A federal judge's ruling is raising doubts about whether the Bureau of Land Management can proceed with offering more than 100,000 acres of oil and gas leases in greater sage-grouse habitat in northwest Colorado in December.
It also could have broader implications because the judge challenged the agency's limit on public comment opportunities on upcoming lease sales. That's something that activists, local governments, Gov. John Hickenlooper and U.S. Sen. Michael Bennet, D-Colo., all have been critical of in the case of the upcoming December Colorado sale, in which the BLM altogether is seeking to offer some 224,000 acres of leases, mostly in northwest Colorado.
In a ruling out of Idaho on Friday, U.S. Chief Magistrate Judge Ronald E. Bush granted several aspects of a preliminary injunction sought by conservation groups. He ruled that starting with the BLM's fourth-quarter lease sales, the agency couldn't make use of certain provisions of a new agency policy aimed at streamlining oil and gas leasing by reducing public comment opportunities related to lease sales.
The ruling comes as part of a lawsuit brought by the Western Watersheds Project and Center for Biological Diversity challenging BLM leasing practices involving greater sage-grouse habitat, and Bush specified that it applied only to leasing in such habitat, which covers about 67 million acres in 11 states.
Officials with the BLM on Monday weren't able to immediately say what impact the ruling might have in the December lease sale in Colorado. Hickenlooper has been urging the BLM to hold off on offering what his office says is more than 100,000 acres of greater sage-grouse habitat acreage included in the sale. He argues the BLM should first complete its work amending a 2015 sage-grouse management plan for Colorado.
Bush wrote in his ruling that there is "significant evidence indicating that BLM made an intentional decision to limit the opportunity for (and even in some circumstances to preclude entirely) any contemporaneous public involvement in decisions concerning whether to grant oil and gas leases on federal lands."
Taylor McKinnon with the Center for Biological Diversity said the BLM is now barred from relying on its new policy in approve lease sales in sage-grouse habitat, including in the upcoming Colorado sale.
He said while the ruling is limited to leasing in greater sage-grouse habitat, its legal principles are applicable more broadly.
"We have been and will continue to raise these concerns about cutting the public out of public lands decisions across the board," he said.
The ruling, which Bush wrote was not a final decision on the case's merits, focuses on a January BLM instructional memorandum, or IM, that has resulted in shortened public comment and protest periods, and has given the agency the option of eliminating some comment opportunities altogether. It has done the latter in the case of much of the acreage it wants to offer in the December Colorado sale, based on its determination that it already previously has done adequate environmental analysis of the proposed leasing, such as in the resource management plan stage.
The public can weigh in on all proposed leasing during an initial scoping period and during a protest stage after sale notices are issued, but those comment periods also are being shortened under the new BLM policy.
The policy change rescinded lease reforms during the Obama administration intended to increase public involvement in the leasing process.
"Our concerns about the legality and the use of the IM are not limited to sage-grouse habitat and we're going to continue to pursue those concerns," McKinnon said.
In repeated letters to the BLM, Hickenlooper has voiced frustration about the more limited comment opportunities. Gunnison County and the town of Paonia have objected to the comment constraints, as have activists in the North Fork Valley, where nearly 3,000 acres still may be offered for leasing after the BLM previously pulled more than 5,000 acres there from the sale. That acreage was pulled due to regulatory questions surrounding the BLM's efforts to lease it because its development could have involved tapping methane coming from the inactive Bowie No. 2 coal mine.
Critics have argued that the BLM's handling of matters involving North Fork Valley acreage have exposed shortcomings arising from a rushed effort to lease acreage.
In a written summary of comments during its environmental review process, the BLM failed to include comments submitted by Paonia and several local conservation and agricultural groups, as well as dozens of individuals.
Laura King with the Western Environmental Law Center said the BLM then said it received the comments but didn't think they contained any substantive material.
"They did contain substantive material that the BLM just didn't take into consideration," she said.
The BLM also had a problem with its website that prevented people from commenting during part of its foreshortened recent comment period.
"BLM corresponded with the affected parties to let them know that similar comments were considered, given (that) similar concerns were expressed by numerous parties, including the town of Paonia," BLM spokesman Steven Hall said Monday.
King said the BLM is making "some really sloppy mistakes."
"We're seeing some in my opinion major problems with the implementation of these short comment periods and limited public participation allowances," she said.
She said she'll be evaluating the recent ruling closely for larger-scale implications when it comes to the new leasing process."It may be the issues that are specific to sage-grouse don't translate as well, but I think the broader point is really clear, that the public participation allowances in the IM are just not enough to allow the BLM to take the public's voice into consideration," she said.
Kathleen Sgamma, president of the Western Energy Alliance industry group, described the ruling as "limited."
"The environmental groups were trying to stop all future leasing, and the judge specifically did not do that. The changes to the leasing process he is demanding only affect leases in sage-grouse habitat.
"… Overall, the ruling was more policy driven than based on actual law, and we are encouraging the government to appeal."
She said Bush's ruling cited a failure of the new policy itself to be subject to a public comment period, whereas the Obama administration policy it replaced didn't go through such a comment period, "an absurd finding unhinged from administrative law."
"An administration has every legal right to set a new policy direction, as was the case here, and a judge should not be setting policy from the bench," Sgamma said.
The BLM didn't respond to requests for reaction specifically on the ruling Monday. But Hall said, "It's hard to argue that the BLM hasn't had a public and open consideration of oil and gas leasing in the North Fork Valley given the amount of controversy the proposal has generated."
He said the process under the National Environmental Policy Act "isn't about voting for this outcome or that outcome, it's about providing information to help inform a decision. Those opposed to energy development in the North Fork Valley have certainly been able to help inform the BLM decision."
He said the BLM "committed to an open, transparent oil and gas leasing process, and currently is considering input from the public, state and Bennet on the December lease sale.