Wildflower ruling irks groups
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A local oil and gas trade group has until midmonth to decide whether to appeal after the federal government recently prevailed in a legal dust-up over two rare wild mustard plants on federal land in Rio Blanco County.
Christine Arguello, a U.S. District Court judge in Colorado, ruled in August against the West Slope Colorado Oil and Gas Association’s legal challenge of U.S. Fish and Wildlife Service and Bureau of Land Management actions in connection with a research project in the county. It involves planting the Dudley Bluffs bladderpod and Dudley Bluffs twinpod on 12 plots.
West Slope COGA can appeal within 60 days of the Aug. 16 ruling.
“We’re still in discussion. A decision hasn’t been made” about an appeal, said West Slope COGA’s executive director, David Ludlam.
Rio Blanco and Garfield counties, the Western Energy Alliance, the Colorado Farm Bureau and the Colorado Cattlemen’s Association all have supported West Slope COGA’s legal action.
West Slope COGA argued in a lawsuit that the plants that Colorado State University researchers are seeking to establish under the study should be designated as experimental, non-essential populations. Instead, populations that remain viable after 10 years will be accorded full protected status under the Endangered Species Act, which has implications for oil and gas, grazing and other activities.
The two species were discovered in 1982 during a Bureau of Land Management land survey, a government court filing says. They grow on barren oil shale outcrops only in northwest Colorado’s Piceance Basin, and the Fish and Wildlife Service says the entire range of the bladderpod, the rarer of the two, extends no more than 10 miles in any direction from where it was first found. The Fish and Wildlife Service determined them to be threatened species in 1990.
Ludlam said the oil and gas industry has invested monetarily in efforts to bolster the wildflowers’ numbers, and backs the research approach in general as one way to help recover the two species. But he objects to the specific approach due to what it means for existing oil and gas leases.
He said an analogy would be, “you buy a peach orchard and somebody walks out there in the middle of the night and plants seeds in it, and all of the sudden you can’t harvest your fruit. That same basic principle is at work.”
Under the approved project, which has been able to proceed despite the lawsuit, researchers are planting collected seeds, or transplanting young plants grown in greenhouses. For populations established after 10 years, proposed activities such as mineral development within 100 meters will require a formal consultation process with the Fish and Wildlife Service. A 30-meter buffer where consultation is required applies for the first 10 years.
Informal consultations will be required for proposed activities from 100 to 300 meters away after 10 years, and 30 to 50 meters away before then.
Eleven of the 12 research plots are within existing oil and gas lease acreage. But the BLM has concluded that due to no-surface-occupancy and other lease restrictions that already applied to some of those plots, as well as other factors, only three research plots are likely to affect future mineral development. But the agency also said oil and gas recovery still could occur through use of directional drilling.
The BLM says that only one county road right of way may be subject to new potential conflicts as a result of the research.
A MATTER OF PRECEDENCE
Ludlam said the importance of the issue to West Slope COGA goes beyond the leases in question. If it appeals, a key reason would be to try to prevent a legal precedence from being set in support of the government’s refusal to make use of the experimental population designation.
“There is a reason the U.S. Fish and Wildlife Service has that special experimental population designation” available to use, he said.
Said Rio Blanco County Commissioner Shawn Bolton, “The problem is they didn’t even follow their own procedures on how they were supposed to do it.”
In not going the route of pursuing the experimental designation, the agency cited factors such as delays in the project. But government attorneys said in a June 2015 court filing that West Slope COGA incorrectly argued that use of the designation is required for reintroduction of a species outside current range. In fact it’s discretionary, the government argued, and it was reasonable for the agency “to weigh the additional administrative burdens, costs, and time delay against any additional benefits that might accrue.”
As of the government attorneys’ filing two years ago, the Fish and Wildlife Service had never used the experimental population designation in the case of plants, the government said. It said experimental population designations provide flexibility primarily in the form of special rules governing a population’s treatment, such as allowing actions that could otherwise be prohibited like taking of a species. It cited an example of a northern Rocky Mountain gray wolf population where the experimental designation allowed “taking” actions, including lethal ones, against problem wolves that attack livestock or domestic animals.
“However, because there is no prohibition on ‘take’ of listed plants, this beneficial flexibility is greatly reduced when applied to plants,” the government argued.
Also, while one purpose Congress had in allowing for experimental population designations was to encourage private landowners to host reintroduced populations on their land, the Rio Blanco County research plots are entirely on federal land, negating that possible benefit, the government noted.
Government attorneys also argued that federal law only authorizes experimental populations outside a species’ current range, a condition that doesn’t apply in the case of the two mustard plants. Arguello ruled that West Slope COGA failed to prove the research populations would be “wholly separate geographically” from the plants’ current ranges.
Arguello also found that the BLM didn’t violate the rights of oil and gas leaseholders, “given the parameters of said rights.”
COSTS FOR THE COUNTY
For Rio Blanco County, a big concern over the plant project is the potential added costs for county road work. Bolton said the county already has had to skip upgrading a portion of County Road 5 because of $300,000 in costs required to mitigate impacts to six of the rare plants that are growing near the road, not as a result of the research project.
“I mean, $300,000 for six plants? That seems a little extreme,” he said.
BLM spokesman David Boyd said his agency has worked closely with the county and the Fish and Wildlife Service “to ensure that impacts to the plants from road maintenance are minimized.”
He said the BLM also is working with the county, Fish and Wildlife Service and the oil and gas industry to develop a programmatic biological assessment to identify strategies for conserving the two plant species.
“This overarching document should increase certainty to proponents of oil and gas projects in the plants’ habitat by outlining conservation and mitigation measures in advance. This should streamline the permitting and (Fish and Wildlife Service) consulting process, since measures will be developed and agreed upon in advance.
“A goal of the strategy is also to provide for the long-term strategic conservation of the plants, and could eventually lead to the de-listing of the two species,” he said.
The BLM hopes to have the document completed and approved by Fish and Wildlife in the next year.