Rio Blanco plant project to face legal challenge

The federally threatened Dudley Bluffs bladderpod is pictured with a dime to show scale. Photo special to the Sentinel/U.S. Fish and Wildlife Service

A Dudley Bluffs twinpod flower is visited by an ant. The federally threatened Dudley Bluffs bladderpod and twinpod wildflowers are the subject of a lawsuit against the federal government by the West Slope Colorado Oil and Gas Association. Photo special to the Sentinel/U.S. Fish and Wildlife Service

Vegetation including a naturally occurring population of Dudley Bluffs bladderpod plants grows in the foreground as an oil and gas drilling rig operates in the background in Rio Blanco County. The West Slope Colorado Oil and Gas Association has sued the federal government over a project to plant and seed Dudley Bluffs bladderpod and twinpod plants in oil and gas leases without using a nonessential population designation that would exempt the introduced plants from Endangered Species Act protections. Photo special to the Sentinel/U.S. Fish and Wildlife Service

An oil and gas trade group and some northwestern Colorado governments are legally challenging the federal government’s actions in connection with an effort to help two rare plants through transplanting and reseeding.

The West Slope Colorado Oil and Gas Association has sued over the Colorado State University research project involving the Dudley Bluffs bladderpod and Dudley Bluffs twinpod, two wild mustards listed as federally threatened pursuant to the Endangered Species Act, and found only on oil shale outcrops in the county.

Rio Blanco County and Garfield County also are filing briefs in support of the lawsuit, and the Associated Governments of Northwestern Colorado is considering doing the same.

The suit names defendants including the Bureau of Land Management, Fish and Wildlife Service and Department of Interior, and various agency officials.

Researchers hope what’s learned from the project might help lead to the species no longer needing Endangered Species Act protections.

Those supporting the suit say it’s not the research itself they have a problem with. Rather, it’s the government’s failure to designate planted and reseeded plants as nonessential, experimental populations. As a result, Endangered Species Act protections apply to the plants, which can have repercussions for oil and gas leases and county rights of way.

Eleven of the 12 identified locations for the project have existing oil and gas leases.

Rio Blanco County Commissioner Shawn Bolton said the county is worried about the plants restricting the county’s ability to do work in county rights of way.

He said six plants grew naturally in the right of way for County Road 5, which is a main access route in the county for oil and gas companies accessing operations in the Piceance Basin. The county has been working on reconstructing the road, but Bolton said mitigating impacts for the plants would cost $280,000, and that has caused the county to scrap reconstruction in that stretch of the road.

“We’re not paying the $280,000. It’s ridiculous,” he said.

The BLM’s environmental assessment says seven of the research plots are within 300 meters of county roads. For research plants that remain viable after 10 years, Fish and Wildlife will require informal consultation for oil-and-gas, road-building and other activities 100 meters to 300 meters away from plants. Formal consultation will be required for activities within 100 meters because those activities are considered likely to adversely affect the plants. For the first 10 years those buffers are just 50 and 30 meters, respectively.

The BLM’s environmental assessment said six of the seven plots near county roads already are considered occupied or suitable habitat, so only one plot could result in potential new conflicts with the county. It said it would work with Fish and Wildlife and the county to resolve any conflicts that arise.

Fish and Wildlife and BLM officials said the agencies don’t comment on pending lawsuits. West Slope COGA previously had taken the matter to the Interior Board of Land Appeals, which backed the BLM’s actions. Among other things, that board found that the project didn’t violate energy companies’ lease rights because the BLM retains the authority to place conditions on leases if required by the Endangered Species Act.

The board found the BLM also properly mitigated potential impacts to leases and rights of way, through measures such as limits on research plot sizes, and the fact that nine of the approved research plot locations already have no-surface-occupancy or controlled-surface-use restrictions, or are on steep slopes not conducive to oil and gas operations.

The board also notes that the BLM argues that by definition, the research plants can’t be considered experimental because they aren’t being introduced outside the plants’ current range. But the suit says Fish and Wildlife required that the research plots be outside the current range so they would be far enough from existing plants “to avoid negatively influencing genetic flow.”

According to the lawsuit, the BLM rationalized its decision to avoid the experimental designation partly due to the potentially three-year process that designation could involve, and the desire to expedite things so a graduate student assigned to the project could quickly compete her research.

David Ludlam, executive director of West Slope COGA, said his industry has supported, including financially, ongoing research on the plants, and conceptually supports the reintroduction. But he said it is concerned about the “national precedence for species reintroduction that is flagrantly dismissive of valid existing leases, private property, road right of ways, grazing, ranching, and/or other commercial uses of public lands.”

Bonnie Petersen, AGNC’s executive director, said concern over precedence also is prompting AGNC to consider joining in the legal challenge.


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