Protest of Colorado BLM February 6, 2007 Lease Sale Parcels

January 23, 2007

Sally Wisely, State Director
Bureau of Land Management
U.S. Department of the Interior
2859 Youngfield Street
Lakewood, Colorado 80215-7076

VIA FACSIMILE 303-239-3799

PROTEST OF COLORADO BLM FEBRUARY 6, 2007 LEASE SALE PARCELS

COC 70731, COC 70744, COC 70760, and COC 70765

 

The Colorado Wildlife Federation and the National Wildlife Federation (Protesters) protest the inclusion of the above proposed lease parcels, including lands within four State Wildlife Areas, in the upcoming February 6, 2007 Competitive Oil and Gas Lease Sale to be held by the Colorado State Office of the Bureau of Land Management (BLM).  Please fully consider this request to withdraw from the pending oil and gas lease sale the Little Snake, Browns Park, Spanish Peaks and Red Lion State Wildlife Areas.

THE PROTESTERS AND THEIR INTERESTS.

Colorado's State Wildlife Areas were acquired and managed by the Colorado Division of Wildlife specifically for wildlife, habitat and for wildlife-related recreation. They are limited rather than multi-use parcels, unlike the national forests and BLM lands.  Wildlife-related recreation includes hunting, fishing, and wildlife viewing.  Hunting and fishing revenue is an important segment of the Colorado economy.  Wildlife viewing is the fastest growing outdoor recreational activity in the United States.

The surface interests in the Little Snake, Wiggins Unit, Spanish Peaks and Red Lion State Wildlife Areas were acquired as a fee title, in part using federal funds from the Federal Aid  Program of the U.S. Fish and Wildlife Service (USFWS).  The Federal Aid program is a grant program, consisting of federal excise tax proceeds, under which funds are approved by the Regional Director of the USFWS for specific state agency projects (including the Colorado Division of Wildlife), coupled with strict requirements and federal audits.  The mission of the Federal Aid program (authorized by the Federal Aid in Wildlife Restoration Act) is "to strengthen the ability of State … fish and wildlife agencies to restore and manage fish and wildlife resources to meet effectively the consumptive and nonconsumptive needs of the public for fish and wildlife resources."

Each of these four State Wildlife Areas was acquired because they possess high wildlife values, as stated below.   In short, these State Wildlife Areas are very important to the people of Colorado.  Our membership finds your proposed auction of these special lands startling and unacceptable.  

About the Protesters

The Colorado Wildlife Federation (CWF) is a statewide tax exempt 501(c)(3) nonprofit, membership based, mainstream wildlife conservation organization.  Formed in 1953, CWF is Colorado's oldest wildlife conservation organization.  CWF's mission is to promote the conservation, sound management, and sustainable use of Colorado's wildlife and wildlife habitat through education and advocacy.  CWF understands that state wildlife areas are critical to conserving Colorado's unique wildlife, hunting and fishing heritage and wildlife viewing opportunities.  These wildlife-related recreation pursuits enrich the well-being of Colorado's residents and out-of-state visitors and form a substantial segment of Colorado's economy.

The National Wildlife Federation (NWF) is a national member-supported non-profit conservation, education, and advocacy organization.  NWF is associated with conservation organizations in 47 states and territories, including CWF in Colorado.  NWF is dedicated to conserving wildlife and other natural resources, and believes that hunting, fishing, and trapping are legitimate recreational pursuits and useful wildlife management practices.  NWF works to promote responsible management of wildlife on public lands.

The protesters have well-established histories of participation in BLM planning and management activities, including within the Little Snake and Royal Gorge Resource Areas.  Members of CWF and NWF have visited and used State Wildlife Areas for fishing, hunting, wildlife viewing, and other activities, and will return to State Wildlife Areas in the future.  Mineral development of the Little Snake, Browns Park, Spanish Peaks, and Red Lion State Wildlife Areas (SWAs) will harm protesters' members interests in those areas, especially if development is allowed to proceed, as proposed, absent adequate study and safeguards against loss of wildlife resources.

STATEMENT OF REASONS

I.          DESCRIPTION OF THE IMPACTED STATE WILDLIFE AREAS.                             

A.        Little Snake State Wildlife Area (COC-70760)

The Little Snake SWA consists of approximately 5,000 acres of sagebrush habitat, about 20 miles north of Maybell, Colorado.  This "vast and scenic area, "originally purchased to provide access for hunting, is partially open to the public and provides camping, hiking, fishing, hunting, "wonderful . . . wildlife photography & viewing."  Colorado Division of Wildlife, "Little Snake SWA," available at wildlife.state.co.us/LandWater/StateWildlifeAreas.  The area consists of rolling hills and gulches which "provide food, water, shelter & cover for a large population of deer, pronghorn antelope & sage grouse."  Id.

BLM is proposing, in parcel COC-70760, to lease portions of the Little Snake SWA, which provides important nesting and increasingly fragmented winter range habitat for greater sage grouse, a species listed as a state species of concern. As BLM knows, substantial sage grouse habitat has already been impacted by drilling in northwestern Colorado, and research has shown that standard development practices and mitigation measures have severe adverse consequences for sage grouse populations.  One active sage grouse lek is located on this State Wildlife Area and two additional active leks are in close proximity.  In addition, this State Wildlife Area functions as important mule deer and elk winter range, and provides home for antelope, jackrabbit, cottontail, grouse, and golden eagles. 

B.        Browns Park State Wildlife Area (Wiggins Unit) (COC-70765)

In parcel COC-70765, BLM is proposing to lease portions of the Browns Park State Wildlife Area (Wiggins Unit).  This area is a very important strategic parcel for managing big game in northwestern Colorado.   As to its quality bull elk hunting, it is important to understand that to hunt in this prized game management unit (GMU 201) a hunter must accumulate a very high number of points and planning for such "once in a lifetime" hunt requires planning over a number of year.  Leasing of this State Wildlife Area will adversely impact hunting opportunity, hunters' years of planning and expectations, and revenue to the Division of Wildlife. 

Other recreational opportunities within the Wiggins Unit include wildlife watching, photography, camping, and "excellent hunting for deer, elk, pronghorn antelope, sage grouse & waterfowl."  Colorado Division of Wildlife, "Brown's Park SWA – Cold Springs & Wiggins Units," available at wildlife.state.co.us/LandWater/StateWildlifeAreas.  This parcel furnishes important elk calving areas and crucial habitat for sage grouse.  As local agriculture practices and needs adjacent to this State Wildlife Area have resulted in destruction of sagebrush which is main vegetation that supports sage grouse populations, the sagebrush on this State Wildlife Area is increasingly important.   

C.        Spanish Peaks State Wildlife Area (COC-70731)

BLM is proposing to lease the Spanish Peaks State Wildlife Area which  features wild turkeys (encouraged by plantings), elk, mule deer and black bears.  This State Wildlife Area is featured in the Colorado Wildlife Viewing Guide.  Approximately 6,500 acres of 7,000 to 8,000-foot elevation terrain northwest of Trinidad, the Spanish Peaks SWA offers hunting for deer, elk, rabbit, squirrel, turkey, bear, and mountain lion.

Colorado Division of Wildlife, "Spanish Peaks SWA," available at wildlife.state.co.us/LandWater/StateWildlifeAreas.  The area also offers camping, hiking, wildlife observation, and photography, as well as stunning views of the Spanish Peaks.  The Spanish Peaks SWA also "provides valuable public access and recreation opportunity, critical habitat for deer, elk and turkey, as well as game damage mitigation." 

D.        Red Lion State Wildlife Area (COC-70744)

BLM is proposing to lease the Red Lion State Wildlife Area (COC-70744). This 1300-acre northeast Colorado State Wildlife Area offers upland bird habitat and associated wetlands, hunting and warmwater fishing access, ditches, water control structures, a man-made lake, and a quality waterfowl viewing platform for wildlife viewers.  Huntable wildlife includes rabbit, pheasant, dove, waterfowl, bobwhite quail, and deer.

II.        THE BUREAU OF LAND MANAGEMENT POSSESSES FULL

DISCRETION NOT TO LEASE STATE WILDLIFE AREAS.

Under the statutory and regulatory provisions authorizing this lease sale, the BLM has full discretion whether or not to offer these lease parcels for sale.  The Mineral Leasing Act, 30 U.S.C. § 226(a), provides that "[a]ll lands subject to disposition under this chapter which are known or believed to contain oil and gas deposits may be leased by the Secretary." (emphasis added).  The Supreme Court has concluded that this "left the Secretary discretion to refuse to issue any lease at all on a given tract."  Udall v. Tallman, 380 U.S. 1, 4 (1965); see also Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th Cir. 1992); McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) ("While the [Mineral Leasing Act] gives the Secretary the authority to lease government lands under oil and gas leases, this power is discretionary rather than mandatory."); Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1975).

Exercise of the discretion not to lease is particularly appropriate in a situation where, as here:

• Demand for wildlife recreation is increasing and certain wildlife populations, particularly greater sage-grouse, are declining
• Applicable NEPA documentation has not specifically addressed the effects of mineral leasing on split-estate State Wildlife Areas
• The Little Snake RMP is currently undergoing revision, and premature leasing could unduly prejudice available alternatives
• Perhaps most important, the Colorado Division of Wildlife, the state agency charged with management of wildlife resources, adamantly opposes the leasing of these SWAs, and proposed lease stipulations are entirely inadequate to address CDOW concerns

Under these circumstances, it would be warranted for BLM to withdraw, or at a minimum defer, mineral leasing of split-estate SWAs pending full environmental analysis, meaningful consultation with CDOW, and development of a management approach that would maintain the wildlife values for which the SWAs were obtained. 

III.       THE LEASING OF STATE WILDLIFE AREAS ABSENT FULL EXAMINATION OF THE ENVIRONMENTAL CONSEQUENCES WILL VIOLATE THE NATIONAL ENVIRONMENTAL POLICY ACT

The National Environmental Policy Act, 42 U.S.C. § 4332(C), requires the BL M to take a "hard look" at the environmental consequences of their proposed actions.  Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).  When offering oil and gas leases for sale without stipulations prohibiting surface occupancy—leases such the June protested leases—the agencies must assess the environmental impacts of reasonably foreseeable post-leasing oil and gas development prior to issuance of the lease.  See Pennaco Energy, Inc. v. United States Dept. of the Interior, 377 F.3d 1147 (10th Cir. 2004); Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988). 

A.        The Little Snake and Royal Gorge RMP EISs Do Not Adequately Address the Consequences of Split-Estate Mineral Leasing on State Wildlife Areas

The BLM cannot legally avoid analysis of environmental consequences by insisting that lease issuance is a mere paper transaction without on-the-ground consequences.  Regardless of the fact that additional federal actions will precede commercial drilling, the issuance of a lease (particularly without stipulations allowing the BLM to preclude surface disturbance) commits the leased parcel to development and conveys legal rights to the purchaser.  See 43 C.F.R. § 3101.1-2.  Following lease, land management agencies' ability to prevent impacts to other resources is limited to those "reasonable measures" that are "consistent with lease rights granted."  Id.  Where, as here, the lease right allows surface occupancy, a significant commitment of resources is made at the time of lease issuance.  This is an action with readily foreseeable on-the-ground consequences.  See Conner, 848 F.2d 1441; Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). 

As the Tenth Circuit Court of Appeals recently clarified, Park County Resource Council v. United States Dept. of Agriculture, 817 F.2d 609 (10th Cir. 1987) does not excuse the BLM from its obligation to analyze these consequences prior to leasing.  Pennaco Energy, Inc. v. United States Dept. of the Interior, 377 F.3d 1147, 1162 (10th Cir. 2004).  Park County may allow the agency to forego preparation of an Environmental Impact Statement if and when it has prepared an extensive environmental assessment covering the leases in question.  This, however, is not the case; the February 2007 parcels have had no NEPA documentation prepared for them save out-of-date RMP documents that do not (and cannot) account for significant new developments and information since 1991 (Little Snake oil and gas amendments) or 1996 (Royal Gorge RMP), including increased recreational demand, greatly increased levels of mineral development, and declining populations of greater sage-grouse and new scientific information regarding the species' vulnerability to adverse effects from mineral development.   Nor does reliance on RMP documents alone suffice for the core NEPA function of adequate consideration of alternatives, particularly where, as here, the RMP EIS makes no specific mention of potential effects on split-estate State Wildlife Areas.  See Pennaco Energy, 377 F.3d at 1162 (explaining that documents such as "Determinations of NEPA Adequacy" cannot satisfy NEPA's "hard look" standard).  Because none of the February 2007 lease parcels is entirely No Surface Occupancy ("NSO") leases, leasing, which confers specific rights to develop that the BLM and Forest Service cannot readily deny, is a concrete federal action with readily foreseeable environmental effects, and cannot legally go forward without NEPA analysis.  See 43 C.F.R. § 3101.1-2.

Neither the 1989 Little Snake RMP (and accompanying EIS) and Colorado Oil and Gas Leasing & Development Plan Amendment and Final EIS, nor the 1996 Royal Gorge RMP (and accompanying EIS) contain any discussion or analysis of the impacts of split-estate oil and gas leasing or development on the Little Snake, Browns Park, Spanish Peaks, or Red Lion SWAs.  Absent a NEPA analysis that considers the impacts of such leasing and development on wildlife habitat, wildlife populations, hunting, recreation, recreation-dependent business, and CDOW wildlife management objectives, and absent any consideration of alternatives (including no leasing or no surface occupancy within SWAs, or consideration of the range of mitigation measures discussed by CDOW in that agency's comments), see 40 C.F.R. § 1500.2(e), it is inappropriate and premature to offer these leases for sale at this time.  See Pennaco Energy, 377 F.3d at 1147. 

B.         Changed Circumstances and New Scientific Information Require Additional Analysis

Not only do the Little Snake and Royal Gorge RMPs not contain analysis of the impacts of split-estate mineral leasing on SWAs and the resources for which they were designated, the very general analysis of oil and gas impacts in their accompanying EISs is out-of-date and should be updated to take account of new factual developments and new scientific information.  In particular, BLM should analyze the relationship between levels of oil and gas development that have substantially increased since the issuance of the Little Snake RMP and 1991 Oil and Gas EIS, and increased levels of demand for wildlife recreation:

As Coloradans and the BLM well know, extensive landscape changes have occurred since the release of the last Little Snake Resource Area Plan.  Coupled with this change, the population of Colorado has increased from 3.l7 million people to 4.79 million in the last 20 years.  Demand for multiple types of outdoor recreation has skyrocketed, and as stated above, numerous surveys have found that wildlife viewing is the fastest growing activity in the United States.  In addition to substantially drawing upon the resources of all public lands, the magnitude of the demand has become challenging to accommodate on State Wildlife Areas, which are managed specifically for wildlife and wildlife-related recreation.  Beginning in 2006, non-sportsmen to use State Wildlife Areas must purchase a state habitat stamp, as well as sportsmen. 

In addition, prior to leasing SWAs such as the Little Snake, which are significant for their breeding, nesting, and winter range habitat for greater sage-grouse, the BLM should take into account recent scientific research regarding impacts of oil and gas development on greater sage-grouse behavior, nesting success, and population viability.  See Matthew J. Holloran, Greater Sage-Grouse Population Response to Natural Gas Field Development in Western Wyoming 73 (2005).   We must emphasize that scientific research conducted in Moffat County found that approximately 80 percent of greater sage-grouse nest within four miles of active leks.  It is reasonable to be very concerned that gas development within four miles of leks may affect sage-grouse nesting success.   In particular, as the U.S. Fish and Wildlife Service has repeatedly noted, Holloran's research indicates that the standard stipulations BLM relies on in documents such as the Little Snake and Royal Gorge EISs (0.25 mile no surface occupancy around leks, seasonal limitations on initial drilling within 2 miles of leks) are insufficient to maintain sage-grouse breeding populations within gas fields.   This new scientific information must be considered both in pre-leasing analysis, development of effective mitigation measures, and in the RMP revision process.

IV.       LEASING MINERALS UNDERLYING THE LITTLE SNAKE AND/OR BROWNS PARK STATE WILDLIFE AREAS, WITHOUT A NO SURFACE OCCUPANCY STIPULATION, WILL IMPROPERLY CONSTRAIN THE ALTERNATIVES AVAILABLE TO BLM IN REVISING THE LITTLE SNAKE RESOURCE MANAGEMENT PLAN

The BLM is currently in the process of amending (a Draft Environmental Impact Statement is expected this month) the Little Snake Resource Area Resource Management Plan (Little Snake RMP).  This revision was prompted in significant part by the need to address levels of current and foreseeable mineral development substantially greater than those analyzed in the RMP and its 1991 oil and gas supplemental EIS.  See Little Snake Revision Notice of Intent, 69 Fed. Reg. 222 (Nov. 18, 2004).

Council on Environmental Quality NEPA regulations dictate that when, as in the case of the Little Snake RMP revision, a federal agency is in the process of developing an EIS, it may not take actions that would "limit the choice of reasonable alternatives."  40 C.F.R. § 1506.1; see also 40 C.F.R. § 1502.2(f).  Although these regulations obviously do not prohibit any activity within a planning area during RMP revision, in this case, given new information, serious potential concerns regarding an important and un-analyzed resource, and an EIS that has not yet seen a public draft and preferred alternative, it would be entirely inappropriate to foreclose alternatives including no surface occupancy (NSO) or SWAs by issuing non-NSO leases at this time.  CEQ regulations explain that "[i]nterim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives."  40 C.F.R. § 1506.1(c).  Leasing the Little Snake and Browns Park SWAs without NSO stipulations, contrary to the recommendation of CDOW, the wildlife agency charged with managing those SWAs, would improperly prejudice any ultimate decision on the RMP by foreclosing the preservation of those SWAs without surface-disturbing oil and gas development. 

V.        BLM SHOULD DEFER LEASING OF STATE WILDLIFE AREAS TO ALLOW FOR FULL AND MEANINGFUL CONSULTATION WITH THE COLORADO DIVISION OF WILDLIFE REGARDING APPROPRIATE MANAGEMENT MEASURES AND STIPULATIONS

We note that BLM prudently exercised its discretion to defer leasing within one of these very same SWAs (the Browns Park SWA, Wiggins Unit) during the August 2006 lease sale, in order to allow better consultation with CDOW on wildlife issues.  Dan Olsen, "Prime hunting parcel off auction block," Craig Daily Press (Aug 9, 2006) ("Jerry Strahan, assistant field manager with the BLM's Little Snake Field Office in Craig, said the parcels are being deferred to coordinate with the Colorado Division of Wildlife on wildlife issues.")  We have read the detailed CDOW recommendations for the Little Snake SWA.  The CDOW emphasizes that the parcel should not be leased for oil and gas development.   The agency also developed a list of proposed stipulations to include if the decision were to lease the parcel.  Evidently, consultation to date has not adequately addressed CDOW's concerns for these parcels and their wildlife, hunting, and recreation resources.

We also note that in correspondence regarding these proposed leases, CDOW has laid out an extensive list of avoidance and mitigation measures that would be required to protect wildlife, environmental, and recreational resources should these areas be leased.   These measures are similar to the oil and gas best management practices that the Colorado Mule Deer Association and the Colorado Wildlife Federation have developed during the past two years, which have gained 49 signatures by sportsmen's and other conservation organizations.  These reasonable proposed stipulations include: clustering of wells on multiple-well pads, implementing directional drilling, simultaneous completion of wells to facilitate faster drilling and development rates, winter visitation restrictions, managed development of road networks through transportation planning, extensive wildlife monitoring, annual development planning and consultation, maximum density of 4 wells/section, prohibition of compressor stations and other ancillary facilities, and activity limitations to reduce user conflict.  These recommended measures go far beyond the limited timing stipulations proposed in the Lease Sale Notice for the SWA parcels.

We recognize that BLM has acknowledged, at least for parcels COC70760 and 70765 (although, inexplicably, not for 70731 and 70744), the existence of the SWA and need for development of a Surface Use Agreement.  See Notice of Addendum to Lease Sale Notice (Jan. 4, 2007) at 1 and LS-17.  This Lease Notice alone, however, is insufficient to maintain adequate authority to require that development be conducted in a manner sufficient to address CDOW concerns.  We are deeply concerned that simply putting operators on notice (and not even doing that for the Spanish Peaks and Red Lion parcels) that "cooperative effort will result in the development and approval of a Surface Use Agreement") fails to adequately preserve the authority to mandate an acceptable agreement and development and mitigation plan.  BLM has long taken the position that federal oil and gas leases convey a right to permit drilling unless it would violate pre-

 

existing lease stipulations or nondiscretionary statutory requirements.  See 43 C.F.R. § 3101.1-2.  To avoid issuing leases that might potentially convey use rights inconsistent with proper management of SWAs, BLM should issue no SWA leases unless they contain either (1) a non-waivable NSO limitation within the SWA, or (2) mandatory, non-waivable stipulations sufficient to ensure that no surface-disturbing development can occur without the completion of a binding, non-discretionary surface use agreement and plan acceptable to the surface management agency.

REQUEST FOR RELIEF

For the foregoing reasons, we request that you withdraw oil and gas leases located on the four State Wildlife Areas from the February lease sale.   We also request an opportunity to meet with you and agency staff to discuss this matter further.

Respectfully submitted on this 23rd day of January, 2007.

On Behalf of the Colorado Wildlife Federation and National Wildlife Federation.

BY:

_____________________

Suzanne O'Neill
Executive Director
Colorado Wildlife Federation
4045 Wadsworth Blvd., Suite 20
Wheat Ridge, Colorado   80033
(303) 987-0400 (telephone)
(303) 987-0200 (fax)

_[_/s/ on original]____________________

Michael A. Saul
Associate Counsel
National Wildlife Federation
2260 Baseline Road, Suite 100
Boulder, CO 80302
(303) 441-5166 (telephone)
(303) 786-8911
saul@nwf.org