/high_res_d/
R41330_2011Aug22.pdf (accessed March 16, 2023). In December 1980, President Carter signed the Alaska
National Interest Lands Conservations Act; subsequently, during the Reagan Administration, Alaska dropped
its lawsuit.
Alaska National Interest Lands Conservation Act, Public Law 96–487 (codified as amended in scattered
sections of 16 U.S.C., 43 U.S.C., 48 U.S.C.), and Joseph J. Perkins, Jr., The Great Land Divided But Not
Conquered: The Eects of Statehood, ANCSA, and ANILCA on Alaska, Rocky Mountain Mineral Law Institute,
Vol. 34, Ch. 6, 1988, § 6.02.
U.S. Department of the Interior, 1983: A Year Of Enrichment: Improving The Quality Of Life For All Americans,
October 1983, p. 25, https://www.reaganlibrary.gov/public/digitallibrary/smof/publicliaison/blackwell/box-
006/40_047_7006969_006_022_2017.pdf (accessed March 16, 2023).
Ibid. The conveyances by the Reagan Administration to Alaska and Native Alaskans greatly exceeded the
amount of land transferred to each during the Carter Administration. See U.S. Department of the Interior,
1983: A Year Of Enrichment, pp. 86–87.
Federal Register, Vol. 36, No. 252 (December 31, 1971), pp. 25410–25412. “On December 28, 1971, ten days
after enactment of ANCSA, the Secretary of Interior through his Assistant Secretary issued Public Land Order
(PLO) 5150 which withdrew and reserved various federal public lands, subject to valid existing rights, as a
utility and transportation corridor for the Alaska oil pipeline. 36 Fed. Reg. 25410 (December 31, 1971). The land
order was issued ‘by virtue of the authority vested in the President and pursuant to Executive Order 10355 of
May 26, 1952 (17 Fed. Reg. 4831)….PLO 5150 established a corridor extending from the North Slope of Alaska
(Prudhoe Bay) south to Valdez on Prince William Sound.’” Wisenak, Inc. v. Andrus, 471 F. Supp. 1004, 1006 (D.
Alaska 1979).
Alaska Land Transfer Acceleration Act, Public Law 108–452.
Philip Elliott, “Biden May Be About to Sign O on a Huge Alaska Oil Drilling Project,” Time, December 13, 2022,
https://time.com/6240733/biden-alaska-oil-drilling-willow-project/ (accessed March 16, 2023). A Biden
approval of the bare minimum three pads for ConocoPhillips disincentivized the ability of any other oil and
gas company to make the huge investment necessary to operate in NPRA.
Alaska Department of Natural Resources, Division of Mining, Land and Water, “Ambler Road Project,” https://
dnr.alaska.gov/mlw/ambler-road/ (accessed March 17, 2023).
U.S. Department of the Interior, Bureau of Land Management, Ambler Road: Environmental Impact Statement:
Vol. 1, March 2020, https://eplanning.blm.gov/public_projects/nepa/57323/20015364/250020506/Ambler_
FEIS_Volume_1-_Chp_1-3_&__Appendices_A-F_.pdf (accessed March 18, 2023).
5 U.S. Code § 801(a)(1)(A).
U.S. Department of the Interior, “Master Memorandum of Understanding Between the Alaska Department
of Fish and Game, Juneau, Alaska and the U.S. National Park Service,” October 14, 1982; U.S. Department
of the Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and
Game, Juneau, Alaska and the U.S. Fish and Wildlife Survey,” March 13, 1982; and U.S. Department of the
Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and Game, Juneau,
Alaska and the Bureau of Land Management,” August 3, 1983, https://eplanning.blm.gov/public_projects/
lup/66967/84127/100727/Memorandum_of_Understanding_BLM_and_ADFG.pdf (accessed March 16, 2023).
Federal Register, Vol. 85, No. 210 (October 29, 2020), pp. 68668–68703.
Federal Register, Vol. 88, No. 18 (January 27, 2023), pp. 5252–5272.
E. Dinerstein et al., “A Global Deal For Nature: Guiding Principles, Milestones, and Targets,” Science Advances,
Vol. 5, No. 4 (April 19, 2019), https://www.science.org/doi/10.1126/sciadv.aaw2869 (accessed March 18, 2023).
Joseph R. Biden, “Tackling the Climate Crisis at Home and Abroad,” Executive Order 14008, https://www.
whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-
crisis-at-home-and-abroad/ (accessed March 17, 2023).
— 543 —
2025 Presidential Transition Project
Karen Budd Falen, “Biden’s ‘30 By 30 Plan’: A Slap at American Private Property Rights,” Cowboy State Daily,
April 15, 2021, https://cowboystatedaily.com/2021/04/15/bidens-30-by-30-plan-a-slap-at-american-private-
property-rights/ (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3396: Rescission of Secretary’s Order 3388, ‘Land and Water
Conservation Fund Implementation by the U.S. Department of the Interior,’” February 11, 2021, https://www.
doi.gov/sites/doi.gov/files/elips/documents/so-3396-signed-2-11-21-final.pdf (accessed March 17, 2021).
Ibid.
Associated Press, “Ute Indian Tribe Criticizes Biden’s Camp Hale Monument Designation,” KUER 90.1,
October 13, 2022.
William Perry Pendley, “Trump Wants to Free Up Federal Lands, His Interior Secretary Fails Him,” National
Review Online, September 25, 2017, https://www.nationalreview.com/2017/09/secretary-interior-ryan-zinke-
monuments-review-trump-executive-order-antiquities-act-environmentalists/ (accessed March 16, 2023).
The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75-405, 43
U.S. Code § 2601.
Ibid., and American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184, 187 (D.D.C. 2019).
American Forest Resource Council v. Hammond, 422 F. Supp. 3d, pp. 187–188.
Federal Register, Vol. 55, No. 26 (June 26, 1990), p. 26114–26194.
Federal Register, Vol. 65, No. 114 (June 13, 2000), pp. 37249–37252.
Federal Register, Vol. 82, No. 11 (January 18, 2017), pp. 6145–6150.
American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184 (D.D.C. 2019).
U.S. Department of the Interior, “Final Consent Decrees/Settlement Agreements,” https://www.doi.gov/
solicitor/transparency/final (accessed March 16, 2023).
Michael Doyle, “Interior Order Erases Litigation Website,” E&E News, June 17, 2022, https://www.eenews.net/
articles/interior-order-erases-litigation-website/ (accessed March 16, 2023).
Rob Roy Ramey, On the Origin of Specious Species (Lexington Books 2012), pp. 77–97.
William Perry Pendley, “Killing Jobs to Save the Sage Grouse: Junk Science, Weird Science, and Plain
Nonsense,” Washington Times, May 31, 2012, https://www.washingtontimes.com/news/2012/may/31/killing-
jobs-to-save-the-sage-grouse/ (accessed March 16, 2023).
Michael Lee, “Wyoming’s Push to Delist Grizzly Bears from Endangered Species List Faces Opposition from
Anti-Hunting Group,” Fox News, January 21, 2022, https://www.foxnews.com/politics/wyoming-delist-grizzly-
endangered-species-list-opposition-anti-hunting-group (accessed March 18, 2023).
News release, “Trump Administration Returns Management and Protection of Gray Wolves to States and
Tribes Following Successful Recovery Eorts,” October 29, 2020, https://www.doi.gov/pressreleases/trump-
administration-returns-management-and-protection-gray-wolves-states-and-tribes (accessed March 18, 2023).
50 Code of Federal Regulations §17, and Sean Paige, “‘Rewilding’ Will Backfire on Colorado,” The Gazette,
June 19, 2022, https://gazette.com/opinion/guest-column-rewilding-will-backfire-on-colorado/article_
d0016672-ed79-11ec-b027-abe62ba840a1.html (accessed March 18, 2023).
Madeleine C. Bottrill et al., “Is Conservation Triage Just Smart Decision Making?” Trends in Ecology & Evolution,
Vol. 23, No. 12 (December 2008), pp. 649–654, https://karkgroup.org/wp-content/uploads/Bottrill-et-al-2008.
pdf (accessed March 16, 2023).
Rob Roy Ramey II, testimony before the Committee on Resources, U.S. House of Representatives, April 8, 2014,
https://naturalresources.house.gov/uploadedfiles/rameytestimony4_8.pdf (accessed March 16, 2023).
Surface Mining Control and Reclamation Act of 1977, Public Law 95–87.
Pennsylvania is the nation’s third-largest coal producer, and its state program was the model for SMCRA.
Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635.
U.S. Department of the Interior, Oce of Surface Mining Reclamation and Enforcement, “Approximate Original
Contour,” INE–26, June 23, 2020, https://www.osmre.gov/sites/default/files/pdfs/directive1003.pdf (accessed
March 18, 2023).
Tim Gallaudet and Timothy R. Petty, “Federal Action Plan for Improving Forecasts of Water Availability,”
National Oceanic and Atmospheric Administration, October 2019, https://www.noaa.gov/sites/default/files/
legacy/document/2019/Oct/Federal%20Action%20Plan%20for%20Improving%20Forecasts%20of%20
Water%20Availability.pdf (accessed March 17, 2023).
— 544 —
Mandate for Leadership: The Conservative Promise
32 U.S. Code, ch. 52.
Donald J. Trump, “Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water
in the West,” October 19, 2018, https://trumpwhitehouse.archives.gov/presidential-actions/presidential-
memorandum-promoting-reliable-supply-delivery-water-west/ (accessed March 17, 2023).
U.S. Department of the Interior, “Land Buy-Back Program for Tribal Nations,” https://www.doi.gov/
buybackprogram (accessed March 18, 2023).
Great American Outdoors Act, Public Law 116–152.
From: Skibo, Bobbie Jo
To: Boario, Sara D; Lor, Socheata; Loya, Wendy M
Subject: FW: AIDEA v. Biden (Coastal Plain temporary program moratorium) - Favorable Decision on Summary Judgment
Date: Monday, August 7, 2023 5:02:10 PM
Attachments: 2023.08.07 Order on Summary Judgment in Favor of US (AIDEA v. Biden).pdf
FYI: hot off the press….court ruling re: AIDEA leases
From: Gieryic, Michael S <Mike.Gieryic@sol.doi.gov>
Sent: Monday, August 7, 2023 2:58 PM
To: Sweet, Serena E <ssweet@blm.gov>; Kuhns, Stephanie L <skuhns@blm.gov>; Skibo, Bobbie Jo
<bobbiejo_skibo@fws.gov>
Cc: Routhier, Michael P <michael.routhier@sol.doi.gov>
Subject: Fw: AIDEA v. Biden (Coastal Plain temporary program moratorium) - Favorable Decision on
Summary Judgment
FYI.
From: Gieryic, Michael S <Mike.Gieryic@sol.doi.gov>
Sent: Monday, August 7, 2023 10:46 AM
To: Gamper, Merry E <mgamper@blm.gov>; Cohn, Steven M <scohn@blm.gov>; Reed, Erika
<e05reed@blm.gov>; Pendergast, Kevin J <kpendergast@blm.gov>; Jones, Nichelle (Shelly)
<njones@blm.gov>; Svejnoha, Wayne <wsvejnoh@blm.gov>; Hayes, Miriam (Nicole)
<mnhayes@blm.gov>; Brumbaugh, Robert <rbrumbau@blm.gov>; Roach, Emma K
<eroach@blm.gov>
Subject: AIDEA v. Biden (Coastal Plain temporary program moratorium) - Favorable Decision on
Summary Judgment
All,
(b)(5) AC-AWP
(b)(5) AC-AWP
Mike Gieryic
Attorney-Adviser
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
Phone: (907) 271-1420
mike.gieryic@sol.doi.gov
(b)(5) AC-AWP
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA INDUSTRIAL
DEVELOPMENT AND EXPORT
AUTHORITY, et al.,
Plaintiffs,
and
STATE OF ALASKA,
Intervenor-Plaintiff,
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United
States, et al.,1
Defendants,
and
NATIVE VILLAGE OF VENETIE
TRIBAL GOVERNMENT, et al.,
Intervenor-Defendants.
Case No. 3:21-cv-00245-SLG
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 60 is the motion for summary judgment filed by
Plaintiffs Alaska Industrial Development and Export Authority (“AIDEA”), North
Slope Borough, Arctic Slope Regional Corporation, and Kaktovik Iñupiat
1 Pursuant to Fed. R. Civ. P. 25(d), the current Alaska State Director for the Bureau of Land
Management, Steven Cohn, is automatically substituted in this matter for his predecessor,
Defendant Thomas Heinlein.
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Corporation; at Docket 59 is Intervenor-Plaintiff State of Alaska’s (the “State”)
motion for summary judgment.2 Plaintiffs and the State challenge President Joe
Biden’s Executive Order 13990 (“EO 13990”) and actions the U.S. Department of
the Interior (“DOI” or “Interior”) and the Bureau of Land Management (“BLM”) took
to implement that order’s directive to place a temporary moratorium (the
“Moratorium”) on the federal government’s implementation of an oil and gas
leasing program (the “Program”) on the Coastal Plain of the Arctic National Wildlife
Refuge (“ANWR” or the “Refuge”).
The President, DOI, Interior Secretary Deb Haaland, Interior Principal
Deputy Assistant Secretary of Land and Minerals Management Laura Daniel-
Davis, BLM, BLM Director Tracy Stone-Manning, and BLM Alaska State Director
Cohn (collectively, “Federal Defendants”)3 responded in opposition at Docket 63
to Plaintiffs’ and the State’s motions and request entry of judgment in their favor.
Intervenor-Defendants Gwich’in Steering Committee, et al., and the Native Village
of Venetie Tribal Government, Arctic Village Council, and Venetie Village Council
(collectively, “Intervenor-Defendants”) responded in opposition to Plaintiffs’ and
the State’s motions at Docket 64 and Docket 65, respectively.4 Federal
2 Throughout this order, the citations to the parties’ filings refer to the page numbers from the
docket rather than the page numbers of the parties’ briefs.
3 When appropriate throughout this order, the Court refers to all Federal Defendants except for
the President as “Agency Defendants.”
4 The Gwich’in Steering Committee submitted its opposition at Docket 64 on behalf of itself and
the Alaska Wilderness League; the Alaska Wildlife Alliance; the Canadian Parks & Wilderness
Society – Yukon; Defenders of Wildlife; Environment America, Inc.; Friends of Alaska National
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Defendants and Intervenor-Defendants are hereinafter collectively referred to as
“Defendants.” Plaintiffs replied to the oppositions at Docket 67, and the State
replied at Docket 66.
The Court heard oral argument on June 20, 2023. For the reasons set forth
below, the Court denies Plaintiffs’ and the State’s motions and enters judgment in
favor of Defendants.
BACKGROUND
This case is one of several actions involving Agency Defendants’
implementation of the Program on ANWR’s Coastal Plain. The Court described
the Coastal Plain and its cultural, ecological, and economic significance in a
January 2021 order issued in Gwich’in Steering Committee v. Bernhardt.5 The
Court assumes familiarity here.
As relevant here, in December 2017, Congress authorized an oil and gas
leasing program on the Coastal Plain through Section 20001 of the Tax Cuts and
Jobs Act of 2017 (the “Tax Act”).6 Section 20001(b)(1) amends the Alaska
National Interest Lands Conservation Act (“ANILCA”)7 by lifting the restriction on
Wildlife Refuges; the National Wildlife Federation; the National Wildlife Refuge Association; the
Northern Alaska Environmental Center; the Sierra Club; The Wilderness Society; and
Wilderness Watch. The remaining Intervenor-Defendants filed their joint opposition at Docket
65.
5 Case No. 3:20-cv-00204-SLG, 2021 WL 46703, at *1–3 (D. Alaska Jan. 5, 2021).
6 Pub. L. No. 115-97, 131 Stat. 2054 (2017) [hereinafter Tax Act].
7 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified in relevant part at 16 U.S.C. §§ 3101–3233)
[hereinafter ANILCA].
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oil and gas development on the Coastal Plain that had been included in ANILCA
since it was enacted in 1980; it does so by adding an additional purpose for the
Refuge: “to provide for an oil and gas program on the Coastal Plain.” Section
20001(b)(2)(A) directs the Interior Secretary to “establish and administer a
competitive oil and gas program for the leasing, development, production, and
transportation of oil and gas in and from the Coastal Plain.” Section 20001(c)(1)
requires the Interior Secretary to conduct at least two area-wide lease sales under
this program of at least 400,000 acres each; the Interior Secretary “shall offer” the
first lease sale not later than December 22, 2021, and the second not later than
December 22, 2024. Section 20001(c)(2) directs the Interior Secretary to “issue
any rights-of-way or easements across the Coastal Plain for the exploration,
development, production, or transportation necessary to carry out this section.”
Section 20001(c)(3) provides that the Interior Secretary “shall authorize up to 2,000
surface acres of Federal land on the Coastal Plain to be covered by production
and support facilities (including airstrips and any area covered by gravel berms or
piers for support of pipelines) during the term of the leases under the oil and gas
program under this section.” The Tax Act further instructs the Interior Secretary,
“[e]xcept as otherwise provided in this section,” to administer this oil and gas
program “in a manner similar to the administration of lease sales under the Naval
Petroleum Reserves Production Act of 1976 . . . (including regulations).”8
8 Tax Act § 20001(b)(3). The regulations governing oil and gas leases under the Naval
Petroleum Reserves Production Act of 1976 (the “NPRPA”), 42 U.S.C. § 6501 et seq., are set
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After Congress passed the Tax Act, BLM initiated the Program’s review
process pursuant to the National Environmental Policy Act (“NEPA”). In
September 2019, BLM released an Environmental Impact Statement (the “EIS”)
analyzing the environmental impacts of a leasing program on the Coastal Plain.9
The EIS evaluated three action alternatives and one no-action alternative.10
BLM identified the alternative that “offers the opportunity to lease the entire
program area” and “the fewest acres with no surface occupancy (NSO)
stipulations” as its preferred alternative.11 BLM did not analyze alternatives that
allowed fewer than 2,000 acres of surface facilities, reasoning that doing so
“would be inconsistent with [the Tax Act] as Congress explicitly established the
protective facility acreage limit.”12
In August 2020, then-Interior Secretary David Bernhardt published a Record
of Decision (the “ROD”) establishing the Program.13 The ROD adopted the
preferred alternative identified in the EIS with some modifications.14 Then, on
December 7, 2020, BLM published a Notice of 2021 Coastal Plain Alaska Oil and
forth at 43 C.F.R. Part 3130.
9 Administrative Record (“AR”) 1–3135. Federal Defendants filed the Administrative Record at
Docket 48, Docket 53, and Docket 56.
10 AR 19–20.
11 AR 19.
12 AR 76.
13 AR 3138–3225.
14 AR 3145.
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Gas Lease Sale and Notice of Availability of the Detailed Statement of Sale.15 The
lease sale took place on January 6, 2021.16 Three bidders participated: AIDEA;
Knik Arm Services, LLC; and Regenerate Alaska, Inc.17 AIDEA secured leases for
seven tracts of land, while Knik Arm Services, LLC, and Regenerate Alaska, Inc.,
each secured a lease for one tract of land.18
When President Biden took office two weeks later, he issued EO 13990,
which directed DOI to conduct a supplemental environmental review of the
Program and, during the pendency of such review, temporarily halt all activities
related to the Coastal Plain oil and gas leases.19 Section 4(a) of EO 13990
provides:
In light of the alleged legal deficiencies underlying the program,
including the inadequacy of the environmental review required by the
National Environmental Policy Act, the Secretary of the Interior shall,
as appropriate and consistent with applicable law, place a temporary
moratorium on all activities of the Federal Government relating to the
implementation of the Coastal Plain Oil and Gas Leasing Program, as
established by the Record of Decision signed August 17, 2020, in the
Arctic National Wildlife Refuge. The Secretary shall review the
program and, as appropriate and consistent with applicable law,
conduct a new, comprehensive analysis of the potential
environmental impacts of the oil and gas program.20
15 85 Fed. Reg. 78865–66.
16 AR 3314–16.
17 AR 3314–16.
18 AR 3317–18, 3347, 3689, 3695.
19 AR 3349–55.
20 AR 3351.
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Following the President’s directive, on June 1, 2021, Interior Secretary Haaland
issued Secretarial Order 3401 (the “Secretarial Order”), which instructed DOI and
BLM officials to conduct the supplemental environmental review and instituted a
“temporary halt on all Department activities related to the Program in the Arctic
Refuge” while that supplemental review was being conducted.21 The temporary
halt extended to “any action[s] to authorize any aspect of the Program, including,
but not limited to, any leasing, exploration, development, production, or
transportation,” and the “process[ing of] any pending or future applications for such
activities.”22 The Secretarial Order expanded upon the justifications for the
temporary moratorium articulated in EO 13990:
My review of the Coastal Plain Oil and Gas Leasing Program
(Program) as directed by EO 13990 has identified multiple legal
deficiencies in the underlying record supporting the leases, including,
but not limited to: (1) insufficient analysis under the National
Environmental Policy Act (NEPA), including failure to adequately
analyze a reasonable range of alternatives in the environmental
impact statement (EIS); and (2) failure in the August 17, 2020, Record
of Decision (ROD) to properly interpret Section 20001 of Public Law
115-97 (Tax Act).23
Also on June 1, 2021, DOI issued a Suspension of Operations and
Production Letter (the “SOP Letter”) to each of the lessees, notifying them it was
suspending the leases and associated operations pending the supplemental
21 AR 3362.
22 AR 3363.
23 AR 3362.
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NEPA review.24 The SOP Letter expanded upon the reasons offered for the
temporary moratorium in the Secretarial Order, and a subsequent amendment
offered further explanation.25
Agency Defendants plan to release a Draft Supplemental EIS for the
Program in the third quarter of 2023.26 In the meantime, AIDEA, through its
contractors, sought authorizations from DOI to begin the initial stages of oil and
gas exploration pursuant to its leases, such as conducting archeological
investigations and seismic exploration.27 Citing the Moratorium, Federal
Defendants refused to authorize AIDEA or its contractors to proceed with any
activities relating to the leases.28 AIDEA then brought this action on November 4,
2021, challenging both the President’s issuance of EO 13990 and DOI’s
implementation of the Moratorium.29 The other two lessees have entered into
24 AR 3364–65, 3714–17.
25 AR 3364–65, 3404–05, 3714–17.
26 Agency Defendants initially represented to the Court that they planned to release the Draft
Supplemental EIS in the second quarter of 2023. Docket 63 at 16. However, in a related case,
Gwich’in Steering Committee v. Haaland, Agency Defendants filed a more recent status report
updating that timeframe to the third quarter of 2023. Defs.’ Status Report on Issuance of Draft
Suppl. Environmental Impact Statement at 2, Gwich’in Steering Comm. v. Haaland, Case No.
3:20-cv-00204-SLG, (D. Alaska Apr. 28, 2023), ECF No. 95.
27 AR 3370–98.
28 AR 3399–3400.
29 Docket 1.
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agreements with BLM in which BLM cancelled and rescinded their leases and
refunded their bid and initial rental payments.30
In their complaint, Plaintiffs allege that the Moratorium violates the
Administrative Procedure Act (the “APA”), 5 U.S.C. § 551 et seq., because it was
put in place without an opportunity for the public to comment on it, is contrary to
law, unlawfully withholds or unreasonably delays agency action, and is arbitrary
and capricious.31 They also allege that EO 13990 is an ultra vires act that exceeds
the President’s authority.32 Plaintiffs seek declaratory relief, a permanent
injunction vacating Section 4(a) of EO 13990 and the Moratorium, and an order
compelling Agency Defendants to implement the leasing and development
program.33
For the purposes of this order, the Court considers the “Moratorium” to
encapsulate Agency Defendants’ efforts to implement the directive in EO 13990
by temporarily suspending implementation of the Program and the leases issued
pursuant thereto. The Moratorium therefore includes issuance of Secretarial Order
3401, the SOP Letter, the responses to AIDEA and its contractors’ attempts to
conduct oil-and-gas-related activities on the lands leased pursuant to the Program,
30 AR 3782–92.
31 Docket 7 at 27–32, ¶¶ 115–48.
32 Docket 7 at 32–33, ¶¶ 149–51.
33 Docket 7 at 33–34.
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and the withholding of any further actions to implement the Program pending the
ongoing NEPA review.34 The Court considers Agency Defendants’ supplemental
environmental review aimed at correcting alleged legal deficiencies to be the
Moratorium’s primary justification, but this review remains ongoing and did not
itself serve as the formal vehicle suspending the Program’s implementation.35
JURISDICTION
There is no dispute that the Court has subject matter jurisdiction over
Plaintiffs’ and the State’s claims regarding Agency Defendants’ actions taken to
implement the Moratorium pursuant to 28 U.S.C. § 1331, which “confer[s]
jurisdiction on federal courts to review agency action, regardless of whether the
APA of its own force may serve as a jurisdictional predicate.”36
The parties dispute whether Plaintiffs and the State have standing to assert
an ultra vires claim against the President with respect to his issuance of EO
13990.37 To establish standing, a litigant must demonstrate that (1) it suffered an
“injury in fact,” (2) the injury is “fairly traceable” to the challenged conduct, and (3)
34 AR 3362–65, 3395–96, 3399–3400, 3404–05, 3702–03, 3713–19.
35 See Docket 66 at 15–16 (maintaining that Defendants conflate BLM’s supplemental NEPA
analysis with the Moratorium itself, noting that Agency Defendants could have conducted the
supplemental review without imposing the Moratorium).
36 Califano v. Sanders, 430 U.S. 99, 105 (1977).
37 Compare Docket 60 at 18–19 (alleging that Plaintiffs have standing), with Docket 63 at 21–26
(alleging Plaintiffs do not have standing and therefore the Court lacks subject matter jurisdiction
over the claim against the President).
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it is likely that a favorable decision will redress the injury.38 To establish an injury
in fact, a plaintiff must identify “an invasion of a legally protected interest” that is
“concrete,” “particularized,” and “actual or imminent, not conjectural or
hypothetical.”39 Plaintiffs and the State’s asserted injuries pass this hurdle. AIDEA
Plaintiffs complain that they have been unable to proceed with the activities critical
to developing AIDEA’s leases, such as archeological and seismic work, meaning
that they cannot reap the revenue, employment opportunities, and information
gathering that would result from commencing work on the leases.40 The State
similarly points to the revenue it has lost in the form of lease payments and taxes
due to the Moratorium.41
To demonstrate a “fairly traceable” connection between an injury and an
action, a plaintiff need only show “no more than de facto causality.”42 Plaintiffs and
the State’s alleged injuries are fairly traceable to EO 13990 because that Executive
Order directed DOI to suspend the leases and all related activities.43 DOI
expressly acted at the President’s direction when issuing Secretarial Order 3401
38 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations omitted).
39 Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016) (citation
omitted).
40 Docket 60 at 18–19.
41 Docket 59 at 16–17.
42 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019) (citation omitted).
43 See AR 3351 (“[T]he Secretary of the Interior shall . . . place a temporary moratorium on all
activities of the Federal Government relating to the implementation of the Coastal Plain Oil and
Gas Leasing Program . . . .”).
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and implementing the other components of the Moratorium.44 It is fair to say that
without the President’s issuance of EO 13990, there likely would not have been a
Moratorium, or at least not this moratorium implemented at the time and manner
in which DOI implemented it.
To evaluate redressability, a court considers the relationship between “the
judicial relief requested” and the suffered injury.45 The Court has the authority to
vacate a President’s ultra vires action and order Agency Defendants to implement
the Program in accordance with the law,46 which is precisely what Plaintiffs and
the State are seeking and what would redress their injuries.47
Federal Defendants’ arguments to the contrary are unavailing. They point
to two cases in which a district court rejected challenges to an executive order that
allegedly “delayed or derailed the promulgation of desired rules.”48 Each case
challenged the same executive order that directed agencies to repeal two
regulations for every new regulation issued, offset costs from new regulations by
eliminating costs from existing regulations, and comply with an “annual cap” on the
44 See AR 3362 (“This Order is taken in furtherance of Section 4(a) of Executive Order (EO)
13990 . . . .”).
45 California v. Texas, 141 S. Ct. 2104, 2115 (2021) (citation omitted).
46 See Clinton v. City of New York, 524 U.S. 417, 433 n.22 (1998).
47 Docket 7 at 33–34; Docket 22 at 12–13.
48 Docket 63 at 24 (first citing California v. Trump, 613 F. Supp. 3d 231 (D.D.C. 2020); and then
citing Pub. Citizen, Inc. v. Trump, 435 F. Supp. 3d 144, 152 (D.D.C. 2019)); California, 613 F.
Supp. 3d at 236.
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total incremental costs allowed from all federal regulations issued in a given year.49
Each court found that the plaintiffs lacked standing because they could not show
that the challenged executive order caused any material delay to the particular
rules about which the plaintiffs complained and the agency defendants presented
evidence showing that the delay or rescission of the rules was not connected to
the executive order.50
Here, there is no genuine dispute that EO 13990 is causally connected to
the Moratorium. The Executive Order not only expressly orders the Moratorium,51
but the Secretarial Order and SOP Letter also expressly state the agency action
was taken in furtherance of the Executive Order.52 Thus, vacatur of EO 13990
would redress Plaintiffs’ claimed injuries.
Given the above, the Court finds that Plaintiffs and the State meet the
requirements for standing to challenge EO 13990. As a result, the Court has
subject matter jurisdiction over the ultra vires claim pursuant to 28 U.S.C. § 1331,
which vests the Court with jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
49 See California, 613 F. Supp. 3d at 236–37 (describing the nature of the claims at issue in both
that case and Public Citizen).
50 Id. at 244.
51 AR 3351.
52 AR 3362, 3364.
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LEGAL STANDARD
Plaintiffs maintain that EO 13990 exceeds the President’s statutory and
constitutional authority.53 While a President’s actions are not reviewable under the
APA,54 a court may review an executive order to determine whether it is
constitutional and whether the President acted within his statutory authority.55
Plaintiffs and the State also seek review of Agency Defendants’
implementation of the Moratorium pursuant to the APA.56 Section 706 of the APA
provides that a “reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, . . . otherwise not in accordance with law[,] . . . [or] in excess of statutory
jurisdiction, authority, or limitations.”57
53 Docket 60 at 19–20.
54 See Dalton v. Specter, 511 U.S. 462, 470 (1994) (“The actions of the President, in turn, are
not reviewable under the APA because . . . the President is not an ‘agency.’” (citation omitted)).
55 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (“The President’s
power, if any, to issue [an executive] order must stem either from an act of Congress or from the
Constitution itself.”); City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018)
(holding President lacked authority to issue executive order directing agencies to withhold funds
appropriated by Congress to punish localities that adopted “sanctuary” policies).
56 Plaintiffs and the State filed motions for summary judgment pursuant to Federal Rule of Civil
Procedure 56, which is an appropriate mechanism to seek review of an agency action. Docket
59 at 2; Docket 60 at 7, 17–18; Occidental Eng’g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985).
But see Alaska L. Civ. R. 16.3 (providing procedures for briefing administrative agency appeals).
Defendants also request judgment in their favor, effectively making their opposition filings cross-
motions for summary judgment pursuant to Rules 56 and 7(b). Docket 63 at 8 n.1; Docket 64 at
13–14; Docket 65 at 9.
57 5 U.S.C. § 706.
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DISCUSSION
Plaintiffs’ and the State’s challenges to both EO 13990 and Agency
Defendants’ implementation of the Moratorium allege the lack of statutory
authority. Therefore, the Court begins by considering whether any statutory
authority exists for the Moratorium. If there is authority for Agency Defendants to
implement the Moratorium, then it would stand to reason that the President acted
consistent with his presidential powers when issuing EO 13990 since he directed
Agency Defendants to act consistent with their authority.58 After considering the
legal authority underpinning the Executive Order and the Moratorium, the Court
considers Plaintiffs’ and the States’ APA claims against Agency Defendants.
I. The Tax Act provides authority for both EO 13990 and Agency
Defendants’ implementation of the Moratorium, authority which no
other source of law undermines.
Plaintiffs and the State maintain that Congress, not the executive branch,
has the power to manage federal lands and that the Executive Order and
Moratorium violate the mandate of the Tax Act and the amendment to ANILCA to
provide for an oil and gas leasing program on the Coastal Plain.59 Plaintiffs also
allege that the Moratorium constitutes “an unlawful withdrawal” of public lands
58 AR 3351.
59 Docket 60 at 20, 24 (first citing U.S. Const. art IV, § 3 cl. 2; and then citing Tax Act § 20001).
The State also alleges that “DOI cannot cancel the Coastal Plain leases because to do so would
violate the Tax Act.” Docket 59 at 25.
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because it did not comply with the Federal Land Policy and Management Act of
1976’s (“FLPMA”) withdrawal requirements.60
Federal Defendants respond that the Moratorium does not violate any
federal statute and that the President has broad constitutional latitude to formulate
policy and implement statutory mandates within the confines of federal law, which
they claim the President did here by including within the Executive Order a
“savings” clause cabining the Interior Secretary’s authority to those actions that
are “appropriate and consistent with applicable law.”61 Intervenor-Defendants
similarly maintain that DOI’s efforts to suspend temporarily the Program leases are
“consistent with [DOI’s] authority to fix legal problems and manage lands, and no
statute imposes other directives or processes with which Interior failed to
comply.”62
A. The Moratorium’s Temporary Duration and Limited Scope
As an initial matter underlying the Moratorium’s legality, the Court highlights
what are perhaps the Moratorium’s most critical elements: its temporary duration
and limited scope. Plaintiffs and the State characterize the Moratorium as
60 Docket 60 at 30–31.
61 Docket 63 at 21–22.
62 Docket 64 at 13 (citation omitted); see also Docket 65 at 8 (“It is well within the Secretary’s
discretion to order such a [NEPA] supplementation as well as to protect the public resources at
issue by issuing a temporary suspension of leases to maintain the status quo ante while the
supplemental EIS process is undertaken.” (citation omitted)).
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“indefinitely” suspending the ROD prepared in conjunction with the Program.63
This characterization is inaccurate. EO 13990 expressly directs only a “temporary
moratorium,” and Secretarial Order 3401 orders a “temporary halt on all
Department activities related to the Program.”64 The SOP Letter also connotes
temporality: “While this SOP is in place, no lease operations may transpire on the
leases, the terms of the leases are tolled, and lease rentals are suspended.”65
These documents do not suspend the ROD, EIS, or any other component of the
Program’s NEPA review or other prerequisites. And they contain no statement or
suggestion that the Program, including the ROD, is terminated or that AIDEA’s
leases are cancelled.66 Agency Defendants have instead evidenced an intent to
continue implementing the Program.67 The supplemental NEPA review is the
current stage of that implementation.68 Agency Defendants intend to release their
Draft Supplemental EIS later this year, and they have outlined the steps that will
63 See Docket 59 at 3 (“In effect, DOI and BLM accomplished the President’s desired
moratorium by suspending and disregarding the ROD indefinitely.”); Docket 60 at 39–40 (“By
indefinitely suspending all Coastal Plain leases and indefinitely refusing to process any right-of-
way applications, . . . Agency Defendants are unlawfully and unreasonably delaying the
completion of these discrete, required actions.” (footnote omitted)).
64 AR 3351 (emphasis added); AR 3362 (emphasis added).
65 AR 3365 (emphasis added).
66 The SOP Letter notes that DOI eventually may determine to “void[]” the leases, but that is not
the case now and the validity of such an action is not before the Court. AR 3365.
67 See AR 3369 (establishing timeframe for issuance of a “record of decision selecting a
program alternative”).
68 AR 3368–69; Docket 63 at 16.
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follow thereafter as they continue to implement the Program.69 As such, the
Moratorium has a finite, even if inexact, endpoint, and it is limited to a suspension
of lease operations. Agency Defendants established these fundamental elements
at the outset of the process reinitiating the supplemental environmental review,
and there is no indication that they have deviated or plan to deviate significantly
from their stated plan.70
Contrary to Plaintiffs’ and the State’s assertions,71 a temporary pause in
implementing a program is not a decision to indefinitely cease its implementation.
An agency may terminate a moratorium and authorize activities it previously
paused.72 Additionally, the temporary pause implemented here does not violate
any express deadlines in any statute. The Tax Act mandated only that DOI hold
one lease sale within four years of its enactment and another within seven years
of its enactment.73 The first lease sale was held nearly one year prior to the
statutory deadline; the second lease sale must occur before December 22, 2024—
69 Supra note 29; see also AR 3369 (predicting release of new ROD within approximately nine
months following release of Draft Supplemental EIS).
70 See AR 3369 (establishing timeframe and purpose of the supplemental EIS process).
71 See Docket 59 at 3 (characterizing Moratorium as “suspending and disregarding the ROD
indefinitely”); Docket 60 at 29 (characterizing Moratorium as “indefinite” suspension of leases
and “indefinitely freezing all federal actions necessary to effectuate any development,
production, or transportation of oil and gas”).
72 Cf. Citizens for Clean Energy v. U.S. Dep’t of the Interior, 621 F. Supp. 3d 1165, 1169 (D.
Mont. 2022) (describing BLM’s termination of its previously issued coal leasing moratorium).
73 Tax Act § 20001(c)(1)(B)(ii).
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after the Supplemental EIS is due to be completed.74 There are no other deadlines
in the Tax Act, such as deadlines to issue rights-of-way or easements or to
authorize surface development.75
These critical points guide the Court’s analysis; yet throughout their briefing,
Plaintiffs and the State appear to conflate the statutory mandate to conduct two
lease sales by dates certain with a requirement to perform certain post-sale actions
without any pause or moratorium.76 But the Tax Act contains only the two
deadlines by which Interior must hold the lease sales; no other specific deadlines
are set out in the Tax Act for the Program.77 When Congress imposes an explicit
deadline for one agency action in a statute but not for another action, “it seems
likely that Congress acted intentionally in omitting the . . . deadline [for a different
agency action].”78 In the absence of other statutorily mandated timeframes, the
74 Id. § 20001(c)(1)(B)(ii).
75 See generally id. § 20001.
76 See, e.g., Docket 60 at 25 (“[T]he issuance of leases, rights-of-way, and easements
necessary to explore for, develop, produce, or transport oil and gas in the Coastal Plain is not a
matter of discretion for the Agency Defendants. Rather, Agency Defendants are bound by
statute to issue all such leases, rights-of-way, and easements.”); Docket 60 at 28 (“[T]he Tax Act
mandates a lease sale by December 2021, followed by the issuance of any rights-of-way or
easements . . . . Agency Defendants have attempted to nullify this congressional deadline by
issuing leases before December 2021 only to indefinitely suspend them well beyond that date.”
(citation omitted)); Docket 66 at 6 (“The Secretary also is not issuing rights-of-way or easements
necessary to carry out the Program, a fact that the Federal Defendants do not dispute. . . . As
such, the ROD has been effectively suspended and rescinded.” (citation omitted)).
77 Tax Act § 20001(c).
78 See Gen. Motors Corp. v. United States, 496 U.S. 530, 538 (1990) (holding that statutory
requirement that EPA act on a state plan within four months applied only to original state plan,
not to revised state plan).
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agency is only required to complete the post-lease-sale components of the
Program within a reasonable period of time.79
B. The Tax Act
The Court next considers whether the Moratorium and EO 13990 are within
the executive branch’s authority. Plaintiffs and the State are correct that the
executive branch can act only in accordance with its own constitutional powers or
the expressed or implied will of Congress.80 In many cases, federal statutes are
the appropriate starting point to determine whether the executive branch
possesses the authority to act.81
Here, the parties focus much of their briefing on the Tax Act. Although
Article IV of the Constitution gives Congress the authority to regulate public lands,
Congress, through the Tax Act, expressly delegated the authority to “establish and
administer” the Program on the Coastal Plain to the Interior Secretary.82 This
broad grant of authority accords to DOI, under the supervision of the President as
79 See 5 U.S.C. § 706(1) (directing a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed”); cf. Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.
1997) (holding that the General Mining Act of 1872 “provided no express timetable or deadline
for the issuance of the patents” and, “[a]t most, . . . implie[d] that the issuance must be
completed within a reasonable time, or . . . ‘expeditiously’ under the circumstances”).
80 City & Cnty. of San Francisco, 897 F.3d at 1233 (citing Youngstown, 343 U.S. at 585, 637–38
(Jackson, J., concurring)).
81 See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (reviewing the Immigration and
Nationality Act’s plain language to determine whether the President has discretion to place entry
restrictions on the nationals of eight foreign countries).
82 Tax Act § 20001(b)(2)(A).
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chief executive,83 the authority to implement and operate the Program, provided it
does so in accordance with all applicable federal laws. By using broad language
directing the Interior Secretary to administer the Program with no timetable apart
from the two deadlines for the mandated lease sales,84 Congress left the timetable
for the vast majority of the Program’s implementation to DOI’s discretion.85 This
includes the discretion to temporarily pause the Program while ensuring NEPA
compliance.
As Plaintiffs point out, the decision of whether to “establish and administer”
the Program is not subject to DOI’s or the President’s discretion.86 But this does
not mean, as Plaintiffs maintain, that Congress explicitly or implicitly intended to
limit the President’s authority to direct DOI to pause the Program while conducting
a supplemental environmental review. To the contrary, Congress authorized DOI
to suspend leases by virtue of the Tax Act’s reference to the NPRPA, which
expressly allows the Interior Secretary to “direct or assent to the suspension of
83 See Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2211 (2020) (“In our
constitutional system, the executive power belongs to the President, and that power generally
includes the ability to supervise and remove the agents who wield executive power in his stead.
. . . The Constitution requires that such officials remain dependent on the President . . . .”).
84 The Tax Act’s provisions governing the Program take up just over one page of space in the
186-page statute. See generally Tax Act § 20001.
85 Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2568 (2019) (observing that the Census Act
leaves much of its implementation to the Secretary of Commerce’s discretion given its broad
language).
86 Docket 60 at 10, 24–25.
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operations and production on any lease or unit.”87 The actions taken to implement
the Moratorium are precisely within this grant of authority: DOI temporarily
suspended the leases issued from the 2021 sale.88 There simply is no language
within the Tax Act that limits the President’s authority to order—or DOI’s authority
to implement—a temporary suspension of the Program leases while the agency
undertakes supplemental environmental review. The cases the State cites for the
proposition that “[t]he ROD could have remained in effect while BLM prepared
supplemental NEPA analysis”89 do not suggest that Agency Defendants lack
authority to suspend the Program’s implementation while supplementing its NEPA
analysis. Those cases instead suggest only that an agency need not always—but
still may have authority to—vacate or suspend an underlying action while engaging
in supplemental NEPA analysis.90
87 42 U.S.C. § 6506a(k)(2); see also United States v. Merrell, 37 F.4th 571, 576 (9th Cir. 2022)
(“Congress is . . . presumed to know existing law pertinent to any new legislation it enacts . . . .”
(quoting United States v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991))).
88 See AR 3365 (“[T]he Department has concluded it is necessary to suspend the . . . lease(s) . .
. . While this [suspension of operations and production] is in place, no lease operations may
transpire on the leases, the terms of the leases are tolled, and lease rentals are suspended.”).
89 Docket 66 at 16 (first citing Diné Citizens Against Ruining Our Env’t v. Haaland, 59 F.4th
1016, 1031 (10th Cir. 2023); and then citing Defs. of Wildlife v. Bureau of Ocean Energy Mgmt.,
Regul., & Enf’t, 871 F. Supp. 2d 1312, 1339 (S.D. Ala. 2012)).
90 See Diné, 59 F.4th at 1032 (concluding that the NEPA regulations’ “silence” on whether an
agency must vacate or suspend an action while supplementing a NEPA review “lends support to
BLM’s argument that vacatur during supplemental analysis is not mandatory”); Defs. of Wildlife,
871 F. Supp. 2d at 1334, 1339 (finding that BOEM did not violate NEPA by issuing leases during
pendency of supplemental environmental review).
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Plaintiffs nonetheless argue that the NPRPA’s suspension provision
“pertains to specific leases based on site-specific considerations. It does not
provide the Secretary blanket authority to issue a categorical suspension of
operations across all leases . . . .”91 Plaintiffs also allege that the Tax Act’s
“mandate for oil and gas development” supersedes the NPRPA’s suspension
provision due to the inclusion in the Tax Act’s mandate of the phrase “except as
otherwise provided in this section.”92
Both arguments are unavailing. The NPRPA uses broad language allowing
the Interior Secretary to suspend operations “on any lease or unit.”93 There is no
language within the Tax Act or the NPRPA’s suspension provision requiring “site-
specific considerations,” but even if there were, Agency Defendants may be
making “site-specific considerations” as part of the Supplemental EIS process.94
As for the Tax Act’s mandate for oil and gas development, there is nothing in that
91 Docket 60 at 28 n.8.
92 Docket 60 at 28 n.8.
93 42 U.S.C. § 6506a(k)(2) (emphasis added).
94 BLM’s notice of intent to prepare the Supplemental EIS states that BLM plans to consider
whether to “[d]esignate certain areas of the Coastal Plain as open or closed to leasing . . . [and]
prohibit surface infrastructure in sensitive areas.” AR 3368. BLM’s Supplemental EIS also will
“evaluate impacts to various surface resources including, but not limited to, caribou, polar bears,
birds, vegetation, and surface waters including wetlands.” AR 3368–69. By evaluating whether
“certain” areas should be open or closed to leasing, considering whether to prohibit impacts to
“sensitive” areas, and evaluating impacts to protected species and resources that inherently
vary across the Coastal Plain, Agency Defendants may be making “site-specific considerations”
as they conduct the supplemental NEPA review that will guide the manner in which they
implement the Program and, if and when appropriate, allow operations to proceed on the issued
leases.
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mandate to suggest that Agency Defendants cannot temporarily pause
implementation of the Program to ensure it complies with the law and, upon making
that determination, resume the Program’s implementation. Notably, Congress
included the suspension provision within the NPRPA notwithstanding the NPRPA’s
mandate to DOI to “conduct an expeditious program of competitive leasing of oil
and gas.”95 If DOI can suspend lease operations and production notwithstanding
the NPRPA’s mandate for “expeditious” development, clearly it can do so when
implementing the Tax Act, which does not expressly call for “expeditious”
development but does specifically impose two deadlines for holding lease sales.
Plaintiffs’ contention that this interpretation results in “unfettered” discretion
or authority for DOI to “indefinitely suspend” the Program again conflates a
temporary pause with a permanent pause.96 DOI’s discretion is constrained by the
Tax Act’s mandate to implement the Program and conduct the two lease sales
within the required timeframe and the APA’s requirement to act within a reasonable
time.97 As intimated above, Congress could have included additional deadlines
requiring Agency Defendants to issue any subsequent approvals by a date certain,
but it chose not to do so.98 Rather, the Tax Act accords to DOI the discretion to
95 42 U.S.C. § 6506a(a) (emphasis added).
96 Docket 67 at 16–17.
97 See supra note 86.
98 Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
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implement the Program in a manner consistent with the Tax Act and consistent
with ANILCA’s purposes, which include environmental conservation along with the
newly added purpose of the oil and gas program, and also consistent with other
applicable federal laws, including NEPA.99
Plaintiffs also read the Tax Act to foreclose application of the NPRPA’s
suspension authority to “post-sale” activities such as easement or right-of-way
applications.100 Although these activities take place after the issuance of a lease,
they are an essential component of the “administration of lease sales.”101
Moreover, the Tax Act itself accords DOI discretion in issuing easements or rights-
of-way, as DOI is directed to issue those easements and rights-of-way that it
determines are “necessary to carry out” the Program.102 This includes the
discretion, subject to the APA’s requirements governing agency action, to decline
to issue easements or rights-of-way at a time when they are not necessary to the
Program’s implementation.
exclusion.” (alteration in original) (citations omitted)).
99 See ANILCA § 303(2)(B) (listing ANWR’s purposes); 163 Cong. Rec. S7539–40 (daily ed.
Nov. 30, 2017) (Murkowski Floor Statement).
100 Docket 67 at 16.
101 Tax Act § 20001(b)(3).
102 Id. § 20001(c)(2); cf. City & Cnty. of San Francisco v. U.S. Citizenship & Immigr. Servs., 944
F.3d 773, 803 (9th Cir. 2019) (noting the “broad regulatory authority” Congress vests in agencies
through the use of statutory language such as “appropriate and necessary” (quoting 42 U.S.C. §
7412(n)(1)(A))).
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Next, Plaintiffs rely on a series of cases that they allege provide support for
the proposition that the Tax Act does not confer authority to Agency Defendants to
institute the Moratorium.103 These cases, which touch on the “major questions
doctrine”,104 are inapplicable. This is not a case involving an agency’s assertion of
“sweeping authority,”105 such as a statutory interpretation that would allow an
agency to “substantially restructure the American energy market”106 or “cancel[]
roughly $430 billion of federal student loan balances, completely erasing the debts
of 20 million borrowers.”107 The Moratorium affects only a total of nine oil and gas
leases held by three lessees over a discrete portion of land in northern Alaska, and
it is both temporary and limited in nature. And while some out-of-circuit courts
have held that “a decision to reconsider a rule does not simultaneously convey
authority to indefinitely delay the existing rule pending that reconsideration,”108
Agency Defendants are not indefinitely delaying a rule because the Moratorium is
103 Docket 60 at 29 (first citing Tax Act § 20001(b)(2)(A); then citing West Virginia v. EPA, 142 S.
Ct. 2587, 2607 (2022); and then citing Nat. Res. Def. Council v. Nat’l Highway Traffic Safety
Admin., 894 F.3d 95, 111 (2d Cir. 2018)); Docket 67 at 11–12 (first citing FEC v. Ted Cruz for
Senate, 142 S. Ct. 1638, 1649 (2022); then citing West Virginia, 142 S. Ct. at 2607–08; then
citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486 (2021); then citing Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001); and then citing FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 125-26 (2000)).
104 See, e.g., West Virginia, 142 S. Ct. at 2610 (“Under our precedents, this is a major questions
case.”).
105 Ala. Ass’n of Realtors, 141 S. Ct. at 2486.
106 West Virginia, 142 S. Ct. at 2610.
107 Biden v. Nebraska, 143 S. Ct. 2355, 2362 (2023).
108 Nat. Res. Def. Council, 894 F.3d at 111–12 (citing Clean Air Council v. Pruitt, 862 F.3d 1, 9
(D.C. Cir. 2017)).
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not of indefinite duration, and the actions being delayed—approving requests to
begin conducting oil and gas activities or issuing easements or rights-of-way—are
adjudicatory actions, not rules.109
C. Other Authorities
The Court next considers whether ANILCA, FLPMA, or any other federal
statute or caselaw precludes Agency Defendants from implementing the
Moratorium or strips the President of authority to order the same.
1. ANILCA
Plaintiffs maintain that the Moratorium violates ANILCA because of
ANILCA’s newly added purpose “to provide for an oil and gas program on the
Coastal Plain.”110 But as discussed above, a temporary moratorium is not
evidence that Agency Defendants have abandoned or plan to stop implementing
the Program. And the Tax Act otherwise left ANILCA untouched, including its
purposes related to environmental conservation and protection.111 The
Moratorium is intended to allow Agency Defendants to conduct what they describe
as a proper review of the Program’s environmental impacts, thereby satisfying
ANILCA’s other purposes without undermining its newly added purpose to conduct
an oil and gas program. Since the Moratorium furthers ANILCA’s purposes and
109 See discussion infra Section II.A.
110 Docket 60 at 24 (citing Tax Act § 20001(b)(2)).
111 ANILCA § 303(2)(B).
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ANILCA contains no provisions limiting Agency Defendants’ authority to institute a
temporary moratorium on the oil and gas program, the Moratorium does not violate
ANILCA.
2. FLPMA
Plaintiffs assert that the Moratorium constitutes a “withdrawal” as defined by
FLPMA because it precludes oil and gas activities on the Coastal Plain and
transfers jurisdiction over the Coastal Plain from BLM to the Interior Secretary.112
FLPMA defines “withdrawal” as
withholding an area of Federal land from settlement, sale, location, or
entry, under some or all of the general land laws, for the purpose of
limiting activities under those laws in order to maintain other public
values in the area or reserving the area for a particular public purpose
or program; or transferring jurisdiction over an area of Federal land,
other than “property” governed by the Federal Property and
Administrative Services Act, as amended (40 U.S.C. 472) from one
department, bureau or agency to another department, bureau or
agency.113
When withdrawing public lands pursuant to FLPMA, an agency must follow
certain procedures, including public notice requirements, and comply with size and
temporal limits.114 “Removing otherwise eligible and available federal land from oil
and gas leasing can constitute a ‘withdrawal’ . . . .”115 However, “[t]o withdraw . . .
112 Docket 60 at 30.
113 43 U.S.C. § 1702(j).
114 Yount v. Salazar, Case No. CV11-8171 PCT-DGC, 2014 WL 4904423, at *18 (D. Ariz. Sept.
30, 2014), aff’d sub nom. Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th Cir. 2017).
115 W. Energy All. v. Biden, Case No. 21-CV-13-SWS, 2022 WL 18587039, at *11 (D. Wyo. Sept.
2, 2022).
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means to withhold the parcel of land from sale entirely” rather than an action such
as “cancel[ling] a specific sale to a specific buyer.”116
The Moratorium does not run afoul of FLPMA. Agency Defendants are not
“withholding” the leased land from “settlement, sale, location, or entry” because
they have not acted to indefinitely prevent oil and gas activity on the leased land.117
The Moratorium does not withhold AIDEA’s leased land from oil and gas leasing
entirely; nor does it reserve any of the leased land for a particular public purpose
or program.
At least one district court has found that a temporary action that delays an
oil and gas leasing program to allow for a supplemental NEPA review does not
constitute a withdrawal subject to FLPMA.118 Plaintiffs, meanwhile, have failed to
identify any authority indicating that a temporary restriction on the use of leased
lands while an agency supplements its NEPA review constitutes a “withdrawal”
within the meaning of the FLPMA. Their citation to Mountain States Legal
Foundation v. Hodel is unavailing.119 The “withdrawal” at issue in that case was
116 Silver State Land, LLC v. Schneider, 843 F.3d 982, 991 (D.C. Cir. 2016).
117 43 U.S.C. § 1702(j).
118 See W. Energy All., 2022 WL 18587039, at *4, *12 (finding no withdrawal under or violation
of FLPMA when BLM delayed a statutorily mandated lease sale to allow additional consideration
of Environmental Assessments in light of federal caselaw (first citing Columbia Riverkeeper v.
U.S. Army Corps of Engrs., Case No. 19-6071 RJB, 2020 WL 6874871 (W.D. Wash. Nov. 23,
2020), and then citing WildEarth Guardians v. Bernhardt, Case No. 16-1724 (RC), 2020 WL
6701317 (D.D.C. Nov. 13, 2020)).
119 Docket 67 at 18–19 (citing Mountain States Legal Found. v. Hodel, 668 F. Supp. 1466, 1474
(D. Wyo. 1987)).
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BLM’s suspension of mineral leasing in one national forest and its failure to act on
lease applications in another national forest that had been pending for up to 12
years.120 BLM took these actions at the request of the U.S. Forest Service, which
asked BLM to delay further processing of any leases pending completion of a final
EIS or until a Forest Plan was completed.121 In setting aside the suspension, the
U.S. District Court for the District of Wyoming interpreted FLPMA to find that BLM’s
suspension and unreasonable delay of mineral leasing constituted a withdrawal
pursuant to FLPMA.122
The Ninth Circuit has expressly rejected the District of Wyoming’s FLPMA
analysis.123 In Bob Marshall Alliance v. Hodel, BLM issued 19 oil and gas leases
on the 42,000-acre Deep Creek Further Planning Area in the Lewis and Clark
National Forest.124 BLM did not prepare an EIS prior to issuing the leases; instead,
it prepared an Environmental Assessment that “concluded that such leasing would
have no significant effect on the quality of the human environment.”125 The district
court enjoined the lease issuances, finding that the federal defendants violated
NEPA and the Endangered Species Act by failing to prepare an EIS and address
120 Mountain States, 668 F. Supp. at 1469.
121 Id.
122 Id. at 1474.
123 Bob Marshall All. v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988).
124 Id. at 1224–26.
125 Id. at 1226.
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the effects of the leasing on protected species.126 The Ninth Circuit affirmed the
district court’s ruling as to any leases that allowed surface disturbance without
further government approval.127 As an ancillary issue to the issues on appeal, the
Ninth Circuit addressed whether denying or deferring action on the lease
applications would have violated FLPMA.128 The Ninth Circuit rejected as
unpersuasive the determination in Mountain States that deferring action on oil and
gas leases can constitute an unlawful administrative withdrawal. Instead, the Ninth
Circuit observed that a refusal to issue mineral leases is “far from removing [the
land at issue] from the operation of the mineral leasing law” and is “a legitimate
exercise of the discretion granted to the Interior Secretary under [the Mineral
Leasing Act].”129
Plaintiffs maintain that Bob Marshall is distinguishable from the instant case
because “it involved BLM’s discretionary decision not to issue a specific lease.”130
But the Moratorium involves Agency Defendants’ discretionary decision pursuant
to the Tax Act, and, by incorporation, the NPRPA, to temporarily pause lease
126 Id. at 1226–27.
127 Id. at 1227.
128 Id. at 1229–30. Through its NEPA review, the Forest Service had considered a “no action”
alternative in which it would have denied or deferred action on the Deep Creek lease
applications, but one defendant asserted that choosing this alternative “would have constituted
an illegal administrative ‘withdrawal’ of Deep Creek from mineral leasing” pursuant to FLPMA.
Id. at 1229. It is in that context that the Ninth Circuit addressed the FLPMA.
129 Id. at 1230.
130 Docket 67 at 19.
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operations pertaining to a confined portion of land. Because the Moratorium does
not remove the leased land on the Coastal Plain from oil and gas development, it
cannot be considered a FLPMA “withdrawal” as the Ninth Circuit has interpreted
that term.
Nor has DOI transferred jurisdiction over the Coastal Plain from BLM to the
Interior Secretary. Plaintiffs are correct that a “withdrawal” can include
“transferring jurisdiction over an area of Federal land . . . from one department,
bureau or agency to another department, bureau or agency.”131 Secretarial Order
3401 directs BLM to act; it does not transfer jurisdiction over the Coastal Plain or
any other portion of ANWR to the secretarial level at DOI.132 Indeed, DOI expressly
“redelegate[d]” the Interior Secretary’s authority to implement the Tax Act to BLM,
demonstrating that DOI intended for BLM to maintain its jurisdiction over the
Program and land leased pursuant thereto.133 As such, because Agency
Defendants did not withdraw public lands or transfer jurisdiction over public lands
between any agencies, there was no requirement for them to follow FLPMA’s land
withdrawal procedures.134
131 43 U.S.C. § 1702(j).
132 See AR 3363 (“The Assistant Secretary for Land and Minerals Management and the Director
of the BLM shall, as appropriate and consistent with applicable law, take appropriate action with
respect to existing leases in light of the direction provided herein.”).
133 AR 3363.
134 See 43 U.S.C. § 1714 (establishing procedures to be followed when the Interior Secretary
“make[s], modif[ies], extend[s], or revoke[s] withdrawals”).
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3. Caselaw
Plaintiffs’ citation to Louisiana v. Biden,135 an out-of-circuit district court
decision, is neither controlling nor persuasive. The operative statutes at issue
there were not the Tax Act, ANILCA, or FLPMA, but the Outer Continental Shelf
Lands Act (“OCSLA”) and the Mineral Leasing Act (“MLA”).136 That decision rested
on the fact that, when suspending further leasing on the Outer Continental Shelf,
the agency had not followed the process set forth in OCSLA for making changes
to a previously adopted five-year leasing plan.137 But the Tax Act contains no such
delineated process for the executive branch to follow while administering the
Program. Rather, the Tax Act contains a one-sentence directive to DOI to
implement the Program.138 And it instructs DOI to do so in a manner similar to the
manner in which it implements the NPRPA oil and gas leasing program, which
expressly authorizes DOI to suspend lease operations.139 Neither the Tax Act nor
the NPRPA contain any provisions comparable to OCSLA’s provisions that
135 622 F. Supp. 3d 267 (W.D. La. 2022).
136 Id. at 275.
137 43 U.S.C. § 1344(e); Louisiana, 622 F. Supp. 3d at 288–89. Notably, the Louisiana court
omits discussion of the President’s authority to withdraw unleased lands pursuant to OCSLA,
which could be construed as authority for a nationwide leasing moratorium. See id. at 288–90
(evaluating ultra vires claim concerning the President’s authority to pause leasing nationwide
without analysis of 43 U.S.C. § 1341(a), which provides that “[t]he President of the United
States may, from time to time, withdraw from disposition any of the unleased lands of the outer
Continental Shelf”).
138 Tax Act § 20001(b)(2)(A).
139 Id. § 20001(b)(3); see also 42 U.S.C. § 6506a(k)(2) (“The Secretary may direct or assent to
the suspension of operations and production on any lease or unit.”).
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establish steps DOI must take in order to effectuate a “revision and reapproval” of
OCSLA’s statutorily mandated program.140 Nor have Plaintiffs alleged any
violation of NPRPA-like procedures applicable to the Program. And even if the
“expeditious” portion of the NPRPA’s mandate applies to the Tax Act, Congress
allowed for the possibility of a lease suspension in the implementation of what it
explicitly directed to be an “expeditious” program in the NPRPA.141
With respect to Agency Defendants’ authority to temporarily pause leasing
activities pursuant to the Tax Act, the Court finds Western Energy Alliance v.
Biden142 to be more persuasive than Louisiana. In Western Energy Alliance, the
U.S. District Court for the District of Wyoming upheld BLM’s decision to postpone
lease sales required pursuant to the MLA to ensure that the Environmental
Assessments prepared in conjunction with those sales satisfied then-recent
federal court decisions governing the proper analysis of greenhouse gas emissions
in the NEPA review process.143 The MLA contains a clear mandate for BLM to
140 See generally Tax Act § 20001; 43 U.S.C. § 1344(e).
141 The State acknowledges Intervenor-Defendants’ argument that “administrative agencies are
assumed to possess at least some inherent authority to revisit their prior decisions,” yet the
State maintains that no such authority exists “when Congress has provided a mechanism
capable of rectifying mistaken actions.” Docket 66 at 8 (quoting Ivy Sports Medicine, LLC v.
Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014)); Docket 64 at 24 (citing Ivy Sports, 767 F.3d at 86).
Unlike other statutes, the Tax Act’s brief provisions governing the Program do not provide a
mechanism for correcting legal errors in the Program’s implementation, so Ivy Sports suggests
that Agency Defendants do have inherent authority to revisit the Program’s implementation.
This inherent authority, coupled with the NPRPA’s explicit grant of authority to suspend lease
operations, is an adequate statutory backdrop against which Agency Defendants can
temporarily pause the Program.
142 2022 WL 18587039.
143 Id. at *8–10 (first citing Rocky Mountain Wild v. Bernhardt, Case No. 2:19-cv-00929-DBB-
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hold lease sales on at least a quarterly basis with respect to certain lands deemed
available for leasing.144 BLM postponed lease sales scheduled for the first quarter
of 2021 shortly after the President issued an executive order directing a nationwide
oil and gas leasing moratorium pending additional NEPA review.145 Western
Energy Alliance involved the same executive order at issue in Louisiana, but the
District of Wyoming determined that the lands at issue were not “available” within
the meaning of the MLA since BLM had determined that their underlying
Environmental Assessments “needed additional review and possible reworking
due to recent caselaw.”146 Here, BLM made a similar determination concerning
the EIS and ROD underlying the Program while implementing a statute with a
significantly less rigid imperative. The Tax Act specifies only the dates by which
two lease sales must take place, whereas the MLA requires quarterly lease sales.
If BLM has the authority to postpone a statutorily mandated quarterly lease sale in
order to conduct additional environmental review, it has the authority to postpone
activities on leases when no statutory source commands it to take any actions
beyond the lease sales within a set timeframe.
CMR, 2020 WL 7264914 (D. Utah Dec. 10, 2020); then citing WildEarth Guardians v. Bernhardt,
502 F. Supp. 3d 237 (D.D.C. 2020); and then citing Columbia Riverkeeper, 2020 WL 6874871).
144 30 U.S.C. § 226(b)(1)(A).
145 W. Energy All., 2022 WL 18587039, at *3 (citing Exec. Order No. 14008, 86 Fed. Reg. 7619,
7624–25 (Feb. 1, 2021)).
146 Id. at *9; Louisiana, 622 F. Supp. 3d at 288–90.
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Intervenor-Defendants’ citation to Boesche v. Udall147 provides further
support for the Moratorium.148 There, the Supreme Court interpreted the MLA to
grant the Interior Secretary “the power to correct administrative errors . . . by
cancellation of leases in proceedings timely instituted by competing applicants for
the same land.”149 In Boesche, the Supreme Court recognized DOI’s “general
powers of management over the public lands” and the limited nature of a leasehold
interest in such lands: A leasehold interest in public lands “does not give the lessee
anything approaching the full ownership of a fee patentee,” and so the Interior
Secretary “should have the power, in a proper case, to correct his own errors.”150
Boesche involved a different statute and, as the State points out,151 a
different type of agency error. The Supreme Court also cautioned that its holding
was limited and “do[es] not open the door to administrative abuses.”152 But there
is no indication in the Tax Act that similar authority to correct administrative errors
does not exist here. If DOI can cancel a lease to correct its own errors, it can
temporarily suspend a lease for the same purpose.153 Boesche also undermines
147 373 U.S. 472 (1963).
148 Docket 65 at 17 n.44, 20 n.55.
149 Boesche, 373 U.S. at 485.
150 Id. at 476, 478.
151 Docket 66 at 11–14.
152 Boesche, 373 U.S. at 485.
153 In another attempt to distinguish Boesche, the State asserts that a violation of a procedural
statute such as NEPA is not the type of substantive error that would authorize DOI to cancel a
lease. Docket 66 at 12–13. The State alleges that “courts often do not vacate agency decisions
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the State’s assertion that the Moratorium’s purpose—which the State contends is
“to consider cancelling already-issued leases”—is “invalid.”154
Contrary to another of the State’s assertions,155 the Tax Act does not restrict
DOI’s broad authority to manage public lands; it simply directs DOI to implement a
leasing program, just as the MLA and other federal statutes do. Likewise,
ANILCA’s purposes, which include environmental conservation,156 do not restrict
DOI’s general managerial powers over the Coastal Plain with respect to the
imposition of a temporary oil and gas moratorium, especially since DOI completed
the first lease sale and currently is supplementing its environmental review and
hence is “provid[ing] for an oil and gas program on the Coastal Plain.”157
Century Exploration New Orleans, LLC v. United States also supports the
proposition that an agency has authority to pause oil and gas activities after a
and, particularly, do not void oil and gas leases because of deficiencies in NEPA analyses.”
Docket 66 at 12 (citations omitted). But DOI has not cancelled AIDEA’s leases. In any event, in
the Ninth Circuit, vacatur is “the presumptive remedy for agency action that violates the NEPA
as reviewed through the APA.” Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850,
882 (9th Cir. 2022) (citation omitted), cert. denied sub nom. Am. Petroleum Inst. v. Env’t Def.
Ctr., No. 22-703, 2023 WL 3801206 (U.S. June 5, 2023).
154 Docket 59 at 20, 23–26; Docket 66 at 9–14; see also discussion infra Section II.B.3.b
(discussing validity of the Moratorium’s purpose). Additionally, it cannot be said that the purpose
of the Moratorium is to void AIDEA’s leases or even, as the State asserts, “to consider whether
to reaffirm or void the leases.” Docket 59 at 24. This might be a purpose of the supplemental
NEPA analysis, but it is not the purpose of the Moratorium itself. See AR 3365 (“The BLM will
undertake this additional NEPA analysis to determine whether the leases should be reaffirmed,
voided or subject to additional mitigation measures.” (emphasis added)).
155 Docket 66 at 13–14.
156 ANILCA § 303(2)(B).
157 Tax Act § 20001(b)(2)(B)(iii).
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lease’s issuance.158 That case involved an oil and gas lessee’s challenge to
Interior’s implementation of two moratoria on deepwater drilling operations in the
Gulf of Mexico following the Deepwater Horizon disaster while new and increased
substantive requirements were developed for drilling operations.159 The Court of
Federal Claims held that neither of the moratoria breached the plaintiffs’ lease.160
Rather, the court concluded that the two moratoria, which together resulted in an
approximately six-month pause in drilling operations and permitting for such
activities, were “well within the government’s authority under both the terms of the
lease and applicable law.”161 Similarly, the court observed that the moratoria’s
“short delay would not have effected a total breach of the lease, particularly in light
of the absence of any express deadlines for the review and approval of”
applications for drilling permits.162
Certainly, the circumstances leading to the Moratorium in the instant case
are completely different from the Deepwater Horizon disaster. Yet the legal
framework and analysis outlined in Century Exploration are analogous. Neither
AIDEA’s leases nor any federal statute or regulation prohibit the Moratorium or
provide an express deadline by which Agency Defendants must allow oil and gas
158 110 Fed. Cl. 148, 168 (2013), aff’d, 745 F.3d 1168 (Fed. Cir. 2014).
159 Id. at 157–59.
160 Id. at 168.
161 Id. at 167–68.
162 Id. at 168.
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activities on the Coastal Plain to proceed after a lease sale is conducted. And as
discussed below, the leases themselves expressly accord to Agency Defendants
the right to alter the “timing of operations” conducted pursuant to the leases. Thus,
as in Century Exploration, a temporary moratorium on post-sale oil and gas
activities on the Coastal Plain is “well within the government’s authority.”163
4. The Lease Provisions
Although not discussed in detail in the parties’ briefing,164 the leases
themselves provide support for the Moratorium. The leases contain a general
disclaimer subjecting lessees to “reasonable regulations and formal orders
hereafter promulgated when not inconsistent with, or unduly burdensome on, lease
rights granted or specific provision[s] of this lease.”165 This language covers the
instant situation since Secretarial Order 3401 and the SOP Letter are not
inconsistent with the lease provisions and provide no additional obligations or
burdens on the lessees beyond those associated with delay, which in this context
are not “unduly burdensome.” Similarly, Section 6 of the lease—which pertains to
“minimiz[ing] adverse impacts to the land, air, and water, to cultural, biological,
visual, and other resources, and to other land uses or users”—allows the lessor to
163 Id. at 168.
164 Plaintiffs discuss the lease provisions in one short paragraph of their motion. Docket 60 at
29. The State’s motion contains one sentence asserting that, upon a lease’s cancellation, the
lessee and third-party beneficiaries may be able to assert claims for breach of contract. Docket
59 at 26.
165 E.g., AR 3320.
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subject the lessee to “reasonable measures deemed necessary . . . to accomplish
the intent of this section.”166 These measures include the “timing of operations,”
thereby expressly reserving to Agency Defendants the right to alter the timing of
operations conducted pursuant to the leases in an effort to minimize adverse
environmental impact, an endeavor with which the supplemental NEPA review
may assist.167 Though not a statutory provision, the lease has the force of law as
a contract between the United States and AIDEA, so these provisions provide
further support for the legality of the Moratorium.168
In short, Plaintiffs have not identified any provision or source of federal law
that precludes a temporary moratorium for the purpose of ensuring that the
Program comports with the law. When viewed in conjunction with the broad
discretion that the Tax Act accords DOI, it is clear that the President acted in
accordance with his powers by ordering Agency Defendants to implement a
temporary moratorium while DOI undertook to correct “alleged legal deficiencies”
in its environmental analysis.169 Consequently, Agency Defendants themselves
166 E.g., AR 3321.
167 E.g., AR 3321.
168 See Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 951 (9th Cir. 2004) (recognizing that
oil and gas leases “represent a very specialized subset of contracts” governed by an “extensive
federal regulatory scheme” (citation omitted)).
169 AR 3351, 3362. Because the Court finds that EO 13990 orders DOI to take actions that are
authorized by statute, the Court need not consider whether the Executive Order’s savings
clause salvages what Plaintiffs assert is an otherwise ultra vires order. Docket 60 at 21–22.
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also acted in accordance with their powers by implementing the temporary
moratorium.
II. The Moratorium does not violate the APA.
Plaintiffs and the State allege three categories of APA violations, namely
that Agency Defendants (1) failed to follow the APA’s notice-and-comment
requirements, (2) arbitrarily and capriciously reversed their position regarding the
Program’s NEPA compliance without adequate factual or legal support or a lawful
purpose, and (3) unlawfully and unreasonably withheld or delayed action to
implement the Program.170 The parties do not dispute that the APA governs these
claims against Agency Defendants.171 Defendants respond that the Moratorium is
not a substantive rule that must follow the APA’s notice-and-comment procedures,
that Agency Defendants have not unlawfully reversed their position regarding the
legality of the NEPA analysis underlying the Program’s implementation, and that
Plaintiffs cannot bring a viable failure-to-act claim.172 The Court addresses these
arguments in turn.
170 Docket 59 at 19–34; Docket 60 at 32–40; Docket 66 at 5–14; Docket 67 at 19–25; see also
discussion of the State’s additional arguments infra Section II.B.3.
171 Docket 59 at 18–59; Docket 60 at 22–24; Docket 63 at 29; Docket 64 at 21–22; Docket 65 at
14–15.
172 Docket 63 at 26–29, 34–42; Docket 64 at 31–39; Docket 65 at 21–28.
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A. Notice-and-Comment Procedures
Plaintiffs contend that Agency Defendants’ implementation of the
Moratorium “constitutes a substantive rule subject to notice and comment given
that it leaves agency staff with no discretion to process or approve applications to
perform oil and gas activities on the Coastal Plain.”173 Plaintiffs point to several
aspects of the Moratorium that they claim make it a substantive rule: its categorical
application to all Coastal Plain leases and activities, the suspension of all leases
on the same day Secretarial Order 3401 was issued, the virtually identical SOP
Letters issued to each of the lessees, and BLM’s informing of each contractor that
it would not process their applications for work on the leases until the supplemental
NEPA review was complete.174
Federal Defendants counter that DOI’s implementation of the Moratorium is
not a substantive rule subject to the APA’s notice-and-comment requirements but
rather an adjudication.175 And even if Secretarial Order 3401 is considered a rule,
Federal Defendants allege it is at most an interpretative rule or clarification of
agency practice rather than a substantive or legislative rule requiring notice and
comment.176 Federal Defendants add that “neither the Program ROD nor its oil
173 Docket 60 at 33; see also Docket 59 at 22 (“[T]he agencies did not engage in required notice
and comment processes . . . .”).
174 Docket 60 at 34–35.
175 Docket 63 at 34–37 (quoting Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th
Cir. 1994)).
176 Docket 63 at 37–39.
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and gas leases were established through rule making, so it makes little sense to
suggest that similar (or lesser) action such as modifying the ROD or suspending
the leases would require a rule making.”177
The APA contemplates two primary forms of agency action: rulemaking and
adjudication.178 Rulemaking is the “agency process for formulating, amending, or
repealing a rule.”179 The APA defines a rule as “the whole or a part of an agency
statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.”180 Adjudication “is virtually any
agency action that is not rulemaking.”181 As the Ninth Circuit explained,
Two principal characteristics distinguish rulemaking from
adjudication. First, adjudications resolve disputes among specific
individuals in specific cases, whereas rulemaking affects the rights of
broad classes of unspecified individuals. Second, because
adjudications involve concrete disputes, they have an immediate
effect on specific individuals (those involved in the dispute).
Rulemaking, in contrast, is prospective, and has a definitive effect on
individuals only after the rule subsequently is applied.182
177 Docket 63 at 36.
178 5 U.S.C. § 551(4)–(7). Defendants also suggest that the leases fall under the APA’s
definition of “licensing,” which in their view is further indication that their suspension should not
be considered a form of rulemaking. Docket 63 at 36 n.10 (quoting 5 U.S.C. § 551(8), (9)).
179 5 U.S.C. § 551(5).
180 Id. § 551(4).
181 Yesler, 37 F.3d at 448 (citing 5 U.S.C. § 551(6)–(7)).
182 Id. (citations omitted).
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An agency has the discretion to “announce new principles during
adjudication” instead of rulemaking.183 Two exceptions limit this discretion: “First,
agencies may not impose undue hardship by suddenly changing direction, to the
detriment of those who have relied on past policy. . . . The second limiting doctrine
is that agencies may not use adjudication to circumvent the Administrative
Procedure Act’s rulemaking procedures.”184 These procedures include a
requirement for an agency to issue a notice of proposed rulemaking in the Federal
Register before it proposes a rule and allow public comment on the proposed
rule.185
Applying these principles, the Court finds that the Moratorium is not a rule
subject to the APA’s notice-and-comment procedures. Although the Moratorium
reverses Agency Defendants’ prior determination—expressed through the NEPA
review and their carrying out of the lease sale—that the Program comported with
applicable federal laws, the Moratorium does not operate prospectively to affect
the rights of unspecified individuals in the future. Rather, it directly and
immediately affected the rights of the identified lessees on the Coastal Plain.186
183 Cities of Anaheim, Riverside, Banning, Colton & Azusa v. FERC, 723 F.2d 656, 659 (9th Cir.
1984) (citations omitted); see also Reyes v. Garland, 11 F.4th 985, 991 (9th Cir. 2021) (“An
agency may also exercise its congressionally delegated legislative authority through
adjudicatory proceedings, where ‘new administrative policy [is] announced and implemented
through adjudication.’” (alteration in original) (quoting Montgomery Ward & Co. v. FTC, 691 F.2d
1322, 1328 (9th Cir. 1982))).
184 Anaheim, 723 F.2d at 659 (citations omitted).
185 5 U.S.C. § 553(b)–(d).
186 Cf. Reyes, 11 F.4th at 991 (“But while rules promulgated through . . . formal rulemaking
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Further, neither of the two exceptions that limit an agency’s authority to use
adjudication apply here. First, the Moratorium does not result in undue hardship
to the detriment of those who have relied on a previous agency action. Prior to the
Moratorium, the only agency action directly impacting Plaintiffs had been the
issuance of the leases; no work on the leases had begun when the Moratorium
began.187 The impact of the Moratorium’s suspension of AIDEA’s leases was not
“excessive or unwarranted” given that the Moratorium is temporary in nature and
that AIDEA had—but declined—the opportunity to cancel its leases and receive
refunds of its lease payments.188
Second, Agency Defendants did not use adjudication to circumvent the
APA’s rulemaking procedures. A circumvention of the APA’s rulemaking
procedures occurs when, for example, an agency uses adjudication “to amend a
recently amended rule” or “to bypass a pending rulemaking proceeding.”189
Agency Defendants did not circumvent any rulemaking procedure. They chose
adjudication as the Moratorium’s vehicle to temporarily pause implementation of
generally apply prospectively . . . , adjudicatory rules may have a permissible retroactive effect,
even without authorization from Congress, in some circumstances.” (citation omitted)).
187 See Docket 7 at 20–21, ¶¶ 76–83 (describing AIDEA’s efforts to secure its leases, which
were effective beginning January 1, 2021, shortly before issuance of EO 13990 on January 20,
2021).
188 The other two lessees chose to cancel their leases and receive refunds of their lease
payments. AR 3785, ¶ 13; AR 3790, ¶ 13.
189 Union Flights, Inc. v. Adm’r, FAA, 957 F.2d 685, 689 (9th Cir. 1992) (citations omitted).
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the Program; they did not amend an existing rule or bypass a pending rulemaking
proceeding in so choosing.
In short, Secretarial Order 3401 is not broad or general in scope with the
intent to be applied by Agency Defendants to unspecified future leasing. Rather,
it is specific and limited to just one EIS for one leasing program. Likewise, BLM’s
actions to implement Secretarial Order 3401—which, as Plaintiffs put it, “prohibit[]
all access for oil and gas activities during the moratorium”190—fall squarely within
the realm of adjudication rather than rulemaking. These actions took the form of
“individual order[s]” issued to the lessees informing each of them of the suspension
of their leases191 and specific responses to AIDEA’s contractors’ requests to
proceed with activities on the leased lands.192 The Court finds that Agency
Defendants operated within their discretionary authority to use adjudication as the
means to exercise their statutory authority to address the identified legal
deficiencies specific to the Program, which involves a finite, limited number of
parties.193
190 Docket 7 at 28, ¶ 123. These actions include BLM’s issuance of the SOP Letter; refusal to
process AIDEA’s contractors’ applications for rights-of-way, easements, or permits; and alleged
“reopening” of the lease sale. Docket 7 at 30, ¶ 133.
191 See SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (noting agencies may act “by general
rule or by individual order”); AR 3364–65, 3714–17.
192 AR 3395–96, 3399–3400.
193 See Montgomery Ward, 691 F.2d at 1328 (“It is well settled that the decision whether to
proceed by adjudication or rule-making ‘lies in the first instance within the agency’s discretion.’”
(alteration omitted) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974))). To the
extent Secretarial Order 3401 or the SOP Letter interprets statutes such as the Tax Act or
redelegates authority within DOI, they could be considered interpretative rules or rules of
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Plaintiffs maintain that the Moratorium is a substantive rule because
Secretarial Order 3401 constrains DOI staff’s discretion to authorize oil and gas
activities on the Coastal Plain and is “binding.”194 Plaintiffs cite several cases,
including one Ninth Circuit case, Mada-Luna v. Fitzpatrick, that they maintain
support their position.195 Agency Defendants respond that Mada-Luna is
inapposite because it concerned a “general policy constraining implementing
official discretion in a multitude of future, distinct cases.”196
In Mada-Luna, the Ninth Circuit held that an internal Immigration and
Naturalization Service (“INS”) directive issued to agency officials as an operating
instruction did not violate the notice-and-comment requirements of the APA.197
The instruction listed factors that INS district directors should consider in
determining whether to defer immigration action with respect to undocumented
persons.198 The court held that the instruction was rulemaking but fell within the
“general statements of policy” exception to the notice-and-comment requirements
agency organization, procedure, or practice. Neither of these types of rulemaking requires
adherence to notice-and-comment procedures. 5 U.S.C. § 553(b)(3)(A).
194 Docket 60 at 32–35.
195 Docket 60 at 33 (first citing Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987);
then citing Casa De Md. v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 702 (4th Cir. 2019); and
then citing Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000)).
196 Docket 63 at 38.
197 Mada-Luna, 813 F.2d at 1009; see also 5 U.S.C. § 553(b)(3)(A) (exempting “general
statements of policy” from notice-and-comment requirements).
198 Mada-Luna, 813 F.2d at 1008 n.1.
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because it did not establish a “binding norm” that prohibited agency officials from
considering individual facts in individual cases.199 Mada-Luna is inapposite
because Secretarial Order 3401 is not a general statement of policy applicable to
all future agency actions on a particular topic; it is instead an agency adjudication
limited to one EIS—the Program’s EIS.
The other two cases Plaintiffs cite, Casa De Maryland and Appalachian
Power Company, are inapposite for a similar reason: Like Mada-Luna, the former
differentiated legislative rules subject to notice and comment from general
statements of policy,200 whereas the latter differentiated agency guidance from a
legislative rule to be prospectively enforced against unidentified future persons or
entities.201 Neither case supports the proposition that the agency action in this
case—directed solely at the identified lessees on the Coastal Plain—is a
substantive rule subject to notice and comment.
Because the Moratorium constitutes an adjudication, and the APA’s notice-
and-comment procedures do not apply to agency adjudications, Agency
199 Id. at 1016–17.
200 See Casa De Md., 924 F.3d at 701–02 (“Plaintiffs argue that DACA's rescission required
notice and comment under the APA because the Rescission Memo is a legislative rule that
mandates how Department officials must act and substantively affects DACA recipients. The
government rejects this premise, countering that the Memo is a general statement of policy.”).
201 See Appalachian Power Co., 208 F.3d at 1021 (“If an agency acts as if a document issued at
headquarters is controlling in the field, if it treats the document . . . as it treats a legislative rule,
if it bases enforcement actions on the policies or interpretations formulated in the document, . . .
then the agency’s document is . . . ‘binding.’” (citation omitted)).
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Defendants did not violate the APA’s notice-and-comment procedures by
implementing the Moratorium.202
B. Reversal of Position
Plaintiffs and the State next allege that Agency Defendants “failed to provide
a reasoned explanation” for reversing their prior position, expressed in separate
litigation before this Court, that the Program had “satisfied all legal
requirements.”203 Federal Defendants respond that “[n]o reversal [of position]
has yet occurred” because the ROD remains in place pending the Supplemental
EIS process currently underway.204 In the alternative, Federal Defendants assert
that they provided a reasoned explanation for supplementing the Program’s
environmental analysis,205 an argument Intervenor-Defendants echo.206
202 As a result, the Court need not consider the degree to which Secretarial Order 3401
constrains the discretion of DOI staff.
203 Docket 60 at 36; see also Docket 59 at 30–31 (alleging that Agency Defendants contradicted
their prior findings “without acknowledgment or explanation of the contradiction”). That separate
litigation is Gwich’in Steering Comm. v. Haaland, Case No. 3:20-cv-00204-SLG (D. Alaska filed
Aug. 24, 2020), and Native Vill. of Venetie Tribal Gov’t v. Haaland, Case No. 3:20-cv-00223-SLG
(D. Alaska filed Sept. 9, 2020). The Court stayed those cases pending the supplemental NEPA
review currently in progress. Text Order, Gwich’in Steering Comm., Case No. 3:20-cv-00204-
SLG (D. Alaska Feb. 12, 2021), ECF No. 75; Order Re Defs.’ & Pls.’ Unopposed Mot. to Stay
Proceedings, Native Vill. of Venetie, Case No. 3:20-cv-00223-SLG (D. Alaska Sept. 13, 2021),
ECF No. 77.
204 Docket 63 at 39–40.
205 Docket 63 at 40–41.
206 Docket 64 at 31–36; Docket 65 at 25–28.
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1. Whether Agency Defendants Changed Positions
The requirement that an agency explain when it changes its position applies
somewhat broadly to a “subsequent agency action undoing or revising” a prior
agency action.207 This requirement applies to a change in “agency policy,”
although no precedent specifies what, precisely, constitutes an “agency policy” in
this context.208 A survey of the caselaw suggests that this requirement applies to
any agency practice, interpretation, or position, whether announced through formal
means, such as a rescission of a federal regulation published in the Federal
Register, or less formal means, such as a change in an interpretation of a statute
that arises through an enforcement action or issuance of a ROD.
In FCC v. Fox Television Stations, Inc., the specific change at issue was the
Federal Communications Commission’s (the “FCC”) new interpretation of a federal
prohibition on the use of expletives in certain broadcasts.209 The FCC’s changed
position surfaced in orders issued to broadcasters whose broadcasts featured
allegedly indecent language that violated the newly revised federal prohibition.210
The Supreme Court held that the FCC’s reversal was not arbitrary or capricious
because the FCC “forthrightly acknowledged that its recent actions have broken
207 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
208 See, e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221–22 (2016) (discussing Fox
and its precursor cases).
209 556 U.S. at 505–10.
210 Id. at 509–13.
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new ground” and it had provided “rational” reasons for the new policy rooted in a
“context-based approach” intended to reduce the widespread use of offensive
language.211 Other courts have applied the reasoned explanation requirement to
myriad settings, including a new statutory interpretation contained in a formal
federal rule that was inconsistent with an agency’s prior practice,212 a decision that
a species warranted listing as an endangered or threatened species that
contradicted a prior listing decision,213 a finding in a ROD concerning the cost-
benefit analysis of a regulation that contradicted the cost-benefit analysis in a prior
ROD,214 and an agency’s agreement to transfer land to a Native corporation to
build a road after concluding in an earlier ROD that the road’s construction would
not be in the public interest.215
With this caselaw in mind, the Court considers the two specific reversals
Plaintiffs allege: (1) the alleged reversal of the ROD and (2) the alleged reversal of
Agency Defendants’ position regarding the legality of the Program, namely its
NEPA review. Beginning with the first alleged reversal, the Court finds that Agency
Defendants have not yet “undone” or “revised” the ROD because, to date, they
211 Id. at 517–19.
212 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981–82 (2005).
213 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1060–62 (9th Cir. 2018).
214 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966–68 (9th Cir. 2015) (en
banc).
215 Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1133, 1139 (D.
Alaska 2019).
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have not issued a revised ROD or other document that purports to rescind or
replace the August 2020 ROD.
As for the second alleged reversal, there is no genuine dispute that Agency
Defendants changed their position regarding the legality of the Program’s
implementation. Agency Defendants promulgated the existing EIS and ROD
during the previous presidential administration, defended their legality in litigation
before this Court, and relied on the ROD to conduct the Program’s first lease
sale.216 Then, following the new administration’s issuance of EO 13990,
Secretarial Order 3401 identified alleged legal deficiencies in the Program’s
implementation, such as a failure to adequately analyze a reasonable range of
alternatives in the EIS and a failure to properly interpret the Tax Act.217 The SOP
Letter expanded upon these deficiencies and identified other potential deficiencies
or concerns warranting additional analysis, such as “compliance with Section 810
of [ANILCA]”218 and the Ninth Circuit’s December 2020 decision in Center for
Biological Diversity v. Bernhardt.219
216 See generally AR 1–3226 (EIS, ROD, and associated notices of availability); AR 3227–3316
(lease sale materials); Fed. Defs.’ Combined Mem. in Opp’n to Pls.’ Mots. for Prelim. Inj.,
Gwich’in Steering Comm., Case No. 3:20-cv-00204-SLG (D. Alaska Dec. 23, 2020), ECF No.
59.
217 AR 3362.
218 AR 3364–65.
219 982 F.3d 723 (9th Cir. 2020).
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The issue is not whether there was a positional change, as there
indisputably was, but instead whether the positional change rises to the level of a
change that warrants a reasoned explanation. Agency Defendants expressed their
initial position regarding the legality of the Program’s NEPA review in an EIS and
ROD and in litigation defending those documents. Agency Defendants effectuated
their positional change through a Secretarial Order, the SOP Letter, and, to some
extent, subsequent adjudicatory decisions—e.g., the refusal to process AIDEA’s
contractors’ applications to begin archeological and seismic investigations—but
have not done so in a formal instrument such as a ROD. The Court agrees with
Plaintiffs and the State that Agency Defendants have changed their position such
that the reasoned explanation requirement applies. Defendants have identified no
caselaw requiring that the reversal be expressed in “a rule or a formal agency
position of general applicability.”220 Here, Agency Defendants paused
implementation of a program that they had been in the process of implementing
because they changed their view on the program’s legality. Such a reversal
constitutes a change in agency policy. As a result, the Court moves to the next
step of the analysis, which is to determine if Agency Defendants acknowledged
and adequately explained their new position.
220 Docket 63 at 39.
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2. Whether Agency Defendants Provided a Reasoned
Explanation for the Policy Change
Courts do not provide “heightened review” to an agency action that changes
a prior policy.221 Rather, under Fox, a court’s review focuses on whether (1) the
agency “display[s] awareness that it is changing position,” (2) “the new policy is
permissible under the statute,” (3) “there are good reasons for” the new policy, and
(4) “the agency believes [the new policy] to be better.”222
Here, the Court finds that each of the Fox requirements is met. Agency
Defendants acknowledged their change in position from implementing to pausing
the Program by stating in Secretarial Order 3401 and the SOP Letter that they
were aware of the Program’s implementation through the EIS, ROD, and lease
sale and were suspending it due to the identification of legal deficiencies in the
Program’s NEPA review, interpretation of the Tax Act, and compliance with
ANILCA.223 Although Agency Defendants did not expressly state in Secretarial
Order 3401 and the SOP Letter that they had previously not identified any legal
deficiencies in the Program and had defended that position in litigation, they
acknowledged a departure from their previous position by describing the prior
221 California ex rel. Becerra v. Azar, 950 F.3d 1067, 1096 (9th Cir. 2020) (citing Fox, 556 U.S. at
514).
222 Fox, 556 U.S. at 515 (citation omitted) (emphasis in original).
223 See AR 3362 (quoting EO 13990, which references the ROD); AR 3364–65 (acknowledging
alleged deficiencies or potential deficiencies with the Program’s greenhouse gas analysis,
compliance with section 810 of ANILCA, and interpretation of the Tax Act, which were part of the
“NEPA documents underlying the competitive lease sale”).
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NEPA review and explaining the basis for their current position that the prior NEPA
review was legally deficient.224 The caselaw does not require Agency Defendants
to be more explicit, as they simply must “display awareness that [they are]
changing position,”225 which they have done.
As for the remaining factors, Agency Defendants cited multiple statutes in
Secretarial Order 3401 and the SOP Letter that they maintain support their
decision to implement the Moratorium: the Tax Act, NEPA, and possibly also
ANILCA.226 As discussed above, the Moratorium “is permissible under the[se]
statute[s].”227 Further, the Court may presume that Agency Defendants believe
that their new position is “better” since they identified legal deficiencies in the
Program’s implementation that they determined warranted a temporary pause.228
Agency Defendants also satisfied the requirement to provide “good reasons”
to justify their positional change. It is not a coincidence that Agency Defendants
identified legal errors in the Program promptly after a change in presidential
administrations. A political motivation for a policy change may not necessarily by
224 This is not a case where Agency Defendants failed entirely to discuss the substance of how
their new policy diverges from the prior policy. See Ctr. for Biological Diversity v. Haaland, 998
F.3d 1061 (9th Cir. 2021) (vacating agency’s decision that Pacific walrus no longer qualified as
threatened species where decision referred to contradictory prior finding only in a discussion of
the decision’s procedural history).
225 Fox, 556 U.S. at 515 (emphasis omitted).
226 AR 3362, 3364–65.
227 Fox, 556 U.S. at 515; see also discussion supra Section I.
228 Vill. of Kake, 795 F.3d at 967 (“[W]e assume the Department ‘believes’ the new policy is
better because it decided to adopt it.” (quoting Fox, 556 U.S. at 515)).
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itself be a “good reason” for a positional change.229 And yet, as the Supreme Court
explained, “[a]n initial agency interpretation is not instantly carved in stone. On the
contrary, the agency . . . must consider varying interpretations and the wisdom of
its policy on a continuing basis, for example, in response to changed factual
circumstances, or a change in administrations.”230 And “a court may not reject an
agency’s stated reasons . . . simply because the agency might also have had other
unstated reasons.”231 Instead, a court should evaluate only the reasons the
agency provided when explaining its new policy.232
An agency’s reasons for a change can be sufficient even if they simply take
the form of a “brief” explanation that the agency’s “interpretation is ‘more
consistent’ with statutory language” than an earlier interpretation.233 This is
precisely what Agency Defendants have done here. Agency Defendants identified
violations of NEPA, and numerous federal courts over the past half-century have
229 See Coteau Props. Co. v. U.S. Dep’t of the Interior, 53 F.3d 1466, 1478 (8th Cir. 1995)
(rejecting withdrawal of agency decision following change in administration when agency made
“no pretense of applying . . . the deferential standard of review mandated by [its] own
regulations”); Amalgamated Transit Union, Int’l v. U.S. Dep’t of Lab., Case No. 2:20-cv-00953-
KJM-DB, 2022 WL 17978627, at *24 (E.D. Cal. Dec. 28, 2022) (invalidating agency decisions
“motivated by a desire to reach a specific outcome, and . . . not informed by expertise, evidence
or careful analysis”).
230 Brand X Internet Servs., 545 U.S. at 981 (emphasis added) (citations and internal quotation
marks omitted).
231 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (citation omitted).
232 Michigan v. EPA, 576 U.S. 743, 758 (2015) (observing the “foundational principle of
administrative law” that a court’s review is limited to “the grounds that the agency invoked when
it took the action.” (citation omitted)).
233 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (citations omitted).
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found NEPA violations to be significant enough to warrant the suspension of
important federal projects.234 Agency Defendants also identified a purported
misinterpretation of the Tax Act—the primary substantive law authorizing the
Program—concerning the number of surface acres that the Interior Secretary must
authorize to be covered by oil and gas production and support facilities.235 Further,
Agency Defendants noted, albeit without providing additional explanation, that they
identified a possible error concerning the other substantive law governing the
Program, ANILCA.236 For these reasons, Plaintiffs’ contention that the Interior
Secretary “does not explain how she reached [her] determination” and “makes no
attempt to reconcile the Moratorium with Interior’s prior position that the
environmental review complied ‘with all appliable [sic] laws’” is unfounded.237
Additionally, the Ninth Circuit has held that conforming an agency’s analysis
to federal appellate decisions can be a “good reason” to justify a change in
position.238 In Center for Biological Diversity v. Bernhardt, the Ninth Circuit held
234 See, e.g., Citizens for Responsible Area Growth v. Adams, 477 F. Supp. 994, 1006 (D.N.H.
1979); Nat’l Audubon Soc’y v. Hodel, 606 F. Supp. 825, 846 (D. Alaska 1984); City of Tenakee
Springs v. Block, 778 F.2d 1402, 1407–08 (9th Cir. 1985).
235 AR 3365 (citing Tax Act § 20001(c)(3)).
236 See AR 3364 (“[T]he Department has identified several areas for which additional analysis
may either address a potential legal defect or, at a minimum, serve NEPA’s purpose to
meaningfully inform the decisionmaker as to the environmental consequences of federal action.
These include . . . compliance with section 810 of [ANILCA].”).
237 Docket 60 at 36.
238 See Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 682 (9th Cir. 2016) (approving National
Marine Fisheries Service’s explanation for adopting a new approach to climate analysis during
the Endangered Species Act review process based in part on conformance to federal appellate
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that a NEPA analysis of a planned offshore oil drilling and production facility was
deficient because it failed to include greenhouse gas emissions estimates resulting
from foreign oil consumption in its analysis of the no-action alternative.239 Here,
the EIS prepared in conjunction with the Program similarly fails to consider
greenhouse gas emissions estimates resulting from foreign oil consumption.240
Although BLM’s EIS for the Program attempts to explain why it did not consider
the Program’s impact on foreign oil consumption and greenhouse gas emissions,
the Ninth Circuit rejected those same arguments in Center for Biological
Diversity.241
The Ninth Circuit issued its Center for Biological Diversity decision after
Agency Defendants completed the EIS, issued the ROD, and provided the public
with notice of the lease sale.242 Although the lease sale took place shortly after
decisions interpreting the Act’s “best data available” standard).
239 982 F.3d at 736.
240 See AR 84 (“Note that BOEM did not model alternative future carbon policies and foreign
energy consumption . . . .”); AR 1019 (“[T]here are currently no reliable methodologies for
forecasting foreign energy cross-price elasticities and oil/gas price shock substitution responses
to arrive at a global [greenhouse gas] emissions impact from associated domestic changes.”);
AR 1690 (explaining, in response to a comment, BLM’s position that the D.C. Circuit Court of
Appeals “has held that agencies are not required to model how their actions will affect global
energy markets and how those market changes will, in turn, affect foreign greenhouse gas
emissions” (citation omitted)).
241 Ctr. for Biological Diversity, 982 F.3d at 737–740; see also Sovereign Iñupiat for a Living
Arctic v. Bureau of Land Mgmt., 555 F. Supp. 3d 739, 762–67 (D. Alaska 2021) (vacating BLM’s
approval of proposed oil and gas development project in part because BLM’s greenhouse gas
emissions analysis suffered from the same flaws the Ninth Circuit identified in Center for
Biological Diversity).
242 See generally AR 1–3135 (EIS); AR 3138–3225 (ROD); AR 3227–28 (notice of lease sale).
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the Center for Biological Diversity decision was released, Agency Defendants likely
did not have an opportunity to consider the Ninth Circuit’s holding when conducting
that sale. Because the Ninth Circuit’s holding governs the greenhouse gas
analysis necessary for an oil and gas program to proceed in accordance with
NEPA, it is reasonable for Agency Defendants to pause the Program to reconsider
its underlying NEPA analysis in light of the recent holding.243 It is particularly
reasonable to pause the Program at this early stage where “no irreparable and
irretrievable commitment of resources has occurred”244 given the lessees’
opportunity to receive refunds of their bid and rental payments and the lack of
mobilization to conduct exploration or development activities.245
Given the above, the Court finds that Agency Defendants’ explanation in
Secretarial Order 3401 and the SOP Letter satisfies the requirements for a
reasoned explanation articulated in Fox. Their explanation is not, as the State puts
it, a set of conclusory, “generic statements” concerning the Program’s possible
legal deficiencies.246 And where Agency Defendants’ explanation contradicts
243 Cf. Citizens for Clean Energy v. U.S. Dep’t of the Interior, 621 F. Supp. 3d 1165, 1175 (D.
Mont. 2022) (reinstating previously issued coal leasing moratorium until BLM performed a
sufficient NEPA analysis).
244 Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 324 F. Supp. 3d 597, 624 (E.D.N.C.
2018) (citing Nat’l Audubon Soc’y v. U.S. Dep’t of Navy, 422 F.3d 174, 206 (4th Cir. 2005)), aff’d,
914 F.3d 213 (4th Cir. 2019).
245 See AR 3782–92 (agreements and notices regarding rescission of leases and refund of
payments).
246 Docket 59 at 28.
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earlier positions expressed in the ROD, EIS, and prior litigation, they provide
reasons that reflect “a rational connection” to their decision to implement the
temporary Moratorium.247
The cases that Plaintiffs and the State cite in which courts have deemed an
agency’s explanations to be inadequate are inapposite.248 Plaintiffs and the State
assert that Village of Kake involved a similar circumstance to the present case.249
But Village of Kake involved a policy change that rested on changed factual
findings.250 Under the Supreme Court’s Fox jurisprudence, if an agency’s new
policy rests upon factual findings that contradict those contained in a prior decision,
a “more substantial justification” is required.251 In Village of Kake, the Ninth Circuit
affirmed the district court’s vacatur of a 2003 ROD and reinstatement of a 2001
ROD because the 2003 ROD “did not simply rebalance old facts to arrive at the
247 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52
(1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
248 Docket 59 at 30 (first citing Los Padres ForestWatch v. U.S. Forest Serv., 25 F.4th 649, 657
(9th Cir. 2022); and then citing California v. Bernhardt [sic], 286 F. Supp. 3d 1054, 1065–68
(N.D. Cal. 2020 [sic])); Docket 59 at 33 (citing Vill. of Kake, 795 F.3d at 966); Docket 60 at 38
(first citing Organized Vill. of Kake v. U.S. Dep’t of Agric., 776 F. Supp. 2d 960, 974 (D. Alaska
2011); and then citing Vill. of Kake, 795 F.3d at 966). It appears that the State incorrectly named
one of these cases in its briefing. The case located at 286 F. Supp 3d 1054 is California v.
Bureau of Land Management, not California v. Bernhardt, although there is a 2020 decision
from the Northern District of California with that name. California v. Bernhardt, 472 F. Supp. 3d
573 (N.D. Cal. 2020).
249 Docket 59 at 33 (citing Vill. of Kake, 795 F.3d at 966, 969); Docket 60 at 38 (citing Vill. of
Kake, 795 F.3d at 966).
250 Vill. of Kake, 795 F.3d at 968.
251 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 106 (2015).
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new policy” but instead “made factual findings directly contrary to the 2001 ROD
and expressly relied on those findings to justify the policy change.”252 Village of
Kake is inapposite because Agency Defendants did not base the Moratorium on
new factual findings that contradict their prior factual findings. Rather, any
contradiction lies in Agency Defendants’ position regarding the legality of the
Program’s NEPA review.
In Los Padres ForestWatch, the U.S. Forest Service “fail[ed] to provide
evidence of the average or median” diameter of trees that would qualify as
“generally small diameter timber” pursuant to federal regulations.253 The
memorandum approving the project “contain[ed] a bare assertion—with no
supporting analysis—that . . . 21-inch [diameter-at-breast-height] trees are ‘smaller
trees’ consistent with the Roadless Area Conservation Rule.”254 Not only did the
Forest Service fail entirely to explain its conclusion regarding the trees at issue,
but its conclusion also contradicted other evidence in the record, such as an
Environmental Assessment prepared for a nearby project that concluded that
“larger diameter” trees have a diameter at breast height exceeding 10 inches.255
Here, Agency Defendants did not leave their policy change unexplained, and their
252 Vill. of Kake, 795 F.3d at 968.
253 25 F.4th at 657.
254 Id.
255 Id. at 658.
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rationale did not contradict explicit factual findings contained elsewhere in the
record.
In California, BLM promulgated a rule, referred to by the district court as “the
Suspension Rule,” that suspended certain provisions of BLM’s Waste Prevention
Rule, a rule which had sought to “reduce waste of natural gas from venting, flaring,
and leaks during oil and natural gas production activities.”256 The court found that
the Suspension Rule’s reasoning was “untethered to evidence contradicting the
reasons for implementing the Waste Prevention Rule” because BLM had initially
found that the Waste Prevention Rule imposed “economical, cost-effective, and
reasonable measures . . . to minimize gas waste,” but in the Suspension Rule
found that it had “concerns regarding the statutory authority, cost, complexity,
feasibility, and other implications” of the Waste Prevention Rule.257 Because the
Suspension Rule contained factual findings that appeared to “contradict those
underlying its prior policy,” lacked other factual support, and were “not properly
tailored” to address the concerns BLM identified with respect to the prior rule, the
court enjoined enforcement of the rule due to BLM’s failure to meet the “more
detailed justification” standard.258
256 286 F. Supp. 3d at 1058 (citation omitted).
257 Id. at 1058, 1065.
258 Id. at 1065–67 (quoting Fox, 556 U.S. at 515).
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Again, California is not directly applicable to the case at hand because the
reasons Agency Defendants offered for their policy change are not contradictory
factual findings about the Program’s operation; rather, they are contradictory legal
conclusions as to the EIS’s compliance with NEPA. For example, the ROD
concluded that the Tax Act’s provision that the Interior Secretary “shall authorize
up to 2,000 surface acres” means that BLM “cannot” consider “[a]n alternative that
allowed less than 2,000 acres of surface facilities”; Agency Defendants announced
the Moratorium in part because they determined the ROD’s interpretation was
incorrect, which had a significant impact on the NEPA review since it eliminated
from consideration any alternative with lesser surface acreage.259
Even though California is not directly applicable to the instant case, it still
lends support to Agency Defendants’ primary justification for the Moratorium—to
ensure that the NEPA analysis accounts for subsequently identified legal errors so
the Program can proceed in accordance with the law.260 As the court in California
observed, a “concern for judicial review may serve to justify a suspension or
delay.”261 There, BLM’s stated concern for judicial review was insufficient to justify
the Suspension Rule because BLM tailored the Suspension Rule “to achieve its
259 AR 76, 3365. The Court expresses no opinion in this order as to this legal issue.
260 AR 3364–65.
261 286 F. Supp. 3d at 1068.
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goal of relieving operators and the agency of the burden of complying with a rule
that may shortly change.”262
Here, by contrast, BLM’s stated concern was that the Program may be
based on a “specific legal error” implicated in then-pending court cases.263 The
reasons for the Moratorium expressed in Secretarial Order 3401 and the SOP
Letter therefore are tethered to a concern about legality and judicial review and not
to some unrelated concern, such as a political motivation or desire to address
climate change. Political and climate-inspired motivations may have also been
present, but Agency Defendants appropriately tailored the Moratorium to address
specifically identified legal concerns that, once addressed, should facilitate Agency
Defendants’ efforts to implement the Program in accordance with the law.
In sum, the Court finds that Agency Defendants’ explanation for the
Moratorium satisfies their obligations pursuant to Fox.
3. The State’s Related Arguments
The State raises two related arguments concerning Agency Defendants’
policy change, which the Court addresses in turn.
a. The Moratorium does not rescind the ROD.
The State contends that the Moratorium “functionally rejects, suspends, and
even rescinds the ROD . . . without any independent lawful authorization nor with
262 Id. (citation omitted).
263 AR 3362–63 (noting “legal deficiencies”); AR 3365 (describing potential implications to NEPA
analysis after the Ninth Circuit issued Center for Biological Diversity in December 2020).
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any process that would otherwise be required for such an action.”264 The State
characterizes the Moratorium as “simply abandon[ing] an otherwise valid
decision.”265 But as noted throughout this order, the Moratorium is a temporary
pause in Agency Defendants’ implementation of the Program. Nothing in
Secretarial Order 3401 or the SOP Letter “abandons” the ROD. At some future
time, Agency Defendants may choose to “reject[], suspend[], [or] even rescind[]
the ROD” based on the results of their ongoing supplemental NEPA analysis, but
they have not done so at this time.266 Instead, the final agency action properly
challenged in this suit is Agency Defendants’ decision to pause the Program’s
implementation, not a rejection or rescission of the ROD.
b. The Moratorium’s purpose is valid.
The State next alleges that the Moratorium is founded on an invalid
purpose.267 But the State fundamentally misconstrues the Moratorium’s purpose.
The purpose of the Moratorium is not, as the State contends, to “determine
whether to reaffirm or void the Coastal Plain leases.”268 That may be part of the
purpose of the supplemental NEPA review, but the issues of whether Agency
Defendants have the authority to cancel any leases and under what circumstances
264 Docket 59 at 20.
265 Docket 59 at 20.
266 Docket 59 at 20.
267 Docket 59 at 23.
268 Docket 59 at 24.
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are not before this Court.269 The purpose of the Moratorium—the agency action
that is properly challenged and currently before the Court—is to provide time for
Agency Defendants to ensure that the Program is implemented in accordance with
applicable laws.270 It is well within DOI’s authority to issue leases pursuant to the
Program and to pause lease implementation to address legal errors that could lead
a federal court to reject the Program and remand it to Agency Defendants,
triggering another years-long NEPA process.271
The State acknowledges this authority in its reply but asserts that an agency
cannot reconsider a decision “when Congress has provided a mechanism capable
of rectifying mistaken actions.”272 The State asserts that Congress, through NEPA,
269 Regardless, as discussed above, the leases clearly provide authority for Agency Defendants
to cancel the leases if, for example, a “lessee fails to comply with any provisions of” the lease.
E.g., AR 3312.
270 See AR 3362 (“Based on th[e] identified deficiencies, the Department . . . will conduct a new,
comprehensive analysis of the potential environmental impacts of the Program and address the
identified legal deficiencies. While that analysis is pending, I direct a temporary halt on all
Department activities related to the Program . . . .”); AR 3365 (“[T]he Department has concluded
that it is necessary to suspend the above-referenced lease(s) . . . . The BLM will undertake this
additional NEPA analysis to determine whether the leases should be reaffirmed, voided or
subject to additional mitigation measures.”).
271 See Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (“[A]dministrative
agencies are assumed to possess at least some inherent authority to revisit their prior
decisions, at least if done in a timely fashion.” (citations omitted)); discussion supra Section
I.C.3 (citing Boesche v. Udall, 373 U.S. 472 (1963)). Likewise, “notions of administrative
autonomy require that [an] agency be given a chance to discover and correct its own errors.”
See McKart v. United States, 395 U.S. 185, 195 (1969) (discussing reasons underlying the
administrative exhaustion doctrine). This includes “giving the agency an opportunity to fix its
own mistakes before it is brought to court.” William Loveland Coll. v. Distance Educ.
Accreditation Comm’n, 347 F. Supp. 3d 1, 13 (D.D.C. 2018), aff’d sub nom. William Loveland
Coll. v. Distance Educ. Accrediting Comm’n, 788 F. App’x 5 (D.C. Cir. 2019).
272 Docket 66 at 8 (quoting Ivy Sports, 767 F.3d at 86).
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provided “a detailed process that federal agencies can and do use to modify or
replace an existing ROD—a process that involves input by the public and other
stakeholders.”273 But this contention again mischaracterizes the Moratorium,
which does not modify or replace the Program’s formal NEPA review or associated
documentation; it instead pauses the Program’s implementation so Agency
Defendants can conduct additional NEPA analysis and correct the Program’s
alleged legal deficiencies. To the extent Agency Defendants develop a new EIS
or ROD in an effort to rectify the alleged deficiencies, those efforts would require
adherence to the applicable procedures established by Congress in NEPA and
any applicable implementing regulations.
In light of the above, the Court concludes that the Moratorium’s purpose,
and Agency Defendants’ authority to pursue that purpose, are each valid.
C. Agency Defendants Have Not Unlawfully Delayed or
Unreasonably Withheld Agency Action
Plaintiffs’ remaining argument is that Agency Defendants “are unlawfully and
unreasonably delaying the completion of . . . discrete, required actions” pursuant
to the Tax Act.274 They focus primarily on the statute’s directive that the Interior
Secretary “shall issue any rights-of-way or easements across the Coastal Plain for
the exploration, development, production, or transportation necessary to carry out
273 Docket 66 at 8 (first citing 42 U.S.C. § 4332(C); and then citing 40 C.F.R. §§ 1501–06).
274 Docket 60 at 39–40.
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this section.”275 Plaintiffs maintain that the Court “shall compel” these actions
pursuant to Section 706(1) of the APA.276
Agency Defendants counter that they are not unlawfully withholding action
because they satisfied the requirement to hold the Program’s first lease sale and
are “well within the statutory timeline for the second required sale.”277 With regard
to the issuance of easements and rights-of-way, Agency Defendants maintain that
a court can only invoke Section 706(1) of the APA when an agency has failed “to
perform a ministerial or non-discretionary act,” not an action over which the agency
is accorded discretion.278
The APA provides that a court “shall compel agency action unlawfully
withheld or unreasonably delayed,” including a failure to act.279 Judicial review of
an agency’s failure to act is limited, however, in order “to protect agencies from
undue judicial interference with their lawful discretion, and to avoid judicial
entanglement in abstract policy disagreements which courts lack both expertise
and information to resolve.”280 It follows that a court may not compel agency action
275 Tax Act § 20001(c)(2).
276 Docket 60 at 39 (citing 5 U.S.C. § 706(1)).
277 Docket 63 at 28; see also Docket 64 at 23 (“Interior did not . . . miss deadlines in the Tax
Act.”).
278 Docket 63 at 26–27 (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)
[hereinafter SUWA]).
279 5 U.S.C. § 706(1); see also 5 U.S.C. § 551(13) (defining “agency action” to “include[] the . . .
failure to act”).
280 SUWA, 542 U.S. at 66.
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whenever an agency is withholding or delaying any action.281 Rather, a court’s
authority to compel agency action “is carefully circumscribed to situations where
an agency has ignored a specific legislative command.”282 To prevail on a Section
706(1) claim, a plaintiff must establish “that an agency failed to take a discrete
agency action that it is required to take.”283 A court must leave “the manner of its
action . . . to the agency’s discretion” since a court “has no power to specify what
the action must be.”284
In the Ninth Circuit, an action is “unlawfully withheld” if “Congress has
specifically provided a deadline for performance” and the agency has not met that
deadline.285 When there is no set deadline by which an agency must act, a court
evaluates whether the agency’s delay is unreasonable by applying the six factors
established by the D.C. Circuit in Telecommunications Research & Action Center
v. FCC286 and adopted by the Ninth Circuit in Independence Mining Co. v.
Babbitt:287
(1) the time agencies take to make decisions must be governed by a
rule of reason; (2) where Congress has provided a timetable or other
281 Or. Nat. Desert Ass’n v. Bushue, Case No. 3:19-cv-1550-SI, 2022 WL 17487065, at *2 (D.
Or. Dec. 7, 2022).
282 Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).
283 SUWA, 542 U.S. at 64 (emphasis in original).
284 Id. at 65.
285 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002).
286 750 F.2d 70 (D.C. Cir. 1984) [hereinafter TRAC].
287 105 F.3d 502, 507 (9th Cir. 1997).
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indication of the speed with which it expects the agency to proceed in
the enabling statute, that statutory scheme may supply content for this
rule of reason; (3) delays that might be reasonable in the sphere of
economic regulation are less tolerable when human health and
welfare are at stake; (4) the court should consider the effect of
expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the
court need not find any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably delayed.288
The rule of reason is the most important factor in this analysis because, in
determining an “appropriate timeline for agency action, the Ninth Circuit has
instructed district courts to follow a standard of reasonableness.”289 Although
“there is no per se rule as to how long is too long” for agency action,290 the Ninth
Circuit has observed that a delay of more than six years may be “nothing less than
egregious.”291 Similarly, the Ninth Circuit held that an eight-year delay with no
concrete timeline to reach a final ruling was a “roadmap for further delay” that
“stretched the ‘rule of reason’ beyond its limits.”292
Plaintiffs rely on one Supreme Court case supporting the proposition that
when an agency fails to take a discrete step it is required to take, a court must
288 TRAC, 750 F.2d at 80 (internal quotation marks and citations omitted).
289 Audubon Soc’y of Portland v. Jewell, 104 F. Supp. 3d 1099, 1102 (D. Or. 2015) (citations
omitted); see also Or. Nat. Desert Ass’n, 2022 WL 17487065, at *17 (“Although not dispositive,
the first factor in the TRAC analysis is the most important.” (citing In re A Community Voice, 878
F.3d 779, 786 (9th Cir. 2017))).
290 In re Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992).
291 In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1139 (9th Cir. 2020) (citations omitted).
292 In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015).
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invoke the APA to compel that action.293 However, the operative statutes
governing the Program—primarily the Tax Act—do not prescribe any discrete
steps that Agency Defendants have yet failed to take. The Tax Act requires DOI
to hold “the initial lease sale under the oil and gas program . . . not later than 4
years after the date of enactment of this Act.”294 Agency Defendants conducted
the Program’s first lease sale on January 6, 2021.295 Congress enacted the Tax
Act on December 22, 2017, so Agency Defendants handily met this deadline.296
Agency Defendants have not cancelled, rescinded, nullified, or otherwise undone
the first lease sale.297 And the second lease sale deadline of December 22, 2024,
has not yet passed.298
As for the Tax Act’s mandate to the Secretary to “issue any rights-of-way or
easements . . . necessary to carry out this section,” this provision does not specify
a timeframe by which Agency Defendants must act, and the Tax Act provides them
293 Docket 60 at 39–40 (citing SUWA, 542 U.S. at 64). In SUWA, the Supreme Court held that
statements in a land use plan reflecting BLM’s intention to conduct supervision and monitoring
activities were “not a legally binding commitment enforceable under § 706(1),” and, as such, the
Supreme Court did not decide whether the statements were “sufficiently discrete to be
amenable to compulsion under the APA.” SUWA, 542 U.S. at 72.
294 Tax Act § 20001(c)(1)(B)(ii)(I).
295 AR 3227–28 (Notice of Lease Sale).
296 See generally Tax Act .
297 To the extent Plaintiffs suggest that the Moratorium is a de facto rescission of the lease sale,
they have not pointed to any authority indicating that this is the case. Also, for the reasons the
Court discussed above in response to the State’s argument that the Moratorium functionally
rescinded the ROD, there has not been a “functional” rescission of the lease sale. See
discussion supra Section II.B.3.a.
298 See Tax Act § 20001(c)(1)(B)(ii)(II).
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discretion through use of the phrase “necessary to carry out this section.”299 Thus,
apart from the lease sales themselves, there are no other “discrete agency
action[s]” for which Agency Defendants have an explicit deadline.300
Plaintiffs’ briefing does not address the TRAC factors and instead only
superficially alleges an unreasonable delay.301 Regardless, none of the factors
weigh heavily in favor of Plaintiffs. First, the most important factor, the “rule of
reason,” weighs in favor of Agency Defendants given the temporary nature of the
Moratorium and their desire to address legal issues that could stymie the Program
while balancing ANILCA’s conservation goals. Second, Congress has not
provided any timetable for implementation of the Program beyond the
requirements to conduct two lease sales within set periods of time, neither deadline
of which Agency Defendants have violated. Third, the delays have resulted only
in possible economic harm, as human health and welfare are not directly impacted
by the Moratorium. Fourth, Agency Defendants delayed the Program for the
299 Id. § 20001(c)(2). Because Agency Defendants identified legal deficiencies in the Program’s
implementation, no rights-of-way or easements are necessary at this time to “carry out” Section
20001 of the Tax Act. Cf. W. Energy All. v. Biden, Case No. 21-CV-13-SWS, 2022 WL
18587039, at *9 (D. Wyo. Sept. 2, 2022) (finding that, because “recent caselaw created a cloud
over the sufficiency of many of the” Environmental Assessments underlying a leasing program,
none of the lands subject to the program were properly “available for leasing” pursuant to the
MLA and its implementing regulations).
300 SUWA, 542 U.S. at 64.
301 See generally Docket 60 at 39–40. The State identifies two cases in which courts have held
that agencies violated the APA by delaying agency action, but the State’s filing likewise does not
separately address APA § 706(1) or discuss the TRAC factors. Docket 59 at 22–23. Plaintiffs’
and the State’s replies do not address these factors either. See generally Docket 66; Docket
67.
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purpose of ensuring that their NEPA review comports with the law. Indeed, Agency
Defendants are attempting to balance the constraints imposed on them through
multiple federal statutes: the Tax Act, ANILCA, and NEPA. There is no indication
from Congress that any of these statutes should be prioritized over any other, and
it cannot be said that a temporary delay in the Program’s implementation
represents an unreasonable prioritization of NEPA over the Tax Act or ANILCA
when Agency Defendants have already begun to implement the Program and have
only temporarily paused it to ensure compliance with NEPA. These efforts
ultimately should further both the Tax Act and ANILCA’s goals as well as NEPA’s
goals. Fifth, Plaintiffs have articulated some degree of prejudice from the delay,
but there is no indication that, when the Moratorium ends, they will not be able to
fulfill their objectives at that point. The sixth factor is largely irrelevant in this case,
as there is no evidence that Agency Defendants have acted with impropriety.302 At
worst, their actions are rooted in political motivations, which are not by themselves
reason to find a delay unreasonable. Accordingly, the Court finds that Agency
Defendants’ delay in implementing the Program is reasonable and that to date
Agency Defendants have not unlawfully withheld any action.303
302 See TRAC, 750 F.2d at 80 (listing six factors relevant to the question of whether an agency’s
delay is unreasonable).
303 Because the Court finds that the Moratorium complies with the law, it does not reach the
parties’ arguments concerning the proper remedy in this case. Docket 60 at 40.
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CONCLUSION
In light of the foregoing, the State’s and Plaintiffs’ motions for summary
judgment at Docket 59 and Docket 60, respectively, are DENIED. Defendants’
responses in opposition—which the Court interprets as cross-motions for summary
judgment—at Docket 63, Docket 64, and Docket 65 are GRANTED. All claims
against Federal Defendants are DISMISSED with prejudice. The Clerk of Court is
directed to enter a final judgment accordingly.
DATED this 7th day of August, 2023 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:21-cv-00245-SLG Document 72 Filed 08/07/23 Page 74 of 74
From: Williams, Martha M
To: Estenoz, Shannon A
Subject: FW: Project 2025 report
Date: Tuesday, August 15, 2023 1:22:53 PM
Attachments: image001.png
image002.png
2025_MandateForLeadership_Civil Service.pdf
2025_MandateForLeadership_DOI.pdf
Martha Williams | Director | U.S. Fish and Wildlife Service | Office: 202-208-4545 | Pronouns: she,
her, hers
Conserving the Nature of America. Learn more at www.fws.gov.
From: Guthrie, James M <james_guthrie@fws.gov>
Sent: Wednesday, July 26, 2023 9:48 AM
To: Guertin, Stephen <Stephen_Guertin@fws.gov>; Sundaresan, Siva R <siva_sundaresan@fws.gov>;
Weber, Wendi <wendi_weber@fws.gov>; Leaverton, Chloe Q <chloe_leaverton@fws.gov>
Cc: Williams, Martha M <martha_williams@fws.gov>
Subject: Project 2025 report
Attached are the two sections from the Heritage Foundation's Project 2025 report that I
mentioned in this morning's meeting. Below is a link to the full document.
https://thf_media.s3.amazonaws.com/project2025/2025_MandateForLeadership_FULL.pdf
Jim Guthrie
— 69 —
3
CENTRAL PERSONNEL AGENCIES:
MANAGING THE BUREAUCRACY
Donald Devine,
Dennis Dean Kirk,
and Paul Dans
OVERVIEW
From the very first Mandate for Leadership, the “personnel is policy” theme has been
the fundamental principle guiding the government’s personnel management. As the U.S.
Constitution makes clear, the President’s appointment, direction, and removal author-
ities are the central elements of his executive power.
1
In implementing that power, the
people and the President deserve the most talented and responsible workforce possible.
Who the President assigns to design and implement his political policy agenda
will determine whether he can carry out the responsibility given to him by the
American people. The President must recognize that whoever holds a government
position sets its policy. To fulfill an electoral mandate, he must therefore give per-
sonnel management his highest priority, including Cabinet-level precedence.
The federal government’s immense bureaucracy spreads into hundreds of agen-
cies and thousands of units and is centered and overseen at the top by key central
personnel agencies and their governing laws and regulations. The major separate
personnel agencies in the national government today are:
lThe Oce of Personnel Management (OPM);
lThe Merit Systems Protection Board (MSPB);
lThe Federal Labor Relations Authority (FLRA); and
lThe Oce of Special Counsel (OSC).
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Mandate for Leadership: The Conservative Promise
Title 5 of the U.S. Code charges the OPM with executing, administering, and
enforcing the rules, regulations, and laws governing the civil service.2 It grants the
OPM direct responsibility for activities like retirement, pay, health, training, federal
unionization, suitability, and classification functions not specifically granted to other
agencies by statute. The agency’s Director is charged with aiding the President, as
the President may request, in preparing such civil service rules as the President pre-
scribes and otherwise advising the President on actions that may be taken to promote
an ecient civil service and a systematic application of the merit system principles,
including recommending policies relating to the selection, promotion, transfer, per-
formance, pay, conditions of service, tenure, and separation of employees.
The MSPB is the lead adjudicator for hearing and resolving cases and contro
-
versies for 2.2 million federal employees.3 It is required to conduct fair and neutral
case adjudications, regulatory reviews, and actions and studies to improve the
workforce. Its court-like adjudications investigate and hear appeals from agency
actions such as furloughs, suspensions, demotions, and terminations and are
appealable to the U.S. Court of Appeals.
The FLRA hears appeals of agency personnel cases involving federal labor griev-
ance procedures to provide judicial review with binding decisions appealable to
appeals courts.4 It interprets the rights and duties of agencies and employee labor
organizations—on management rights, OPM interpretations, recognition of labor
organizations, and unfair labor practices—under the general principle of bargain-
ing in good faith and compelling need.
The OSC serves as the investigator, mediator, publisher, and prosecutor before
the MSPB with respect to agency and employees regarding prohibited person-
nel practices, Hatch Act
5
politicization, Uniformed Services Employment and
Reemployment Rights Act6 issues, and whistleblower complaints.7
The Equal Employment Opportunity Commission (EEOC) has general respon-
sibility for reviewing charges of employee discrimination against all civil rights
breaches. However, it also administers a government employee section that investi-
gates and adjudicates federal employee complaints concerning equal employment
violations as with the private sector.
8
This makes the agency an additional de facto
factor in government personnel management.
While not a personnel agency per se, the General Services Administration (GSA)
is charged with general supervision of contracting.
9
Today, there are many more
contractors in government than there are civil service employees. The GSA must
therefore be a part of any personnel management discussion.
ANALYSIS AND RECOMMENDATIONS
OPM: Managing the Federal Bureaucracy. At the very pinnacle of the
modern progressive program to make government competent stands the ideal
of professionalized, career civil service. Since the turn of the 20th century,
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2025 Presidential Transition Project
progressives have sought a system that could eectively select, train, reward,
and guard from partisan influence the neutral scientific experts they believe are
required to sta the national government and run the administrative state. Their
U.S. system was initiated by the Pendleton Act of 188310 and institutionalized by
the 1930s New Deal to set principles and practices that were meant to ensure that
expert merit rather than partisan favors or personal favoritism ruled within the
federal bureaucracy. Yet, as public frustration with the civil service has grown,
generating calls to “drain the swamp,” it has become clear that their project has
had serious unintended consequences.
The civil service was devised to replace the amateurism and presumed corrup-
tion of the old spoils system, wherein government jobs rewarded loyal partisans
who might or might not have professional backgrounds. Although the system
appeared to be sucient for the nation’s first century, progressive intellectuals
and activists demanded a more professionalized, scientific, and politically neutral
Administration. Progressives designed a merit system to promote expertise and
shield bureaucrats from partisan political pressure, but it soon began to insulate
civil servants from accountability. The modern merit system increasingly made it
almost impossible to fire all but the most incompetent civil servants. Complying
with arcane rules regarding recruiting, rating, hiring, and firing simply replaced
the goal of cultivating competence and expertise.
In the 1970s, Georgia Democratic Governor Jimmy Carter, then a political
unknown, ran for President supporting New Deal programs and their Great Soci-
ety expansion but opposing the way they were being administered. The policies
were not actually reducing poverty, increasing prosperity, or improving the envi-
ronment, he argued, and to make them work required fundamental bureaucratic
reform. He correctly charged that almost all government employees were rated
as “successful,” all received the same pay regardless of performance, and even the
worst were impossible to fire—and he won the presidency.
President Carter fulfilled his campaign promise by hiring Syracuse University
Dean Alan Campbell, who served first as Chairman of the U.S. Civil Service Com-
mission and then as Director of the OPM and helped him devise and pass the Civil
Service Reform Act of 1978 (CSRA)
11
to reset the basic structure of today’s bureau-
cracy. A new performance appraisal system was devised with a five rather than
three distribution of rating categories and individual goals more related to agency
missions and more related to employee promotion for all. Pay and benefits were
based directly on improved performance appraisals (including sizable bonuses) for
mid-level managers and senior executives. But time ran out on President Carter
before the act could be fully executed, so it was left to President Ronald Reagan
and his new OPM and agency leadership to implement.
Overall, the new law seemed to work for a few years under Reagan, but the Carter–
Reagan reforms were dissipated within a decade. Today, employee evaluation is back
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Mandate for Leadership: The Conservative Promise
to pre-reform levels with almost all rated successful or above, frustrating any rela-
tion between pay and performance. An “outstanding” rating should be required for
Senior Executive Service (SES) chiefs to win big bonuses, but a few years ago, when
it was disclosed that the Veterans Administration executives who encouraged false
reporting of waiting lists for hospital admission were rated outstanding, the Senior
Executive Association justified it, telling Congress that only outstanding performers
would be promoted to the SES in the first place and that precise ratings were unnec-
essary.
12
The Government Accountability Oce (GAO), however, has reported that
pay raises, within-grade pay increases, and locality pay for regular employees and
executives have become automatic rather than based on performance—as a result
of most employees being rated at similar appraisal levels.13
OPM: Merit Hiring in a Merit System. It should not be impossible even
for a large national government to hire good people through merit selection. The
government did so for years, but it has proven dicult in recent times to select
personnel based on their knowledge, skills, and abilities (KSA) as the law dictates.
Yet for the past 34 years, the U.S. civil service has been unable to distinguish con-
sistently between strong and unqualified applicants for employment.
As the Carter presidency was winding down, the U.S. Department of Justice
and top lawyers at the OPM contrived with plaintis to end civil service IQ exam-
inations because of concern about their possible impact on minorities. The OPM
had used the Professional and Administrative Career Examination (PACE) gen-
eral intelligence exam to select college graduates for top agency employment, but
Carter Administration ocials—probably without the President’s informed con
-
currence—abolished the PACE through a legal consent court decree capitulating
to demands by civil rights petitioners who contended that it was discriminatory.
The judicial decree was to last only five years but still controls federal hiring and
is applied to all KSA tests even today.
General ability tests like the PACE have been used successfully to assess the use-
fulness and cost-eectiveness of broad intellectual qualities across many separate
occupations. Courts have ruled that even without evidence of overt, intentional
discrimination, such results might suggest discrimination. This doctrine of dispa-
rate impact could be ended legislatively or at least narrowed through the regulatory
process by a future Administration. In any event, the federal government has been
denied the use of a rigorous entry examination for three decades, relying instead
on self-evaluations that have forced managers to resort to subterfuge such as
preselecting friends or associates that they believe are competent to obtain qual-
ified employees.
In 2015, President Barack Obama’s OPM began to introduce an improved merit
examination called USAHire, which it had been testing quietly since 2012 in a few
agencies for a dozen job descriptions. The tests had multiple-choice questions with
only one correct answer. Some questions even required essay replies: questions
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2025 Presidential Transition Project
that would change regularly to depress cheating. President Donald Trump’s OPM
planned to implement such changes but was delayed because of legal concerns
over possible disparate impact.
Courts have agreed to review the consent decree if the Uniform Guidelines
on Employee Selection Procedures setting the technical requirements for sound
exams are reformed. A government that is unable to select employees based on
KSA-like test qualifications cannot work, and the OPM must move forward on this
very basic personnel management obligation.
The Centrality of Performance Appraisal. In the meantime, the OPM must
manage the workforce it has. Before they can reward or discipline federal employees,
managers must first identify who their top performers are and who is performing
less than adequately. In fact, as Ludwig von Mises proved in his classic Bureaucracy,
14
unlike the profit-and-loss evaluation tool used in the private sector, government
performance measurement depends totally on a functioning appraisal system. If
they cannot be identified in the first place within a functioning appraisal system, it is
impossible to reward good performance or correct poor performance. The problem
is that the collegial atmosphere of a bureaucracy in a multifaceted appraisal system
that is open to appeals makes this a very challenging ideal to implement successfully.
The GAO reported more recently that overly high and widely spread perfor-
mance ratings were again plaguing the government, with more than 99 percent of
employees rated fully successful or above by their managers, a mere 0.3 percent
rated as minimally successful, and 0.1 percent actually rated unacceptable.
15
Why?
It is human nature that no one appreciates being told that he or she is less than
outstanding in every way. Informing subordinates in a closely knit bureaucracy
that they are not performing well is dicult. Rating compatriots is even consid-
ered rude and unprofessional. Moreover, managers can be and often are accused
of racial or sexual discrimination for a poor rating, and this discourages honesty.
In 2018, President Trump issued Executive Order 13839
16
requiring agen-
cies to reduce the time for employees to improve performance before corrective
action could be taken; to initiate disciplinary actions against poorly performing
employees more expeditiously; to reiterate that agencies are obligated to make
employees improve; to reduce the time for employees to respond to allegations
of poor performance; to mandate that agencies remind supervisors of expiring
employee probationary periods; to prohibit agencies from entering into settlement
agreements that modify an employee’s personnel record; and to reevaluate proce-
dures for agencies to discipline supervisors who retaliate against whistleblowers.
Unfortunately, the order was overturned by the Biden Administration,17 so it will
need to be reintroduced in 2025.
The fact remains that meaningfully evaluating employees’ performance is a
critical part of a manager’s job. In the Reagan appraisal process, managers were
evaluated on how they themselves rated their subordinates. This is critical to
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Mandate for Leadership: The Conservative Promise
responsibility and improved management. It is essential that political executives
build policy goals directly into employee appraisals both for mission success and
for employees to know what is expected. Indistinguishable from their coworkers
on paper, hard-working federal employees often go unrewarded for their eorts
and are often the system’s greatest critics. Federal workers who are performing
inadequately get neither the benefit of an honest appraisal nor clear guidance on
how to improve. Political executives should take an active role in supervising per-
formance appraisals of career sta, not unduly delegate this responsibility to senior
career managers, and be willing to reward and support good performers.
Merit Pay. Performance appraisal means little to daily operations if it is not tied
directly to real consequences for success as well as failure. According to a survey of
major U.S. private companies—which, unlike the federal government, also have a
profit-and-loss evaluation—90 percent use a system of merit pay for performance
based on some type of appraisal system. Despite early eorts to institute merit pay
throughout the federal government, however, compensation is still based primarily
on seniority rather than merit.
Merit pay for executives and managers was part of the Carter reforms and was
implemented early in the Reagan presidency. Beginning in the summer of 1982,
the Reagan OPM entered 18 months of negotiations with House and Senate sta
on extending merit pay to the entire workforce. Long and detailed talks between
the OPM and both Democrats and Republicans in Congress ensued, and a final
agreement was reached in 1983 that supposedly ensured the passage of legislation
creating a new Performance Management and Recognition System (PMRS) for all,
(not just management) GS-13 through GS-15 employees.
Meanwhile, the OPM issued regulations to expand the role of performance
related to pay throughout the entire workforce, but congressional allies of the
employee unions, led by Representative Steny Hoyer (D) of government employee–
rich Maryland, stoutly resisted this extension of pay-for-performance and, with
strong union support, used the congressional appropriations process to block OPM
administrative pay reforms. Bonuses for SES career employees survived, but per-
formance appraisals became so high and widely distributed that there was little
relationship between performance and remuneration.
Ever since the original merit pay system for federal managers (GM-13 through
GM-15 grade levels, just below the SES) was allowed to expire in September 1993,
little to nothing has been done either to reinstate the federal merit pay program for
managers or to distribute performance rating evaluations for the SES, much less to
extend the program to the remainder of the workforce. A reform-friendly President
and Congress might just provide the opportunity to create a more comprehensive
performance plan; in the meantime, however, political executives should use exist-
ing pay and especially fiscal awards strategically to reward good performance to
the degree allowed by law.
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2025 Presidential Transition Project
Making the Appeals Process Work. The nonmilitary government dismissal
rate is well below 1 percent, and no private-sector industry employee enjoys the
job security that a federal employee enjoys. Both safety and justice demand that
managers learn to act strategically to hire good and fire poor performers legally.
The initial paperwork required to separate poor or abusive performers (when they
are infrequently identified) is not overwhelming, and managers might be motivated
to act if it were not for the appeals and enforcement processes. Formal appeal in the
private sector is mostly a rather simple two-step process, but government unions
and associations have been able to convince politicians to support a multiple and
extensive appeals and enforcement process.
As noted, there are multiple administrative appeals bodies. The FLRA, OSC,
and EEOC have relatively narrow jurisdictions. Claims that an employee’s removal
or disciplinary actions violate the terms of a collective bargaining agreement
between an agency and a union are handled by the FLRA, employees who claim
their removal was the result of discrimination can appeal to the EEOC, and employ-
ees who believe their firing was retribution for being a whistleblower can go to the
OSC. While the MSPB specializes in abuses of direct merit system issues, it can
and does hear and review almost any of the matters heard by the other agencies.
Cases involving race, gender, religion, age, pregnancy, disability, or national
origin can be appealed to the EEOC or the MSPB—and in some cases to both—and
to the OSC. This gives employees multiple opportunities to prove their cases, and
while the EEOC, MSPB, FLRA, and OSC may all apply essentially the same burden
of proof, the odds of success may be substantially dierent in each forum. In fact,
forum shopping among them for a friendlier venue is a common practice, but fre-
quent filers face no consequences for frivolous complaints. As a result, meritorious
cases are frequently delayed, denying relief and justice to truly aggrieved individuals.
The MSPB can and does handle all such matters, but it faces a backlog of an
estimated 3,000 cases of people who were potentially wrongfully terminated or
disciplined as far back as 2013. From 2017–2022 the MSPB lacked the quorum
required to decide appeals. On the other hand, as of January 2023, the EEOC had
a backlog of 42,000 cases.
While federal employees win appeals relatively infrequently—MSPB adminis-
trative judges have upheld agency decisions as much as 80 percent of the time—the
real problem is the time and paperwork involved in the elaborate process that
managers must undergo during appeals. This keeps even the best managers from
bringing cases in all but the most egregious cases of poor performance or mis-
conduct. As a result, the MSPB, EEOC, FLRA, and OSC likely see very few cases
compared to the number of occurrences, and nonperformers continue to be paid
and often are placed in nonwork positions.
Having a choice of appeals is especially unique to the government. If lower-pri-
ority issues were addressed in-house, serious adverse actions would be less subject
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Mandate for Leadership: The Conservative Promise
to delay. With the proper limitation of labor union actions, the FLRA should
have limited reason for appeals. The EEOC’s federal employee section should be
transferred to the MSPB, and many of the OCS’s investigatory functions should be
returned to the OPM. The MSPB could then become the main reviewer of adverse
actions, greatly simplifying the burdensome appeal process.
Making Civil Service Benefits Economically and Administratively Ratio-
nal. In recent years, the combined wages and benefits of the executive branch
civilian workforce totaled $300 billion according to ocial data. But even that
amount does not properly account for billions in unfunded liability for retirement
and other government reporting distortions. Ocial data also report employment
as approximately 2 million, but this ignores approximately 20 million contractors
who, while not eligible for government pay and benefits, do receive them indirectly
through contracting (even if they are less generous). Ocial data also claim that
national government employees are paid less than private-sector employees are
paid for similar work, but several more neutral sources demonstrate that pub-
lic-sector workers make more on average than their private-sector counterparts.
All of this extravagance deserves close scrutiny.
Market-Based Pay and Benefits. According to current law, federal workers
are to be paid wages comparable to equivalent private-sector workers rather than
compared to all private-sector employees. While the ocial studies claim that
federal employees are underpaid relative to the private sector by 20 percent or
more,
a 2016 Heritage Foundation study found that federal employees received
wages that were 22 percent higher than wages for similar private-sector workers;
if the value of employee benefits was included, the total compensation premium
for federal employees over their private-sector equivalents increased to between
30 percent and 40 percent.
18
The American Enterprise Institute found a 14 percent
pay premium and a 61 percent total compensation premium.19
Base salary is only one component of a federal employee’s total compensation.
In addition to high starting wages, federal employees normally receive an annual
cost-of-living adjustment (available to all employees) and generous scheduled
raises known as step increases. Moreover, a large proportion of federal employ-
ees are stationed in the Washington, D.C., area and other large cities and are
entitled to steep locality pay enhancement to account for the high cost of living
in these areas.
A federal employee with five years’ experience receives 20 vacation days, 13 paid
sick days, and all 10 federal holidays compared to an employee at a large private
company who receives 13 days of vacation and eight paid sick days. Federal health
benefits are more comparable to those provided by Fortune 500 employers with
the government paying 72 percent of the weighted average premiums, but this is
much higher than for most private plans. Almost half of private firms do not oer
any employer contributions at all.
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2025 Presidential Transition Project
The obvious solution to these discrepancies is to move closer to a market model
for federal pay and benefits. One need is for a neutral agency to oversee pay hiring
decisions, especially for high-demand occupations. The OPM is independent of
agency operations, so it can assess requirements more neutrally. For many years,
with its Special Pay Rates program, the OPM evaluated claims that federal rates
in an area were too low to attract competent employees and allowed agencies to
oer higher pay when needed rather than increased rates for all. Ideally, the OPM
should establish an initial pay schedule for every occupation and region, monitor
turnover rates and applicant-to-position ratios, and adjust pay and recruitment
on that basis. Most of this requires legislation, but the OPM should be an advocate
for a true equality of benefits between the public and private sectors.
Reforming Federal Retirement Benefits. Career civil servants enjoy retire-
ment benefits that are nearly unheard of in the private sector. Federal employees
retire earlier (normally at age 55 after 30 years), enjoy richer pension annuities,
and receive automatic cost-of-living adjustments based on the areas in which they
retire. Defined-benefit federal pensions are fully indexed for inflation—a practice
that is extremely rare in the private sector. A federal employee with a preretire-
ment income of $25,000 under the older of the two federal retirement plans will
receive at least $200,000 more over a 20-year period than will private-sector work-
ers with the same preretirement salary under historic inflation levels.
During the early Reagan years, the OPM reformed many specific provisions of
the federal pension program to save billions administratively. Under OPM pres-
sure, Reagan and Congress ultimately ended the old Civil Service Retirement
System (CSRS) entirely for new employees, which (counting disbursements for
the unfunded liability) accounted for 51.3 percent of the federal government's
total payroll. The retirement system that replaced it—the Federal Employees
Retirement System (FERS)—reduced the cost of federal employee retirement dis-
bursements to 28.5 percent of payroll (including contributions to Social Security
and the employer match to the Thrift Savings Plan). More of the pension cost was
shifted to the employee, but the new system was much more equitable for the 40
percent who received few or no benefits under the old system.
By 1999, more than half of the federal workforce was covered by the new system,
and the government’s per capita share of the cost (as the employer) was less than
half the cost of the old system: 20.2 percent of FERS payroll vs. 44.3 percent of
CSRS payroll, representing one of the largest examples of government savings
anywhere. Although the government pension system has become more like private
pension systems, it still remains much more generous, and other means might be
considered in the future to move it even closer to private plans.
GSA: Landlord and Contractor Management. The General Services
Administration is best known as the federal government’s landlord—designing,
constructing, managing, and preserving government buildings and leasing and
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Mandate for Leadership: The Conservative Promise
managing outside commercial real estate contracting with 376.9 million square feet
of space. Obviously, as its prime function, real estate expertise is key to the GSA’s
success. However, the GSA is also the government’s purchasing agent, connecting
federal purchasers with commercial products and services in the private sector
and their personnel management functions. With contractors performing so many
functions today, the GSA therefore becomes a de facto part of governmentwide
personnel management. The GSA also manages the Presidential Transition Act
(PTA) process, which also directly involves the OPM. A recent proposal would
have incorporated the OPM and GSA (and OMB). Fortunately, this did not take
place in that form, but it would make sense for GSA and OPM leadership and sta
to hold regular meetings to work through matters of common interest such as
moderating PTA personnel restrictions and the relationships between contract
and civil service employees.
Reductions-in-Force. Reducing the number of federal employees seems an
obvious way to reduce the overall expense of the civil service, and many prior
Administrations have attempted to do just this. Presidents Bill Clinton and
Barack Obama began their terms, as did Ronald Reagan and Donald Trump, by
mandating a freeze on the hiring of new federal employees, but these eorts did
not lead to permanent and substantive reductions in the number of nondefense
federal employees.
First, it is a challenge even to know which workers to cut. As mentioned, there
are 2 million federal employees, but since budgets have exploded, so has the
total number of personnel with nearly 10 times more federal contractors than
federal employees. Contractors are less expensive because they are not entitled
to high government pensions or benefits and are easier to fire and discipline. In
addition, millions of state government employees work under federal grants, in
eect administering federal programs; these cannot be cut directly. Cutting federal
employment can be helpful and can provide a simple story to average citizens, but
cutting functions, levels, funds, and grants is much more important than setting
simple employment size.
Simply reducing numbers can actually increase costs. OMB instructions fol-
lowing President Trump’s employment freeze told agencies to consider buyout
programs, encouraging early retirements in order to shift costs from current bud-
gets in agencies to the retirement system and minimize the number of personnel
fired. The Environmental Protection Agency immediately implemented such a
program, and OMB urged the passage of legislation to increase payout maximums
from $25,000 to $40,000 to further increase spending under the “cuts.” President
Clinton’s OMB had introduced a similar buyout that cost the Treasury $2.8 billion,
mostly for those who were going to retire anyway. Moreover, when a new employee
is hired to fill a job recently vacated in a buyout, the government for a time is paying
two people to fill one job.
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2025 Presidential Transition Project
What is needed at the beginning is a freeze on all top career-position hiring
to prevent “burrowing-in” by outgoing political appointees. Moreover, four fac-
tors determine the order in which employees are protected during layos: tenure,
veterans’ preference, seniority, and performance in that order of importance.
Despite several attempts in the House of Representatives during the Trump years
to enact legislation that would modestly increase the weight given to performance
over time-of-service, the fierce opposition by federal managers associations and
unions representing long-serving but not necessarily well-performing constituents
explains why the bills failed to advance. A determined President should insist that
performance be first and be wary of costly types of reductions-in-force.
Impenetrable Bureaucracy. The GAO has identified almost a hundred actions
that the executive branch or Congress could take to improve eciency and eec-
tiveness across 37 areas that span a broad range of government missions and
functions. It identified 33 actions to address mission fragmentation, overlap, and
duplication in the 12 areas of defense, economic development, health, homeland
security, and information technology. It also identified 59 other opportunities for
executive agencies or Congress to reduce the cost of government operations or
enhance revenue collection across 25 areas of government.20
A logical place to begin would be to identify and eliminate functions and pro-
grams that are duplicated across Cabinet departments or spread across multiple
agencies. Congress hoped to help this eort by passing the Government Perfor-
mance and Results Act of 1993,
21
which required all federal agencies to define
their missions, establish goals and objectives, and measure and report their per-
formance to Congress. Three decades of endless time-consuming reports later,
the government continues to grow but with more paper and little change either
in performance or in the number of levels between government and the people.
The Brookings Institution’s Paul Light emphasizes the importance of the
increasing number of levels between the top heads of departments and the people
at the bottom who receive the products of government decision-making. He esti-
mates that there are perhaps 50 or more levels of impenetrable bureaucracy and no
way other than imperfect performance appraisals to communicate between them.
22
The Trump Administration proposed some possible consolidations, but these
were not received favorably in Congress, whose approval is necessary for most such
proposals. The best solution is to cut functions and budgets and devolve respon-
sibilities. That is a challenge primarily for Presidents, Congress, and the entire
government, but the OPM still needs to lead the way governmentwide in managing
personnel properly even in any future smaller government.
Creating a Responsible Career Management Service. The people elect a
President who is charged by Article 2, Section 3 of the Constitution23 with seeing
that the laws are “faithfully executed” with his political appointees democratically
linked to that legitimizing responsibility. An autonomous bureaucracy has neither
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Mandate for Leadership: The Conservative Promise
independent constitutional status nor separate moral legitimacy. Therefore, career
civil servants by themselves should not lead major policy changes and reforms.
The creation of the Senior Executive Service was the top career change intro-
duced by the 1978 Carter–Campbell Civil Service Reform Act. Its aim was to
professionalize the career service and make it more responsible to the democrat-
ically elected commander in chief and his political appointees while respecting the
rights due to career employees, very much including those in the top positions. The
new SES would allow management to be more flexible in filling and reassigning
executive positions and locations beyond narrow specialties for more ecient
mission accomplishment and would provide pay and large bonuses to motivate
career performance.
The desire to infiltrate political appointees improperly into the high career
civil service has been widespread in every Administration, whether Democrat or
Republican. Democratic Administrations, however, are typically more successful
because they require the cooperation of careerists, who generally lean heavily to
the Left. Such burrowing-in requires career job descriptions for new positions that
closely mirror the functions of a political appointee; a special hiring authority that
allows the bypassing of veterans’ preference as well as other preference categories;
and the ability to frustrate career candidates from taking the desired position.
President Reagan’s OPM began by limiting such SES burrowing-in, arguing
that the proper course was to create and fill political positions. This simultane-
ously promotes the CSRA principle of political leadership of the bureaucracy and
respects the professional autonomy of the career service. But this requires that
career SES employees should respect political rights too. Actions such as career
sta reserving excessive numbers of key policy positions as “career reserved” to
deny them to noncareer SES employees frustrate CSRA intent. Another evasion
is the general domination by career sta on SES personnel evaluation boards, the
opposite of noncareer executives dominating these critical meeting discussions
as expected in the SES. Career training also often underplays the political role in
leadership and inculcates career-first policy and value viewpoints.
Frustrated with these activities by top career executives, the Trump Adminis-
tration issued Executive Order 1395724 to make career professionals in positions
that are not normally subject to change as a result of a presidential transition but
who discharge significant duties and exercise significant discretion in formulating
and implementing executive branch policy and programs an exception to the com-
petitive hiring rules and examinations for career positions under a new Schedule
F. It ordered the Director of OPM and agency heads to set procedures to prepare
lists of such confidential, policy-determining, policymaking, or policy-advocating
positions and prepare procedures to create exceptions from civil service rules when
careerists hold such positions, from which they can relocate back to the regular
civil service after such service. The order was subsequently reversed by President
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2025 Presidential Transition Project
Biden
25
at the demand of the civil service associations and unions. It should be
reinstated, but SES responsibility should come first.
Managing Personnel in a Union Environment. Historically, unions were
thought to be incompatible with government management. There is a natural limit
to the bargaining power of private-sector unions, but the financial bottom line of
public-sector unions is not similarly constrained. If private-sector unions push
too hard a bargain, they can so harm a company or so reduce eciency that their
employer is forced to go out of business and eliminate union jobs altogether. There
is no such limit in government, which cannot go out of business, so demands can
be excessive without negatively aecting employee and union bottom lines.
Even Democratic President Franklin Roosevelt considered union representa-
tion in the federal government to be incompatible with democracy. Striking and
even threats of bargaining and delay were considered acts against the people and
thus improper. It was not until President John Kennedy that union representation
in the federal government was recognized—and then merely by executive order.
Labor bargaining was not set in statute until the Carter Administration was forced
by Congress to do so in order to pass the CSRA, although all bargaining was placed
under OPM review.
The CSRA was able to maintain strong management rights for the OPM and
agencies and forbade collective bargaining on pay and benefits as well as manage-
ment prerogatives. Over time, OPM, FLRA, and agencies’ personnel oces and
courts, especially in Democratic Administrations, narrowed management rights
so that labor bargaining expanded as management rights contracted. But the man-
agement rights are still in statute, have been enforced by some Administrations,
and should be enforced again by any future OPM and agency managements, which
should not be intimidated by union power.
Rather than being daunted, President Trump issued three executive orders:
lExecutive Order 13836, encouraging agencies to renegotiate all union
collective bargaining agreements to ensure consistency with the law and
respect for management rights;26
lExecutive Order 13837, encouraging agencies to prevent union
representatives from using ocial time preparing or pursuing grievances or
from engaging in other union activity on government time;27 and
lExecutive Order 13839, encouraging agencies both to limit labor grievances
on removals from service or on challenging performance appraisals and to
prioritize performance over seniority when deciding who should be retained
following reductions-in-force.28
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Mandate for Leadership: The Conservative Promise
All were revoked by the Biden Administration
29
and should be reinstated by the
next Administration, to include the immediate appointment of the FLRA General
Counsel and reactivation of the Impasses Panel.
Congress should also consider whether public-sector unions are appropriate
in the first place. The bipartisan consensus up until the middle of the 20th cen-
tury held that these unions were not compatible with constitutional government.
30
After more than half a century of experience with public-sector union frustrations
of good government management, it is hard to avoid reaching the same conclusion.
Fully Stang the Ranks of Political Appointees. The President must rely
legally on his top department and agency ocials to run the government and on top
White House sta employees to coordinate operations through regular Cabinet and
other meetings and communications. Without this political leadership, the career
civil service becomes empowered to lead the executive branch without democratic
legitimacy. While many obstacles stand in his way, a President is constitutionally
and statutorily required to fill the top political positions in the executive branch
both to assist him and to provide overall legitimacy.
Most Presidents have had some diculty obtaining congressional approval of
their appointees, but this has worsened recently. After the 2016 election, President
Trump faced special hostility from the opposition party and the media in getting
his appointees confirmed or even considered by the Senate. His early Oce of
Presidential Personnel (PPO) did not generally remove political appointees from
the previous Administration but instead relied mostly on prior political appoin
-
tees and career civil servants to run the government. Such a reliance on holdovers
and bureaucrats led to a lack of agency control and the absolute refusal of the
Acting Attorney General from the Obama Administration to obey a direct order
from the President.
Under the early PPO, the Trump Administration appointed fewer political
appointees in its first few months in oce than had been appointed in any recent
presidency, partly because of historically high partisan congressional obstructions
but also because several ocials announced that they preferred fewer political
appointees in the agencies as a way to cut federal spending. Whatever the reasoning,
this had the eect of permanently hampering the rollout of the new President’s
agenda. Thus, in those critical early years, much of the government relied on senior
careerists and holdover Obama appointees to carry out the sensitive responsibili-
ties that would otherwise belong to the new President’s appointees.
Fortunately, the later PPO, OPM, and Senate leadership began to cooperate to
build a strong team to implement the President’s personnel appointment agenda.
Any new Administration would be wise to learn that it will need a full cadre of
sound political appointees from the beginning if it expects to direct this enormous
federal bureaucracy. A close relationship between the PPO at the White House
and the OPM, coordinating with agency assistant secretaries of administration
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2025 Presidential Transition Project
and PPO’s chosen White House Liaisons and their sta at each agency, is essential
to the management of this large, multilevel, resistant, and bureaucratic challenge.
If “personnel is policy” is to be our general guide, it would make sense to give the
President direct supervision of the bureaucracy with the OPM Director available
in his Cabinet.
A REFORMED BUREAUCRACY
Today, the federal government’s bureaucracy cannot even meet its own civil
service ideals. The merit criteria of ability, knowledge, and skills are no longer the
basis for recruitment, selection, or advancement, while pay and benefits for com-
parable work are substantially above those in the private sector. Retention is not
based primarily on performance, and for the most part, inadequate performance
is not appraised, corrected, or punished.
The authors have made many suggestions here that, if implemented, could
bring that bureaucracy more under control and enable it to work more eciently
and responsibly, which is especially required for the half of civilian government
that administers its undeniable responsibilities for defense and foreign aairs.
While a better administered central bureaucracy is crucial for both those and
domestic responsibilities, the problem of properly running the government goes
beyond simple bureaucratic administration. The specific deficiencies of the fed-
eral bureaucracy—size, levels of organization, ineciency, expense, and lack of
responsiveness to political leadership—are rooted in the progressive ideology that
unelected experts can and should be trusted to promote the general welfare in just
about every area of social life.
The Constitution, however, reserved a few enumerated powers to the federal
government while leaving the great majority of domestic activities to state, local,
and private governance. As James Madison explained: “The powers reserved to
the several States will extend to all the objects, which, in the ordinary course of
aairs, concern the lives, liberties and properties of the people; and the internal
order, improvement and prosperity of the state.”
31
Modern progressive politics
has simply given the national government more to do than the complex separa-
tion-of-powers Constitution allows.
That progressive system has broken down in our time, and the only real solution
is for the national government to do less: to decentralize and privatize as much as
possible and then ensure that the remaining bureaucracy is managed eectively
along the lines of the enduring principles set out in detail here.
AUTHORS’ NOTE: The authors are grateful for the collaborative work of the individuals listed as contributors to
this chapter for the 2025 Presidential Transition Project. The authors alone assume responsibility for the content of
this chapter, and no views expressed herein should be attributed to any other individual.
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Mandate for Leadership: The Conservative Promise
ENDNOTES
U.S. Constitution, Article II, Section 2, https://www.law.cornell.edu/constitution/articleii#section1 (accessed
February 1, 2023).
5 U.S. Code §§ 1101 et seq. and 1103(a)(5), https://www.law.cornell.edu/uscode/text/5/part-II/chapter-11
(accessed February 1, 2023).
5 U.S. Code § 1201, https://www.law.cornell.edu/uscode/text/5/1201 (accessed February 1, 2023).
5 U.S. Code § 7101, https://www.law.cornell.edu/uscode/text/5/7101 (accessed February 1, 2023), and § 7117,
https://www.law.cornell.edu/uscode/text/5/7117 (accessed February 1, 2023).
S. 1871, An Act to Prevent Pernicious Political Activities, Public Law No. 76-252, August 2, 1939, https://
govtrackus.s3.amazonaws.com/legislink/pdf/stat/53/STATUTE-53-Pg1147.pdf (accessed February 1, 2023).
H.R. 995, Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law No. 103-353,
101st Congress, October 13, 1994, https://www.congress.gov/103/statute/STATUTE-108/STATUTE-108-Pg3149.
pdf (accessed February 1, 2023).
5 U.S. Code § 1206, https://www.law.cornell.edu/uscode/text/5/1206 (accessed February 1, 2023).
42 U.S. Code § 2000e, https://www.law.cornell.edu/uscode/text/42/2000e (accessed February 1, 2023).
40 U.S. Code § 581, https://www.law.cornell.edu/uscode/text/40/581 (accessed February 1, 2023).
U.S. National Archives, “Milestone Documents: Pendleton Act (1883),” last reviewed February 8, 2022, https://
www.archives.gov/milestone-documents/pendleton-act (accessed February 2, 2023).
S. 2640, Civil Service Reform Act of 1978, Public Law No. 95-454, 95th Congress, October 13, 1978, https://
www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1111.pdf (accessed February 2, 2023).
Donovan Sack and Bill Theobald, “Veterans Aairs Pays $140 Million in Bonuses Amid Scandals,” USA Today,
November 11, 2015, https://www.usatoday.com/story/news/politics/2015/11/11/veterans-aairs-pays-142-
million-bonuses-amid-scandals/75537586/ (accessed March 15, 2023).
U.S. Government Accountability Oce, “Federal Workforce: Distribution of Performance Ratings Across
the Federal Government, 2013,” GAO-16-520R, May 9, 2016, https://www.gao.gov/assets/gao-16-520r.pdf
(accessed March 15, 2023); U.S. Government Accountability Oce, Results-Oriented Management: OPM Needs
to Do More to Ensure Meaningful Distinctions Are Made in SES Ratings and Performance Awards, GAO-15-
189, January 2015, https://www.gao.gov/assets/gao-15-189.pdf (accessed March 15, 2023); U.S. Government
Accountability Oce, “Measuring Federal Employee Performance,” WatchBlog, posted October 18, 2016,
https://www.gao.gov/blog/2016/10/18/measuring-federal-employee-performance (accessed March 15, 2023);
Lisa Rein, “The Federal Workforce, Where Everyone’s Performance Gets Rave Reviews,” The Washington Post,
June 13, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/06/13/heres-the-news-from-the-
federal-government-where-everyone-is-above-average-way-above/ (accessed March 15, 2023).
Ludwig von Mises, Bureaucracy (New Haven, CT: Yale University Press, 1944), https://ia902300.us.archive.
org/17/items/mises-pdfs/1944-01-01_LudwigVonMises_Bureaucracy.pdf (accessed February 2, 2023).
Figure 1, “Permanent, Non-Senior Executive Service Employee Performance Rating Outcomes (All Rating
Systems, Calendar Year 2013),” in U.S. Government Accountability Oce, “Federal Workforce: Distribution of
Performance Ratings Across the Federal Government, 2013,” p. 6.
President Donald J. Trump, Executive Order 13839, “Promoting Accountability and Streamlining Removal
Procedures Consistent with Merit System Principles,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25343–25347, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11939.pdf (accessed
February 2, 2023).
President Joseph R. Biden Jr., Executive Order 14003, “Protecting the Federal Workforce,” January 22, 2021, in
Federal Register, Vol. 86, No. 16 (January 27, 2021), pp. 7231–7233, https://www.govinfo.gov/content/pkg/FR-
2021-01-27/pdf/2021-01924.pdf (accessed February 2, 2023).
Rachel Greszler and James Sherk, “Why It Is Time to Reform Compensation for Federal Employees,” The
Heritage Foundation, July 27, 2016, https://www.heritage.org/jobs-and-labor/report/why-it-time-reform-
compensation-federal-employees.
Andrew G. Biggs and Jason Richwine, “Comparing Federal and Private Sector Compensation,” American
Enterprise Institute Working Paper No. 2011-02, revised June 2011, https://www.aei.org/wp-content/
uploads/2011/10/AEI-Working-Paper-on-Federal-Pay-May-2011.pdf?x91208 (accessed February 2, 2023).
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2025 Presidential Transition Project
See Gene L. Dodaro, Comptroller General of the United States, “Government Eciency and Eectiveness:
Opportunities to Reduce Fragmentation, Overlap, and Duplication and Achieve Billions in Financial Benefits,”
testimony before the Subcommittee on Emerging Threats and Spending Oversight, Committee on Homeland
Security and Governmental Aairs, U.S. Senate, GAO-21-544T, May 12, 2021, https://www.gao.gov/assets/gao-
21-544t.pdf (accessed February 2, 2023).
S. 20, Government Performance and Results Act of 1993, Public Law No. 103-62, 103rd Congress, August
3, 1993, https://www.congress.gov/103/statute/STATUTE-107/STATUTE-107-Pg285.pdf (accessed
February 2, 2023).
Paul Light, “The Real Crisis in Government,” The Capital Times (Madison, Wisconsin), January 22, 2010, https://
captimes.com/news/opinion/column/paul-c-light-the-real-crisis-in-government/article_9e139318-3d00-
5898-908d-4c7aee1e105d.html (accessed March 15, 2023).
U.S. Constitution, Article II, Section 3, https://www.law.cornell.edu/constitution/articleii#section3 (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13957, “Creating Schedule F in the Excepted Service,” October 21,
2020, in Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635, https://www.govinfo.gov/
content/pkg/FR-2020-10-26/pdf/2020-23780.pdf (accessed February 2, 2023).
See note 17, supra.
President Donald J. Trump, Executive Order 13836, “Developing Ecient, Eective, and Cost-Reducing
Approaches to Federal Sector Collective Bargaining,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1,
2018), pp. 25329–25334, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11913.pdf (accessed
February 2, 2023).
President Donald J. Trump, Executive Order 13837, “Ensuring Transparency, Accountability, and Eciency
in Taxpayer-Funded Union Time Use,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1, 2018),
pp. 25335–25340, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11916.pdf (accessed
February 2, 2023).
See note 16, supra.
See note 17, supra.
Philip K. Howard, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (Garden City,
NY: Rodin Books, 2023).
James Madison, The Federalist Papers No. 45, January 26, 1788, https://founders.archives.gov/documents/
Madison/01-10-02-0254 (accessed February 1, 2023).
— 517 —
16
DEPARTMENT OF
THE INTERIOR
William Perry Pendley
T
he U.S. Department of the Interior (DOI) oversees, manages, and protects
the nation’s natural resources and cultural heritage; provides scientific
and other information about those resources; and honors the nation’s trust
responsibilities or special commitments to American Indians, Alaska Natives, and
aliated island communities.
AGENCY OVERVIEW
DOI’s purview encompasses more than 500 million acres of federal lands,
including national parks and national wildlife refuges; 700 million acres of sub-
surface minerals; 1.7 billion acres of the Outer Continental Shelf (OCS); 23 percent
of the nation’s energy; water in 17 western states; and trust responsibilities for 566
Indian tribes and Alaska Natives. DOI’s 2024 budget request totals $18.9 billion, an
increase of $2 billion, or 12 percent, more than the 2023 enacted level. The budget
also provides an estimated $12.6 billion in permanent funding in 2024. In 2024,
DOI will generate receipts of $19.6 billion.
A “Home Department” had been considered in 1789 and urged by Presidents
over the decades until DOI’s creation in 1849. The variety of its early responsibil-
ities—the Indian Bureau, the General Land Oce, the Bureau of Pensions, and
the Patent Oce, among others—earned it various nicknames, including “Great
Miscellany,” “hydra-headed monster,” and “Mother of Departments.”1 Its mission
became more focused on natural resources with the rise of the conservation move-
ment in the early 20th century; however, it kept its historic (since the days of the
Founding Fathers) role as overseer of vast working landscapes involving grazing,
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Mandate for Leadership: The Conservative Promise
logging, mining, oil, and gas and, with the Bureau of Reclamation in 1902, as the
nation’s dam builder. Today, DOI has 70,000 employees in approximately 2,400
locations with oces across the United States, Puerto Rico, and U.S. Territories
and Freely Associated States.
Historically, DOI operated in a bipartisan manner consistent with the laws
enacted by Congress pursuant to its powers under the Property Clause.
2
Thus,
DOI fulfilled its statutory responsibilities in a manner that ensured the ability of
western states, counties, and communities to be sustained by both economic and
recreational activities on neighboring federal lands, especially given that in some
rural western counties, federal lands constituted 50, 60, 70, 80—even 90 percent
of the county’s landmass.3
That ended with the Administration of President Jimmy Carter, who, beholden
to environmental groups that supported his election, adopted DOI policies consis-
tent with their demands, much to the horror of western governors, most of whom
were Democrats. President Ronald Reagan campaigned against this “War on the
West,” declared himself a “Sagebrush Rebel,” and, on taking oce,4 quelled the
rebellion by reversing Carter Administration policies. President George H. W.
Bush distanced himself from Reagan’s western policies, committed to a “kinder
and gentler America,” and proclaimed his desire to be “the environmental Pres-
ident,” which resulted in changes at the his Administration’s DOI—again, much
to the dismay of westerners.
5
President Bill Clinton resumed Carter’s “War on
the West,” epitomized by his DOI’s deploying of wolves into the states bordering
Yellowstone National Park; the decreed death of a world-class mine in Montana;
and the designation of a vast national monument in Utah over the objections of
Utah leaders—but with the support of the Hollywood elite.6
Although Texas Governor George W. Bush and former Wyoming Representative
Dick Cheney (R–WY) campaigned in 2000 against Clinton’s worst outrages, includ-
ing the Utah monument, there was no significant ratcheting back of DOI policies
that were either objected to by westerners or contrary to the express provisions of
federal statutes. President Barack Obama’s DOI resumed the anti-economic fed-
eral lands policies activated by Carter and amplified by Clinton; however, Obama’s
DOI’s antipathy to oil and gas activity on federal lands as mandated by Congress
could not have come at a worse time.
After the demonstrated success of fracking on Bureau of Land Management
(BLM) acreage in Wyoming in 1993, the fracking revolution soon swept the nation,7
yielding massive discoveries on state and private land from coast to coast, but not,
thanks to Obama, on western federal lands.8 President Donald Trump, on the other
hand, immediately ordered his DOI to comply with federal law, conduct congressio-
nally mandated lease sales, and seek to achieve energy dominance or independence.
Thanks in part to the success of oil and gas operations on federal land in the West,
the United States achieved energy security for the first time since 1957 in 2019.9
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2025 Presidential Transition Project
President Joe Biden’s DOI, as is well documented, abandoned all pretense of
complying with federal law regarding federally owned oil and gas resources. Not
since the Administration of President Harry S. Truman—prior to creation of the
OCS oil and gas program—have fewer federal leases been issued.10
At DOI, not since the Reagan Administration was the radical environmen-
tal agenda (first implemented by Carter, resumed by Clinton, and revitalized
by Obama) rolled back as substantially as it was by President Trump. Trump’s
DOI change aected not only oil and gas leasing, as noted above, but all statutory
responsibilities of its various agencies, bureaus, and oces. Thus, whether the
statutory mandate was to promote economic activity, to ensure and expand rec-
reational opportunities, or to protect valuable natural resources, including, for
example, parks, wilderness areas, national monuments, and wild and scenic areas,
eorts were expended, barriers were removed, and career employees were aided
in the accomplishment of those missions.
Unfortunately, Biden’s DOI is at war with the department’s mission, not only
when it comes to DOI’s obligation to develop the vast oil and gas and coal resources
for which it is responsible, but also as to its statutory mandate, for example, to
manage much of federal land overseen by the BLM pursuant to “multiple use” and
“sustained yield” principles.11 Instead, Biden’s DOI believes most BLM land should
be placed o-limits to all economic and most recreational uses. Worse yet, Biden’s
DOI not only refuses to adhere to the statutes enacted by Congress as to how the
lands under its jurisdiction are managed, but it also insists on implementing a vast
regulatory regime (for which Congress has not granted authority) and overturning,
by unilateral regulatory action, congressional acts that set forth the productive
economic uses permitted on DOI-managed federal land.
BUDGET STRUCTURE
At $18.9 billion, DOI’s 2024 proposed budget is small relative to many other
federal agencies. On the other side of the ledger, the DOI forecasts it will generate
more than $19.6 billion in “osetting receipts” from oil and gas royalties, timber
and grazing fees, park user fees, and land sales, among other sources. Most of the
proposed allocations are divided among nine bureaus.
Bureau of Indian Aairs. Fulfills Indian trust responsibilities on behalf of
566 Indian tribes; supports natural resource education, law enforcement, and
social service programs delivered by tribes; operates 182 elementary and secondary
schools and dormitories and 29 tribally controlled community colleges, universi-
ties, and post-secondary schools.
Bureau of Land Management. Manages and conserves resources for 245
million acres of public land and 700 million acres of subsurface federal mineral
estate, including energy and mineral development, forest management, timber
and biomass production, and wild horse and burro management.
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Mandate for Leadership: The Conservative Promise
Bureau of Ocean Energy Management. Manages access to renewable and
conventional energy resources of the Outer Continental Shelf, including more than
6,400 fluid mineral leases on approximately 35 million OCS acres; issues leases
for 24 percent of domestic crude oil and 8 percent of domestic natural gas supply;
oversees lease and grant issuance for oshore renewable energy projects.
Bureau of Reclamation. Manages, develops, and protects water and related
resources, including 476 dams and 337 reservoirs; delivers water to one in every
five western farmers and more than 31 million people; is America’s second-largest
producer of hydroelectric power.
Bureau of Safety and Environmental Enforcement. Regulates oshore oil
and gas facilities on 1.7 billion acres of the Outer Continental Shelf; oversees oil
spill response; supports research on technology for oil spill response.
National Park Service. Maintains and manages 401 natural, cultural, and
recreational sites, 26,000 historic structures, and more than 44 million acres of
wilderness; provides outdoor recreation; provides technical assistance and support
to state and local programs.
Oce of Surface Mining Reclamation and Enforcement. Regulates coal
mining and site reclamation; provides grants to states and tribes for mining over-
sight; mitigates the eects of past mining.
U.S. Fish and Wildlife Service. Manages the 150-million-acre National Wild-
life Refuge System; manages 70 fish hatcheries and other related facilities for
endangered species recovery; protects migratory birds and some marine mammals.
U.S. Geological Survey. Conducts scientific research in ecosystems, climate,
and land-use change, mineral assessments, environmental health, and water
resources; produces information about natural hazards (earthquakes, volcanoes,
and landslides); leads climate change research for the department.
RESTORING AMERICAN ENERGY DOMINANCE
Given the dire adverse national impact of Biden’s war on fossil fuels, no other
initiative is as important for the DOI under a conservative President than the
restoration of the department’s historic role managing the nation’s vast store-
house of hydrocarbons, much of which is yet to be discovered. The U.S. depends
on reliable and cheap energy resources to ensure the economic well-being of its
citizens, the vitality of its economy, and its geopolitical standing in an uncertain
and dangerous world. Not only are valuable natural resources owned generally
by the American people involved, so too are those owned separately by American
Indian tribes and individual American Indians, both of which have been injured
by Biden’s illegal actions.
The federal government owns 61 percent of the onshore and oshore min-
eral estate of the U.S., but only 22 percent of the nation’s oil and 12 percent of U.S.
natural gas comes from those federal lands and waters—and even that amount is
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2025 Presidential Transition Project
declining. Additionally, 42 percent of coal production takes place on federal lands
in 11 states.
12
DOI manages a subsurface mineral estate of 700 million acres onshore
and 1.76 billion acres oshore, for a total of 2.46 billion acres.
The total land area of the U.S. is 2.263 billion acres. Private and state lands,
at 1.563 billion acres, make up only 39 percent of the total onshore and oshore
subsurface area of the United States. Oil, natural gas, coal, and other minerals on
federal lands and waters are managed by the Bureau of Land Management, Bureau
of Ocean Energy Management, and Oce of Surface Mining Reclamation and
Enforcement; these agencies’ responsibilities frequently overlap with resource
management by the U.S. Forest Service in the U.S. Department of Agriculture, state
governments, and private property owners.
Biden is “aligning the management of…public lands and waters…to support
robust climate action,” as envisioned in Executive Orders 14008 and 13990.
13
One of
his first actions was to ban federal coal, oil, and natural gas leasing on federal lands
and waters to fulfill his campaign promise of “no federal oil,” followed by actions
from Interior Secretary Deb Haaland to rescind the Trump Administration’s
Energy Dominance Agenda. To this end, DOI unilaterally overhauled resource
management plans, lease sales, fees, rents, royalty rates, bonding requirements,
and permitting processes to prevent new production of coal, oil, and natural gas
on federal lands and waters; to dramatically increase production of solar and wind
energy; and to accomplish its “30 by 30,” “America the Beautiful” agenda to remove
federal lands from “multiple”—that is, productive—use.
DOI is abusing National Environmental Policy Act (NEPA)
14
processes, the
Antiquities Act,
15
and bureaucratic procedures to advance a radical climate agenda,
ostensibly to reduce greenhouse gas emissions, for which DOI has no statutory
responsibility or authority.
16
The Federal Land Policy and Management Act
(FLPMA), Outer Continental Shelf Lands Act (OSCLA), General Mining Law,
17
and other congressional acts clearly set forth multiple-use principles and processes
that include production of coal, oil, natural gas, and other minerals, as legitimate
activities consistent with the welfare of all Americans and of environmental
stewardship.
Biden’s DOI is hoarding supplies of energy and keeping them from Americans
whose lives could be improved with cheaper and more abundant energy while
making the economy stronger and providing job opportunities for Americans.
DOI is a bad manager of the public trust and has operated lawlessly in defiance of
congressional statute and federal court orders.
ADMINISTRATION PRIORITIES
Rollbacks. A new Administration must immediately roll back Biden’s orders,
reinstate the Trump-era Energy Dominance Agenda, rescind Secretarial Order
(SO) 3398, and review all regulations, orders, guidance documents, policies, and
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Mandate for Leadership: The Conservative Promise
similar agency actions made in compliance with that order.
18
Meanwhile, the
new Administration must immediately reinstate the following Trump DOI sec-
retarial orders:
lSO 3348: Concerning the Federal Coal Moratorium;19
lSO 3349: American Energy Independence;20
lSO 3350: America-First Oshore Energy Strategy;21
lSO 3351: Strengthening the Department of the Interior’s Energy Portfolio;22
lSO 3352: National Petroleum Reserve—Alaska;23
lSO 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program;24
lSO 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and
Accountability in the Environmental Review and Permitting Process for
Infrastructure Projects”;25
lSO 3358: Executive Committee for Expedited Permitting;26
lSO 3360: Rescinding Authorities Inconsistent with Secretary’s Order 3349,
“American Energy Independence;”27
lSO 3380: Public Notice of the Costs Associated with Developing Department
of the Interior Publications and Similar Documents;28
lSO 3385: Enforcement Priorities;29 and
lSO 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews.30
Actions. At the same time, the new Administration must:
lReinstate quarterly onshore lease sales in all producing states according to
the model of BLM’s IM 2018–034, with the slight adjustment of including
expanded public notice and comment.31 The new Administration should
work with Congress on legislation, such as the Lease Now Act32 and
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2025 Presidential Transition Project
ONSHORE Act,33 to increase state participation and federal accountability
for energy production on the federal estate.
lConduct oshore oil and natural gas lease sales to the maximum extent
permitted under the 2023–2028 lease program,34 with the possibility to
move forward under a previously studied but unselected plan alternative.35
lDevelop immediately and finalize a new five-year plan, while working with
Congress to reform the OCSLA by eliminating five-year plans in favor of
rolling or quarterly lease sales.
lReview all resource management plans finalized in the previous four years
and, when necessary, select studied alternatives to restore the multi-use
concept enshrined in FLPMA and to eliminate management decisions that
advance the 30 by 30 agenda.
lSet rents, royalty rates, and bonding requirements to no higher than what is
required under the Inflation Reduction Act.36
lComply with the Alaska National Interest Lands Conservation Act
(ANILCA) and the Tax Cuts and Jobs Act of 2017 to establish a competitive
leasing and development program in the Coastal Plain, an area of Alaska
that was set aside by Congress specifically for future oil and gas exploration
and development. It is often referred to as the “Section 1002 Area” after
the section of ANILCA that excludes the area from Arctic National Wildlife
Refuge’s wilderness designation.37
lConclude the programmatic review of the coal leasing program, and work
with the congressional delegations and governors of Wyoming and Montana
to restart the program immediately.38
lAbandon withdrawals of lands from leasing in the Thompson Divide of the
White River National Forest, Colorado; the 10-mile buer around Chaco
Cultural Historic National Park in New Mexico (restoring the compromise
forged in the Arizona Wilderness Act39); and the Boundary Waters area
in northern Minnesota if those withdrawals have not been completed.40
Meanwhile, revisit associated leases and permits for energy and mineral
production in these areas in consultation with state elected ocials.
lRequire regional oces to complete right-of-way and drilling permits
within the average time it takes states in the region to complete them.
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Mandate for Leadership: The Conservative Promise
Rulemaking. The following policy reversals require rulemaking:
lRescind the Biden rules and reinstate the Trump rules regarding:
1. BLM waste prevention;
2. The Endangered Species Act rules defining Critical Habitat and Critical
Habitat Exclusions;41
3. The Migratory Bird Treaty Act;42 and
4. CEQ reforms to NEPA.43
lReinstate President Trump’s plan for opening most of the National
Petroleum Reserve of Alaska to leasing and development.
Personnel Changes. The new Administration should be able to draw on the
enormous expertise of state agency personnel throughout the country who are
capable and knowledgeable about land management and prove it daily. States are
better resource managers than the federal government because they must live with
the results. President Trump’s Schedule F proposal44 regarding accountability in
hiring must be reinstituted to bring success to these reforms. Consistent with the
theme of bringing successful state resource management examples to the forefront
of federal policy, DOI should also look for opportunities to broaden state–federal
and tribal–federal cooperative agreements.
IMMEDIATE ACTIONS
BLM Headquarters. BLM headquarters belongs in the American West. After
all, the overwhelming majority of the 245 million surface acres (10 percent of the
nation’s landmass) managed by the agency lies in the 11 western states and Alaska:
A mere 50,000 surface acres lie elsewhere. Moreover, 97 percent of BLM employees
are located in the American West.
Thus, the Trump Administration’s decision to relocate BLM headquarters from
Washington, D.C., to the West was the epitome of good governance: That is, it was
not only well-informed, but it was also implemented eciently, eectively, and
with an eye toward aected career civil servants. Plus, despite overblown chatter
from the inside-the-Beltway media, Congress, with bipartisan support, approved
funding the move.
Meanwhile, state, tribal, and local ocials, the diverse collection of stakehold-
ers who use public lands and western neighbors became accustomed to having
top BLM decision-makers in Grand Junction, Colorado, rather than up to four
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2025 Presidential Transition Project
time zones away. All of them also appreciated that the BLM’s top subject matter
experts were located not in the District of Columbia, but in the western states
that most need their knowledge and expertise. Westerners no longer had to travel
cross country to address BLM issues. Neither did ocials in the West, closest to
the resources and people they manage.
On July 16, 2019, Secretary of the Interior David L. Bernhardt delivered to Con-
gress the proposal for the relocation of nearly 600 BLM headquarters employees.
On August 10, 2020, Secretary Bernhardt formally established the Robert F. Burford
headquarters—named after the longest-serving BLM director, a Grand Junction
native—with a sta of 41 senior ocials and assistants. Another 76 positions were
assigned to BLM state oces in western communities such as Billings, Montana;
Boise, Idaho; Reno, Nevada; Salt Lake City, Utah; and Cheyenne, Wyoming, to meet
critical needs. Scores of other positions were assigned to the states that required
BLM expertise. For example, wild horse and burro professionals were relocated
to Nevada, home to nearly 60 percent of these western icons. Sixty-one positions
were retained in Washington, D.C., to address public, congressional, and regulatory
aairs, Freedom of Information Act compliance, and budget development.
Despite the dislocating impact of the COVID-19 pandemic, the BLM success-
fully filled hundreds of long-vacant positions, as well as those that opened because
of the move West. The BLM saw notable numbers of applicants for these positions—
so numerous that the BLM capped the number of eligible applicants to no more
than 50. Obviously, reduced commuting times (often from hours to mere minutes),
lower cost of living, and opportunity to access vast public lands for recreation made
these jobs attractive to potential employees. Many, if not most, applicants stated
they would not have applied had the positions been based in Washington, D.C. At
the same time, western positions attracted those with the skills needed to meet
the BLM’s multiple-use, sustained-yield mandate, disproving the claim that the
BLM was suering a “brain drain.”
The Trump Administration recognized that, despite its attractions, not every-
one employed by BLM in Washington, D.C., could move West. The Administration
applied a hands-on approach, with all-employee briefing and question-and-answer
sessions, regular email communications, and a website devoted to frequently asked
questions. Two human resources teams aided employees wishing to remain in
federal jobs in the D.C. area: All received new opportunities.
The BLM’s move West incurred no legal challenges, no formal Equal Employ-
ment Opportunity or U.S. Merit Systems Protection Board complaints, and no
adverse union activity. It is hard to please everyone, but the Trump Administra-
tion’s BLM did just that, putting the lie to assertions, by some, that the BLM was
trying to “fire” federal employees.
The total cost of $17.9 million for relocation incentives, permanent change-of-
station moves, temporary labor, travel, printing, rent, supplies, equipment, and
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Mandate for Leadership: The Conservative Promise
other contracts will save money for the American people. For example, in fiscal
2020, the BLM estimated $1.6 million in travel costs savings, which will grow
slightly over time, and $1.9 million in savings from its terminated lease in Wash-
ington, D.C. Furthermore, BLM estimated that, by October 2022, the BLM move
West would generate a net savings of $3.5 million, which, the following fiscal year,
would increase to $10.3 million.
Those funds can be devoted to reducing the risk of wildfires, increasing recre-
ational opportunities, conserving public lands, and addressing tough issues such
as wild horses and burros. Moreover, those funds will be used more wisely thanks
to the eciency of senior, seasoned managers working closely with BLM field
employees in near daily contact with western ocials, stakeholders, and neighbors.
In late 2022, Secretary of the Interior Deb Haaland announced the return of
headquarters and scores of highly paid, senior employees to Washington, D.C. Sub-
sequently, BLM Director Tracy Stone-Manning revealed 56 BLM jobs in BLM’s
“Western Headquarters” and 70 other BLM jobs will remain in Grand Junction,
an increase of 15 from the 41 announced by Trump’s BLM in 2019, and an increase
of 40 other jobs above the 16 first announced by Biden ocials. Thus, the director,
the two deputy directors, six of seven assistant directors (ADs) and their stas are
now or soon will be in Washington.
The Biden Administration failed to recognize the wisdom of having BLM’s lead-
ership, including its director, deputy directors, and ADs in the West. That is why,
decades ago, the AD and sta in charge of BLM’s firefighters were relocated to Boise,
Idaho, where they remain. Not so the head of BLM law enforcement and security,
who supervises over 200 uniformed law enforcement rangers and 76 special agents
stationed mainly in 11 western states and Alaska. Haaland moved that ocial to
Washington, far from state troopers, county sheris and deputies, and city police
with whom BLM law enforcement ocers keep the peace in the West’s wide-open
spaces. BLM’s “top cop” might as well be on the moon.
The AD in charge of oil, gas, and minerals was also moved to Washington, D.C.,
notwithstanding that most oil, gas, and minerals are in the West and Alaska; New
Mexico’s Permian Basin, for example, is second only to Alaska in petroleum poten-
tial, and Montana and Wyoming’s Powder River Basin contains the world’s best
low-sulfur coal. The AD responsible for wild horses and burros was moved east as
well, despite the fact that the uncontrolled growth of wild horses and burros poses
an existential threat to public lands; 60 percent of the nation’s wild horses are in
Nevada,45 but thousands are in nine other western states. There is no way these
and other ADs can professionally manage issues thousands of miles and multiple
time zones away.
It is not just eective and responsive management that has been lost; Colorado
lost its chance to become a must-visit destination for BLM’s stakeholders. Those
seeking to develop world-class mineral deposits in Minnesota or another Prudhoe
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2025 Presidential Transition Project
Bay in Alaska; to expand recreation across BLM’s vast, diverse, and unique land-
scapes; or to manage timber and rangelands to prevent wildfires, would all journey
to Grand Junction. Convention opportunities on Colorado’s western slope would
abound for BLM’s disparate constituencies to congregate and meet with BLM
leadership. The Western States Sheris’ Association, for example, whose annual
gathering attracts hundreds of law enforcement ocers from 17 western and plains
states might have moved its event to Grand Junction.
Law Enforcement Ocers. In 2002, at the direction of the Secretary of the
Interior in the days following the 9/11 attack, the Inspector General (IG) for DOI
made a series of department-wide recommendations regarding law enforcement.
Then-Secretary of the Interior Gale Norton ordered adoption of those recom-
mendations, which drew strong bipartisan support from Congress. Over the years,
most were implemented. One, however, remained undone: placing all BLM law
enforcement ocers (LEOs), that is, its 212 Law Enforcement Rangers and 76
Special Agents, in an exclusively law enforcement chain of command.
This was not just the IG’s recommendation in 2002, but that of every IG who fol-
lowed. It is also the strong recommendation of the department’s top LEO. Moreover,
it has been the urgent recommendation of law enforcement professionals across
the country, especially in the West, for decades, including the Western States Sher-
is Association. Unfortunately, over time, BLM leadership stonewalled, adhering
to a haphazard system in which LEOs reported to non-LEO superiors, including
not only state directors, but also district and field managers with expertise in other
fields—range management or petroleum engineering, for example—with only 24
hours of law enforcement study. Obviously, those managers lack a comprehensive
understanding of law enforcement issues—constitutional, legal, and tactical. In
addition, they do not uniformly apply or enforce rules of conduct or ethical stan-
dards for LEOs and special agents, leading to weakened esprit de corps and morale.
Worse yet, because of their duties as managers of the multiple-use lands under
their jurisdiction, they are exposed to conflicts of interests and may intentionally
or unintentionally prevent LEOs from investigating violations or applying the law.
In the final days of the Trump Administration, Secretary David L. Bernhardt
ordered, and Deputy Director William Perry Pendley implemented, the IG’s recom-
mendation. Of course, leadership heads exploded; they were furious with their loss
of authority, not to mention subordinates and budgets. Unfortunately, in the first
days of the Biden Administration, BLM Deputy Director Mike Nedd suspended
Pendley’s order.
Nonetheless, LEOs, the BLM, and westerners want LEOs—who make life-and-
death decisions—to be as well-trained and well-equipped as possible. They should
report to a professional, expert, and knowledgeable chain of command. After all,
they protect visitors to BLM lands and the natural and cultural resources of those
lands, as well as the employees who manage those lands.
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Mandate for Leadership: The Conservative Promise
BLM’s LEOs must keep in touch, work closely, and coordinate with fellow fed-
eral, state, and local law enforcement ocers. In the Trump Administration, they
joined state and local law enforcement in arresting dangerous suspects in Cortez,
Colorado; responded to a request from a rural sheri in Arizona to rescue a family
stuck in freezing temperatures; and, teamed up in an all-hands-on-deck eort to
locate a missing American Indian teenager in rural Montana. More important,
western LEOs need the assurance that the BLM LEOs with whom they work are
professionals who report through a professional chain of command.
Wild Horses and Burros. In 1971, Congress ordered the BLM to manage wild
horses and burros to ensure their iconic presence never disappeared from the
western landscape. For decades, Congress watched as these herds overwhelmed
the land’s ability to sustain them, crowded out indigenous plant and other animal
species, threatened the survival of species listed under the Endangered Species
Act, invaded private and permitted public land, disturbed private property rights,
and turned the sod into concrete. BLM experts said in 2019 that some aected land
will never recover from this unmitigated damage.
There are 95,000 wild horses and burros roaming nearly 32 million acres in the
West—triple what scientists and land management experts say the range can sup-
port. These animals face starvation and death from lack of forage and water. The
population has more than doubled in just the past 10 years and continues to grow
at a rate of 10 to 15 percent annually. This number includes the more than 47,000
animals the BLM has already gathered from public lands, at a cost to the American
taxpayer of nearly $50 million annually to care for them in o-range corrals.
This is not a new issue—it is not just a western issue—it is an American issue.
What is happening to these once-proud beasts of burden is neither compassionate
nor humane, and what these animals are doing to federal lands and fragile ecosys-
tems is unacceptable. In 2019, the American Association of Equine Practitioners
and the American Veterinary Medication Association—two of the largest organi-
zations of professional veterinarians in the world—issued a joint policy calling for
further reducing overpopulation to protect the health and well-being of wild horses
and burros on public lands. The National Wild Horse and Burro Advisory Board,
a panel of nine experts and professionals convened to advise the BLM, endorsed
the joint policy. Furthermore, animal welfare organizations such as the American
Society for the Prevention of Cruelty to Animals and the Humane Society of the
United States recognize that the prosperity of wild horses and burros on public
lands is threatened if herds continue to grow unabated.
The BLM’s multi-pronged approach in its 2020 Report to Congress46 included
expanded adoptions and sales of horses gathered from overpopulated herds;
increased gathers and increased capacity for o-range holding facilities and pas-
tures; more eective use of fertility control eorts; and improved research, in
concert with the academic and veterinary communities, to identify more eective
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2025 Presidential Transition Project
contraceptive techniques and strategies. All of that will not be enough to solve
the problem, however. Congress must enact laws permitting the BLM to dispose
humanely of these animals.
IMMEDIATE ACTIONS REGARDING ALASKA
Alaska is a special case and deserves immediate action.
47
When Alaska was
admitted to the Union in 1959, nearly its entire landmass was federally owned;
therefore, Alaska was granted the right to select 104 million acres (out of 375
million acres) to manage for the benefit of its residents.48 In less than eight years,
Alaska selected 26 million acres. Then-Interior Secretary Stewart Udall—who
served during the Kennedy and Johnson Administrations—put a freeze on further
land selections to protect any claims that might be asserted by Native Alaskans.49
Alaska Native Claims Settlement Act. The discovery of oil at Prudhoe Bay in
1968 made resolution of the issue by Congress a matter of urgency. As a result, in
1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA), which
allowed the Native community to select 44 million acres.50
Environmentalists, upset that too much of the land they coveted would be selected
by the state and Native Alaskans for development, demanded the inclusion in the act
of a provision—Section 17(d)(2)—that ordered the Interior Secretary to withdraw 80
million acres for future designation by Congress as parks, refuges, wild and scenic
rivers, and national forests.51 The deadline for this congressional action was 1978,
and as it neared, the Carter Administration, impatient and worried, decided to force
Congress’s hand. The Administration unilaterally withdrew 100 million acres from
any use by the state or Native Alaskans.52 Alaska promptly sued, charging that the
Administration had failed to comply with the National Environmental Policy Act.53
In a lame duck session at the end of 1980, Congress passed (over the objec-
tions of the Alaskan delegation) the Alaska National Interest Lands Conservation
Act, which revoked all of the withdrawals of the Carter Administration and sub-
stituted congressional designations that put 100 million acres permanently in
federal enclaves, doubled the acreage of national parks and refuges, and tripled the
amount of land declared to be wilderness.54 Through all of this, Alaska pressed for
the DOI to convey the lands to which Alaska was entitled by federal law, but the
department grudgingly transferred only portions of that land.
By the time Ronald Reagan took oce, Alaska had received less than half the
lands to which it was entitled after its admission into the Union, and Native Alas-
kans had received only one-third of the land due to them.55 From January of 1981
through 1983, however, under Reagan, Alaska received 30 million acres and a com-
mitment of land transfers at the rate of 13 million acres annually. In the same
period, Native Alaskans received 11 million acres, which constituted nearly 60
percent of their entitlement, and an additional 15 million acres were transferred
by the end of 1988.56
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Mandate for Leadership: The Conservative Promise
Despite the passage of nearly 40 years since the end of the Reagan Adminis-
tration, the federal government has yet to fulfill its statutory obligation to Alaska
and Alaska Natives—specifically, each group has 5 million acres of entitlement
remaining. Standing in the way are Public Land Orders (PLOs) issued by the BLM
seizing that land for the agency. Those PLOs must be lifted to permit Alaska and
Alaska Natives to select what was promised by Congress.
For example, revocation of PLO 5150
57
will provide the state of Alaska 1.3 million
acres of its remaining state entitlement. This revocation should be a top priority.
BLM recommended this revocation in the 2006 report to Congress based on the
Alaska Land Transfer Acceleration Act, and the Interior Secretary has authority
to revoke based on the Alaska Native Claims Settlement Act under section d(1).58
All other remaining BLM PLOs—all of which are more than 50 years old—should
be revoked immediately.
Alaska has untapped potential for increased oil production, which is important
not just to the revitalization of the nation’s energy sector but is vital to the Alaskan
economy. One-quarter of Alaska’s jobs are in the oil industry, and half of its overall
economy depends on that industry. Without oil production, the Alaskan economy
would be half its size.
A new Administration must take the following actions immediately:
lApprove the 2020 National Petroleum Reserve Alaska Integrated Activity
Plan (NPRA-IAP) by resigning the Record of Decision. (Secretary Haaland’s
order reverted to the 2013 IAP, the science for which is out of date, unlike
the 2020 IAP.)
lReinstate the 2020 Arctic National Wildlife Refuge Environmental Impact
Statement (EIS) by secretarial order and lift the suspension of the leases.
lApprove the 2020 Willow EIS, the largest pending oil and gas projection in
the United States in the National Petroleum Reserve-Alaska, and expand
approval from three to five drilling pads.59
Minerals. Alaska is not just blessed with an abundance of oil, it has vast
untapped mineral potential. Therefore, the new Administration must immedi-
ately approve the Ambler Road Project60 across BLM-managed lands, pursuant
to the Secretary’s authority under the ANILCA and based on the Final Envi-
ronmental Impact Statement on the project.
61
This will permit construction of
a new 211-mile roadway on the south side of the Brooks Range, west from the
Dalton Highway to the south bank of the Ambler River, and open the area only
to mining-related industrial uses, providing high-paying jobs in an area known
for unemployment.
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2025 Presidential Transition Project
Wildlife and Waters. Throughout Alaska’s history, the federal government
has treated Alaska as less than a sovereign state. This is especially the case when
it comes to two of Alaska’s most valued resources, its wildlife and its waters.
Immediate action is required to end, at least in part, this injustice. A new Admin-
istration should:
lRevoke National Park Service and U.S. Fish and Wildlife Service rules
regarding predator control and bear baiting, which are matters for state
regulation. Such revocation is permitted under the 2017 Congressional
Review Act.62
lRecognize Alaska’s authority to manage fish and game on all federal lands
in accordance with ANILCA as during the Reagan Administration, when
each DOI agency in Alaska signed a Memorandum of Understanding with
the Alaska Department of Fish and Game ceding to the state the lead on fish
and wildlife management matters.63
lIssue a secretarial order declaring navigable waters in Alaska to be owned
by the state so that the lands beneath these waters belong to Alaska. This
will force the BLM to prove that water is not navigable, since in the case of
non-navigability, any submerged lands belong to the BLM. Currently, BLM
requires Alaska to prove navigability at its own expense—including the
BLM’s preposterous assertion that the mighty Yukon River is non-navigable.
lReinstate President Trump’s 2020 Alaska Roadless Rule64 for the Tongass
National Forest in Alaska, which was replaced by a Biden Roadless Rule
that continues a 2001 Clinton rule aecting 9.37 million of the forest’s 16.7
million acres.65 The Clinton rule aects an area where communities are in
small islands with no road access. It has prevented multiple infrastructure
projects, including roads, electric transmission lines, and water and sewer
projects, and it forces residents to use a heavily subsidized ferry system.
Logging has been shut down to the extent that New York harvests more
timber than does all of Alaska.
OTHER ACTIONS
The 30 by 30 Plan.
66
President Biden’s Executive Order 14008 (30 by 30
plan)
67
requires that the federal government, which already owns one-third of
the country: (1) remove vast amounts of private property from productive use;
and (2) end congressionally mandated uses of all federal land. The end result
will be “total federal control of an additional 440 million acres of land or oceans
in the U.S. by 2030.”68
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Mandate for Leadership: The Conservative Promise
Although the new President should vacate that order, DOI under a conservative
President must take immediate action on the 30 by 30 plan by vacating a secre-
tarial order issued by the Biden DOI
69
that eliminated the Trump Administration’s
requirement for the approval of state and local governments before federal acquisi-
tion of private property with monies from the Land and Water Conservation Fund.
70
National Monument Designations. As has every Democratic President before
him beginning with Jimmy Carter, Joe Biden has abused his authority under the
Antiquities Act of 1906. Like the outrageous, unilateral withdrawals from public use
of multiple use federal land under the Carter, Clinton, and Obama Administrations,
Biden’s first national monument was one in Colorado—adopted over the objections
of scores of local groups and at least one American Indian tribe.
71
In the days before
the 2024 election, Biden will likely designate more western monuments.
Although President Trump courageously ordered a review of national mon-
ument designations, the result of that review was insucient in that only two
national monuments in one state (Utah) were adjusted.72 Monuments in Maine
and Oregon, for example, should have been adjusted downward given the finding
of Secretary Ryan Zinke’s review that they were improperly designated. The new
Administration’s review will permit a fresh look at past monument decrees and
new ones by President Biden.
Furthermore, the new Administration must vigorously defend the downward
adjustments it makes to permit a ruling on a President’s authority to reduce the
size of national monuments by the U.S. Supreme Court.
Finally, the new Administration must seek repeal of the Antiquities Act of 1906,
which permitted emergency action by a President long before the statutory author-
ity existed for the protection of special federal lands, such as those with wild and
scenic rivers, endangered specials, or other unique places. Moreover, in recent
years, Congress has designated as national monuments those areas deserving of
such congressional action.
Oregon and California Lands Act. One national monument worthy of down-
ward adjustment is in Oregon, where its designation and subsequent expansion
interfere with the federal obligation to residents to harvest timber on its BLM
lands. A federal district court ruled in 2019 that land subject to the Oregon and
California (O&C) Grant Lands Act of 1937
73
was set aside by Congress to be har-
vested for the benefit of the people of Oregon. Specifically, those federal lands are
to be “managed…for permanent forest production” and its timber “sold, cut, and
removed in conformity with the princip[le] of sustained yield.”74
As the district court concluded,
75
beginning in 1990, the federal government
erected a trifecta of illegal barriers to the accomplishment of the congressional
mandate, beginning with a response to the listing of the northern spotted owl,76
continuing a decade later with the designation of the Cascade–Siskiyou National
Monument,
77
and concluding in 2017 with an expansion of that monument.
78
In
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2025 Presidential Transition Project
order to fulfill the yet-unaltered congressional mandate contained in federal law,
to provide for jobs and well-paying employment opportunities in rural Oregon,
and to ameliorate the eects of wildfires, the new Administration must immedi-
ately fulfill its responsibilities and manage the O&C lands for “permanent forest
production” to ensure that the timber is “sold, cut, and removed.”79
NEPA Reforms. Congress never intended for the National Environmental
Policy Act to grow into the tree-killing, project-dooming, decade-spanning mon-
strosity that it has become. Instead, in 1970, Congress intended a short, succinct,
timely presentation of information regarding major federal action that signifi-
cantly aects the quality of the human environment so that decisionmakers can
make informed decisions to benefit the American people.
The Trump Administration adopted common-sense NEPA reform that must
be restored immediately. Meanwhile, DOI should reinstate the secretarial orders
adopted by the Trump Administration, such as placing time and page limits on
NEPA documents and setting forth—on page one—the costs of the document itself.
Meanwhile, the new Administration should call upon Congress to reform NEPA
to meet its original goal. Consideration should be given, for example, to eliminat-
ing judicial review of the adequacy of NEPA documents or the rectitude of NEPA
decisions. This would allow Congress to engage in eective oversight of federal
agencies when prudent.
Settlement Transparency. Interior Secretary David Bernhardt required DOI
to prominently display and provide open access to any and all litigation settlements
into which DOI or its agencies entered, and any attorneys’ fees paid for ending
the litigation.
80
Biden’s DOI, aware that the settlements into which it planned to
enter and the attorneys’ fees it was likely to pay would cause controversy, ended
this policy.81 A new Administration should reinstate it.
The Endangered Species Act. The Endangered Species Act was intended
to bring endangered and threatened species back from the brink of extinction
and, when appropriate, to restore real habitat critical to the survival of the spe-
cies. The act’s success rate, however, is dismal. Its greatest deficiency, according
to one renowned expert, is “conflict of interest.”
82
Specifically, the work of the
Fish and Wildlife Service is the product of “species cartels” aicted with group-
think, confirmation bias, and a common desire to preserve the prestige, power,
and appropriations of the agency that pays or employs them. For example, in one
highly influential sage-grouse monograph, 41 percent of the authors were federal
workers. The editor, a federal bureaucrat, had authored one-third of the paper.83
Meaningful reform of the Endangered Species Act requires that Congress
take action to restore its original purpose and end its use to seize private prop-
erty, prevent economic development, and interfere with the rights of states over
their wildlife populations. In the meantime, a new Administration should take the
following immediate action:
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Mandate for Leadership: The Conservative Promise
lDelist the grizzly bear in the Greater Yellowstone and Northern
Continental Divide Ecosystems and defend to the Supreme Court of the
United States the agency’s fact-based decision to do so.84
lDelist the gray wolf in the lower 48 states in light of its full recovery
under the ESA.85
lCede to western states jurisdiction over the greater sage-grouse,
recognizing the on-the-ground expertise of states and preventing use
of the sage-grouse to interfere with public access to public land and
economic activity.
lDirect the Fish and Wildlife Service to end its abuse of Section 10(j) of the
ESA by re-introducing so-called “experiment species” populations into
areas that no longer qualify as habitat and lie outside the historic ranges
of those species, which brings with it the full weight of the ESA in areas
previously without federal government oversight.86
lDirect the Fish and Wildlife Service to design and implement an impartial
conservation triage program by prioritizing the allocation of limited
resources to maximize conservation returns, relative to the conservation
goals, under a constrained budget.87
lDirect the Fish and Wildlife Service to make all data used in ESA decisions
available to the public, with limited or no exceptions, to fulfill the public’s
right to know and to prevent the agency’s previous opaque decision-making.
lAbolish the Biological Resources Division of the U.S. Geological Survey
and obtain necessary scientific research about species of concern from
universities via competitive requests for proposals.
lDirect the Fish and Wildlife Service to: (1) design and implement an
Endangered Species Act program that ensures independent decision-
making by ending reliance on so-called species specialists who have
obvious self-interest, ideological bias, and land-use agendas; and (2) ensure
conformity with the Information Quality Act.88
Oce of Surface Mining. The Oce of Surface Mining Reclamation and
Enforcement (OSM) was created by the Surface Mining Control and Reclamation
Act of 1977 (SMCRA)89 to administer programs for controlling the impacts of surface
coal mining operations. Although the coal industry is contracting, coal constitutes
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2025 Presidential Transition Project
20 percent of the nation’s electricity and is a mainstay of many regional economies.
The following actions should ensure OSM’s ability to perform its mission while com-
plying with SMCRA and without interfering with the production of high-quality
American coal:
lRelocate the OSM Reclamation and Enforcement headquarters to
Pittsburgh, Pennsylvania, to recognize that the agency is field-driven and
should be headquartered in the coal field.90
lReduce the number of field coal-reclamation inspectors to recognize the
industry is smaller.
lReissue Trump’s Schedule F executive order to permit discharge of
nonperforming employees.91
lPermit coal company employees to benefit from the OSM Training
Program, which is currently restricted to state and federal employees.
lRevise the Applicant Violator System, the nationwide database for the
federal and state programs, to permit federal and state regulators to
consider extenuating circumstances.
lMaintain the current “Ten-Day Notice” rule, which requires OSM to work
with state regulators in determining if a SMCRA violation has taken place in
recognition of the fact that a coal mining state with primacy has the lead in
implementing state and federal law.
lPreserve Directive INE-26, which relates to approximate original contour,
a critical factor in permitting ecient and environmentally sound surface
mining, especially in Appalachia.92
Western Water Issues. The American West, from the Great Plains to the Cas-
cades Range, is arid, as recognized by John Wesley Powell during his famous trip
across a large part of its length. Pursuant to an Executive Order signed by President
Trump, and consistent with its authority along with other federal agencies, DOI’s
Bureau of Reclamation must take the following actions:
lDevelop additional storage capacity across the arid west, including by:
1. Updating dam water control manuals for existing facilities during
routine operations; and
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Mandate for Leadership: The Conservative Promise
2. Engaging in real-time monitoring of operations.
lReduce bureaucratic ineciencies by consolidating federal water
working groups.
lImplement actions identified in the Federal Action Plan for Improving Fore-
casts of Water Availability,93 especially by adopting improvements related to:
1. Forecast Informed Reservoir Operations; and
2. Arial Snow Observation Systems.
lClarify the Water Infrastructure Finance and Innovation Act94 to ensure
consistent application with other federal infrastructure loan programs
under the Federal Credit Reform Act. This should be done to foster
opportunities for locally led investment in water infrastructure.
lReinstate Presidential Memorandum on Promoting the Reliable Supply
and Delivery of Water in the West.95
AMERICAN INDIANS AND U.S. TRUST RESPONSIBILITY
The Biden Administration has breached its federal trust responsibilities to
American Indians. This is unconscionable. Specifically, the Biden Administra-
tion’s war on domestically available fossil fuels and mineral sources has been
devastating. To wit:
lThe ability of American Indians and tribal governments to develop their
abundant oil and gas resources has been severely hampered, depriving
them of the revenue and profits to which they are entitled during a time of
increasing worldwide energy prices, forcing American Indians—who are
among the poorest Americans—to choose between food and fuel.
lIndian nations with significant coal resources have some of the
highest quality and cleanest-burning coal in the world, but the Biden
Administration has sought to destroy the market for their coal by
eliminating coal-fired electricity in the country and to prevent the transport
of their coal for sale internationally. Meanwhile, the Biden Administration,
at great public expense, artificially boosted the demand for electric
vehicles, which, because of their remote locations, the absence of increased
electricity demands for charging electric vehicles nearby, and the distances
to be traveled, are not a choice for Indian communities.
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2025 Presidential Transition Project
lA significant percentage of critical minerals needed by the United States
is on Indian lands, but the Biden Administration has actively discouraged
development of critical mineral mining projects on Indian lands rather than
assisting in their advancement.
lDespite Indian nations having primary responsibility for their lands and
environment and responsibility for the safety of their communities, the
Biden Administration is reversing eorts to put Indian nations in charge of
environmental regulation on their own lands.
Moreover, Biden Administration policies, including those of the DOI, have dis-
proportionately impacted American Indians and Indian nations.
lBy its failure to secure the border, the Biden Administration has
robbed Indian nations on or near the Mexican border of safe and secure
communities while permitting them to be swamped by a tide of illegal drugs,
particularly fentanyl.
lWhen ending COVID protocols at Bureau of Indian Education (BIE) schools,
Biden’s DOI failed to ensure an accurate accounting of students returning
from school shutdowns, which presents a significant danger to the families
that trust their children to that federal agency.
lThe BIE is not reporting student academic assessment data to ensure
parents and the larger tribal communities know their children are learning
and are receiving a quality education.
The new Administration must take the following actions to fulfill the nation’s
trust responsibilities to American Indians and Indian nations:
lEnd the war on fossil fuels and domestically available minerals and
facilitate their development on lands owned by Indians and Indian nations.
lEnd federal mandates and subsidies of electric vehicles.
lRestore the right of tribal governments to enforce environmental
regulation on their lands.
lSecure the nation’s border to protect the sovereignty and safety of
tribal lands.
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Mandate for Leadership: The Conservative Promise
lOverhaul BIE schools to put parents and their children first.
Finally, the new Administration should seek congressional reauthorization
of the Land Buy-Back Program for Tribal Nations,
96
which provided a $1.9 bil-
lion Trust Land Consolidation Fund to purchase fractional interests in trust or
restricted land from willing sellers at fair market value, but which sunsets Novem-
ber 24, 2022. New funds should come from the Great American Outdoors Act.97
AUTHOR’S NOTE: The preparation of this chapter was a collective enterprise of individuals involved in the
2025 Presidential Transition Project. All contributors to this chapter are listed at the front of this volume, but some
deserve special mention. Kathleen Sgamma, Dan Kish, and Katie Tubb wrote the section on energy in its entirety. I
received thoughtful, knowledgeable, and swift assistance from Aubrey Bettencourt, Mark Cruz, Lanny Erdos, Aurelia
S. Giacometto, Casey Hammond, Jim Magagna, Chad Padgett, Jim Pond, Rob Roy Ramey II, Kyle E. Scherer, Tara
Sweeney, John Tahsuda, Rob Wallace, and Gregory Zerzan. The author alone assumes responsibility for the content
of this chapter; no views expressed herein should be attributed to any other individual.
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2025 Presidential Transition Project
ENDNOTES
See generally William Perry Pendley, Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and
Why It Matters Today (Regnery, 2013), preface, pp. xvi-xxii.
U.S. Const. art. IV, § 3, cl. 2. “The 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.”
In Wyoming, the federal government owns 48 percent of the land; in Wyoming’s Teton County, the federal
government owns 97 percent of the land.
Pendley, Sagebrush Rebel.
Keith Schneider, “The 1992 Campaign; Bush on the Environment: A Record of Contradictions,” New York Times,
July 4, 1992, https://www.nytimes.com/1992/07/04/us/the-1992-campaign-bush-on-the-environment-a-
record-of-contradictions.html (accessed March 15, 2023).
William Perry Pendley, War on the West: Government Tyranny on America’s Great Frontier (Regnery, 1995).
William Perry Pendley, “Bureau of Land Management Yesterday and Today: Energy Independence,” Cowboy
State Daily, April 5, 2022, https://cowboystatedaily.com/2022/04/05/bureau-of-land-management-
yesterday-and-today-energy-independence/ (accessed March 15, 2023).
Ibid.
William Perry Pendley, “Perspective: Biden’s War on Western Energy,” The Gazette, November 6, 2022, https://
gazette.com/opinion/perspective-biden-s-war-on-western-energy/article_3823a584-5bb2-11ed-a598-
235c22e34687.html (accessed March 15, 2023).
Ibid.
Multiple-Use Sustained-Yield Act of 1960, Public Law 86–517.
Federal Register, Vol. 86, No. 159 (August 20, 2021), pp. 46873–46877.
Federal Register, Vol. 86, No. 19 (February 1, 2021), pp. 7619–7633, and White House, “Executive Order on
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” January
20, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-
protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/ (accessed
March 16, 2023).
National Environmental Policy Act, Public Law 91–160.
Antiquities Act of 1906, Public Law 59–209.
“You know what there’s not is a shall for? ‘I shall manage the land to stop climate change,’ or something
similar to that,” Secretary of the Interior David Bernhardt testified. “You guys come up with the shalls.” Chris
D’Angelo, “Interior Secretary Blames Congress for His Inaction on Climate Change,” High Country News,
May 9, 2019.
Federal Land Policy and Land Management Act of 1976, Public Law 94–579; Outer Continental Shelf Lands Act,
Public Law 95–372; and 30 U.S.C. § 21 et seq.
U.S. Department of the Interior, “Order No. 3398: Revocation of Secretary’s Orders Inconsistent with
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” April
16, 2021, https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3348: Concerning the Federal Coal Moratorium,” March 29, 2017,
https://www.doi.gov/sites/doi.gov/files/uploads/so_3348_coal_moratorium.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3349: American Energy Independence,” March 29, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so_3349_-american_energy_independence.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3350: America First Oshore Energy Strategy,” May 1, 2017,
https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3350-oshore-508.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order No. 3351: Strengthening the Department of the Interior’s Energy
Portfolio,” May 1, 2017, https://www.doi.gov/sites/doi.gov/files/press-release/secretarial-order-3351-energy-
counselor-508.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3352: National Petroleum Reserve—Alaska,” May 31, 2017, https://
www.doi.gov/sites/doi.gov/files/uploads/so-3352.pdf (accessed March 16, 2023).
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Mandate for Leadership: The Conservative Promise
U.S. Department of the Interior, “Order No. 3354: Supporting and Improving the Federal Onshore Oil and Gas
Leasing Program and Federal Solid Mineral Leasing Program, July 6, 2017, https://www.doi.gov/sites/doi.gov/
files/uploads/so_-_3354_signed.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3355: Streamlining National Environmental Policy Reviews and
Implementation of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects,” August 31, 2017, https://www.doi.gov/sites/doi.gov/
files/elips/documents/3355_-_streamlining_national_environmental_policy_reviews_and_implementation_
of_executive_order_13807_establishing_discipline_and_accountability_in_the_environmental_review_
and_permitting_process_for.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3358: Executive Committee for Expedited Permitting,” October
25, 2017, https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3358_executive_committee_for_
expedited_permitting_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3360: Rescinding Authorities Inconsistent with Secretary’s Order
3349, “American Energy Independence,” December 22, 2017, https://www.doi.gov/sites/doi.gov/files/elips/
documents/3360_-_rescinding_authorities_inconsistent_with_secretarys_order_3349_american_energy_
independence.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3380: Public Notice of the Costs Associated with Developing
Department of the Interior Publications and Similar Documents,” March 10, 2020, https://www.doi.gov/sites/
doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3385: Enforcement Priorities,” September 14, 2020, https://
www.doi.gov/sites/doi.gov/files/elips/documents/signed-so-3385-enforcement-priorities.pdf (accessed
March 16, 2023).
U.S. Department of the Interior, “Order 3389: Coordinating and Clarifying National Historic Preservation Act
Section 106 Reviews,” September 14, 2020, https://www.doi.gov/sites/doi.gov/files/elips/documents/signed-
so-3385-enforcement-priorities.pdf (accessed March 16, 2023).
Bureau of Land Management, “Updating Oil and Gas Leasing Reform: Land Use Planning and Lease Parcel
Reviews,” IM 2018–034, January 31, 2018, https://www.blm.gov/policy/im-2018-034 (accessed March 16, 2023).
Lease Now Act, S. 4228, 117th Cong., 2nd Sess. (2022).
ONSHORE Act, S. 218, 116th Cong., 2nd Sess. (2019). https://www.congress.gov/bill/116th-congress/senate-
bill/218/text (accessed March 18, 2023).
Federal Register, Vol. 87, No. 130 (July 8, 2022), pp. 40859–40863.
The Biden Administration’s 2023–2028 proposed program is fatally flawed. Katie Tubb, “Comment for the
2023–2028 National OCS Oil and Gas Leasing Proposed Program,” BOEM–2022–0031, October 6, 2022, http://
thf_media.s3.amazonaws.com/2022/Regulatory_Comments/BOEM%202023-2028%20lease%20plan%20
comment%20KTubb.pdf (accessed March 16, 2023).
See Inflation Reduction Act of 2022, Public Law No. 117–169, §§ 50261–50263.
Tax Cuts and Jobs Act of 2017, Public Law No. 115–97, § 20001, and U.S. Department of the Interior, “Order No.
3401: Comprehensive Analysis and Temporary Halt on All Activities in the Arctic National Wildlife Refuge Relating
to the Coastal Plain Oil and Gas Leasing Program,” June 1, 2021, https://www.doi.gov/sites/doi.gov/files/elips/
documents/so-3401-comprehensive-analysis-and-temporary-halt-on-all-activitives-in-the-arctic-national-
wildlife-refuge-relating-to-the-coastal-plain-oil-and-gas-leasing-program.pdf (accessed March 16, 2023).
In 2016, Interior Secretary Sally Jewell instituted a moratorium on new coal leases while conducting a
programmatic environmental impact statement under NEPA to address concerns about competition and
inconsistency with the Obama Administration’s climate policy. In 2017, Interior Secretary Ryan Zinke lifted
the moratorium and ended development of a programmatic environmental impact statement. In April 2021,
Interior Secretary Debra Haaland rescinded Zinke’s order and initiated a new review of the coal-leasing
program. See U.S. Department of the Interior, “Order No. 3338: Discretionary Programmatic Environmental
Impact Statement to Modernize the Federal Coal Program,” January 15, 2016, https://www.doi.gov/sites/doi.
gov/files/elips/documents/archived-3338_-discretionary_programmatic_environmental_impact_statement_
to_modernize_the_federal_coal_program.pdf (accessed March 16, 2023); U.S. Department of the Interior,
“Order No. 3348”; U.S. Department of the Interior, “Order No. 3398”; and Federal Register, Vol. 86, No. 159
(August 20, 2021), pp. 46873–46877.
— 541 —
2025 Presidential Transition Project
Katie Tubb, “No More Standos: Protecting Federal Employees and Ending the Culture of Anti-Government
Attacks and Abuse,” testimony before the Subcommittee on National Parks, Forests, and Public Lands,
Committee on Natural Resources, U.S. House of Representatives, pp. 2–4, October 22, 2019, https://congress.
gov/116/meeting/house/110104/witnesses/HHRG-116-II10-Wstate-TubbK-20191022.pdf (accessed March 16, 2023).
News release, “Secretary Haaland Announces Steps to Establish Protections for Culturally Significant Chaco
Canyon Landscape,” U.S. Department of the Interior, November 15, 2021, https://www.doi.gov/pressreleases/
secretary-haaland-announces-steps-establish-protections-culturally-significant-chaco (accessed March
16, 2023); News release, “Biden–Harris Administration Proposes Protections for Thompson Divide,” U.S.
Department of the Interior, October 12, 2022, https://www.doi.gov/pressreleases/biden-harris-administration-
proposes-protections-thompson-divide (accessed March 16, 2023); News release, “Biden Administration Takes
Action to Complete Study of Boundary Waters Area Watershed,” U.S. Department of the Interior, October
20, 2021, https://www.doi.gov/pressreleases/biden-administration-takes-action-complete-study-boundary-
waters-area-watershed (accessed March 16, 2023); and News release, “Interior Department Takes Action on
Mineral Leases Improperly Renewed in the Watershed of the Boundary Waters Wilderness,” U.S. Department
of the Interior, January 26, 2022, https://www.doi.gov/pressreleases/interior-department-takes-action-
mineral-leases-improperly-renewed-watershed-boundary (accessed March 16, 2023).
Endangered Species Act, Public Law 91–135, § 4(b)(2), and Federal Register, Vol. 85, No. 244 (December 18,
2020), pp. 82376–82389.
U.S. Fish and Wildlife Service, “Governing the Take of Migratory Birds Under the Migratory Bird Treaty Act.”
https://www.fws.gov/regulations/mbta (accessed March 16, 2023).
Dino Grandoni and Anna Phillips, “Biden Restores Climate Safeguards in Key Environmental Law,
Reversing Trump,” Washington Post, April 19, 2022, https://www.washingtonpost.com/climate-
environment/2022/04/19/biden-nepa-climate-trump/ (accessed March 16, 2023).
Donald Trump, “Executive Order on Creating Schedule F in the Accepted Service,” Executive Order 13957,
October 21, 2020, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating-
schedule-f-excepted-service/ (accessed March 16, 2023).
Kathleen Masterson, “Nevada Wild Horse Population Skyrockets To New High,” KUNR Public Radio, July 22,
2019, https://www.kunr.org/energy-and-environment/2019-07-22/nevada-wild-horse-population-skyrockets-
to-new-high (accessed March 20, 2023).
U.S. Department of the Interior, Bureau of Land Management, “Report to Congress: An Analysis of Achieving
a Sustainable Horse and Burro Program,” Fact sheet, May 8, 2020, https://www.blm.gov/sites/blm.gov/files/
Final%20Fact%20Sheet%20WHB%20Report%20To%20Congress.pdf (accessed March 17, 2023).
Pendley, Sagebrush Rebel, pp. 45–47.
James D. Linxwiler, The Alaska Native Claims Settlement Act At 35: Delivering on the Promise, Rocky Mountain
Mineral Law Institute, Vol. 53, Chap. 12 (2007), § 12.03(1)(a)(iv), https://www.guessrudd.com/wp-content/
uploads/sites/1600422/2020/05/The-Alaska-Native-Claims-Settlement-Act-at-35.pdf (accessed March 16, 2023).
Ibid., § 12.03(1)(a)(vii). See generally Richard S. Jones, Alaska Native Claims Settlement Act of 1971 (Public
Law 92–203): History And Analysis Together With Subsequent Amendments, Report No. 81–127 GOV, June
1, 1981, http://www.alaskool.org/PROJECTS/ANCSA/reports/rsjones1981/ANCSA_History71.htm (accessed
March 16, 2023).
43 U.S. Code, Ch. 33. ANCSA also created 12 Native-owned regional corporations and authorized $962 million
in “seed money.” Linxwiler, The Alaska Native Claims Settlement Act At 35, § 12.03(2)(e).
ANCSA provided that the withdrawal of the lands would expire in 1978 if Congress had not designated the
lands as federal enclaves. John K. Norman Cole and Steven W. Silver, Alaska’s D-2 Lands, Rocky Mountain
Mineral Law Institute, Vol. 6B, Ch. 5, September 1978, and Raymond A. Peck, Jr., And Then There Were None:
Evolving Federal Restraints on the Availability of Public Lands for Mineral Development, Rocky Mountain
Mineral Law Institute, Vol. 25, Ch. 3, 1979.
Andrus used purported authority under the FLPMA to withdraw 40 million acres, and Carter used purported
authority under the Antiquities Act of to withdraw 56 million acres. James D. Linxwiler, The Alaska Native
Claims Settlement Act: The First Twenty Years, Rocky Mountain Mineral Law Institute, Vol. 38 Ch. 2, 1992 at
2.04(8)(c), https://ancsa.lbblawyers.com/wp-content/uploads/ANCSA-Paper-with-Table-of-Contents-1992.pdf
(accessed March 16, 2023).
— 542 —
Mandate for Leadership: The Conservative Promise
Alaska’s request for an injunction was denied. State of Alaska v. Carter, 462 F. Supp. 1155, 1156 (D. Alaska
1978) (NEPA does not apply to presidential proclamations under the Antiquities Act). Alaska’s lawsuit was
similar to one filed by Wyoming challenging use of the Antiquities Act to designate the Grand Teton National
Monument. Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945). See generally Carol Hardy Vincent and
Kristina Alexander, “National Monuments and the Antiquities Act,” Congressional Research Service Report for
Congress, R41330, July 20, 2010, https://digital.library.unt.edu/ark:/67531/metadc813640/m2/1/high_res_d/
R41330_2011Aug22.pdf (accessed March 16, 2023). In December 1980, President Carter signed the Alaska
National Interest Lands Conservations Act; subsequently, during the Reagan Administration, Alaska dropped
its lawsuit.
Alaska National Interest Lands Conservation Act, Public Law 96–487 (codified as amended in scattered
sections of 16 U.S.C., 43 U.S.C., 48 U.S.C.), and Joseph J. Perkins, Jr., The Great Land Divided But Not
Conquered: The Eects of Statehood, ANCSA, and ANILCA on Alaska, Rocky Mountain Mineral Law Institute,
Vol. 34, Ch. 6, 1988, § 6.02.
U.S. Department of the Interior, 1983: A Year Of Enrichment: Improving The Quality Of Life For All Americans,
October 1983, p. 25, https://www.reaganlibrary.gov/public/digitallibrary/smof/publicliaison/blackwell/box-
006/40_047_7006969_006_022_2017.pdf (accessed March 16, 2023).
Ibid. The conveyances by the Reagan Administration to Alaska and Native Alaskans greatly exceeded the
amount of land transferred to each during the Carter Administration. See U.S. Department of the Interior,
1983: A Year Of Enrichment, pp. 86–87.
Federal Register, Vol. 36, No. 252 (December 31, 1971), pp. 25410–25412. “On December 28, 1971, ten days
after enactment of ANCSA, the Secretary of Interior through his Assistant Secretary issued Public Land Order
(PLO) 5150 which withdrew and reserved various federal public lands, subject to valid existing rights, as a
utility and transportation corridor for the Alaska oil pipeline. 36 Fed. Reg. 25410 (December 31, 1971). The land
order was issued ‘by virtue of the authority vested in the President and pursuant to Executive Order 10355 of
May 26, 1952 (17 Fed. Reg. 4831)….PLO 5150 established a corridor extending from the North Slope of Alaska
(Prudhoe Bay) south to Valdez on Prince William Sound.’” Wisenak, Inc. v. Andrus, 471 F. Supp. 1004, 1006 (D.
Alaska 1979).
Alaska Land Transfer Acceleration Act, Public Law 108–452.
Philip Elliott, “Biden May Be About to Sign O on a Huge Alaska Oil Drilling Project,” Time, December 13, 2022,
https://time.com/6240733/biden-alaska-oil-drilling-willow-project/ (accessed March 16, 2023). A Biden
approval of the bare minimum three pads for ConocoPhillips disincentivized the ability of any other oil and
gas company to make the huge investment necessary to operate in NPRA.
Alaska Department of Natural Resources, Division of Mining, Land and Water, “Ambler Road Project,” https://
dnr.alaska.gov/mlw/ambler-road/ (accessed March 17, 2023).
U.S. Department of the Interior, Bureau of Land Management, Ambler Road: Environmental Impact Statement:
Vol. 1, March 2020, https://eplanning.blm.gov/public_projects/nepa/57323/20015364/250020506/Ambler_
FEIS_Volume_1-_Chp_1-3_&__Appendices_A-F_.pdf (accessed March 18, 2023).
5 U.S. Code § 801(a)(1)(A).
U.S. Department of the Interior, “Master Memorandum of Understanding Between the Alaska Department
of Fish and Game, Juneau, Alaska and the U.S. National Park Service,” October 14, 1982; U.S. Department
of the Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and
Game, Juneau, Alaska and the U.S. Fish and Wildlife Survey,” March 13, 1982; and U.S. Department of the
Interior, “Master Memorandum of Understanding Between the Alaska Department of Fish and Game, Juneau,
Alaska and the Bureau of Land Management,” August 3, 1983, https://eplanning.blm.gov/public_projects/
lup/66967/84127/100727/Memorandum_of_Understanding_BLM_and_ADFG.pdf (accessed March 16, 2023).
Federal Register, Vol. 85, No. 210 (October 29, 2020), pp. 68668–68703.
Federal Register, Vol. 88, No. 18 (January 27, 2023), pp. 5252–5272.
E. Dinerstein et al., “A Global Deal For Nature: Guiding Principles, Milestones, and Targets,” Science Advances,
Vol. 5, No. 4 (April 19, 2019), https://www.science.org/doi/10.1126/sciadv.aaw2869 (accessed March 18, 2023).
Joseph R. Biden, “Tackling the Climate Crisis at Home and Abroad,” Executive Order 14008, https://www.
whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-
crisis-at-home-and-abroad/ (accessed March 17, 2023).
— 543 —
2025 Presidential Transition Project
Karen Budd Falen, “Biden’s ‘30 By 30 Plan’: A Slap at American Private Property Rights,” Cowboy State Daily,
April 15, 2021, https://cowboystatedaily.com/2021/04/15/bidens-30-by-30-plan-a-slap-at-american-private-
property-rights/ (accessed March 16, 2023).
U.S. Department of the Interior, “Order No. 3396: Rescission of Secretary’s Order 3388, ‘Land and Water
Conservation Fund Implementation by the U.S. Department of the Interior,’” February 11, 2021, https://www.
doi.gov/sites/doi.gov/files/elips/documents/so-3396-signed-2-11-21-final.pdf (accessed March 17, 2021).
Ibid.
Associated Press, “Ute Indian Tribe Criticizes Biden’s Camp Hale Monument Designation,” KUER 90.1,
October 13, 2022.
William Perry Pendley, “Trump Wants to Free Up Federal Lands, His Interior Secretary Fails Him,” National
Review Online, September 25, 2017, https://www.nationalreview.com/2017/09/secretary-interior-ryan-zinke-
monuments-review-trump-executive-order-antiquities-act-environmentalists/ (accessed March 16, 2023).
The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75-405, 43
U.S. Code § 2601.
Ibid., and American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184, 187 (D.D.C. 2019).
American Forest Resource Council v. Hammond, 422 F. Supp. 3d, pp. 187–188.
Federal Register, Vol. 55, No. 26 (June 26, 1990), p. 26114–26194.
Federal Register, Vol. 65, No. 114 (June 13, 2000), pp. 37249–37252.
Federal Register, Vol. 82, No. 11 (January 18, 2017), pp. 6145–6150.
American Forest Resource Council v. Hammond, 422 F. Supp. 3d 184 (D.D.C. 2019).
U.S. Department of the Interior, “Final Consent Decrees/Settlement Agreements,” https://www.doi.gov/
solicitor/transparency/final (accessed March 16, 2023).
Michael Doyle, “Interior Order Erases Litigation Website,” E&E News, June 17, 2022, https://www.eenews.net/
articles/interior-order-erases-litigation-website/ (accessed March 16, 2023).
Rob Roy Ramey, On the Origin of Specious Species (Lexington Books 2012), pp. 77–97.
William Perry Pendley, “Killing Jobs to Save the Sage Grouse: Junk Science, Weird Science, and Plain
Nonsense,” Washington Times, May 31, 2012, https://www.washingtontimes.com/news/2012/may/31/killing-
jobs-to-save-the-sage-grouse/ (accessed March 16, 2023).
Michael Lee, “Wyoming’s Push to Delist Grizzly Bears from Endangered Species List Faces Opposition from
Anti-Hunting Group,” Fox News, January 21, 2022, https://www.foxnews.com/politics/wyoming-delist-grizzly-
endangered-species-list-opposition-anti-hunting-group (accessed March 18, 2023).
News release, “Trump Administration Returns Management and Protection of Gray Wolves to States and
Tribes Following Successful Recovery Eorts,” October 29, 2020, https://www.doi.gov/pressreleases/trump-
administration-returns-management-and-protection-gray-wolves-states-and-tribes (accessed March 18, 2023).
50 Code of Federal Regulations §17, and Sean Paige, “‘Rewilding’ Will Backfire on Colorado,” The Gazette,
June 19, 2022, https://gazette.com/opinion/guest-column-rewilding-will-backfire-on-colorado/article_
d0016672-ed79-11ec-b027-abe62ba840a1.html (accessed March 18, 2023).
Madeleine C. Bottrill et al., “Is Conservation Triage Just Smart Decision Making?” Trends in Ecology & Evolution,
Vol. 23, No. 12 (December 2008), pp. 649–654, https://karkgroup.org/wp-content/uploads/Bottrill-et-al-2008.
pdf (accessed March 16, 2023).
Rob Roy Ramey II, testimony before the Committee on Resources, U.S. House of Representatives, April 8, 2014,
https://naturalresources.house.gov/uploadedfiles/rameytestimony4_8.pdf (accessed March 16, 2023).
Surface Mining Control and Reclamation Act of 1977, Public Law 95–87.
Pennsylvania is the nation’s third-largest coal producer, and its state program was the model for SMCRA.
Federal Register, Vol. 85, No. 207 (October 26, 2020), pp. 67631–67635.
U.S. Department of the Interior, Oce of Surface Mining Reclamation and Enforcement, “Approximate Original
Contour,” INE–26, June 23, 2020, https://www.osmre.gov/sites/default/files/pdfs/directive1003.pdf (accessed
March 18, 2023).
Tim Gallaudet and Timothy R. Petty, “Federal Action Plan for Improving Forecasts of Water Availability,”
National Oceanic and Atmospheric Administration, October 2019, https://www.noaa.gov/sites/default/files/
legacy/document/2019/Oct/Federal%20Action%20Plan%20for%20Improving%20Forecasts%20of%20
Water%20Availability.pdf (accessed March 17, 2023).
— 544 —
Mandate for Leadership: The Conservative Promise
32 U.S. Code, ch. 52.
Donald J. Trump, “Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water
in the West,” October 19, 2018, https://trumpwhitehouse.archives.gov/presidential-actions/presidential-
memorandum-promoting-reliable-supply-delivery-water-west/ (accessed March 17, 2023).
U.S. Department of the Interior, “Land Buy-Back Program for Tribal Nations,” https://www.doi.gov/
buybackprogram (accessed March 18, 2023).
Great American Outdoors Act, Public Law 116–152.
From: Castellanos, Gilbert
To: Boario, Sara D; Skibo, Bobbie Jo; Loya, Wendy M
Subject: Re: ANWR talking points - Secretary"s trip to CAN
Date: Tuesday, August 29, 2023 10:08:18 AM
Hi Sara,
This request came from DOI, Office of the Secretary - Office of
International Affairs. For something like this, typically Ryan Close, who
serves as Canada Desk Officer in that office, would have run this through
all appropriate contacts, including the FWS Director's Office. However, he's
out of the office on paternity leave until November. In his place, Brooke is
covering, and she sent it to various folks across the bureaus
I'll forward you the original email. It includes some familiar FWS and other
bureau folks names, but others I don't recognize, though you may.
Gil-
From: Boario, Sara D <sara_boario@fws.gov>
Sent: Tuesday, August 29, 2023 7:58 AM
To: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>; Castellanos, Gilbert
<gilbert_castellanos@fws.gov>; Loya, Wendy M <wendy_loya@fws.gov>
Subject: Re: ANWR talking points - Secretary's trip to CAN
Thanks all...who did this request come from/through? It's helpful to know as usually these
would come through the OC or from Director to RD...so just want to make sure folks in my
chain are aware of our contributions. thx - sb
Sara D. Boario
Regional Director
U.S. Fish and Wildlife Service, Alaska Region
From: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Sent: Tuesday, August 29, 2023 7:53 AM
To: Castellanos, Gilbert <gilbert_castellanos@fws.gov>; Boario, Sara D <sara_boario@fws.gov>;
Loya, Wendy M <wendy_loya@fws.gov>
Subject: RE: ANWR talking points - Secretary's trip to CAN
Thank you Gil. I think it addresses the Coastal Plain topic well (with additions).
From: Castellanos, Gilbert <gilbert_castellanos@fws.gov>
Sent: Monday, August 28, 2023 7:34 PM
To: Boario, Sara D <sara_boario@fws.gov>; Loya, Wendy M <wendy_loya@fws.gov>
Cc: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Subject: ANWR talking points - Secretary's trip to CAN
Hi Sara and Wendy,
Here's the if raised talking points re: ANWR/SEIS/IPCB from the
Secretary's briefing memo for her upcoming trip to Ottawa. I've included
my suggested edits in strikethrough for suggested deletions and red text
for suggested additions.
Let me know if you have any questions about any of this. I've also cc'd
Bobbie Jo, in case she has any comments.
Sara, on a related note, I remain ready to assist on IPCB appointments of
U.S. Board members, and possible meetings with the Government of
Canada. Let me know if there's anything I can do on this front.
Gil-
IF ASKED about the Arctic National Wildlife Refuge:
I understand that Canada, Yukon, Northwest Territories, and the Gwich’in
Tribal Council, and other groups in Canada, have concerns that energy
development within the Refuge may have transboundary impacts. I
appreciate the seriousness of these issues, and it is important to me to
proceed in an open and cooperative way with our partners on both sides of
the border.
Under the Biden-Harris Administration, we’ve set a strong direction on
this issue. The President placed a temporary moratorium on the Coastal
Plain Oil and Gas Leasing Program’s implementation. Since then,
although we are mandated by statute to hold a second lease sale before
December 2024, we have begun a new, comprehensive analysis of
potential environmental impacts from the proposed program. We are
working on that analysis – in consultation with several Cooperating
Agencies – with the goal of completing that analysis next year.
We recognize the importance of the International Porcupine Caribou
Board, and I was happy to recently appoint a U.S. federal co-chair last
year to the Board. We are working to fill the three other U.S. Board
positions in the coming months and will continue to communicate through
the Canadian Co-chair as this process moves forward.
Gilbert Castellanos
International Affairs Specialist
Phone: 907-786-3850
Fax: 907-786-3303
Email: Gilbert_Castellanos@fws.gov
From: Boario, Sara D
To: Castellanos, Gilbert; Skibo, Bobbie Jo; Loya, Wendy M
Subject: Re: ANWR talking points - Secretary"s trip to CAN
Date: Tuesday, August 29, 2023 10:31:10 AM
Thanks Gil! I'll just make sure I include it in my updates to Martha. Appreciate it! - sb
From: Castellanos, Gilbert <gilbert_castellanos@fws.gov>
Sent: Tuesday, August 29, 2023 8:08 AM
To: Boario, Sara D <sara_boario@fws.gov>; Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>; Loya,
Wendy M <wendy_loya@fws.gov>
Subject: Re: ANWR talking points - Secretary's trip to CAN
Hi Sara,
This request came from DOI, Office of the Secretary - Office of
International Affairs. For something like this, typically Ryan Close, who
serves as Canada Desk Officer in that office, would have run this through
all appropriate contacts, including the FWS Director's Office. However, he's
out of the office on paternity leave until November. In his place, Brooke is
covering, and she sent it to various folks across the bureaus
I'll forward you the original email. It includes some familiar FWS and other
bureau folks names, but others I don't recognize, though you may.
Gil-
From: Boario, Sara D <sara_boario@fws.gov>
Sent: Tuesday, August 29, 2023 7:58 AM
To: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>; Castellanos, Gilbert
<gilbert_castellanos@fws.gov>; Loya, Wendy M <wendy_loya@fws.gov>
Subject: Re: ANWR talking points - Secretary's trip to CAN
Thanks all...who did this request come from/through? It's helpful to know as usually these
would come through the OC or from Director to RD...so just want to make sure folks in my
chain are aware of our contributions. thx - sb
Sara D. Boario
Regional Director
U.S. Fish and Wildlife Service, Alaska Region
From: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Sent: Tuesday, August 29, 2023 7:53 AM
To: Castellanos, Gilbert <gilbert_castellanos@fws.gov>; Boario, Sara D <sara_boario@fws.gov>;
Loya, Wendy M <wendy_loya@fws.gov>
Subject: RE: ANWR talking points - Secretary's trip to CAN
Thank you Gil. I think it addresses the Coastal Plain topic well (with additions).
From: Castellanos, Gilbert <gilbert_castellanos@fws.gov>
Sent: Monday, August 28, 2023 7:34 PM
To: Boario, Sara D <sara_boario@fws.gov>; Loya, Wendy M <wendy_loya@fws.gov>
Cc: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Subject: ANWR talking points - Secretary's trip to CAN
Hi Sara and Wendy,
Here's the if raised talking points re: ANWR/SEIS/IPCB from the
Secretary's briefing memo for her upcoming trip to Ottawa. I've included
my suggested edits in strikethrough for suggested deletions and red text
for suggested additions.
Let me know if you have any questions about any of this. I've also cc'd
Bobbie Jo, in case she has any comments.
Sara, on a related note, I remain ready to assist on IPCB appointments of
U.S. Board members, and possible meetings with the Government of
Canada. Let me know if there's anything I can do on this front.
Gil-
IF ASKED about the Arctic National Wildlife Refuge:
I understand that Canada, Yukon, Northwest Territories, and the Gwich’in
Tribal Council, and other groups in Canada, have concerns that energy
development within the Refuge may have transboundary impacts. I
appreciate the seriousness of these issues, and it is important to me to
proceed in an open and cooperative way with our partners on both sides of
the border.
Under the Biden-Harris Administration, we’ve set a strong direction on
this issue. The President placed a temporary moratorium on the Coastal
Plain Oil and Gas Leasing Program’s implementation. Since then,
although we are mandated by statute to hold a second lease sale before
December 2024, we have begun a new, comprehensive analysis of
potential environmental impacts from the proposed program. We are
working on that analysis – in consultation with several Cooperating
Agencies – with the goal of completing that analysis next year.
We recognize the importance of the International Porcupine Caribou
Board, and I was happy to recently appoint a U.S. federal co-chair last
year to the Board. We are working to fill the three other U.S. Board
positions in the coming months and will continue to communicate through
the Canadian Co-chair as this process moves forward.
Gilbert Castellanos
International Affairs Specialist
Phone: 907-786-3850
Fax: 907-786-3303
Email: Gilbert_Castellanos@fws.gov
From: Boario, Sara D
To: Cebrian, Merben R
Cc: Sanchez, Ronnie
Subject: Fw: Re: Coastal Plain SEIS - cooperating agency meeting postponed
Date: Friday, September 1, 2023 12:41:25 PM
Attachments: CP_SEIS_CA_Mtg_05032023.pdf
Merben - making sure you have this background, as well. - sb
From: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Sent: Wednesday, August 30, 2023 7:54 AM
To: Boario, Sara D <sara_boario@fws.gov>
Cc: Leonetti, Crystal <crystal_leonetti@fws.gov>; Sanchez, Ronnie <ronnie_sanchez@fws.gov>
Subject: FW: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
FYI, response to recent NVK email below.
From: Kuhns, Stephanie L <skuhns@blm.gov>
Sent: Tuesday, August 29, 2023 4:59 PM
To: Matthew Rexford <nvkaktovik@gmail.com>
Cc: teresa-imm@outlook.com; Sweet, Serena E <ssweet@blm.gov>; Skibo, Bobbie Jo
<bobbiejo_skibo@fws.gov>
Subject: RE: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
Good afternoon, Matthew,
Please see below for responses to each of your questions.
1. When do you expect to have the next Cooperating Agency meeting?
a. Can we get the notes of all prior Cooperative Agency meetings for our review and
records? It seems we have the notes from the prior ITEK Working Group but only
have notes from one Cooperating Agency meeting.
We do not have a date yet for the next cooperating agency meeting - we plan to
hold a meeting once we know when the Draft SEIS will be published. We are still
waiting for direction from our leadership as to when we will publish the Draft
SEIS.
Notes from the May 3, 2023 Cooperating Agency meeting are attached. (Please
note these are only Stephanie’s notes and they are not comprehensive.)
2. Yes, it would be helpful to provide hard copies of the SEIS to us but we would want to
make sure that we received them when the SEIS is made available.
Please let us know the best address to mail hard copies. They will be sent out
when the Draft SEIS is published.
3. When you state you would be happy to schedule an individual Cooperating Agency
meeting with Native Village of Kaktovik – what do you anticipate? What would be
different about this meeting than a G2G meeting? Can you elaborate more on this
idea?
An individual Cooperating Agency meeting would cover the same SEIS topics as
the larger group Cooperating Agency meeting format, but would provide more
time and space for the Native Village of Kaktovik to discuss your concerns and
ideas directly with the project management team and to dive deeper into the
draft SEIS, if desired. Our interest is in ensuring that you have the opportunity to
meaningfully participate in this process, and we are open to holding individual
Cooperating Agency sessions with you if that format works better for you.
In comparison, a G2G does not need to be limited to the SEIS and can be held at
any time per your request. At a G2G, we can cover topics not specific to the SEIS,
and BLM and USFWS Alaska leadership may attend.
4. Due to the delay for additional internal review, what is the new anticipated date for
publishing the SEIS? We want to make sure that we are prepared for its release.
We anticipate that the Draft SEIS will be published this fall. We do not have a set
date at this time. The feedback you provided in your last email – such as the
detailed information related to maps – was greatly appreciated and will be used
to inform the final SEIS.
5. We understand that part of the NEPA process requires the ANILCA 810 consultation,
however, we feel that since we have been mired down in meaningless ITEK discussions
for the entire time we have been engaged on the SEIS, our community is a bit exhausted
and somewhat reluctant of the agencies hosting any public meetings on either the SEIS
or ANILCA 810 in Kaktovik. What happens if hearings in Kaktovik cannot be scheduled?
Based on the preliminary findings in the ANILCA Section 810
subsistence evaluation, the BLM is legally required to hold a subsistence hearing
in or near Kaktovik, in conjunction with the Draft SEIS public meetings. We will
plan to work with the community to determine the best location to hold the
hearing and public meeting so that the residents of your community can attend
and participate. The public meeting and 810 hearing are separate from our
regular Cooperating Agency meetings and G2G consultations – they are open to
the wider public to attend and we hope that the Native Village of Kaktovik will
participate.
Thank you,
Stephanie, Serena, and Bobbie Jo
From: Matthew Rexford <nvkaktovik@gmail.com>
Sent: Tuesday, August 22, 2023 2:44 PM
To: Kuhns, Stephanie L <skuhns@blm.gov>
Cc: teresa-imm@outlook.com; Sweet, Serena E <ssweet@blm.gov>; Skibo, Bobbie Jo
<bobbiejo_skibo@fws.gov>
Subject: Re: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
Thank you for the clarity you provided below on the “value” of our comments. Based on your note
below we have a couple of questions on timing.
1. When do you expect to have the next Cooperating Agency meeting?
a. Can we get the notes of all prior Cooperative Agency meetings for our review and
records? It seems we have the notes from the prior ITEK Working Group but only have
notes from one Cooperating Agency meeting.
2. Yes, it would be helpful to provide hard copies of the SEIS to us but we would want to make
sure that we received them when the SEIS is made available.
3. When you state you would be happy to schedule an individual Cooperating Agency meeting
with Native Village of Kaktovik – what do you anticipate? What would be different about this
meeting than a G2G meeting? Can you elaborate more on this idea?
4. Due to the delay for additional internal review, what is the new anticipated date for
publishing the SEIS? We want to make sure that we are prepared for its release.
5. We understand that part of the NEPA process requires the ANILCA 810 consultation, however,
we feel that since we have been mired down in meaningless ITEK discussions for the entire
time we have been engaged on the SEIS, our community is a bit exhausted and somewhat
reluctant of the agencies hosting any public meetings on either the SEIS or ANILCA 810 in
Kaktovik. What happens if hearings in Kaktovik cannot be scheduled?
I look forward to the answers to our questions above.
Regards,
Matthew Rexford
Tribal Administrator
NATIVE VILLAGE OF KAKTOVIK
P.O. Box 52
Kaktovik, AK 99747
Phone: (907) 640-2042 or 2043
Fax: (907) 640-2044
On Fri, Aug 18, 2023 at 3:44 PM Kuhns, Stephanie L <skuhns@blm.gov> wrote:
Good afternoon, Matthew,
Thank you for your feedback and for sharing your frustrations. We value your participation
and input in this process and want to assure you that the feedback you’ve provided thus far,
along with comments you provide through future forums (e.g., the upcoming public
comment period) will be used to inform the development of the Final SEIS.
As we look forward, there will be additional opportunities for you to engage: as a
Cooperating Agency, via the public comment period, and through Government-to-
Government and/or ANCSA consultation. Through these processes, we want to ensure you
have opportunities to engage in ways that work best for you within the broader NEPA
context. If it is helpful to have hard copies of the Draft SEIS for your review, we would be
happy to send copies to you.
While we had planned to hold the Cooperating Agency meeting that was scheduled for the
16th as a teleconference, we would be happy to schedule an individual Cooperating Agency
meeting with the Native Village of Kaktovik. Let us know if that is something you would like,
and if there is a date in the coming weeks that would work well for you and your team.
Please note that when we hold the next full cooperating agency meeting, you will receive
another notice and invitation to that meeting as well.
Once we publish the Draft SEIS, we will begin holding both in-person and virtual public
meetings. This will allow more opportunities for the people of Kaktovik to provide
testimonial and have their voices heard. Pending your approval, we are planning to hold a
combined public meeting and ANILCA 810 hearing in the Native Village of Kaktovik. We
would value your input on dates that would work best for the community.
We would also like to offer to hold a Government-to-Government consultation and an
ANCSA consultation if that is of interest to the community. Again, please let us know if that
is something you would like, and if so, some dates that would work.
Thank you again for your feedback and for your engagement in this process, and we look
forward to hearing from you about how we can facilitate opportunities for your
engagement and input that meet your needs.
Thank you,
Stephanie, Serena, and Bobbie Jo
From: Matthew Rexford <nvkaktovik@gmail.com>
Sent: Friday, August 11, 2023 11:30 AM
To: Kuhns, Stephanie L <skuhns@blm.gov>
Cc: teresa-imm@outlook.com
Subject: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
This email has been received from outside of DOI - Use caution before clicking on
links, opening attachments, or responding.
Dear SEIS Team,
We can’t help but find irony in your need to delay release of the SEIS for more internal review.
When the Native Village of Kaktovik requested an extension to review the PDSEIS due to internet
issues, including latency problems, that inhibited our ability to download the three volumes of the
PDSEIS we were denied, even after we have repeatedly told you of this issue. You have continued
to ignore this communication deficiency throughout our engagement and have repeatedly put
NVK at a disadvantage throughout this process. That and your continuing focus on the need of
incorporating our ITEK, in other words our ‘intellectual property’ into the SEIS while we have
repeatedly stated our reluctance and your lack of definitively stating the reasons why you were
focused on it have created a lack of trust with us with your approach. We also note that you now
want to have a Cooperating Agency meeting which should have been recurring throughout the
process. Our one attempt, back in November 2022, to participate as a Cooperating Agency along
with the other Cooperating Agencies was a disaster for us because we could only attend via phone
and were not able to effectively hear or participate meaningfully in the meeting, something we
made you aware of.
It does appear to us that your continued focus on ITEK is continuing to lead to not only ‘cultural
trespass’ as we stated in our February letter but also to ‘cultural genocide’ by you placing the
Gwich’in phrase ‘Sacred Place Where Life Begins’ over our homelands on Map 3.44. How dare
you take a slogan developed in the 1980’s following passage of ANILCA as sincere traditional
knowledge when the bulk of the map is covered with our Inupiat place names that reflect our
occupancy and homelands. We are outraged by this and in fact we are questioning your ability to
maintain neutrality and be objective, which is required by agencies conducting NEPA reviews, in
this SEIS due to your continued push to usurp our existence and culture by a group from outside
our region. When do animals replace the existence of humans – our people – who occupy these
lands and have for centuries. WE ARE PART OF THE ENVIRONMENT TOO! We believe you have
lost sight of this critical difference. Why don’t you use your own data that has historical meaning
for place names like what is used in your own BLM database AK_NativePlaceNames - Visualization
(arcgis.com) which reflects that you are representing place names incorrectly because they are a
place which is a location and generally not encompassing an arbitrary area like that of the 1002
Area which was defined under ANILCA. As you can see, in your own system, the Gwich’in place
names are limited to two locations within the 1002 Area while there are approximately 100
Iñupiaq place names covering the same area. There is one Gwich’in place name along the Canning
River, south of the 1002 Area, this dot in the GIS map does not make the entire Canning River a
Gwich’in place. In fact, there are 5 locations along the Canning River that are Iñupiat locations. It
also appears that you have not used all of the locations identified as Iñupiaq on your map even if
they don’t have a specific Iñupiaq name, however they are identified as Iñupiat in the description.
Again, these are locations used by my people, both historically and in recent times. It is
unconscionable to call the entire Canning River Gwich’in! We think you should show all the
Iñupiat places on the map not just the ones that have a name associated with them because this is
our traditional knowledge and reflects our locations across the area – by not doing so you are
being selective with respect to our traditional knowledge that was provided to researchers in the
1970’s and 80’s. This again reflects the bias that we have witnessed under this SEIS process.
We are the people most impacted by the Porcupine Caribou Herd (PCH) movements, they are the
only herd that we can reliably use as a subsistence resource – Maps 3-35 and 3-36 show the
limited movement of the Central Arctic Herd into our area. It is in our best interest to keep the
population healthy for our community – does that make our homelands ‘sacred’? Our homelands
are sacred to us as a people because our ancestors are buried throughout this area, our children
are born in this region. Since time immemorial we have had campsites that were reused overtime
and were located about a 1-day walk from each other – these were there because our people
were migratory and followed the animals. Figure 3-6 reflects what native populations have
historically taken animals and Alaska residents represent the second smallest percentage of takes
– the story here is that the focus on the PCH is misguided because we have no authority in Canada
where the bulk of the caribou are harvested. Map 3-45 reflects significant overlap between the
Central Arctic Caribou Herd (CACH) and the PCH both in the 1002 Area and in the Yukon Flats, that
the prior maps don’t really echo particularly in the 1002 Area but they do match for the Yukon
Flats area. Map 3-62 reflects that hunting from Arctic Village only goes as far north as the
Continental Divide.
I want to thank you for sending this as it provides NVK a means of expressing our frustrations yet
again on the one-sided nature that you continue to portray because one indigenous group has the
legal counsel to engage and we do not. We have been disadvantaged since engaging as a
Cooperating Agency by having little to no support which basically means to us that your ability to
follow the NEPA process is broken.
Best regards,
Matthew Rexford
Tribal Administrator
NATIVE VILLAGE OF KAKTOVIK
P.O. Box 52
Kaktovik, AK 99747
Phone: (907) 640-2042 or 2043
Fax: (907) 640-2044
On Wed, Aug 9, 2023 at 3:38 PM Kuhns, Stephanie L <skuhns@blm.gov> wrote:
Hello,
Since we reached out on Monday, we have been directed to postpone the release of the
SEIS so there is additional time for internal review. As such, we will delay our
cooperating agency meeting until we have received further direction from our leadership.
Additionally, we would still like to schedule a call with you to discuss a public meeting
and ANILCA 810 hearing in Kaktovik.
We recognize that the SEIS is a priority for you and that the changes to the schedule may
be burdensome. Thank you for your patience and flexibility with the ongoing process and
changes.
Best,
Stephanie, Serena, and Bobbie Jo
Stephanie Kuhns (she/her)
Planning and Environmental Coordinator
Alaska State Office
USDOI - Bureau of Land Management
(907)271-4208 (office)
(907)201-8826 (cell)
“A desk is a dangerous place from which to view the world.” – John LeCarré
May 3, 2023
Coopera�ng Agency Mee�ng
• Caitlin Roesler filling in for Lauren Boldrick while she’s on detail (EPA)
• ANILCA 810 is �ered out of EIS analysis
o Coordina�on and schedule TBA soon
• Mike Gieryic: 810 evalua�on will track with and closely follow (in both scope and �me) the
subsistence analysis
• Sec�on 106 – we waited un�l we had a range of alterna�ves – we need to have informa�on
before we were able to begin
• Sarah Meitl: thought that 106 was not a concern – frustrated that it is
• Monty Rogers: usually the agency will ini�ate 106 before alterna�ves to inform their
development – feels that consulta�on is meaningless at this point
• Gary Mendivil: Sharing the frustra�on coopera�ng agencies want to work on pieces at a �me,
rather than the en�re document all at once
• Gary Mendivil: Execu�ve Orders are “window dressing” and not law
• Sarah Meitl: concerned there is too much work to do to achieve within the �meframe for a
December 2024 lease sale
o With these �meframes and the proposed Record of Decision – what discussions have
occurred to incorporate local knowledge and allow Coopera�ng Agencies more review
�me?
From: Cebrian, Merben R
To: Boario, Sara D
Cc: Sanchez, Ronnie
Subject: Re: Re: Coastal Plain SEIS - cooperating agency meeting postponed
Date: Friday, September 1, 2023 1:06:00 PM
Thanks, Sara. And I will loop in with Bobbie Jo about the communications issues with Kaktovik,
making sure they get a hard copy delivered when the draft SEIS comes out. -Merben
Merben R. Cebrian
Refuge Manager, Arctic National Wildlife Refuge
101 12th Avenue, Rm 236 Fairbanks, AK 99701
+1 907 388 6751
https://www.fws.gov/refuge/arctic
From: Boario, Sara D <sara_boario@fws.gov>
Sent: Friday, September 1, 2023 10:41 AM
To: Cebrian, Merben R <merben_cebrian@fws.gov>
Cc: Sanchez, Ronnie <ronnie_sanchez@fws.gov>
Subject: Fw: Re: Coastal Plain SEIS - cooperating agency meeting postponed
Merben - making sure you have this background, as well. - sb
From: Skibo, Bobbie Jo <bobbiejo_skibo@fws.gov>
Sent: Wednesday, August 30, 2023 7:54 AM
To: Boario, Sara D <sara_boario@fws.gov>
Cc: Leonetti, Crystal <crystal_leonetti@fws.gov>; Sanchez, Ronnie <ronnie_sanchez@fws.gov>
Subject: FW: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
FYI, response to recent NVK email below.
From: Kuhns, Stephanie L <skuhns@blm.gov>
Sent: Tuesday, August 29, 2023 4:59 PM
To: Matthew Rexford <nvkaktovik@gmail.com>
Cc: teresa-imm@outlook.com; Sweet, Serena E <ssweet@blm.gov>; Skibo, Bobbie Jo
<bobbiejo_skibo@fws.gov>
Subject: RE: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
Good afternoon, Matthew,
Please see below for responses to each of your questions.
1. When do you expect to have the next Cooperating Agency meeting?
a. Can we get the notes of all prior Cooperative Agency meetings for our review and
records? It seems we have the notes from the prior ITEK Working Group but only
have notes from one Cooperating Agency meeting.
We do not have a date yet for the next cooperating agency meeting - we plan to
hold a meeting once we know when the Draft SEIS will be published. We are still
waiting for direction from our leadership as to when we will publish the Draft
SEIS.
Notes from the May 3, 2023 Cooperating Agency meeting are attached. (Please
note these are only Stephanie’s notes and they are not comprehensive.)
2. Yes, it would be helpful to provide hard copies of the SEIS to us but we would want to
make sure that we received them when the SEIS is made available.
Please let us know the best address to mail hard copies. They will be sent out
when the Draft SEIS is published.
3. When you state you would be happy to schedule an individual Cooperating Agency
meeting with Native Village of Kaktovik – what do you anticipate? What would be
different about this meeting than a G2G meeting? Can you elaborate more on this
idea?
An individual Cooperating Agency meeting would cover the same SEIS topics as
the larger group Cooperating Agency meeting format, but would provide more
time and space for the Native Village of Kaktovik to discuss your concerns and
ideas directly with the project management team and to dive deeper into the
draft SEIS, if desired. Our interest is in ensuring that you have the opportunity to
meaningfully participate in this process, and we are open to holding individual
Cooperating Agency sessions with you if that format works better for you.
In comparison, a G2G does not need to be limited to the SEIS and can be held at
any time per your request. At a G2G, we can cover topics not specific to the SEIS,
and BLM and USFWS Alaska leadership may attend.
4. Due to the delay for additional internal review, what is the new anticipated date for
publishing the SEIS? We want to make sure that we are prepared for its release.
We anticipate that the Draft SEIS will be published this fall. We do not have a set
date at this time. The feedback you provided in your last email – such as the
detailed information related to maps – was greatly appreciated and will be used
to inform the final SEIS.
5. We understand that part of the NEPA process requires the ANILCA 810 consultation,
however, we feel that since we have been mired down in meaningless ITEK discussions
for the entire time we have been engaged on the SEIS, our community is a bit exhausted
and somewhat reluctant of the agencies hosting any public meetings on either the SEIS
or ANILCA 810 in Kaktovik. What happens if hearings in Kaktovik cannot be scheduled?
Based on the preliminary findings in the ANILCA Section 810
subsistence evaluation, the BLM is legally required to hold a subsistence hearing
in or near Kaktovik, in conjunction with the Draft SEIS public meetings. We will
plan to work with the community to determine the best location to hold the
hearing and public meeting so that the residents of your community can attend
and participate. The public meeting and 810 hearing are separate from our
regular Cooperating Agency meetings and G2G consultations – they are open to
the wider public to attend and we hope that the Native Village of Kaktovik will
participate.
Thank you,
Stephanie, Serena, and Bobbie Jo
From: Matthew Rexford <nvkaktovik@gmail.com>
Sent: Tuesday, August 22, 2023 2:44 PM
To: Kuhns, Stephanie L <skuhns@blm.gov>
Cc: teresa-imm@outlook.com; Sweet, Serena E <ssweet@blm.gov>; Skibo, Bobbie Jo
<bobbiejo_skibo@fws.gov>
Subject: Re: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
Thank you for the clarity you provided below on the “value” of our comments. Based on your note
below we have a couple of questions on timing.
1. When do you expect to have the next Cooperating Agency meeting?
a. Can we get the notes of all prior Cooperative Agency meetings for our review and
records? It seems we have the notes from the prior ITEK Working Group but only have
notes from one Cooperating Agency meeting.
2. Yes, it would be helpful to provide hard copies of the SEIS to us but we would want to make
sure that we received them when the SEIS is made available.
3. When you state you would be happy to schedule an individual Cooperating Agency meeting
with Native Village of Kaktovik – what do you anticipate? What would be different about this
meeting than a G2G meeting? Can you elaborate more on this idea?
4. Due to the delay for additional internal review, what is the new anticipated date for
publishing the SEIS? We want to make sure that we are prepared for its release.
5. We understand that part of the NEPA process requires the ANILCA 810 consultation, however,
we feel that since we have been mired down in meaningless ITEK discussions for the entire
time we have been engaged on the SEIS, our community is a bit exhausted and somewhat
reluctant of the agencies hosting any public meetings on either the SEIS or ANILCA 810 in
Kaktovik. What happens if hearings in Kaktovik cannot be scheduled?
I look forward to the answers to our questions above.
Regards,
Matthew Rexford
Tribal Administrator
NATIVE VILLAGE OF KAKTOVIK
P.O. Box 52
Kaktovik, AK 99747
Phone: (907) 640-2042 or 2043
Fax: (907) 640-2044
On Fri, Aug 18, 2023 at 3:44 PM Kuhns, Stephanie L <skuhns@blm.gov> wrote:
Good afternoon, Matthew,
Thank you for your feedback and for sharing your frustrations. We value your participation
and input in this process and want to assure you that the feedback you’ve provided thus far,
along with comments you provide through future forums (e.g., the upcoming public
comment period) will be used to inform the development of the Final SEIS.
As we look forward, there will be additional opportunities for you to engage: as a
Cooperating Agency, via the public comment period, and through Government-to-
Government and/or ANCSA consultation. Through these processes, we want to ensure you
have opportunities to engage in ways that work best for you within the broader NEPA
context. If it is helpful to have hard copies of the Draft SEIS for your review, we would be
happy to send copies to you.
While we had planned to hold the Cooperating Agency meeting that was scheduled for the
16th as a teleconference, we would be happy to schedule an individual Cooperating Agency
meeting with the Native Village of Kaktovik. Let us know if that is something you would like,
and if there is a date in the coming weeks that would work well for you and your team.
Please note that when we hold the next full cooperating agency meeting, you will receive
another notice and invitation to that meeting as well.
Once we publish the Draft SEIS, we will begin holding both in-person and virtual public
meetings. This will allow more opportunities for the people of Kaktovik to provide
testimonial and have their voices heard. Pending your approval, we are planning to hold a
combined public meeting and ANILCA 810 hearing in the Native Village of Kaktovik. We
would value your input on dates that would work best for the community.
We would also like to offer to hold a Government-to-Government consultation and an
ANCSA consultation if that is of interest to the community. Again, please let us know if that
is something you would like, and if so, some dates that would work.
Thank you again for your feedback and for your engagement in this process, and we look
forward to hearing from you about how we can facilitate opportunities for your
engagement and input that meet your needs.
Thank you,
Stephanie, Serena, and Bobbie Jo
From: Matthew Rexford <nvkaktovik@gmail.com>
Sent: Friday, August 11, 2023 11:30 AM
To: Kuhns, Stephanie L <skuhns@blm.gov>
Cc: teresa-imm@outlook.com
Subject: [EXTERNAL] Re: Coastal Plain SEIS - cooperating agency meeting postponed
This email has been received from outside of DOI - Use caution before clicking on
links, opening attachments, or responding.
Dear SEIS Team,
We can’t help but find irony in your need to delay release of the SEIS for more internal review.
When the Native Village of Kaktovik requested an extension to review the PDSEIS due to internet
issues, including latency problems, that inhibited our ability to download the three volumes of the
PDSEIS we were denied, even after we have repeatedly told you of this issue. You have continued
to ignore this communication deficiency throughout our engagement and have repeatedly put
NVK at a disadvantage throughout this process. That and your continuing focus on the need of
incorporating our ITEK, in other words our ‘intellectual property’ into the SEIS while we have
repeatedly stated our reluctance and your lack of definitively stating the reasons why you were
focused on it have created a lack of trust with us with your approach. We also note that you now
want to have a Cooperating Agency meeting which should have been recurring throughout the
process. Our one attempt, back in November 2022, to participate as a Cooperating Agency along
with the other Cooperating Agencies was a disaster for us because we could only attend via phone
and were not able to effectively hear or participate meaningfully in the meeting, something we
made you aware of.
It does appear to us that your continued focus on ITEK is continuing to lead to not only ‘cultural
trespass’ as we stated in our February letter but also to ‘cultural genocide’ by you placing the
Gwich’in phrase ‘Sacred Place Where Life Begins’ over our homelands on Map 3.44. How dare
you take a slogan developed in the 1980’s following passage of ANILCA as sincere traditional
knowledge when the bulk of the map is covered with our Inupiat place names that reflect our
occupancy and homelands. We are outraged by this and in fact we are questioning your ability to
maintain neutrality and be objective, which is required by agencies conducting NEPA reviews, in
this SEIS due to your continued push to usurp our existence and culture by a group from outside
our region. When do animals replace the existence of humans – our people – who occupy these
lands and have for centuries. WE ARE PART OF THE ENVIRONMENT TOO! We believe you have
lost sight of this critical difference. Why don’t you use your own data that has historical meaning
for place names like what is used in your own BLM database AK_NativePlaceNames - Visualization
(arcgis.com) which reflects that you are representing place names incorrectly because they are a
place which is a location and generally not encompassing an arbitrary area like that of the 1002
Area which was defined under ANILCA. As you can see, in your own system, the Gwich’in place
names are limited to two locations within the 1002 Area while there are approximately 100
Iñupiaq place names covering the same area. There is one Gwich’in place name along the Canning
River, south of the 1002 Area, this dot in the GIS map does not make the entire Canning River a
Gwich’in place. In fact, there are 5 locations along the Canning River that are Iñupiat locations. It
also appears that you have not used all of the locations identified as Iñupiaq on your map even if
they don’t have a specific Iñupiaq name, however they are identified as Iñupiat in the description.
Again, these are locations used by my people, both historically and in recent times. It is
unconscionable to call the entire Canning River Gwich’in! We think you should show all the
Iñupiat places on the map not just the ones that have a name associated with them because this is
our traditional knowledge and reflects our locations across the area – by not doing so you are
being selective with respect to our traditional knowledge that was provided to researchers in the
1970’s and 80’s. This again reflects the bias that we have witnessed under this SEIS process.
We are the people most impacted by the Porcupine Caribou Herd (PCH) movements, they are the
only herd that we can reliably use as a subsistence resource – Maps 3-35 and 3-36 show the
limited movement of the Central Arctic Herd into our area. It is in our best interest to keep the
population healthy for our community – does that make our homelands ‘sacred’? Our homelands
are sacred to us as a people because our ancestors are buried throughout this area, our children
are born in this region. Since time immemorial we have had campsites that were reused overtime
and were located about a 1-day walk from each other – these were there because our people
were migratory and followed the animals. Figure 3-6 reflects what native populations have
historically taken animals and Alaska residents represent the second smallest percentage of takes
– the story here is that the focus on the PCH is misguided because we have no authority in Canada
where the bulk of the caribou are harvested. Map 3-45 reflects significant overlap between the
Central Arctic Caribou Herd (CACH) and the PCH both in the 1002 Area and in the Yukon Flats, that
the prior maps don’t really echo particularly in the 1002 Area but they do match for the Yukon
Flats area. Map 3-62 reflects that hunting from Arctic Village only goes as far north as the
Continental Divide.
I want to thank you for sending this as it provides NVK a means of expressing our frustrations yet
again on the one-sided nature that you continue to portray because one indigenous group has the
legal counsel to engage and we do not. We have been disadvantaged since engaging as a
Cooperating Agency by having little to no support which basically means to us that your ability to
follow the NEPA process is broken.
Best regards,
Matthew Rexford
Tribal Administrator
NATIVE VILLAGE OF KAKTOVIK
P.O. Box 52
Kaktovik, AK 99747
Phone: (907) 640-2042 or 2043
Fax: (907) 640-2044
On Wed, Aug 9, 2023 at 3:38 PM Kuhns, Stephanie L <skuhns@blm.gov> wrote:
Hello,
Since we reached out on Monday, we have been directed to postpone the release of the
SEIS so there is additional time for internal review. As such, we will delay our
cooperating agency meeting until we have received further direction from our leadership.
Additionally, we would still like to schedule a call with you to discuss a public meeting
and ANILCA 810 hearing in Kaktovik.
We recognize that the SEIS is a priority for you and that the changes to the schedule may
be burdensome. Thank you for your patience and flexibility with the ongoing process and
changes.
Best,
Stephanie, Serena, and Bobbie Jo
Stephanie Kuhns (she/her)
Planning and Environmental Coordinator
Alaska State Office
USDOI - Bureau of Land Management
(907)271-4208 (office)
(907)201-8826 (cell)
“A desk is a dangerous place from which to view the world.” – John LeCarré
From: Boario, Sara D
To: Skibo, Bobbie Jo; Cebrian, Merben R; FW7 Directorate
Subject: Fw: Biden-Harris Administration Takes Major Steps to Protect Arctic Lands and Wildlife in Alaska
Date: Wednesday, September 6, 2023 1:13:44 PM
Hi team - Sharing the latest news of the day. As always, if you receive any media inquiries on
any of these matters please coordinate through OC and they will coordinate with HQ/Dpt. - sb
From: U.S. Department of the Interior <info@updates.interior.gov>
Sent: Wednesday, September 6, 2023 3:01 PM
To: Weber, Wendi <wendi_weber@fws.gov>
Subject: Biden-Harris Administration Takes Major Steps to Protect Arctic Lands and Wildlife in Alaska
Interior cancels oil and gas leases in the Arctic National Wildlife Refuge; proposes new protections in National Petroleum Reserve
Having trouble viewing this email? View it as a Web page.
Date: Wednesday, September 6, 2023
Contact: Interior_Press@ios.doi.gov
Biden-Harris Administration Takes Major Steps to
Protect Arctic Lands and Wildlife in Alaska
Department of the Interior cancels oil and gas leases in the Arctic National Wildlife Refuge;
proposes new protections in National Petroleum Reserve in Alaska
WASHINGTON — The Biden-Harris administration today announced significant steps to
protect the Arctic National Wildlife Refuge (Arctic Refuge) and more than 13 million acres in
the National Petroleum Reserve in Alaska (NPR-A). These bold actions to protect the Arctic
region build on President Biden’s historic conservation and climate agenda, which already
includes protecting more than 21 million acres of public lands and waters across the nation,
and securing the Inflation Reduction Act, the largest investment in climate action in history.
In the Arctic Refuge, Secretary of the Interior Deb Haaland has authorized the cancellation
of the remaining seven oil and gas leases issued by the previous administration in the
Coastal Plain. The leases were suspended in June 2021 following the issuance of
Secretary’s Order (S.O.) 3401, which identified “multiple legal deficiencies in the underlying
record supporting the leases.”
In addition, the Department today proposed new regulations for the NPR-A that would
ensure maximum protection for the more than 13 million acres of Special Areas in the
reserve, while supporting subsistence activities for Alaska Native communities. The
proposed rule, previewed in March 2023, adds to President Biden’s actions to protect
millions of acres of lands and waters in the Arctic, including withdrawing approximately 2.8
million acres of the Beaufort Sea, ensuring the entire United States Arctic Ocean is off limits
to new oil and gas leasing.
“With climate change warming the Arctic more than twice as fast as the rest of the planet,
we must do everything within our control to meet the highest standards of care to protect
this fragile ecosystem,” said Secretary Haaland. “President Biden is delivering on the most
ambitious climate and conservation agenda in history. The steps we are taking today further
that commitment, based on the best available science and in recognition of the Indigenous
Knowledge of the original stewards of this area, to safeguard our public lands for future
generations.”
Lease Cancellations in the Arctic National Wildlife Refuge
Following passage of the Tax Cuts and Jobs Act of 2017 (Tax Act), the previous
Administration held an oil and gas lease sale in the Arctic Refuge’s Coastal Plain on
January 6, 2021, and issued 10-year leases on nine tracts covering more than 430,000
acres. On January 21, 2021, President Biden issued Executive Order 13990, directing the
Department to review oil and gas leasing in the Refuge, “[i]n light of the alleged legal
deficiencies underlying the program.” S.O. 3401 directed a new, comprehensive analysis of
the potential environmental impacts of the Coastal Plain Leasing Program. Since that time,
two of the issued leases have been canceled and refunded at the request of the lessees.
The remaining seven leases held by the sole lessee covered 365,000 acres in the Coastal
Plain.
The Secretary of the Interior has the authority to cancel or suspend oil and gas leases
issued in violation of a statute or regulation. The draft supplemental environmental impact
statement (SEIS) released today by the Bureau of Land Management (BLM) and the U.S.
Fish and Wildlife Service (FWS) developed information supporting the Department’s
determination that the 2021 lease sale was seriously flawed and based on a number of
fundamental legal deficiencies, including: insufficient analysis under the National
Environmental Policy Act, including failure to adequately analyze a reasonable range of
alternatives and properly quantify downstream greenhouse gas emissions; and failure to
properly interpret the Tax Act. Accordingly, Secretary Haaland has determined that the
leases issued by the previous administration in the Arctic Refuge shall be cancelled.
Protections in the National Petroleum Reserve in Alaska
Extending from the northwest slope of the Brooks Range to the Arctic Coast, the NPR-A
encompasses roughly 23 million acres of public land managed by the BLM. Tribal Nations
have occupied lands now within the NPR-A since time immemorial, and over 40 Indigenous
communities continue to rely on subsistence activities in the reserve, harvesting caribou,
shore and waterbirds, and many other fish and wildlife species, with many communities
subsisting primarily from food harvested from the NPR-A.
Under the Naval Petroleum Reserves Production Act (NPRPA) of 1976, Congress directed
the BLM to balance oil and gas development with the management and protection of
sensitive landscapes – known as Special Areas – and surface resources across the reserve.
The proposed rule is designed to assure maximum protection of Special Areas, as
authorized under the NPRPA. The proposed rule would require that protections for Special
Areas remain in place for as long as the values and characteristics in those areas are
present, ensuring the durability of the protections into the future. The proposed rule also
would require the BLM to review and gather public input – at least every five years – on
whether existing special areas should be expanded, whether new special areas should be
designated, and whether additional resources within special areas should be identified for
protection. Upon finalization of the proposed rule, the Administration will follow this proposed
process to inform the creation or expansion of additional special areas in the NPR-A.
The proposed rule would protect 13 million acres encompassed by the existing Special
Areas by limiting future oil and gas leasing and industrial development in the Teshekpuk
Lake, Utukok Uplands, Colville River, Kasegaluk Lagoon, and Peard Bay Special Areas –
places collectively known for their globally significant intact habitat for wildlife, including
grizzly and polar bears, caribou and hundreds of thousands of migratory birds. The rule
would establish an outright prohibition on any new leasing in 10.6 million acres, more than
40 percent of the NPR-A.
The proposed rule would raise the bar for development throughout the NPR-A by
establishing clear guidelines that are consistent with provisions of the current management
plan for the reserve, the NPR-A Integrated Activity Plan (IAP). This current management
plan for the reserve was put in place in 2022, and effectively reversed the previous
administration’s IAP that sought to expand oil and gas leasing and development in the NPR-
A and reduce protections for the Special Areas.
The proposed rulemaking would help protect subsistence uses throughout the NPR-A,
responding to Alaska Native communities who have relied on the land, water and wildlife to
support their way of life for thousands of years. It also advances the Biden-Harris
administration’s commitment to strengthening the role of Tribal governments in the
management of public lands by encouraging the BLM to explore co-stewardship
opportunities with Tribes for the Special Areas.
Seeking Public Comment
There will be a 45-day public review and comment period on the draft SEIS for the Coastal
Plain. In developing the draft, the BLM and FWS engaged with a wide variety of
stakeholders and used the best available data and science, including Indigenous
Knowledge. For additional information, go to BLM’s eplanning page.
The proposed NPR-A rule and map of the five NPR-A Special Areas as delineated in the
2022 IAP, are available for preview. A forthcoming publication of the proposed rule in the
Federal Register will open a 60-day public comment period. During that time, the BLM will
host in-person meetings in communities on the North Slope, as well as virtual public
meetings to discuss the proposed rule. Details of those opportunities will be made available
soon.
###
About the U.S. Department of the Interior
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resources and cultural heritage for the benefit and enjoyment of the American people,
provides scientific and other information about natural resources and natural hazards to
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This email was sent to wendi_weber@fws.gov by: U.S. Department of the Interior · 1849 C Street, N.W. ·
Washington DC 20240 · 202-208-3100
From: Gieryic, Michael S
To: Cohn, Steven M; Reed, Erika; Pendergast, Kevin J; Jones, Nichelle (Shelly); Boario, Sara D; Lor, Socheata
Cc: Sweet, Serena E; Kuhns, Stephanie L; Skibo, Bobbie Jo; Roach, Emma K; Bolton, Melinda A; Coble, Deborah A;
Routhier, Michael P; Lord, Kenneth M
Subject: Coastal Plain Litigation - Status Report
Date: Thursday, September 7, 2023 8:03:27 AM
Attachments: 2023.09.06 Status Report - DSEIS Issuance.pdf
FYI -
Mike Gieryic
Attorney-Adviser
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
Phone: (907) 271-1420
mike.gieryic@sol.doi.gov
(b)(5) AC-AWP
Gwich’in Steering Committee v. Haaland Case No. 3:20-cv-00204-SLG
DEFS.’ STATUS REPORT 1
TODD KIM
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
MARK ARTHUR BROWN (Florida Bar No. 0999504)
Senior Trial Attorney
Wildlife and Marine Resources Section
P.O. Box 7611 Washington, D.C. 20044
202-305-0204 || 202-305-0275 (fax)
mark.brown@usdoj.gov
PAUL A. TURCKE (Idaho Bar No. 4759)
Trial Attorney
Natural Resources Section
1290 West Myrtle Street, Suite 500
Boise, ID 83702
202-532-5994 || 202-305-0275 (fax)
paul.turcke@usdoj.gov
Counsel for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GWICH’IN STEERING COMMITTEE, et
al.,
Plaintiffs,
v.
DEBRA HAALAND, in her official capacity
as Secretary of the United States Department
of the Interior, et al.,
Defendants,
and
NORTH SLOPE BOROUGH, et al.,
Intervenor-Defendants.
Case No. 3:20-cv-00204-SLG
Case 3:20-cv-00204-SLG Document 98 Filed 09/06/23 Page 1 of 3
Gwich’in Steering Committee v. Haaland Case No. 3:20-cv-00204-SLG
DEFS.’ STATUS REPORT 2
DEFENDANTS’ STATUS REPORT ON ISSUANCE
OF DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT
This case is stayed, and in accordance with the Court’s order providing that further
status reports shall reflect “timeframes of key milestones in the process of conducting a
new environmental review and issuing a new record of decision addressing the Coastal
Plain Oil and Gas Leasing Program at issue in this litigation,” Defendants hereby provide
this update on the status of the Draft Supplemental Environmental Impact Statement.
Order dated Sept. 13, 2021, at 1, ECF No. 86; see also Text Order, ECF No. 96.
Defendants advise that the Draft Supplemental Environmental Impact Statement
for the Program was issued on September 6, 2023, when it was posted to the Bureau of
Land Management’s National NEPA Register. See https://eplanning.blm.gov/eplanning-
ui/project/2015144/510. While not an identified milestone in the aforementioned review
of the Program, Defendants further advise that the remaining oil and gas leases issued in
January 2021 under the Program were cancelled in a decision dated September 6, 2023.
Defendants anticipate at this time that a Final Supplemental Environmental Impact
Statement will be issued in the first quarter of 2024, and a Record of Decision will be
issued in the second quarter of 2024. Defendants will file an additional status report upon
the issuance of the Final Supplemental Environmental Impact Statement, and will
otherwise provide notice to counsel as indicated by the parties’ prior status reports.
Respectfully submitted,
DATED: September 6, 2023. TODD KIM
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
Case 3:20-cv-00204-SLG Document 98 Filed 09/06/23 Page 2 of 3
Gwich’in Steering Committee v. Haaland Case No. 3:20-cv-00204-SLG
DEFS.’ STATUS REPORT 3
MARK ARTHUR BROWN
Florida Bar No. 0999504
Senior Trial Attorney
Wildlife and Marine Resources Section
P.O. Box 7611 Washington, D.C. 20044
202-305-0204 || 202-305-0275 (fax)
mark.brown@usdoj.gov
/s/ Paul A. Turcke
PAUL A. TURCKE
Trial Attorney
Natural Resources Section
1290 West Myrtle Street, Suite 500
Boise, ID 83702
202-532-5994 || 202-305-0275 (fax)
paul.turcke@usdoj.gov
Counsel for Defendants
Of Counsel:
MIKE GIERYIC
Office of the Regional Solicitor, Alaska Region
4230 University Drive, Suite 300
Anchorage, AK 99508
907-271-1420
mike.gieryic@sol.doi.gov
CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2023, a copy of the foregoing was served by
electronic means on all counsel of record by the Court’s CM/ECF system.
/s/ Paul A. Turcke
Paul A. Turcke
Case 3:20-cv-00204-SLG Document 98 Filed 09/06/23 Page 3 of 3
From: Gieryic, Michael S
To: Cohn, Steven M; Boario, Sara D; Gamper, Merry E; Reed, Erika; Pendergast, Kevin J; Jones, Nichelle (Shelly);
Roach, Emma K; Lor, Socheata; Loya, Wendy M
Cc: Sweet, Serena E; Kuhns, Stephanie L; Skibo, Bobbie Jo; Deam, Seth R; Lord, Kenneth M; Routhier, Michael P
Subject: Re: Alaska Industrial Development and Export Authority v. Biden et al Motion to Alter Judgment
Date: Wednesday, September 20, 2023 9:28:47 AM
Attachments: 2023.09.19 Gov"t Opp to Motion to Amend SJ Order.pdf
2023.09.05 Plaintiffs" Motion to Alter or Amend SJ Order.pdf
FYI -
Mike Gieryic
Attorney-Adviser
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
Phone: (907) 271-1420
mike.gieryic@sol.doi.gov
From: Gieryic, Michael S <Mike.Gieryic@sol.doi.gov>
Sent: Tuesday, September 5, 2023 7:44 PM
To: Gamper, Merry E <mgamper@blm.gov>; Cohn, Steven M <scohn@blm.gov>; Reed, Erika
<e05reed@blm.gov>; Pendergast, Kevin J <kpendergast@blm.gov>; Jones, Nichelle (Shelly)
<njones@blm.gov>
Cc: Sweet, Serena E <ssweet@blm.gov>; Kuhns, Stephanie L <skuhns@blm.gov>; Krispinsky,
Rebekah M <rebekah.krispinsky@sol.doi.gov>; Lord, Kenneth M <Ken.Lord@sol.doi.gov>; Routhier,
Michael P <michael.routhier@sol.doi.gov>
Subject: Fw: Alaska Industrial Development and Export Authority v. Biden et al Motion to Alter
Judgment
FYI -
(b)(5) AC-AWP
(b)(5) AC-AWP
Mike Gieryic
Attorney-Adviser
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
Phone: (907) 271-1420
mike.gieryic@sol.doi.gov
(b)(5) AC-AWP
AIDEA v. Biden
DEFS.’ RESP. IN OPP’N TO PLS.’ MOT. TO ALTER OR AMEND
Case No. 3:21-cv-00245-SLG
1
TODD KIM
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
PAUL A. TURCKE (Idaho Bar No. 4759)
Trial Attorney
Natural Resources Section
1290 West Myrtle Street, Suite 500
Boise, ID 83702
202-532-5994 || 202-305-0275 (fax)
paul.turcke@usdoj.gov
Counsel for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA INDUSTRIAL
DEVELOPMENT AND EXPORT
AUTHORITY, et al.,
Plaintiffs,
and
STATE OF ALASKA,
Intervenor-Plaintiff,
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States,
et al.,
Defendants,
and
NATIVE VILLAGE OF VENETIE
TRIBAL GOVERNMENT, et al.,
Intervenor-Defendants.
Case No. 3:21-cv-00245-SLG
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’
AND INTERVENOR-PLAINTIFF’S MOTION TO ALTER OR AMEND
Case 3:21-cv-00245-SLG Document 79 Filed 09/19/23 Page 1 of 5
AIDEA v. Biden
DEFS.’ RESP. IN OPP’N TO PLS.’ MOT. TO ALTER OR AMEND
Case No. 3:21-cv-00245-SLG
2
Before the Court is a motion, ECF No. 76 (“Motion”), by Plaintiffs Alaska
Industrial Development and Export Authority, et al., and Intervenor-Plaintiff State of
Alaska (collectively “Movants”), seeking to alter or amend this Court’s Order Re
Motions for Summary Judgment, ECF No. 72, and Judgment, ECF No 73, under Federal
Rule of Civil Procedure 59(e). The Court should deny the Motion because Movants fall
short of their heavy burden and fail to meaningfully engage the relevant legal standard.
A Rule 59(e) motion may be granted when necessary to correct manifest errors of
law or fact. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). “But
amending a judgment after its entry remains ‘an extraordinary remedy which should be
used sparingly.’” Id.; see also Orion Marine Contractors, Inc. v. City of Seward, No.
3:15-CV-00151-SLG, 2016 WL 11670098, at *1 (D. Alaska Oct. 28, 2016) (same).
Thus, a Rule 59(e) motion is not a means by which to raise new arguments, or “to rehash
arguments already made in the parties’ principal briefs.” Alaska Oil & Gas Ass’n v.
Jewell, No. 3:11-CV-0025-RRB, 2013 WL 11897792, at *2 (D. Alaska May 15, 2013).
Nor should such a motion “ask a court to rethink what the court had already thought
through – rightly or wrongly.” Id. (internal quotation marks and citations omitted).
Instead, “[a]rguments that a court was in error on the issues it considered should be
directed to the court of appeals.” Defs. of Wildlife v. Browner, 909 F. Supp. 1342, 1351
(D. Ariz. 1995) (citation omitted).
The Motion reflects many of these flaws. The first section of the Motion contends
that the Court erred in upholding Defendants’ suspension of the Coastal Plain Leasing
Program because the suspension would preclude even certain lease-associated activities
Case 3:21-cv-00245-SLG Document 79 Filed 09/19/23 Page 2 of 5
AIDEA v. Biden
DEFS.’ RESP. IN OPP’N TO PLS.’ MOT. TO ALTER OR AMEND
Case No. 3:21-cv-00245-SLG
3
that Movants contend do not impact the environment. See Motion 1-2. This argument
fails because it is built on the flawed premise that potential environmental impacts of
specific activities that might be taken to “implement” the leases underlaid the suspension.
Instead, the leases were suspended because the Department of the Interior “identified
defects in the underlying record supporting the leases[.]” AR 3364; see also AR 3404.1
Those defects in the record must be remedied before allowing any activities
“implementing” the leasing program to proceed, whether they would impact the
environment or not. And, to remedy those defects, the Department explained that it
would undertake “additional NEPA analysis to determine whether the leases should be
affirmed, voided or subject to additional mitigation measures.” AR 3405. Movants
identify no manifest error in the Court’s decision to uphold the suspension decision on
that basis, or indeed any error at all. And, in any event, their argument relies entirely on
the false premise that “preliminary steps” such as archeological surveys are incapable of
impacting the environment. As a practical matter, any access to the Coastal Plain for on-
the-ground activities – even for “archeological survey” or “preliminary seismic” activity,
Motion 2 – is, for example, capable of disturbing caribou and disrupting subsistence
hunting, or causing surface disturbance and impacts to vegetation and wetlands. See,
1 Nonetheless, the Court correctly cited Section 6 of the leases for the propositions
that the terms of the lease allow BLM to impose conditions on the lessee to minimize
environmental impacts, including measures affecting the timing of operations, and that,
as a practical matter, supplemental environmental analysis would have informed any such
measures. See Alaska Indus. Dev. & Exp. Auth. v. Biden, __F. Supp. 3d__, No. 3:21-cv-
00245-SLG, 2023 WL 5021555, at *15 (D. Alaska Aug. 7, 2023).
Case 3:21-cv-00245-SLG Document 79 Filed 09/19/23 Page 3 of 5
AIDEA v. Biden
DEFS.’ RESP. IN OPP’N TO PLS.’ MOT. TO ALTER OR AMEND
Case No. 3:21-cv-00245-SLG
4
e.g., AR 0220-21; AR 0308-09; AR 0164-66.2
Movants’ remaining argument fails because it improperly rehashes a contention
this Court has already considered and rejected. Specifically, Movants argue that the Tax
Act requires Federal Defendants to authorize ancillary activities “with an urgency and
timeliness proportional to the statutory deadline for the issuance of the leases.” Motion
10. But the Court already rejected this argument. It correctly explained that “[b]y using
broad language directing the Interior Secretary to administer the Program with no
timetable apart from the two deadlines for the mandated lease sales, Congress left the
timetable for the vast majority of the Program’s implementation to DOI’s discretion.”
Alaska Indus. Dev. & Exp. Auth., 2023 WL 5021555, at *9 (citations omitted). As such,
this argument fails to address the Rule 59(e) burden and does little more than “ask [the
C]ourt to rethink what the [C]ourt had already thought through – rightly or wrongly.”
Alaska Oil & Gas Ass’n, 2013 WL 11897792, at *2 (internal quotation marks and
citations omitted).
For the foregoing reasons, Defendants respectfully request that the Court deny
Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend.
DATED: September 19, 2023. TODD KIM
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
2 It bears noting that Movants could not undertake lease implementation actions
regardless of whether they prevail on their Motion, because the Department of the
Interior cancelled the corresponding leases in a Decision dated September 6, 2023, see
Ex. 1 hereto.
Case 3:21-cv-00245-SLG Document 79 Filed 09/19/23 Page 4 of 5
AIDEA v. Biden
DEFS.’ RESP. IN OPP’N TO PLS.’ MOT. TO ALTER OR AMEND
Case No. 3:21-cv-00245-SLG
5
/s/ Paul A. Turcke
PAUL A. TURCKE
Trial Attorney
Natural Resources Section
1290 West Myrtle Street, Suite 500
Boise, ID 83702
202-532-5994 || 202-305-0275 (fax)
paul.turcke@usdoj.gov
Counsel for Defendants
Of Counsel:
MIKE GIERYIC
Attorney Advisor
Office of the Regional Solicitor, Alaska Region
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
907-271-1420
mike.gieryic@sol.doi.gov
CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2023, a copy of the foregoing was served by
electronic means on all counsel of record by the Court’s CM/ECF system.
/s/ Paul A. Turcke
Paul A. Turcke
Case 3:21-cv-00245-SLG Document 79 Filed 09/19/23 Page 5 of 5
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 1 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 2 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 3 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 4 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 5 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 6 of 7
Case 3:21-cv-00245-SLG Document 79-1 Filed 09/19/23 Page 7 of 7
Case No. 3:21-cv-00245-SLG. AIDEA, et al. v. Biden, et al.
Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement
David Karl Gross, ABA #9611065
James H. Lister, ABA #1611111
Birch Horton Bittner & Cherot
510 L Street, Suite 700
Anchorage, Alaska 99501
dgross@bhb.com
jlister@bhb.com
Telephone 907.275.1550
Facsimile 907.276.3680
Attorneys for Plaintiffs Alaska Industrial
Development and Export Authority, North
Slope Borough, Arctic Slope Regional
Corporation, and Kaktovik Inupiat
Corporation
TREG TAYLOR
ATTORNEY GENERAL
Ronald W. Opsahl (ABA # 2108081)
Assistant Attorney General
Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501
ron.opsahl@alaska.gov
Telephone: (907) 269-5232
Facsimile: (907) 276-3697
Attorneys for Intervenor-Plaintiff State of
Alaska
(See signature page for additional counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA INDUSTRIAL DEVELOPMENT
AND EXPORT AUTHORITY, et al,
Plaintiffs,
and
STATE OF ALASKA,
Interveno
r
-Plaintiff,
Case No. 3:21-cv-00245-SLG
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States, et al.,
Defendants,
and
NATIVE VILLAGE OF VENETIE
TRIBAL GOVERNMENT, et al.
PLAINTIFFS’ AND
INTERVENOR-PLAINTIFF’S
MOTION TO ALTER OR
AMEND SUMMARY
JUDGMENT ORDER AND
JUDGMENT
Intervenor-Defendants
Case 3:21-cv-00245-SLG Document 76 Filed 09/05/23 Page 1 of 12
Case No. 3:21-cv-00245-SLG, AIDEA, et al. v. Biden, et al.
Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 1
Plaintiffs Alaska Industrial Development and Export Authority, North Slope
Borough, Arctic Slope Regional Corporation, and Kaktovik Inupiat Corp. and Intervenor-
Plaintiff State of Alaska (collectively, “Plaintiffs”) respectfully move under Fed.R.Civ.P.
59 to alter or amend the August 7, 2023 Order granting summary judgment (“Order”) and
the related Judgment (Dkts. 72 and 73).1
A. Lease Implementation Actions that do not Impact the Environment, Such
as Archeological and Other Surveys, Should Proceed.
1. Introduction.
In that Order, the Court affirmed the decision of the Federal Agency Defendants to
suspend all actions necessary to implement the statutorily-mandated oil and gas leasing
program (the “Program”) on the Coastal Plain of the Arctic National Wildlife Refuge
(“ANWR”). The Court in its analysis relied on statutory provisions and lease terms that
address environment-impacting activities and so, however those terms are construed, do
not support the Agency Defendants’ overbroad application of their moratorium to block
even non-environment-impacting preliminary steps such as conducting archeological
surveys. See AR3394-3400 (refusal to authorize archeology survey, refusal to consider
preliminary seismic application). The Order and Judgment should be amended to
1 The “district court enjoys considerable discretion in granting or denying the motion.”
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (quotation omitted).
“[M]anifest errors of law or fact” is a proper ground for grant of such a motion. Id.
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Case No. 3:21-cv-00245-SLG, AIDEA, et al. v. Biden, et al.
Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 2
invalidate the Agency Defendants’ moratorium to the extent that the moratorium blocks
even non-environment-impacting preliminary steps like archeological surveys.2
Agency Defendants now forecast publishing a draft SEIS in September, 2023.
See Order at 8. They earlier reported to the Court that it would take them one year from
that point to publish a revised record of decision, which would be September, 2024.
(Dkt. 85 at 5, Case 3:20-cv-00204-SLG). Archeology on the North Slope is done in a
late summer window, in August of each year. By amending its Order and Judgment, the
Court will facilitate Plaintiffs utilizing the August, 2024 window to conduct archeological
surveys. This avoids the loss of almost an entire year that would occur if Plaintiffs,
because of the overbroad moratorium imposed by Agency Defendants, cannot conduct
archeological surveys until the next window after that, which is in August, 2025.3 In
addition to archeological surveys, Agency Defendants at multiple instances in the Record
of Decision require Plaintiffs, as first steps, to conduct surveys and baseline studies that
do not impact the environment. But Plaintiffs can only proceed in those first steps if
approved by Agency Defendants, and so are blocked by the moratorium on the Program.4
2 While Plaintiffs respectfully disagree with other aspects of the Order and Judgment, they
limit Point A of this motion to alter or amend to non-environment-impacting activities.
3 The Agency Defendants relied on the broad scope of the moratorium in declining to
process permits for archeological survey work. AR3395. They alleged no environmental harm.
See id.; see also, Plaintiff-Intervenor Reply Brief, Dkt. 66 at 16-17 (“no reason exists to
implement the Moratorium while BLM prepares supplemental NEPA analysis. The Agency
Defendants have not identified any adverse impacts that would result from continuing to
implement the Program and, for example, from authorizing archeological surveys.”); Plaintiffs’
Reply Brief, Dkt. 67 at 13 (similar).
4 See AR3207 (“The lessee/operator/contractor will conduct a cultural and paleontological
resources survey before any ground-disturbing activity, based on a study designed by the
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Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 3
2. Any Suspension Authority Borrowable from the NPRPA Does Not Apply
to Pre-Operational Survey Work That Does Not Impact the Environment.
In its Order, the Court cited the Tax Act’s direction that, “except as otherwise
provided in this section,” Federal Defendants should “manage the oil and gas program on
the Coastal Plain in a manner similar to the administration of lease sales under the Naval
Petroleum Reserves Production Act [NPRPA] of 1976, 42 U.S.C. § 6501, et seq.
(including regulations).” Order at 21-22 (citing Tax Act, Pub. Law 115-97. §
20001(b)(3)). Citing a NPRPA provision under which “the Secretary [of the Interior]
may direct or assent to the suspension of operations or productions on any lease or unit,”
42 U.S.C. § 6506a(k)(2), the Court upheld the Agency Defendants’ moratorium. Id.
Even if applicable, the borrowed NPRPA provision does not go so far as to
authorize suspension of non-environment-impacting lease activities that are preliminary
steps before operations under a lease even begin.5 The very next sentence of the NPRPA
contemplates the Secretary using the suspension power “in the interest of conservation,”
lessee/operator/contractor and approved by the BLM Authorized Officer.”); see also, AR3163
(“Project proponents may be responsible for conducting or funding baseline studies, including
fish, wildlife and vegetations surveys where applicable” as “determined by the BLM ….”);
AR3168 (subsistence impact avoidance planning); AR3194 (must “develop an impact and
conflict avoidance an monitoring plan” for areas within two miles of the sea); AR3196 (“polar
bear interaction plans” must be developed “in consultation with and approved by the USFWS
….”); AR3197 (before filing site permit applications, lessee must obtain “a minimum of 1 year
of baseline ambient air monitoring data for pollutants of concern, as determined by the BLM.”)
As can be seen from this list, the work Plaintiff seek to do now, pending the completion
of the Agency Defendants’ supplemental NEPA work, consists of activities such as walking the
land, collecting imagery and other data using passive means, and conducting interviews and
meetings within individuals inside ANWR, not digging or other ground-disturbing work.
5 Plaintiffs showed that the NPRPA provision is not applicable to any of the issues in this case,
Dkt. 67 at 14-16, but will not re-argue that larger issue in the context of this narrow motion.
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Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 4
which means to regulate environment-impacting actions, typically ground-disturbing
activities. 42 U.S.C. § 6506a(k)(3). In an implementing rule, BLM defines the
“circumstances” in which “BLM will require a suspension of operations and production”
as being when suspension “(1) … is in the interests of conservation of natural resources;
(2) … encourages the greatest ultimately recovery of oil and gas, such as by encouraging
the planning and construction of a new transportation system …; or (3) … mitigates
reasonably foreseeable and significantly adverse effects on surface resources.” 43 CFR
§ 3135.2(a) (emphasis added). The NPRPA suspension provision and its implementing
rule thus do not support the Order’s conclusion that the Agency Defendants may use that
provision to block the lessee’s pre-operational non-environment-impacting activities such
as archeological surveys. Moreover, the Agency Defendants who administer the Program
did not invoke the NPRPA provision. AR3364-65. Only Defendant-Intervenors cited it.
An additional consideration is that archeological survey work and other early
permitting stage work that does not involve any surface disturbance is pre-operational,
and so is not “operations and production” within the scope of the NPRPA suspension
provision, 42 U.S.C. § 6506a(k)(2).6 In adopting the rule implementing the suspension
6 See Summers Oil and Gas § 14:4 (3rd ed.) (collecting cases on what level of activity by the
lessee is active enough to qualify as “operations” under an oil and gas lease). Although the
NPRPA does not define “operations,” a DOI regulation for non-Alaska NPS units places
reconnaissance surveys” outside the definition of “operations.” 36 CFR § 9.40(2). The Record
of Decision in this case does not define “operations” but describes “operations” as occurring later
in the Program, after environmental review is conducted, which strongly implies there are also
pre-operational permitting stage activities, such as archeological surveys, that are not operations:
“… [T]the BLM will consider alternatives to avoid adverse effects and incompatible
development to protect the various cultural resources, subsistence resources and their habitat,
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Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 5
provision, Federal Defendant BLM explained that “BLM is committed to addressing
environmental and subsistence issues prior to any development. However, there may be
unanticipated issues, such as undiscovered archaeological finds or endangered species,
that may not be evident prior to operations commencing.” 67 Fed.Reg. 17,866, 17,867
(April 11, 2002). Thus, the rule contemplates that archeological work would usually be
completed “prior to operations commencing,” i.e., that such work is not “operations.”
3. Lease § 6 Only Addresses Environment-Impacting Operations.
The Court’s interpretation of Plaintiff AIDEA’s lease contains a similar error.
Although not briefed by the parties, the Court cited Lease § 6 as supporting its conclusion
that the Agency Defendants may lawfully temporarily suspend lease activities to take
steps to protect the environment. Order at 39-40. However, Lease § 6 is limited to
preventing harm to the environment and thus to environment-impacting “operations”:
Sec. 6 Conduct of operations – Lessee shall conduct operations in a manner
that minimizes adverse impacts to the land, air, and water, to cultural,
biological, visual, and other resources, and to other land uses or uses. To the
extent consistent with the lease rights granted, lessee shall take reasonable
measures deemed necessary by lessor to accomplish the intent of this section.
Such measures may include, but are not limited to, modification to siting or
design of facilities, timing of operations, and … reclamation measures. ….
AIDEA Lease, AR3321. Section 6 echoes the NPRPA suspension provision discussed
above in that it does not address (or provide Agency Defendants with authority to
suspend) pre-operational non-environment-impacting activities. If the preliminary
and human health and the environment, before any on-the-ground activities are approved.
This will be done through subsequent NEPA analysis, which will be conducted before any
construction or operation permits or approvals are issued.” AR3171 (emphasis added).
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Case No. 3:21-cv-00245-SLG, AIDEA, et al. v. Biden, et al.
Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 6
actions under the ROD such as archeological and other surveys will not result in adverse
impacts to the environment, suspension of those activities is not necessary or reasonable.7
4. Conclusion – Actions Not Impacting the Environment.
The Court earlier declined to grant project opponents a preliminary injunction
preventing Agency Defendants from issuing the lease to Plaintiff AIDEA, distinguishing
the non-ground-disturbing activities that would occur immediately following issuance of
leases from the ground-disturbing activities that would only occur later, after further
environmental analysis. Gwich’in Steering Committee v. Bernhardt, 2021 WL 46703, *8
(D. Alaska Jan. 5, 2021) (finding no irreparable harm). The Court should draw a parallel
distinction here. It should amend its Order and Judgment and invalidate the Agency
Defendants’ overbroad moratorium to the extent it blocks Plaintiffs from conducting
preliminary steps such as archeological surveys that do not impact the environment.
B. The Order Infers Too Much From the Absence of Specific Statutory
Deadlines Regarding Follow-Up Actions Implementing the Major
Directed Action.
The Court relied on Gen. Motors Corp. v. United States, 496 U.S. 530 (1990), in
discerning a dispositive contrast between: (1) the Tax Act provision mandating that
Federal Defendants issue an oil and gas lease for the Coastal Plain by a date certain
(December, 2021) and (2) other Tax Act provisions that mandated that the Federal
7 Delay in carrying out non-environment-impacting surveys and baseline studies that are a
necessary pre-requisite to seeking subsequent project approvals does substantially burden
Plaintiffs. Order at 39. Such actions would not cause ground disturbance to any acreages or to
subsistence hunting or fishing. See Order at 57 and n. 236 (discussing BLM’s reconsideration of
number of acres that may lawfully be subject to surface disturbance and ANILCA § 810 issues).
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Plaintiffs’ and Intervenor-Plaintiff’s Motion to Alter or Amend Final Judgement 7
Defendants issue rights-of-ways and easements in connection with the lease, and take
other actions to implement and administer the lease, but without specifying deadlines.
Order at 18-19 and n. 78 (reviewing provisions in Pub. Law 115-97, § 20001). The Court
concluded that the various post-leasing agency tasks were subject “only … to” the
general Administrative Procedure Act requirement that agencies act within a “reasonable
period of time.” Order at 20 (citing 5 U.S.C. § 706(1)).
General Motors concerned a very different statutory structure and so its holding is
not applicable here. The Clean Air Act (“CAA”) expressly addressed in different ways
the consequences of agency delay in performing two equally significant tasks, neither of
which was ancillary of the other. The CAA set a four month deadline for the
Environmental Protection Agency (EPA) to approve or reject a State’s original proposal
for air pollution rules (a “state implementation plan” or “SIP”). Gen. Motors, 496 U.S. at
536 (citing CAA § 110(a)(2), 42 U.S.C. § 7410(a) (1982)). The statute also addressed the
possibility of delay in a second EPA task, EPA’s approval or rejection of a State’s
proposal to revise an approved SIP. Id., 496 U.S. at 538 (citing CAA § 110(g)). The
CAA granted a specific remedy for EPA delay in approving or rejecting a revised SIP –
the State’s Governor could issue a short-term suspension of industry’s duty to comply
with the approved original SIP. See id. (quoting CAA § 110(g)(1)(B)).
General Motors asked the Supreme Court to imply an additional remedy, that
when EPA was late in approving or rejecting a proposed revised SIP, EPA was barred
from enforcing the original SIP, apparently even after the express statutory remedy (the
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short-term suspension) had expired. See id. at 539-40. The Supreme Court declined,
holding that the EPA was not under a four month deadline to process proposals to revise
SIPs, that a rule of reasonableness governed delays, and that it could not be implied that
EPA was barred from enforcing the original SIP even if EPA had unreasonably delayed.
See id. Gen. Motors illustrates the canon that when a statute addresses related topics in
differing ways, the differences are presumed to be meaningful. However, its holding was
based on statute that expressly addressed in different ways the consequence of delays in
two equally significant and parallel agency tasks (deciding whether to approve original
SIPs and deciding whether to approve revised SIPs). That is not the situation here.
By contrast, the Tax Act establishes a specific deadline for the major action, the
issuance of oil and gas leases, and directs the Federal Defendants to then take ancillary
follow-up actions, including the issuance of “necessary rights-of-way or easements” and
the “administration” of the program, without addressing the scenario of delay in the
follow-up implementing actions. Tax Act, Pub. Law. 115-97, § 20001(b)(2)(A),
(c)(1)(B) and (c)(2). Under this structure, a different canon of statutory construction
controls, the canon that a statutory direction or authority to take a main action implies the
authority and duty to take the variously ancillary actions necessary to make the main
action effective. Sutherland calls it the “Implied Powers” canon:
A statute which confers powers or duties in general terms includes by implication
all powers and duties incidental and necessary to make the legislation effective.
2B Sutherland Statutory Construction, § 55:4 (7th ed.) (emphasis added). [W]henever a
power is given by a statute, everything necessary to making it effectual or requisite to
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attaining the end is implied.” Antonin J. Scalia and Bryan A. Garner, Reading Law, the
Interpretation of Legal Texts at 60 (Thompson/West, 2012) (quotation omitted). There
are many examples illustrating this canon. See, e.g., Jackson v. City and County of San
Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (“The Second Amendment … does not
explicitly protect ammunition. Nevertheless, without bullets, the right to bear arms
would be meaningless. … Thus the right to possess firearms for protection implies a
corresponding right to obtain the bullets necessary to use them.”) (quotation omitted).8
As Sutherland further explains, legislation cannot be expected to address
“peripheral matters” in the same level of detail as the main matter:
Courts extend statutes by implication and inference because legislation
cannot practically or conveniently, or perhaps even possibly, specify all of
the detailed operational effects it should have in all of the various
circumstances to which it may apply. For this reason, statutory language
tends to focus on a central idea, or to establish general principles or standards.
Legislation often does not mention peripheral matters, or matters of minor
detail, and if these could not be supplied by implication the drafting of
legislation would be an interminable process and the true intent of the
legislature likely to be defeated
Id., § 55:2 (quotation omitted). Thus, the absence in the Tax Act of detail with regard to
peripheral matters such as the limits or consequences of delays in issuing the mandatory
easements necessary to implement the Coastal Plain oil and gas leases, or the timing or
content of agency actions regarding archeology surveys to be conducted at the outset of
the post-leasing implement process, should not be accorded the dispositive significance
8 Second Amendment law has since evolved, Warren v. U.S. Parole Commission, 2023 WL
5348825, *1 (9th Cir. Aug. 21, 2023), but the statutory construction principle remains.
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the Court in this case accorded that absence. See Order at 18-19.
Unlike the statute involved in Gen. Motors, supra, the Tax Act does not address
one way or another the consequence of delay in the various implementing actions that
follow-up the issuance of the lease, but does mandate that the follow-up actions occur,
thereby effectuating the key directive in Tax Act § 20001(c)(1) to issue the leases. See
Tax Act § 20001(b)(2)(A) (Federal Defendants “shall … administer” all phases of the
Program, which includes the post-lease follow-up actions), (c)(2) (Federal Defendants
“shall issue any rights-of-way or easements across the Coastal Plain for the exploration,
development, production or transportation necessary to carry out this section”). The
Court should amend its Order and Judgement and recognize that the various follow-up
matters ancillary to the issuance of the leases by the December, 2021 statutory deadline
must be addressed by the Federal Defendants with an urgency and timeliness proportional
to the statutory deadline for the issuance of the leases.
C. Conclusion
The Court should amend its Order and Judgment to (1) set aside with respect to
non-environment-impacting steps the Federal Defendant’s moratorium on actions to
implement the ANWR Coastal Plains oil and gas program, and (2) direct the Federal
Defendants to carry out actions necessary to implement the oil and gas leases held by
Plaintiff AIDEA at a pace proportional to the urgency expressed by Congress in directing
that the Federal Defendants issue oil and gas leases by December, 2021.
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Respectfully submitted this 5th day of September, 2023.
/s/ David K. Gross
David K. Gross, ABA # 9611065
Zoe A. Eisberg, ABA # 1911094
510 L Street, Suite 700
Anchorage, Alaska 99501
Telephone: (907) 802-2998
Facsimile: (907) 276-3680
dgross@bhb.com
zeisberg@bhb.com
/s/ Ronald W. Opsahl
TREG TAYLOR
ATTORNEY GENERAL
Ronald W. Opsahl (ABA # 2108081)
Assistant Attorney General
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907) 269-5232
Facsimile: (907) 276-3697
ron.opsahl@alaska.gov
/s/ James H. Lister
James H. Lister, ABA # 1611111
Brian V. Gerd, ABA #1810097
1150 Connecticut Ave NW, Suite 350
Washington, DC 20036
Telephone: (202) 862-8368
Facsimile: (202) 659-1027
jlister@bhb.com
bgerd@bhb.com
Attorneys for Plaintiffs Alaska Industrial
Development and Export Authority, North
Slope Borough, Arctic Slope Regional
Corporation, and Kaktovik Inupiat
Corporation
Kathleen C. Schroder (pro hac vice)
Gail L. Wurtzler (pro hac vice)
Mark E. Champoux (pro hac vice)
Nicholas R. Peppler (pro hac vice)
Davis Graham & Stubbs LLP
1550 Seventeenth St., Suite 500
Denver, CO 80202
Telephone: (303) 892-9400
Fax: (303) 893-1379
Email: katie.schroder@dgslaw.com
gail.wurtzler@dgslaw.com
mark.champoux@dgslaw.com
nick.peppler@dgslaw.com
Attorneys for Intervenor-Plaintiff State of
Alaska
Case 3:21-cv-00245-SLG Document 76 Filed 09/05/23 Page 12 of 12
