Judge prevents drilling-site work, citing threats to sage grouse

Greater sage grouse, like this one near a gas field, are akin to a deer in the headlights, requiring human benevolence to stay alive. (Angus M. Thuermer Jr./WyoFile)

By Angus M. Thuermer, Jr., WyoFile

A federal judge has prevented drilling and construction on 449 oil and gas leases covering 334,762 acres in Wyoming, saying the federal government didn’t examine potential effects to imperiled greater sage grouse when it leased those lands in 2017.

The U.S. Bureau of Land Management “failed to take a hard look at the direct and indirect impacts to greater sage-grouse,” Chief U.S. Magistrate Judge Ronald Bush of Idaho wrote in a June 9 ruling. He sent the leases back to the BLM for additional scrutiny.

The BLM also failed to consider a reasonable range of alternatives in February, June and September 2017 when it sold rights to develop the parcels, the judge wrote in a 51-page decision. The agency considered only two options — whether to lease or not to lease — not whether the leases could be deferred as had been the previous practice in priority greater sage grouse habitat.

The ruling, which covers leases issued from the Buffalo, Newcastle, Casper, Worland, Lander, Kemmerer, Pinedale and Rawlins BLM offices, came in an ongoing case in which conservationists challenged the Trump administration’s America First Energy Plan. Judge Bush also remanded leases in Montana for reconsideration.

Bush’s decision came in a suit Western Watersheds Project and the Center for Biological Diversity filed naming Secretary of the Interior David Bernhardt and the BLM and claiming they didn’t follow environmental laws when they sold the leases. The State of Wyoming, Western Energy Alliance and Jonah Energy joined the suit on Bernhardt’s side.

“…[U]ntil the concerns referenced in this Memorandum Decision and Order are sufficiently addressed, BLM may not authorize new drilling/surface disturbing activities on the leased parcels,” Bush wrote.

Decision ‘unhinged from facts’?

Conservationists hailed the decision, but Gov. Mark Gordon is “frustrated by Judge Bush’s ruling,” his spokesman wrote in an email. “We are currently evaluating our options as to whether the state will appeal the ruling,” Michael Pearlman said in the note.

Gordon is pleased Bush did not vacate the leases, Pearlman wrote, a sentiment shared by the energy industry.

BLM employee Dale Woolwine tracks grouse on public land in Sublette County in 2015. (Angus M. Thuermer Jr/WyoFile)

But industry leaders still condemned Bush’s decision. The Western Energy Alliance said it was “simply unhinged from the factual record.”

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The National Environmental Policy Act on which Bush based his decision “shouldn’t be endless rounds of re-analysis trying to arrive at some hypothetical, absolutely perfect document,” WEA president Kathleen Sgamma said in a statement.

“Looking for that silver bullet is against the Congressional intent of NEPA and a reason that infrastructure projects in this country take so much longer than they should and some, like Keystone, never get done,” her statement reads.

An attorney for conservationists said the Biden administration should go further and abandon “these unlawful Trump decisions.” Laird Lucas, executive director of nonprofit law firm Advocates for the West, said in a statement the court found “the imperiled sage-grouse is particularly harmed by oil and gas development,” but the Trump administration and BLM “refused to acknowledge those impacts and misled the public.”

Center for Biological Diversity’s senior attorney Michael Saul called Bush’s ruling “another stunning defeat for the Trump administration’s serial lawbreaking policies.”

The Trump administration “targeted some of our nation’s most ecologically sensitive public lands for drilling and fracking, without even considering the consequences,” Western Watershed’s Erik Molvar said in a statement. Among the areas leased, the conservationists said, were parts of the sage grouse-rich Golden Triangle and the Red-Desert-to-Hoback mule deer migration corridor, route of the longest known land-mammal migration in the Lower 48.

Industry officials have said drilling restrictions contained in the leases — limits known as stipulations — constrain development so it would not impact sensitive wildlife habitats.

Missing analyses

In siding with the conservationists, Bush also wrote that the BLM didn’t analyze cumulative impacts drilling would have on sage grouse. BLM violated NEPA by not providing an adequate explanation of why it didn’t consider deferring leasing in priority habitat, Bush wrote.

In failing to take a hard look, the BLM also fell short by not describing “baseline conditions” for greater sage grouse in the lease areas. The agency offered broad descriptions of the bird’s condition where more information was necessary and available, Bush wrote.

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An aerial view showing typical drilling activity in the Pinedale Anticline natural gas field in 2011. (Jonathan Selkowitz/Selko Photo/flickr/SkyTruth)

“NEPA requires this so that the ‘boots-on-the-ground’ characteristics of lease parcels can be understood and examined comparatively, one against another, vis à vis potential lease sales,” he wrote.

Bush also criticized BLM’s position that site-specific impacts are not possible to describe at the leasing stage because nobody knows where wells might be drilled on a particular leased parcel.

But BLM had lots of site-specific information, the judge wrote, including the location of breeding-ground leks and key habitats, annual counts from leks, breeding population trends and the amount of grouse habitat already affected by people and other disturbances like wildfires.

“The upshot of this is to highlight the existence of additional information and data that could have informed a more site-specific impacts analysis than what BLM actually performed,” Bush wrote.

On a side issue, he refused to exclude Western Watersheds from the suit based on claims that it had not engaged the BLM early on with its complaints.

Although Western Watersheds was not involved in some early aspects of the tiff, issues it raised in the suit were brought to the BLM’s attention earlier by others, Bush said, putting the agency on notice that critics were alleging deficiencies that it should address.

Greater sage grouse numbers have declined sharply over recent decades but a series of drilling restrictions imposed in 2015 on Western federal lands kept the U.S. Fish and Wildlife Service from protecting the bird under the Endangered Species Act. Among the safeguards adopted by the U.S. Forest Service and BLM was a focus on first leasing in non-critical grouse habitat and regular deferral of lease sales in “priority” grouse country.

That changed under Trump. His first Secretary of the Interior Ryan Zinke and Zinke’s successor Bernhardt rewrote leasing guidelines.

The conservation groups filed the suit in 2018 after the BLM auctioned the acreage for development. Wyoming and industry joined the action defending the BLM decision.

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