Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

January 8, 2015

By Susan Hoyt

Byron White U.S. Courthouse

Byron White U.S. Courthouse

The 10th Circuit’s recent decision in Kane County, Utah v. United States, 772 F.3d 1205 (10th Cir. 2014), resolved some issues while obfuscating others.

The Court potentially created a split between the 9th and 10th Circuits when it defined what constitutes “disputed title” for purposes of the Quiet Title Act (QTA). “The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

The Tenth Circuit then turned its attention to the district court’s conclusion that Public Water Reserve (PWR) 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs.”

Read full story | CBA CLE Legal Connection

Dispute Over Utah’s Oil Shale Flowers Heads Back to Court | The Salt Lake Tribune

January 3, 2015

By Brian Maffly

Penstemon 1“The 31-year fight over Utah’s beardtongue, rare wildflowers that grow only near the Uinta Basin’s oil shale outcrops, is far from over despite a new conservation plan that state officials say ensures the plants survival should oil shale mining take off.

This week, the Utah Native Plant Society and other conservation groups formally accused the U.S. Fish and Wildlife Service of ignoring science and caving to political pressure from oil and gas interests when it withdrew a proposed listing for Graham’s and White River beardtongue, also known as penstemon, under the Endangered Species Act (ESA).”

Read full story | The Salt Lake Tribune

Change Coming for Coal Combustion Residuals, Leasing Prices on Public Lands

Two changes in federal environmental management and land regulation are on the horizon.

On December 19, 2014, the EPA signed the Disposal of Coal Combustion Residuals from Electric Utilities final rule.

“EPA finalized national regulations to provide a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants . . . The rule establishes technical requirements for CCR landfills and surface impoundments under Subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation’s primary law of regulating solid waste.”

EPA Website, 2014 Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities

The rule has not yet been published in the Federal Register. To see the pre-publication version of the final rule, click here.

Next month, federal land managers will release proposed rules to change the pricing structure for oil, natural gas, and coal leases on public lands.

“The proposed rules are the key part of an effort the Interior Department has taken in recent years to better ensure that it is getting fair prices for federal energy resources. Current oil and gas valuation rules are more than two decades old and coal rules are a decade old, Interior said Friday. The coal rules would also apply to American Indian land.”

The Hill | Regulators Want to Change Energy Pricing Rules for Federal Land

For more on this proposed rule, click here.

Grand Canyon Uranium Mining Withdrawal Upheld

Grand Canyon

Prescott, Arizona

On September 30, 2014, the federal district court in Arizona granted summary judgment in favor of the former Secretary of the Interior Ken Salazar. The court ruled that the Secretary’s withdrawal of 1,006,545 acres surrounding Grand Canyon National Park from uranium mining in 2012 was in compliance with the law. The Plaintiffs (several mining associations, multiple counties, a private individual, and the Arizona Utah Local Economic Coalition) claimed that the withdrawal violated the National Environmental Protection Act (NEPA) and the Federal Land Policy and Management Act (FLPMA).

NEPA directs government agencies to prepare Environmental Impact Statements (EISs) analyzing environmental effects any time there is a project proposal or action impacting federal public lands. As part of this process, agencies gather, develop, and carefully consider information and studies concerning potential impacts. The BLM prepared a draft EIS to determine the effects of uranium mining on the Grand Canyon, which was then opened up for public comment. When that process was completed, the Department of the Interior issued a Record of Decision (ROD) formally withdrawing the lands from mining for 20 years.

Plaintiffs argued that the BLM could not withdraw the land because there was a lot of uncertainty regarding the impacts of uranium mining on the Grand Canyon. The size of the proposed withdrawal area and its location as remote forest and rural land meant that relatively little data was available for the EIS analysis. They also argued, and the BLM agreed, that uranium mining presented a low risk of significant environmental harm.

Despite these uncertainties, the district court upheld the withdrawal. It ruled that Secretary Salazar did not abuse his discretion by proceeding cautiously and withdrawing the 1 million acres surrounding the Grand Canyon. The court explained that Department of the Interior could exercise caution “when faced with uncertainty due to a lack of definitive information, and a low risk of significant environmental harm.” The lands will be closed to any new uranium mining claims for 20 years. Current mines may still operate because they are grandfathered into the withdrawal as “preexisting rights.”

The district court’s decision is currently on appeal to the Ninth Circuit Court of Appeals.