My collegue Michael O’Connell issued the legal alert below on a recent significant Interior Board of Land Appeals decision concerning the intersection of tribal cultural resources and a BLM geothermal lease application:

The Interior Board of Land Appeals (IBLA or Board) decision, Earth Power Resources, 181 IBLA 94 (May 12, 2011), deals with BLM action on a geothermal lease application in Nevada. Citing National Historic Preservation Act (NHPA) section 304, 16 U.S.C. § 470w-3, BLM withheld from a geothermal lease applicant an ethnographic study of Ruby Valley that identified a tribal traditional cultural property (TCP) important to an Indian Tribe and disapproved the lease application in order to protect the TCP. The Board overturned BLM’s decision and remanded the case for further action.

In the appeal, BLM filed a motion under 43 C.F.R. § 4.31 to withhold all of the ethnographic study from the appellant, again citing NHPA section 304. That section allows a federal agency to withhold from disclosure to “the public” information about “the location, character or ownership of historic property” if the agency and the Secretary of the Interior “determine that disclosure may – (1) cause a significant invasion of privacy; (2) risk harm to the historic resources; or (3) impede the use of a traditional religious site by the practitioners.” When such information is developed in connection with an NHPA section 106 consultation, the Secretary is required to consult with the Advisory Council on Historic Preservation. Advisory Council regulations extend these consultation requirements to the applicable State Historic Preservation Officer (SHPO). 36 C.F.R. § 800.11(c). BLM had not complied with these procedures.

The IBLA noted that significant portions of the two-volume ethnographic study did not fall into categories section 304 is designed to protect. The IBLA denied BLM’s motion to withhold evidence for two reasons. First, because BLM failed to prove that disclosure of the entire study was prohibited by NHPA section 304. Second, notwithstanding any willingness of the appellant to agree under oath not to use or disclose information in the ethnographic study except in the appeal and to return all copies of the study, as provided in 43 C.F.R. § 4.31(c), the Board found that BLM failed to adhere to section 4.31 procedures for requesting non-disclosure of record evidence.

The Board then considered the appeal (but not the ethnographic study) and overturned BLM’s lease disapproval. The Board held that BLM had not adequately explained its decision how the geothermal project would impact the TCP and did not provide a reasoned explanation for discounting the possibility and adequacy of protective stipulations.

While protecting Native American cultural resources and not interfering with exercise of Native American religion are public interest factors BLM must consider, the Board noted that the NHPA is a procedural statute that does not require BLM to protect TCPs at the expense of other public interests without articulating a reasonable public interest analysis of other public interest factors it considered, in this case, a renewable energy resource. Where BLM’s decision is complete rejection of a lease in order to protect one public interest factor, the Board held BLM’s record must show that BLM considered imposing lease stipulations to protect that public interest. The Board remanded the case to BLM for further action.

If you want more information about this appeal, contact Michael O’Connell at 206-386-7692 or