Last week, a federal court ruled that the Bureau of Land Management failed to follow the law in selling oil and gas leases across Southwest Colorado in two recent auctions.
The ruling applies to 14 parcels involving about 10,000 acres that were leased by the BLM in 2017 and 2018 in western San Miguel County around Dry Creek Basin in areas important to the threatened Gunnison sage-grouse.
The saga offers insights into the federal government’s issuance of oil and gas leases, and whether or not competing concerns raised by the public are addressed. In short, the public wants the BLM to carefully “look before you lease.”
In these cases, a federal judge wasn’t persuaded the BLM appropriately considered the site-specific impacts that issuing oil and gas leases could have on the habitat and existence of a threatened wildlife species, or that it adequately involved the public in the review of its decisions.
As context, the BLM in 2013 finalized a sweeping land management plan that found 2 million acres suitable to be leased for future oil and gas development in Southwest Colorado. But the BLM was also careful to note this was a high level strategic decision, and that more careful analysis would be forthcoming before drilling was approved.
The crux question is at what point this required site-specific analysis takes place. Conservation groups, along with San Miguel County board of commissioners, insisted that it happen when the BLM identifies specific parcels it wants to lease, like the 14 parcels covering 10,000 acres at issue here. The BLM instead wanted to first sell the oil and gas leases, then later look at site-specific details once a company proposed to drill.
Out in Dry Creek Basin, the parcels put up for leasing are intermixed with habitat used by Gunnison sage-grouse, one of the most endangered birds in North America, and one dependent on sagebrush habitat. With sage-grouse in serious decline, conservationists raised concerns about how increased construction and oil field traffic, for example, on roads passing through occupied sage-grouse habitat might impact the species’ survival.
The BLM claimed it did in fact look at some site-specific concerns, but never disclosed that analysis to the public or allowed an opportunity for comments. Given these are public land resources, public agencies like the BLM are obliged to involve the public in reviewing decisions.
Another factor in play here is the BLM’s obligation to use the best available information in its decision-making. Circumstances changed significantly after the BLM made its overarching decision about the suitability of 2 million acres for oil and gas leasing in 2013, but before it actually sold the leases in 2017.
In between those years, in 2014 the Gunnison sage-grouse was listed under the Endangered Species Act as a threatened species. That is precisely the kind of new information, and changed circumstances, that should have caused the BLM to go back and reconsider its work. Because the BLM failed to incorporate the best available information about Gunnison sage-grouse, the court rejected the process by which the BLM sold oil and gas leases in 2017 and 2018.
So that’s a bunch of procedural legalities, but what does it mean for whether or not these particular leases can be developed? That’s yet to be decided. The court could simply vacate the leases, find they were leased without legal compliance, and hence are invalid.
In the end, the fate of oil and gas leases affecting dwindling Gunnison sage-grouse consumed years of argument involving the public, government agencies and ultimately federal courts. Wouldn’t it have been simpler to just “look before you lease”?
This content first published in the Durango Herald here.
