Thompson Divide debate
Leases in roadless areas central part of energy discussion
A key dispute within the dispute over proposed oil and gas development in the Thompson Divide area involves dozens of leases issued in national forest roadless areas there in 2003.
That was two years after President Bill Clinton, in one of his final acts as president, declared a national forest rule to protect roadless areas from development.
Peter Hart, staff attorney with the Carbondale-based Wilderness Workshop conservation group, has some questions about the legality of leases issued without restrictions on surface disturbance after Clinton’s action.
“We’re in the process of sorting all that out,” he said.
Such leases in the Thompson Divide area and elsewhere have gained the nickname of “gap” leases because they were issued at a time when the legal status of the national roadless rule was in question because of prior court rulings later being upheld.
About 55,000 leased acres in the Thompson Divide area are in roadless areas, and 47,000 of those acres are in the White River National Forest.
Gary Osier, a former Forest Service employee who served as forest minerals specialist for the White River National Forest, said energy companies had been “badgering him to death” during the 1990s to make some of the areas in question available for leasing, but he postponed acting for years.
“There was this rumor of this roadless rule and we were told to hold off,” he said.
Then, after the national rule was implemented, a Wyoming judge found it to be null and void. Osier said he consulted with the regional Forest Service office, which talked to officials in Washington, D.C., who said the land should be offered for leasing.
“That was the legal opinion at that point in time,” he said.
Despite that Forest Service decision during the Bush administration, the battle over the 2001 rule continued to play out in court, with sometimes-conflicting rulings.
But last year, the 10th Circuit Court of Appeals, which has jurisdiction over both Wyoming and Colorado, ruled in favor of the national rule, which also was upheld by the 9th Circuit Court of Appeals.
And this month, the U.S. Supreme Court declined to hear a challenge to last year’s 10th Circuit Court ruling, meaning the national rule was upheld “as the law of the land,” Hart said.
“We think the 2001 rule has been the rule of law since 2001,” Hart said.
He said a Colorado-specific roadless rule implemented this year “explicitly preserves limitations on surface use” for leases issued in roadless areas after 2001.
In August, however, when the Forest Service released a draft document to guide oil and gas leasing on the White River National Forest, it emphasized that it would have no effect on the rights associated with existing leases, including their ability to build roads in roadless areas. The agency said its document is consistent with Colorado’s roadless rule.
Its proposed action would bar surface disturbance on about 205,000 acres of the land to be deemed available for leasing, partly reflecting the fact that about 141,000 of the proposed available acres are in roadless areas. But such limits would be able to be placed on currently leased areas only in the case of new leases, if the current ones expire.
Leased lands with no-surface occupancy rules would have to be reached by directional drilling. Hart said he’d like to see the Forest Service go further by not leasing for oil and gas at all in roadless areas, to prevent these areas from being ringed by well pads and other facilities, isolating wildlife habitat. A White River National Forest planning alternative the Forest Service agreed to also consider in response to the concerns of the Thompson Divide Coalition would allow for no new leasing in lands under the forest’s jurisdiction in that area, including in existing lease areas if those leases expire.
Meanwhile, Hart said the Wilderness Workshop is watching closely for what proposals are made for drilling in currently leased roadless areas within the Thompson Divide.
Antero Resources has proposed drilling up to four wells on “gap” lease acreage in the northwest portion of the Thompson Divide, but under its proposal the well pad would be placed outside the roadless area. How any initial drilling on gap leases in the Thompson Divide area occurs will be important because of the precedential impact it will have on future drilling on such leases in the area, Hart said.
For all the focus on roadless areas, Osier said Thompson Divide also has a lot of areas with roads, and “is probably one of the most multiple-use pieces of ground on the whole (White River National) Forest.”
He said he’s “walked virtually every foot” of the area, and it has high potential for natural gas and some oil development.
“What’s interesting to me is there’s only a little teeny bit of the whole (White River) forest that has high potential, and that’s the only part that we identified originally (for leasing), this whole Thompson Divide thing. I think most of the people who are screaming and hollering about it have never been there,” he said.