A federal court ruling that voids nearly 1 million acres of oil and gas leases in Nevada, Utah and Wyoming also means more opportunity for public comments will be restored across the West, including in Colorado, when the Bureau of Land Management seeks to offer leases in greater sage-grouse habitat.
In a ruling Thursday, Chief Magistrate Judge Ronald E. Bush in Idaho ruled that the BLM violated federal law in deciding to curtail opportunities for public comment when considering offering leases in greater sage-grouse habitat, which includes habitat in northwest Colorado.
In 2018, the BLM instituted a policy that resulted in the agency shortening and in some cases eliminating 30-day public comment periods for lease sale proposals, and reducing a protest period from 30 days to 10 days. The change was part of an effort to streamline the leasing process. Bush’s ruling means the 30-day comment periods and protest periods, both the result of a 2010 BLM policy, are reinstated, when lease sales in greater sage-grouse habitat are proposed.
Bush ruled that in its 2018 action, the “BLM inescapably intended to reduce and even eliminate public participation in the future decision-making process.”
He found that the action, issued as an instruction memorandum, was a final agency action “that required notice-and-comment rulemaking” before it could be implemented.
Bush vacated five leases due to the failure to follow the law when it comes to allowing for public participation. If the ruling stands the BLM will be required to reimburse the leaseholders more than $125 million they have paid for the leases.
“Vacatur will ensure the opportunity for objective evaluation of the lease sales, free of any taint,” Bush ruled.
Those leases were issued before Bush in September 2018 issued a preliminary injunction prohibiting the BLM from continuing to apply the 2018 public comment policy when it comes to greater sage-grouse habitat until he made a final ruling on the issue.
That ruling, made final by the ruling this week, applies only to leasing in greater sage-grouse habitat because it’s part of a larger lawsuit by conservation groups focused on the sage-grouse issue.
The suit also accuses the BLM of failing to conform with greater sage-grouse management plans adopted in 2015 for Colorado and other states.
“This (ruling Thursday) is an enormous victory for greater sage grouse and hundreds of other animals and plants that depend on this dwindling habitat,” Taylor McKinnon with Center for Biological Diversity said in a news release. “The judge confirmed that it’s illegal to silence the public to expand fossil-fuel extraction.”
Kathleen Sgamma, president of the Western Energy Alliance, which intervened in the case, said Bush’s ruling “is completely unprecedented, absolutely ignoring basics of the regulatory process.”
“He has ruled that a policy he disagrees with, which didn’t go through the full regulatory process, must be replaced with the previous policy that didn’t go through the regulatory process,” Sgamma said.
Bush ruled that while the 2010 policy also was adopted without a rulemaking process, it was never challenged, and more closely adheres to public-involvement mandates of federal environmental and land-management law.
Sgamma said she would like the BLM to appeal, and as an intervenor her group can appeal as well.
BLM spokesman Derrick Henry said the BLM “continues to support and implement Administration and (Interior) Secretarial priorities through common-sense adjustments to the BLM’s energy and mineral development rules and practices on public lands. In particular, we remain committed to a simpler, more effective leasing process.
“To do this, we have been working within our legal authorities to alleviate or eliminate unnecessary and burdensome regulations, while at the same time upholding public health and environmental protections, including sage-grouse conservation.”
The 2018 public comment restraints have encountered some resistance in Colorado, including from Gunnison County, the town of Paonia and local activists in the case of a proposed 2018 lease sale of acreage in the North Fork Valley.
That acreage wasn’t in sage-grouse habitat but the BLM eventually deferred offering it for reasons not related to the sage-grouse lawsuit.
The greater sage-grouse is considered to be imperiled, but the U.S. Fish and Wildlife Service determined in 2015 that it no longer warranted protection under the Endangered Species Act. That was based on the management plans the BLM adopted then.
The Trump administration since has adopted revisions to those plans, but that action also is being challenged by conservation groups and a preliminary injunction issued last fall reinstated the 2015 plans until a final ruling in that case is issued.